Merryweather Foam Latex Co.

National Labor Relations Board - Board Decisions

Nov 6, 1974

214 N.L.R.B. 686 (N.L.R.B. 1974)

686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Merryweather Foam Latex Company and Shirley
Leiter . Case 8-CA-8052
November 6, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On June 27, 1974, Administrative Law Judge Stan-
ley N. Ohlbaum issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, insofar
as they are consistent with the Decision herein, and
to adopt his recommended Order.
The complaint alleged that Respondent discharged
Shirley Leiter because of her union or other protect-
ed concerted activities in violation of Section 8(a)(3)
and (1) of the Act. Respondent contends that it has
no antiunion motivation but rather discharged Leiter
on account of certain remarks that Leiter made to
other employees. The Administrative Law Judge
found that the asserted reason for the discharge was
a pretext and that the real reason was Leiter's union
organizing activity. He therefore sustained the com-
plaint allegation. We agree.
Leiter had been openly active in organizing in the
plant for the International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers
of America. The Union began its organizing efforts
in October 1973. In November it filed a representa-
tion petition under Section 9 of the Act seeking to
represent Respondent's employees. The Board's Re-
gional Director dismissed the petition on November
27, 1973, on the ground that Respondent's employees
were represented by Merryweather Employees Shop
Committee under an existing collective-bargaining
agreement and the Committee was not defunct. In
February 1974, after election of new Shop Commit-
tee officers, the Committee voted to affiliate with the
Union.
i We do not adopt the Administrative Law Judge's findings respecting
Respondent 's assistance to the Merryweather Employees Shop Committee
since no such allegation was made in the complaint We also find the evi-
dence insufficient to determine that Quality Control Assistant Patricia Tuc-
zakov was a supervisor Neither finding is relevant to the 8 (a)(3) conclusions
as to the discharge of Shirley Leiter and the independent 8(a)(1) findings of
unlawful interrogation and threats
During the Union's organizational campaign in
October and November, Leiter openly distributed
union handbills, buttons, and stickers and wore
union buttons and insignia. Before this period Leiter
had experienced no employment problems. She had
been employed since April 1972, as a quality control
inspector. She had received a pay increase in May
1973, and had been complimented on her work in
early October by the manager of her department. Af-
ter work on November 7, 1973, and before work on
November 8, she distributed union buttons and stick-
ers.2 On November 7, a machine Leiter was operat-
ing, and on which she was inexperienced, broke. She
received no criticism at the time and the machine
was repaired quickly by the quality control manager
and Leiter resumed its operation. On November 8,
however, Respondent gave Leiter a written warning
notice for careless operation of equipment causing
damage. Leiter's subsequent protest against the
warning notice was rejected by Respondent.'
Respondent posted a notice to its employees on
November 26 advising them that the Board had dis-
missed the Union's representation petition. Upon
reading the notice, in the company of other employ-
ees, Leiter made a remark to the effect that "he must
have paid them off." On November 28, union repre-
sentatives met with the employees and read to them
the Regional Director's letter dismissing the petition.
At this meeting the employees designated an election
committee to arrange for an election of new officers
of the Employees Shop Committee. Thereafter it was
reported to President Miller that Leiter had made a
further remark to two Shop Committee members on
November 29 that Miller had "blackballed" a former
employee from getting a job elsewhere, but that the
unemployment bureau had made him reemploy the
person.
On Friday, November 30, President Miller called
Leiter into his office and asked her a host of ques-
tions. Miller's secretary was present and took notes.
Miller asked Leiter whether she had made the derog-
atory remarks of November 26 and 29 as reported to
him and also asked specific questions to ascertain her
responsibility for union activity, while advising her
that "the interview had nothing to do with her union
activities. . . ." ° Leiter denied making the derogato-
2 Employee Colbetzor assisted Leiter in the November 8 distribution
l Leiter received a second written warning notice , dated November 14, for
not taking defective parts to the department manager when told to do so by
Quality Control Assistant Manager Tuczakov Respondent does not con-
tend that either incident prompted Leiter's discharge
These questions were "Do you deny the fact that you have been telling
lies and circulating rumers [ sic] to other employees in the plant '[", "Do you
deny that you stated we had blackballed a girl in an attempt to get another
position at Rogers Manufacturing Company9 ", "Do you deny telling other
employees that the Barberton Unemployment Office had gotten after our
214 NLRB No. 87
MERRYWEATHER FOAM LATEX COMPANY
ry statements. During the interview Miller told Leit-
er, according to the employee's credited testimony,
that he knew she was a "leader of the people. .. ."
Leiter replied, "If it isn 't me it would be somebody
else." Miller answered that he could take care of that.
President Miller also asked Leiter who had removed
from the bulletin board his notice about the Regional
Director dismissing the union petition. When Leiter
replied that she did not know and appeared equivo-
cal in her response, Miller said that she was lying and
he would find out.' Finally, Miller advised Leiter
that "she would have to provide him with proof that
the accusations against her were false by 1:30 p.m.
Monday December 3, 1973, or she would be dis-
missed from the company employ."
By Monday, December 3, Leiter had prepared no
further proof of the falsity of Miller's charges other
than to say to Miller that she had not done anything.
President Miller discharged her then, but gave her no
written statement of the reason.
On December 5, Miller called together the three
employees who had been selected as an election com-
mittee (Colbetzor, Davis, and Fogg), asked who had
formed it and why they had, asked the meaning of
the election committee and who had the notes of the
meeting which formed it, and told the employees that
they were following the wrong procedure as set out in
the Shop Committee's bylaws, mentioning specifical-
ly that the election notice of candidates' names post-
ed by the election committee included Shirley Leiter
who had been discharged. President Miller told the
three employees that none had work records good
enough for them to be "involved in anything like
this" and that, if they continued, he would "have to
take drastic action."
Respondent contends that Leiter's discharge was
prompted by her accusations against Respondent
and not by her union activity. It asserts that none of
the questions put to her by President Miller about
her union activities were the reasons for the dis-
charge. The evidence shows that, prior to her union
activity Respondent clearly regarded Leiter as a good
employee, but after Leiter openly organized for the
Union, Respondent was quick to criticize her for as-
sumed error and expressed a hostile attitude toward
her and the organization of an outside union.' The
changed attitude is revealed by President Miller's
questioning of Leiter as well as members of the elec-
company for letting an employee go and because of this action we hired the
girl back9", "Do you deny that you made the statement that Mr. Miller had
bought off the National Labor Relations Boards" , Do you deny that you
made threats amd intimidated people in the shop in order to get them to
sign for the unions" , "Do you deny that while working for the company on
the floor that you took advantage of this situation to talk with other employ-
ees and encourage them to join the Union' In other words dunng your work
time you campaigned for the union "
687
tion committee and by Miller's telling Leiter that he
knew she was the leader. We find, from a review of
the credited evidence, that the reasons advanced by
Respondent for discharging Leiter were pretexts to
conceal the real reason which was Leiter's union ac-
tivity. Accordingly, we find that Respondent violated
Section 8(a)(3) and (1) of the Act.
We further find, in agreement with the Adminis-
trative Law Judge, that Respondent violated Section
8(a)(1) by the coercive interrogation and threats of
economic reprisal to employees Colbetzor, Davis,
and Fogg on December 5, 1973.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Merryweather Foam Latex
Company, Barberton, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended order.
5 Quality Control Assistant Manager Tuczakov testified that she had sug-
gested to Miller, when he asked about the removal of the notice (apparently
before November 30), that it could have been Leiter who removed the no-
tice
6 In his December 17 pretrial affidavit given to a Board agent , Miller
swore that "Shirley Letter initially was a good worker until the UAW started
its organizational campaign "
DECISION
1. PRELIMINARY STATEMENT; ISSUES
STANLEY OHLBAUM, Administrative Law Judge: This pro-
ceeding under the National Labor Relations Act as amend-
ed, 29 U.S.C. Sec. 151, of seq. ("Act") I was tried before me
in Akron, Ohio, on February 2027, 1974, with all parties
participating throughout by counsel and afforded full op-
portunity to present evidence and contentions, as well as to
file briefs which were received on March 28 and 29, 1974.
Record and briefs have been carefully considered.
The principal issues presented are whether Respondent
violated Section 8(a)(1) of the Act through interrogation of
employees concerning their concerted organizational activ-
ities protected under the Act and by threatening them with
economic reprisals by reason thereof; and whether Re-
spondent violated Section 8(a)(3) and (1) by discharging
(and failing and refusing to reinstate or reemploy ) its em-
ployee Shirley Leiter for her role in those activities, thereby
discriminating against her as well as interfering with, re-
straining and coercing other employees in their free exer-
cise of such activities.
Upon the entire record 2 and my observation of the testi-
1 The complaint, dated January 18, 1974, grows out of charges filed on
December 4, 1973 Unless otherwise specified , all dates herein are in 1973
2 The tnal transcript has been corrected in regard to typographical and
obvious errors
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
monial demeanor of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
II. JURISDICTION; PARTIES
At all material times, Respondent Merryweather Foam
Latex Company has been and is an Ohio corporation en-
gaged in fabrication of rubber products, with its principal
office and place of business in Barberton, Ohio, whence
annually in the course and conduct of that business it ships
directly in interstate commerce to places outside of Ohio
products valued in excess of $50,000.
I find that at all material times Respondent has been and
is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act; that at all of those
times International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
("Union") has been and is a labor organization within the
meaning of Section 2(5) of the Act; and that until her dis-
charge on December 3, 1973, under circumstances to be
described, Shirley Leiter, Charging Party herein, was an
employee of Respondent at its foregoing plant.
III. ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. General
Respondent manufactures foam rubber products in its
plant in Barberton, near Akron, Ohio, whence it sells and
distributes that product in interstate commerce. Its presi-
dent and principal for the past 27 years has been James W.
Miller, and at the times here involved its Quality Control
Manager has been his son, Michael Miller.
2. The Employees' "Shop Committee"
Since 1965 Respondent has been signing a succession of
"collective agreements" with a "Shop Committee" of its
employees known as "Merryweather Employees Shop
Committee." The circumstances of the origin, formation,
maintenance and support of this committee, and the prepa-
ration of these agreements, have not been supplied in this
proceeding. It is, however, noted that the current agree-
ment between Respondent and this committee (Resp. Exh.
2), on Respondent's letterhead, is for 3 years (July 21,
1971-74) and may be "reopened" for extension before its
stated expiration. It is undisputed that at no time has this
"committee" collected any dues. The collective agreement
provides that in the event of arbitration-required therein
to be by an "arbitrator" who "must be slected [sic] by mu-
tual agreement" between management and the shop com-
mittee-the cost thereof shall be "share [d] equally" by
management and the shop committee (Resp. Exh. 2). There
is no indication as to the degree of employee support for
this "committee," which is described and recognized in the
agreement as "the exclusive bargaining agent of the em-
ployees." 3
The agreement includes the provision that "There will be no strikes,
lockouts, work stoppage, picket lines, slowdowns, sit-downs, secondary boy-
Insight into the functionings of the Shop Committee was
afforded by Patricia Tuczakov, who testified as
Respondent's witness . Tuczakov swore that she has been
active on the Shop Committee as its "Secretary" or "Secre-
tary-Treasurer" ° for 6-1/2 years, to September 15, 1973
(and, as indicated below, beyond that time), and partici-
pated in the negotiation and conclusion of the "collective
agreement" (Resp. Exh. 2) which has been referred to.
(That agreement bears her signature as "Secretary-Treasur-
er" under her then maiden name of Esposito.) There is no
indication of the circumstances under which agreements of
such verbiage and complexity were drafted and " negotiat-
ed." According to Tuczakov, in 1972 no employee "re-
sponded" to electing or nominating people to serve on the
Shop Committee until she (whose term, alone of all Shop
Committee officials, ran for 2 years instead of 1 year) post-
ed a notice on the bulletin board, after which elections
were held in October, 1972, at which time Shirley Leiter-
whose discharge is one of the principal issues in the instant
case-was elected vice president of the Shop Committee
and first became active thereon, for a 1-year term expiring
on September 15, 1973. Further according to Tuczakov,
again at election time in 1973 nobody "responded," this
time there being "rumblings about they wanted a union";
and this time even though she posted a notice on the bulle-
tin board in or around mid-September, no election took
place. Since no election to the Shop Committee took place
in 1973, Tuczakov-still according to her testimony-con-
tinued to act as Secretary of the Shop Committee and on
its behalf to post notices and announcements to employees
on the bulletin board, although her term had expired and
she (further according to her own testimony) no longer
after September 15, 1973, consulted with other Committee
members because their terms had expired and "technically
we were not a committee." She nevertheless continued to
consult with Respondent' s assistant vice president and
plant general manager, Ron Standen, who continued to
supply her, for or as "the Committee," with information
regarding personnel actions affecting employees.
In view of her long-continued position of preeminence, if
not dominant leadership, in the affairs and activities of the
Shop Committee, it is appropriate to examine the position
occupied by Tuczakov in Respondent's hierarchy.
3. Supervisory status of Tuczakov
Patricia Tuczakov has been in Respondent's employ for
8-1/2 years. Working in Quality Control under
Respondent's quality control manager, Michael Miller,
Tuczakov is engaged in making out certifications as well as
in company paperwork including office typing and filing.
She is 1 of only 3 "Grade 4" employees in the "bargaining
unit" of 110 employees defined in the "collective agree-
cotts or disturbances even of a momentary nature during the life of this
agreement The Committee agrees that it will not suthorize [sic] , sanction or
ratify any stoppage of work, slow-down or sit-down during the life of this
agreement and guarantees to support the Company fully in maintaining
operations in every way Participation by any employee or employees, in
any act violating this provision in any way will be complete and immediate
cause for discharge by the Company " (Resp Exh 2.)
4 Tuczakov testified, and Respondent stipulated, that she was on occasion
permitted to carry on this activity on paid Company time
MERRYWEATHER FOAM LATEX COMPANY
ment"; the other 2 are the head of Receiving and the head
of Shipping. The "collective agreement" which has been
referred to, lists four levels of "work classifications," of
which "Grade 4" is the highest, involving the top level of
(among other things) "responsibility for production of
other employees" (Resp. Exh. 2).5 According to
Respondent's president and chief executive, James Miller,
employees in the three lower grades (i.e., Grades 1, 2, and
3) are hourly paid. Credited testimony of General
Counsel's witness Shirley Leiter establishes that she as well
as other employees of Respondent regarded themselves as
required to take, and that they did in fact take, work direc-
tions and orders from Tuczakov-thereby stamping her as
a supervisor within the Act's definition. According to Leit-
er, the position title of Tuczakov is that of "Assistant Qual-
ity Control Manager," with punted business cards so stat-
ing, and Tuczakov is the only female in the plant with her
own desk. Louella Raleigh, who has been in Respondent's
employ for 7 years and who was president of its Shop
Committee in 1972-73, testifying as Respondent's witness,
conceded that Tuczakov, just like Quality Control Manag-
er Michael Miller himself "checked [my] work . .. on
many occasions." Joann Ludwig, Respondent's cementing
area supervisor, with perhaps 30 employees under her, also
called as Respondent's witness, described Tuczakov as
"head ... or assistant manager of the quality control de-
partment," 6 under Michael Miller, and with employees in-
cluding Shirley Leiter working under her.
Tuczakov herself, even though a sometimes arrogant,
evasive, and unsatisfactory witness, conceded that other
employees (including Shirley Leiter and Mary Ripley)
worked under her and carried out her orders,' and that it
was she who distributed paychecks to employees for "quite
a while";8 and it was Tuczakov whose report to
Respondent's principal about a November 26 incident cen-
tering around Shirley Leiter resulted in Leiter's discharge,
as will be shown. It is also to be observed that when Qual-
5 Needless to say, such a provision in a collective agreement is not deter-
minative of, nor binding upon the Board or court upon the question of who
is or is not a "supervisor" within the Act's definition
6 Preferring and crediting this testimony of Respondent's own supervisor
Ludwig, I do not credit the transparently evasive testimony of Tuczakov
that her job title was that of "Quality Control Assistant," amended after
some prodding to "Assistant to the Quality Control Manager " On cross-
examination, Tuczakov conceded with great seeming reluctance that she has
"probably" used the title "Assistant Quality Control Manager" (In a pre-
trial affidavit to a Board agent, she described hereself as "Assistant to the
Quality Control Manager ") As to the business cards used by her, as de-
scribed above, identifying her as "Assistant Quality Control Manager,"
while eventually conceding on cross-examination that she does indeed have
such cards, Tuczakov nevertheless asserted that she "couldn't be that posi-
tive" whether the cards have anything on them other than the Company
name and her name-an unusual sort of card for a rank-and-file factory
worker to have However, without satisfactory explanation, neither a copy
of the card itself , nor of any of Respondent's records showing Tuczakov's
written job title or functional classification, was produced to dispel any
doubts Under these circumstances, I would regard myself as unjustified in
assuming that had they been produced they would have supported her testi-
mony
7In her characteristically evasive and contentious style, Tuczakov later
attempted to modify this by characterizing her work directives to these
subordinate employees as not "orders," with which the employees neverthe-
less complied
8 Tuczakov attempted to minimize this, too, by volunteering that in her
absence somebody else-Leiter-did this
689
ity Control Manager Michael Miller issued a "warning no-
tice" to Shirley Leiter on November 14, 1973, it stated it
was because of Leiter's failure to comply with a "direct
order from her grade 4 supervisor"-i.e., Tuczakov (G.C.
Exh. 5). Finally, during the direct examination of General
Counsel's witness Shirley Leiter, Respondent stipulated
upon the record that Leiter's "grade 4 supervisory" was
Tuczakov.
Upon the entire record presented, it appears to be rea-
sonably clear and I accordingly find that at the times here
material Patricia Tuczakov was a supervisor of Respon-
dent within the meaning of the Act. Thus, at least one of
the mainstays, if indeed not the longest and principal
mainstay, of Respondent's "Shop Committee" has been its
own supervisor Tuczakov.
We proceed to a description of the attempted organiza-
tional activity under an outside labor organization which
took place among Respondent's employees in the fall of
1973, eventuating in the unfair labor practices here com-
plained of, including the discharge of Shirley Leiter.
4. October-November 1973: Employees' attempted
organizational activity under an outside labor union
It will be recalled that the term of office of the members
of Respondent's "Shop Committee," to which Shirley Leit-
er had in October 1972 been elected as vice president, ex-
pired on September 15, 1973, and that a long-term official
of that "Committee," Respondent's supervisor, Tuczakov,
found no employee interest or "respon[se]" at that time for
the election of a new "Committee." Consistent therewith,
General Counsel's witness Shirley Leiter, an impressively
truthful witness whom I credit, testified that the "Commit-
tee as such" simply ceased to exist and function on Sep-
tember 15, 1973.
With the seeming demise of Respondent's "Shop Com-
mittee" in mid-September 1973, organization for collective
bargaining under an outside Union commenced among
Respondent's employees at the beginning of October, with
Shirley Leiter soon moving into a position of leadership.
The outside Union under which organization of
Respondent's employees was attempted after September 15
was the Euclid, Ohio, branch of International Union, Unit-
ed Automobile, Aerospace and Agricultural Implement
Workers of America ("UAW"), which ultimately filed a
representation petition on their behalf seeking a Board-
supervised secret ballot election (Case 8-RC-9283). Orga-
nizational activity seeking to organize Respondent's em-
ployees for representation by UAW commenced on Octo-
ber 2, 1973. Supervisor Tuczakov, testifying as
Respondent's witness, admitted on cross-examination that
she observed handbilling on behalf of UAW at the en-
trance to Respondent's plant commencing October 2, 1973.
Continuing thereafter in October and November, Leiter (as
well as Yvonne Colbetzor, a fellow employee) were ob-
served distributing UAW buttons as well as organizational
campaign stickers; and Leiter, as well as other employees
of Respondent, openly wore UAW buttons and insignia in
the plant, within the conceded observation of Supervisor
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tuczakov as well as its president James Miller .9 At the
employees' organizational meeting held by UAW on Octo-
ber 23, Leiter called the attention of her fellow employ-
ees-some apparently for the first time (e.g., Sylvia John-
son) to the terms of their employer's "collective agree-
ment" with the "Shop Committee," and turned it over to
UAW for review by its attorneys.
Shirley Leiter had been in Respondent's employ, as a
"Grade 2" quality control or in-process inspector (a nonsu-
pervisory job) since the beginning of April 1972. Until her
advent into a position of leadership in the employees' pro-
tected concerted activities, she had no employment prob-
lems. Indeed, she had received pay increases, the last at the
end of May 1973, with Respondent's president, James
Miller, stating to her that she was getting a raise and pro-
motion because of the good job she had done. She had also
been complimented on her work as recently as the begin-
ning of October 1973 by Quality Control Manager Michael
Miller. As of the end of October 1973, she had an unblem-
ished employment record with Respondent-whose presi-
dent, James Miller, conceded at the trial that she was not
discharged for any work-related shortcoming. James Miller
also swore in a December 17 pretrial affidavit that "Shirley
Leiter initially was a good worker until the UAW started
its organizational campaign." Even Supervisor Tuczakov,
as Respondent's witness at the trial, characterized Leiter's
work as "excellent" and that she had recommended Leiter
for a raise which she received.
On November 7, Shirley Leiter was directed by Quality
Control Manager Michael Miller (in his mid-twenties) to
operate the "Dillon machine," a task which was not or had
not been Leiter's Job. Miller gave her about 10 minutes'
instruction in the operation of the machine and then left.
Shortly thereafter, according to Leiter, after she com-
menced operating the machine, "a little metal piece at the
top of it snapped" and she so informed Miller, who showed
no concern or irritation but readily repaired it in 5 or 10
minutes. Leiter then resumed operating it. Leiter's account
of this incident, as aforedescribed, is in no way contra-
dicted by Michael Miller (or anybody else), who without
explanation was not produced to testify. Later that day
(November 7), after work, Leiter received some UAW but-
tons and began distributing them to employees, also after
work. She resumed doing so on the following morning (No-
vember 8) at the plant entrance-through which all person-
nel, including management and supervisors, enter-for
about a half hour before work.1O Early in the afternoon of
that day (November 8), Michael Miller handed Leiter a
formal written "Warning Notice !!," dated or predated
November 7 and signed by Michael Miller, in relation to
the described incident of the previous day for "Careless
operation of Dillon Machine resulting in damage to equip-
ment" (G.C. Exh. 4). Leiter's subsequent (November 12)
protest against this "warning notice" was formally rejected,
also of record, by Assistant Vice President and Plant Man-
e On this subject, Miller testified that although most of the employees
discontinued wearing UAW buttons or other insignia after the dismissal of
the UAW petition for election on November 27, Leiter continued to do so
(indeed, "at least six" at one time, according to Miller)-an action which
Miller characterized as "childish "
10 In the morning, Leiter, assisted by Colbetzor, also distributed UAW
stickers, as well as buttons, to employees
ager Ron Standen (G.C. Exh. 6, November 13; also signed
by Michael Miller). As stated below, President James Mill-
er conceded a number of times at the trial that Leiter's
discharge was not because of this incident.
After the described incident of November 7-8, Leiter
continued her organizational activities on behalf of UAW,
including the continuous display of its buttons and em-
blems. According to Supervisor Tuczakov, testifying as its
witness, on November 14 or 15 when in the course of an
inspection by her (Tuczakov) she found some defective
parts, she directed Leiter to take them to Quality Control
Manager Michael Miller. It is undisputed that the parts
had not been made or assembled by Leiter and involved no
fault on Leiter's part. According to Tuczakov, Leiter de-
clined to take the parts to Miller because she (Leiter) did
not wish to see the responsible employee " get a white slip
because [we] need[ed] all the votes that [we] could get right
now." While not disputing her failure to take the defective
parts to Miller as directed by Tuczakov, Leiter credibly
insists that defects of this variety had "many a time" not
been reported in the past (including by Tuczakov), but had
simply been summarily replaced; and that, indeed, such
defects were even allowed to go out uncorrected on express
orders of Michael Miller. Nevertheless, Leiter candidly
concedes she was technically in error in not complying lit-
erally with Tuczakov's directions. For this, Leiter was giv-
en another formal "Warning Notice!!," dated November
14 and signed by Michael Miller (G.C. Exh. 5). However,
at the trial President James Miller expressly conceded that
this likewise was not the cause of Leiter's discharge.
According to the testimony of President James Miller,
on or about November 26 he received a telephoned notifi-
cation from the Board's Regional Office that UAW's elec-
tion petition had been dismissed by the Regional Director,
and he thereupon on the same day (November 26) signed
and posted (or caused to be posted-one of the company
secretaries , Patricia Bolesny, testified that it was she who
did the actual posting on that date) a notice to that effect
on the Company's bulletin board." Various witnesses, in-
cluding Tuczakov, called by Respondent, testified that
they were present in a group clustered around the bulletin
board that day (November 26), apparently reading that
"bulletin," when Leiter was overheard to remark, as vari-
ously recounted at the trial: "He must have bought them
off" (Respondent' s witness Doris Sigrist, a clerk-typist);12
"Apparently he had paid them off . . . the union [isn't]
getting in" (Respondent's witness, Louella Raleigh, in its
employ for 7 years and 1972-73 president of the "Shop
Committee"); I and "Boy, he sure must have paid them off
11 Why or how Respondent received such a telephoned notification on
behalf of the Board on November 26 is unexplained Miller 's posted "bulle-
tin" announcing it (Resp . Exh 4) is indeed dated November 26, even
though the Regional Director's written notification to the Union of his dis-
missal of its petition is dated November 27 (Joint Exh I) According to
Miller, he also posted the Regional Director's November 27 letter when he
later received a copy of that
12 Sigrist was insistent that no name of any kind was mentioned by Leiter,
and also that another person there, whom she was professedly unable to
identify, also remarked, "Yes, that's the only way he could have gotten out
of it"
13 Raleigh claims to have recognized Leiter's voice , since Leiter's back
was to her (It is not claimed that Leiter was the only one talking) Like
Sigrist, Raleigh maintained that no name of any kind was used Raleigh also
MERRYWEATHER FOAM LATEX COMPANY
plenty" or "Hell, he sure must have bought them off"
(varying versions supplied by Respondent' s witness-super-
visor, Tuczakov).14 Tuczakov reported this to President
James Miller , who testified Tuczakov told him that Leiter
had said, "Ain't that hell, he must have paid them off plen-
ty to get off of that." IS So far as Leiter herself is con-
cerned, she testified she is unable to recall making any of
the statements ascribed to her. However, in view of the
cumulative general weight of the testimony of the witnesses
who allegedly overheard the remark, while I am unable to
determine precisely what it was that Leiter said, it is impos-
sible for me to reject their general testimony on this subject
in its totality. I accordingly find that Leiter did indeed on
the occasion in question pass some remark of the type de-
scribed, without however in any way mentioning any name
or in any way indicating that Miller had "paid off" the
Board or any agent, representative, or employee of the
Board, as is now apparently being suggested by Respon-
dent.
On November 28, a further UAW organizational meet-
ing of Respondent's employees was held. At that meeting,
the Regional Director's letter of November 27 to UAW
was read, stating that he had decided to dismiss the UAW
representation petition upon the ground that there was in
effect a subsisting "collective-bargaining agreement" be-
tween Respondent and the "Shop Committee," which was
"not defunct" (Joint Exh. 1). Thereupon, the employees
there present, apparently upon the urging or suggestion of
Leiter and another employee, designated an election com-
mittee of three (Colbetzor, Davis, and Fogg) to nominate
or arrange for the election of a new employees' Committee,
since, as expressed by Colbetzor, "as far as we were con-
cerned there was no committee." (It will be recalled that
the old Committee had expired on September 15.) Also at
this meeting, Leiter turned over to UAW, for review by its
attorneys, a copy of the existing "collective agreement" be-
tween Respondent and the "Shop Committee."
On November 29, according to Respondent' s witness,
Louella Raleigh-concerning whose credibility I have al-
ready had occasion to comment adversely 16 -she (Ra-
leigh) allegedly overheard Leiter remark in the presence of
Tuczakov that Respondent had been constrained or com-
swore at first that she never told Miller and that Miller never asked her
about this, on recross-examination , however, when confronted with an affi-
davit given by her to a Board agent on January 4, 1974, Raleigh conceded
that she signed an affidavit for Miller on December 6 about the matter, and
that in that affidavit she identified or indicated Miller by name in connnec-
tion with Leiter's alleged remark In view of her patent hostility and conten-
tiousness , as well as her prevaricativeness, attenuated by her testimonial
demeanor as observed, it is impossible for me to credit Raleigh in any
contested particular not otherwise established or corroborated.
14
According to Tuczakov, she observed employee Byers "nodded in some
sort of agreement" with Leiter Also according to Tuczakov (on cross-exam-
ination), there was apparently posted on the bulletin board another docu-
ment from Miller-never otherwise clearly identified or produced here-
stating that the Company's contract with the Shop Committee was "valid "
i5 It will be observed that in Miller's version of what he was told by
Tuczakov there is no suggestion of any "payoff" to anybody, Miller's ver-
sion being consistent, for example, with payment of a substantial legal fee
Miller also admitted nobody at any time stated to him that Leiter men-
tioned either his (Miller 's) name or the NLRB in connection with Leiter's
remark at the bulletin board
16 Fn 13, supra
691
pelled to take into or to take back into its employ an em-
ployee it had "blackballed" when that employee had at-
tempted to obtain employment elsewhere. Raleigh's ac-
count is supported by Tuczakov (also testifying as
Respondent's witness) to the extent that the latter likewise
testified that on November 29 Leiter asked Tuczakov and
Raleigh whether they had heard about Respondent's hav-
ing "blackballed" one of its employees when she had ap-
plied elsewhere for a job, to which Tuczakov had, in seem-
ing character, remarked, "Bulls-t." Tuczakov also testi-
fied, however, that this discussion was among the three of
them-i.e., Leiter, Raleigh, and Tuczakov-only, as Shoo
Committee officials or on Shop Committee business. 7
Tuczakov-who acknowledged that on one occasion she
had threatened to "punch [Leiter] in the nose"-promptly
reported this to President James Miller-who, as will be
shown, assigned this as an additional reason for discharg-
ing Leiter, under circumstances about to be described.18
On Friday afternoon, November 30, Shirley Leiter was
summoned into the office of President James Miller, with
secretary Patricia Bolesny there for the purpose of taking
notes. In a bristling confrontation, Miller announced that
he had some questions to put to Leiter, and he proceeded
to do so. He indicated he was "mad" because he had heard
Leiter had said he had "paid off the NLRB." Leiter denied
saying this. Miller also stated that he knew Leiter was a
"leader of the people or what was going on," to which her
response was that, if not she, it would be somebody else,
and Miller retorted he "could take care of that." Miller
demanded to know who had removed from the bulletin
board his November 26 announcement concerning the Re-
gional Director's decision 19 dismissing the UAW represen-
tation petition. Leiter said she did not know. Miller said
she was "lying." After further discussion in similar vein,
with Leiter asserting-as confirmed by the testimony of
Respondent's witness, Bolesny-that she had encountered
no problems with Respondent "until the union situation
came up"-Miller told Leiter that unless she provided him
with "proof" by 1:30 p.m. on Monday, December 3 (it will
be recalled that the meeting under description took place
on Friday afternoon, November 30) that the accusations
against her were "false," she would be discharged. Leiter
asked Miller for a list of the questions or points he was
raising-substantially all of which she had in effect disput-
ed and dented.20 Such a list was subsequently provided to
her 21 At no time-as confirmed by Respondent's witness
i7 In characteristic fashion, Tuczakov later attempted to weasel out of this
by claiming the discussion was among the three Shop Committee officials
not in their "official" capacity or on its business, but merely as "employ-
ees ; ' I am not persuaded
1Tuczakov's prompt report to Miller of such official "Shop Committee"
business may be regarded as shedding additional light on the true nature of
the "Shop Committee" under Tuczakov's guidance for so many years
19
Then as yet apparently unannounced publicly See fn 11, supra
2° Corroborated by Respondent' s witnesses , Bolesny and James Miller
21
Le , G C Exh. 7, which Leiter concedes is in effect a substantially
accurate list of Miller 's questions and charges , which she disputed and de-
nied It is, for example, noted that as to the question thereon, "Do you deny
that you made the statement that Mr Miller had bought off the National
Labor Relations Board," Miller himself does not claim-as shown above-
that Leiter said this Patricia Bolesny, the notes-taker , testifying as
Respondent's witness, conceded that her "notes" were "notes . not dicta-
tion"
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bolesny, who was there-did Miller give any indication to
Leiter of what kind of "proof" he was requiring her to
collect and provide over the intervening weekend.
B. Alleged Violations
1. December 3: Discharge of Shirley Leiter
As threatened on Friday afternoon, November 30, Shir-
ley Leiter was again summoned into the office of President
James Miller on Monday afternoon, December 3. When
Miller asked Leiter if she had "anything to say," Leiter-
who had on the preceding Friday denied and disputed sub-
stantially all of Miller's charges 22 -said, "No, I haven't
done anything" and indicated that since she was being ac-
cused she should be confronted with the witnesses (whose
alleged identity had not been disclosed to her) against her.
Miller thereupon summarily discharged her and ordered
her escorted off the premises by his son Michael.
Regarding the various matters raised by him with Leiter
at the described office confrontation on November 30 (as
set forth in Respondent's summary thereof, G.C. Exh. 7),
Miller expressly conceded or testified at the trial. (1) that
Respondent's "Warning Notices" of November 7 and 14 to
Leiter, described above, were not the reason for her dis-
charge; (2) that Leiter was not discharged for any reason
related to her technicaljob performance;23 that Miller "ac-
cepted" Leiter's denial that she had "made threats and inti-
midated people in the shop in order to get them to sign for
the Union" (G.C. Exh. 7); (4) that Miller does not in fact
claim that Leiter "made the statement that Mr. Miller had
bought off the National Labor Relations Board" (G.C.
Exh. 7) as he charged her with; (5) that Miller had at no
time been told by anybody that his (Miller's) name or the
NLRB had been mentioned by Leiter in her remark at the
bulletin board; (6) that Miller "accepted" Leiter's denials
as to certain of the accusations against her, and that the
only reasons he discharged her were the accusations con-
cerning (a) the "NLRB payoff" and (b) Respondent's
"blackballing" of and being required to rehire an employ-
ee;24 (7) that Miller assumed the accusations as to which he
did not "accept" Leiter's denials, to be true; that he never
asked Leiter for a sworn statement denying them; and that
"it would be very difficult" for Leiter to prove those accu-
sations to be untrue, as he was requiring Leiter to do, and
that he gave no indication of what kind of "proof" (i.e., of
Leiter's innocence) he would expect 25
22 Confirmed by Respondent's witnesses, Bolesny and James Miller
23 In a pretrial affidavit given to a Board agent , Miller swore on Decem-
ber 17 that "Shirley Letter initially was a good worker until the UAW start-
ed Its organizational campaign "
24 The "blackballing" and rehiring appear to involve the same employee,
as expressly described by Respondent ' s witness Raleigh and as James
Miller's testimony also indicates
25 I reject Miller's belated assertion at the trial that if Leiter had on De-
cember 3 given him in writing , such as by a letter , the very same denials she
had given him orally at their preceding Friday (November 30) session, he
"might I can't say for certain" have considered that to be adequate
"proof," particularly since at no time did he disclose to Leiter who her
accusers were If this were in fact the true state of Miller 's mind-he con-
ceded he had a terminal paycheck all ready for Leiter prior to the December
3 discharge notification, but "would have been prepared to tear it up if she
It is, finally, conceded that at no time did Respondent
supply Mrs. Leiter with the written statement as to the
reason or reasons for her discharge, as requested by her
and expressly required under the "collective agreement"
between Respondent and its "Shop Committee" (Resp.
Exh. 2.) nor is there any indication that that "Shop Com-
mittee"-whether existent, nonexistent, or in limbo-has
ever in any way "investigate [d]" or "challenge [d] the pro-
pnety" of that discharge as therein also provided (id.).
2. December 5 and 7: Interrogation and economic threats
It will be recalled that Respondent's employees met on
November 28 and designated three of their number-Col-
betzor, Davis, and Fogg-to serve them as an election
committee to make necessary arrangements for the election
of a new employees' Committee to replace the old Commit-
tee which had expired or become moribund on September
15.
On December 3-the date of Mrs. Leiter's discharge-
the employee had a further organizational meeting, at
which that election committee of three prepared an elec-
tion notification announcement (G.C. Exh. 2) and on De-
cember 4 a handbill or further notification of election (G.
C. Exh. 3) .26
At the trial, Respondent's counsel conceded that these
employees' meetings of November 28 and December 3, as
well as their designation of this "election committee," con-
stituted concerted activity protected under the Act.
On December 4, President James Miller-according to
his own testimony-saw the employees' election notifica-
tion (G.C. Exh. 3) on the bulletin board and he removed it
without further ado. He says he did this because in his
judgment the notice was "very ambiguous" and "was not
following the [Shop Committee's] by-laws" and he so noti-
fied the employees' election committee (Colbetzor, Davis,
and Fogg) at a meeting in his office. On the same day
(December 4), the employees were made aware-apparent-
ly some, like Davis (a member of the employees' "election
committee"), for the first time-of the Shop Committee's
"bylaws" through the unremoved posting thereof on the
bulletin board that day by Supervisor Tuczakov.
Copies of the employees' "new Committee" election no-
tification were posted on the bulletin board by the above
"election committee" on December 5 at about 7:15 a.m. At
8:30 a.m., the three members of the election committee-
Colbetzor, Davis, and Fogg-were summoned and escort-
ed by Assistant Vice President and General Manager Ron
Standen to the office of President James Miller, who, dis-
playing a copy of their election notification, demanded to
know "the meaning of the election committee," who had
formed it," "what it [is] all about," and "why [you are]
doing this." When the employees informed Miller that it
was "for employee representation," Miller replied that they
were using "wrong procedure" and to "get together with
had brought the proof"-it would have been a simple matter for him to
have said so and for Leiter to comply
26 The inartful nature of these procedures and announcements is an elo-
quent testimonial to the lack of sophistication of their authors , as well as
their need for advice and guidance on organizational matters from a quali-
fied other source
MERRYWEATHER•FOAM LATEX COMPANY
the old committee members 27 and talk to some of them."
When Gloria Fogg pointed out that they had already done
this and that they did not know the "procedure," Miller
insisted that the "old committee" did. He also referred to
the Shop Committee's "bylaws" which had been posted on
the bulletin board the day before. Miller then added that
none of the three employees' "work records" were "good
enough" for them to be "involved in anything like this" or
"to be in anything like this," that they should "stop and
think about it" before they "jumped into anything like this
again," and that if they continued he would "have to take
drastic action." Miller then quizzed the three employees as
to whether other employees knew about the previous orga-
nizational meeting or meetings of the employees. When
they replied that the employees had been notified, Miller
said that he "knew of employees that had not been noti-
fied" and he demanded to know "who had taken notes at
the meeting." When he was told it was Shirley Leiter (who
was employed there at the time), he pointed out that "she
[is] no longer employed [here]." 28
According to Miller's testimony, he informed the three
employees that their election notice was not a "proper
posting" because (1) it had not been posted by the (old,
defunct) "Committee," (2) it included as a candidate Shir-
ley Leiter, who had been discharged, (3) it was "very am-
biguous," and (4) it was not in accordance with the Shop
Committee's bylaws. Also according to Miller's testimony,
he asked the three employees "by what authority they were
an election committee" since this was a "new term" to him.
They informed him that they had been designated by a
majority of the employees. I do not credit Miller's evasive
or equivocating denial that he in effect told the three em-
ployees-each of whom testified definitely, consistently,
and persuasively to the contrary (even though sequestered
on Respondent's application)-that they had poor work
records; particularly since Miller concedes that he told
them that he did "not feel that they really had the interest
[of the employees] at heart because of the poor work re-
cords" and that they had "bad absentee records." Accord-
ing to Miller, he also asked them whether they had "proof
that [you] represent[ed] a majority [of the employees]." Fi-
nally, Miller concedes that he warned the three employees
that if they "continue[d] in this manner," without "proper
procedure," he would "have to take disciplinary action."29
As a result of all this, the election of the new "Shop
Committee" as scheduled by the employees' designated
"election committee" was called off
Two days later, on December 7, one of the members of
the foregoing "election committee" of the employees-Nel-
lie Davis-went to President Miller's office, accompanied
by her fellow employee Sylvia Johnson There, in the pres-
ence of Supervisor Tuczakov-who had set up the meeting
at Davis' request-Davis asked Miller whether he intended
27 It will be recalled that these included, prominently, Supervisor Tucza-
kov, who had the previous day posted the "bylaws" on the bulletin board
2e The foregoing account is based on the composite mutually corrobora-
tive, credited testimony of the three employees in question-Colbetzor, Da-
vis, and Fogg
29 Miller concedes that on the same date he questioned over 50 employees
in the plant concerning whether they had received notification of the De-
cember 3 meeting of the "Shop Committee "
693
"to take the people [who had signed the election notifica-
tion-i.e., Colbetzor, Davis, and Fogg] to court" or would
fire them. Miller replied in the negative, while asserting
that some employees had not been informed of the Decein-
ber 3 meeting, that notices could be posted on the bulletin
board only "if legal and cleared through [me] first," and
that the employees "had been there long enough to know
what [is] going on." Shortly thereafter, however, Miller in-
dicated to Sylvia Johnson in the plant that, although he
was not taking the members of the employees' committee
to "court," he might take action against them before the
Board 3° Miller concedes he stated at one point that he was
"considering an action with the NLRB," without indicat-
ing its nature, concerning the activities of the employees'
election committee. There is no indication that any such
action has been taken, nor that if it had been it would have
been improper. On cross-examination, Tuczakov testified
that, allegedly on her own accord, she advised Davis that if
she wanted to get out of trouble she should sign a slip to
get off the election committee.31
C. Resolution and Rationale
Respondent is a party to a "collective agreement" with a
"Shop Committee" of its employees, which among other
things, backed by that Committee's "guarantee[s]," bars
undefined "work stoppage . . slowdowns ... or distur-
bances even of a momentary nature," upon pain of "com-
plete and immediate . . . discharge by the Company." The
"Shop Committee" has been entering into this kind of
agreement with Respondent for about 10 years. For the
major portion of that time Patricia Tuczakov, a supervisor
of Respondent, has been a mainstay of the "Shop Commit-
tee," active therein including being an officer thereof; the
1972-73 president of the "Shop Committee" (with Tucza-
kov still an officer thereof) was Louella Raleigh, who
works for Vice President and Plant General Manager Ron
Standen.
10 Based upon demeanor observations and the record as a whole, I do not
credit, as testified to, those aspects of the testimony of Davis to the effect
that Miller approached her later that day in the plant and told her that he
was "taking legal action," that Tuczakov subsequently told her she should
"sign a slip that I didn't know what I was doing," and that she (Davis)
thereafter signed such a slip which, however, she did not give to Respondent
but to counsel for General Counsel, who did not produce it at the hearing
The picture resulting from this aspect of Davis' testimony, considered in the
light of the other witnesses' testimony, is hazy It was my impression that
Davis was somewhat confused on this aspect of her testimony, which , unlike
other portions of her testimony, is either contradicted or uncorroborated
Furthermore, it is unclear whether or not Davis herself made up the slip in
question, and in the absence of its production speculation is unwarranted as
to what it actually said
31 As has been indicated, the actions of the employees' "election commit-
tee" following the discharge of Shirley Leiter proved abortive the election
was called off On December 27 or 28, Louella Raleigh-the 1972-73 presi-
dent of the former "Shop Committee," who works as a Grade 3 samplemak-
er under Assistant Vice President and Plant Manager Ron Standen-posted
a notice of election on the bulletin board after receiving a "petition" signed
by about 70 (more than half) of the employees That notice was permitted to
remain on the bulletin board Raleigh's explanation at the trial for not
calling an election sooner was that "nobody ran" (although concededly she
had been given a copy of the earlier election list, G C Exh 3, early in
December), A new "Shop Committee" was elected in January, 1974, after
President James Miller (according to his testimony) "authorized" such "an
election to be held on behalf of the shop committee " In February 1974 that
committee notified Miller that it had decided to affiliate with UAW
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shirley Leiter, who has been employed by Respondent
since April 1972, was elected to this "Shop Committee" as
the third officer (vice president) thereof in October 1972,
for a term expiring on September 15, 1973. The "Shop
Committee," which collects no dues, concededly became
for practical purposes defunct in September 1973, even
though Tuczakov according to her own testimony took it
upon herself to continue to act as a one-man "committee,"
among other things consulting on employees' collective
business with Plant Manager Standen, although herself a
part of management and although-according to her own
testimony-no longer consulting with other "Shop Com-
mittee" members (including Shirley Leiter) because their
terms "had expired."
With the demise or seeming demise of the "Shop Com-
mittee" in mid-September 1973, the employees under Shir-
ley Leiter's leadership attempted to obtain assistance from
or affiliation with an outside union, UAW. Soon after Shir-
ley Leiter-who had worked for Respondent for a year and
a half with an unblemished record-commenced this activ-
ity, she began encountering employment difficulties, col-
lecting two formal "warning notices" in rapid succession
for one matter seemingly an afterthought or trivial and for
another matter involving action which had been practiced
or accepted in the past. While it is conceded that neither of
the incidents nor any employer dissatisfaction with her
work performance caused Leiter's discharge, the incidents
nevertheless shed light on Respondent's speedily changed
attitude toward Leiter after she assumed leadership in the
employees' efforts to act in concert for lawful purposes in
exercise of rights secured to them under the Act; and
Respondent's changed attitude toward Leiter accounts for
her sudden fall into disfavor with Respondent, by whom
she had previously been commended for her work perfor-
mance.
In associating themselves as they did for assistance by or
affiliation with, or for organization under and even an elec-
tion to establish UAW as their bargaining representative,
Respondent's employees were exercising rights guaranteed
to them by the Act. This is true even if they were not
entitled to an election on the theory that the described
"collective agreement" with the "Shop Committee" consti-
tuted a "contract bar" to such an election, as the Regional
Director determined.32 Whether or not the "Shop Commit-
tee" was an employer-assisted or employer-dominated "la-
bor organization" unlawful under the Act, employees' con-
certed efforts to unhinge it would be protected under the
Act. Furthermore, in any event, Respondent does not
claim otherwise, nor that it discharged Leiter for that rea-
son.
Respondent claims that the only reasons for its discharge
of Leiter were her described remark at the bulletin board,
allegedly taken by her employer as an accusation that he
had committed the serious felony of bribing the Board or
its agent, and a remark about an employee whom Respon-
dent was allegedly required to reinstate into its employ-
ment after it had "blackballed" her for employment else-
where.
32 There is nothing to suggest that any investigation was conducted into
the nature of the "Shop Committee," or that even the facts herein set forth
were ascertained
Dealing with the latter of these alleged reasons first, the
allegations are hotly contested by Leiter and I find the
remark has not been satisfactorily established, by substan-
tial credible evidence upon the record as a whole as re-
quired, to have actually been made by Leiter-even under
the equivocal circumstances described (i.e., among and re-
stricted to the "Shop Committee" officials-Leiter, Tucza-
kov, and Raleigh-themselves) as official "Shop Commit-
tee" business but nevertheless immediately reported to
Respondent's president by Tuczakov. It has not been
shown that the alleged remark, even if made, was untrue or
unjustified. Furthermore, I am utterly persuaded that such
a remark, even assuming arguendo it had been made and
reported under the circumstances described, would not and
did not in fact contribute the true basis of, or figure in, the
discharge of Leiter, and I find that its utilization by Re-
spondent was purely pretextuous to mask its real reason for
that discharge, which was Leiter's leadership in the em-
ployees' attempt to unshackle themselves from "represen-
tation" by the "Shop Committee."
We therefore proceed to the remaining alleged basis for
Leiter's discharge;33 namely, her alleged remark at the bul-
letin board when Respondent posted its seemingly prema-
ture "bulletin" to employees-antedating the issuance of
the Regional Director's determination notification-of the
Regional Director's refusal to proceed with the employees'
or UAW election petition. To begin with, the precise words
employed by Leiter cannot be reconstructed, Respondent's
witnesses being to a degree in disagreement among them-
selves with regard thereto. Moreover, on any of the report-
edly overheard versions thereof, Respondent's principal
James Miller drew inferences (1) to relate the alleged re-
marks to himself, although he was not mentioned by name,
(2) to relate the alleged remarks to the Board, which was
also not mentioned by name, and (3) to assume a bribe or
other unlawful payment-also not mentioned, referred to,
or even suggested 34 -was being charged. Furthermore,
and finally, I am persuaded upon the record as a whole
and accordingly find that the remark attributed to Leiter
was not the true reason for her discharge but was merely
exploited by Respondent as a pretext therefor, the true rea-
son being Leiter's activities in leadership of the employees'
aspirations and attempts to uncoil themselves from the
"Shop Committee" and to obtain genuine outside represen-
tation.
Employee utterance of various types of unsavory re-
marks has been rejected by the Board as constituting the
valid and true basis for the discharge of an employee who
has been even less conspicuously identified with protected
concerted activity than Leiter here. Thus, for example,
33 In its posthearing brief, Respondent concedes that "The discharge of
Ms Leiter revolves around one single instance wherein it was alleged by the
Respondent that Ms Leiter accused the President of the Corporation,
James Miller of paying off the National Labor Relations Board to obtain
the contract bar decision in the representation case" (pp 4-5) and that "The
Respondent therefore feels that the statement made by Ms Leiter must be
taken to have been made and that that statement was the proximate cause
of the discharge" (p 5)
34 Thus, for example , as suggested above, the remark attributed to Leiter
as found is consistent with the intepretation that Respondent 's legal expen-
ses must have "cost plenty "
MERRYWEATHER FOAM LATEX COMPANY
such discharges have not been found justified even
though-unlike here-involving credibly established, spe-
cific and unambiguous name-calling of an employer by an
employee as a "horse's a-" (Thor Power Tool Company,
148 NLRB 1379 (1964), enfd. 351 F.2d 584 (C.A. 7, 1965),
a "crook and liar" (The Bettcher Manufacturing Corpora-
tion, 76 NLRB 526, 527, 532-537 (1948) ), or "[no better
than] the rest of these clowns" (Guerdon Industries, 199
NLRB 937 (1972) ), in grievance or collective-bargaining
situations. Indeed, a specific employee accusation of "pay-
off" on the part of the employer was considered and reject-
ed as a justifiable basis for the discharge of an employee
engaged in protected concerted activity, in Ben Pekin
Corp., 181 NLRB 1025 (1970), enfd. 452 F.2d 205 (C.A. 7,
1971). A similar result was reached as to the appellation
"petty robber," by a union member vis-a-vis a union offi-
cial, in Caputo v. Salzhandler, 316 F.2d 445 (C.A. 2, 1963),
cert. denied 375 U.S. 946 (1963) (LMRA case).35
Remarks of the variety here attributed to Leiter must be
considered as gaffes within the context of their historical
time. Without compelling thrust here in any event, I am
persuaded that it was either wholly misinterpreted or great-
ly overblown by Miller-even assuming that he did not
merely seize upon it as a useful pretext upon which to bot-
tom a discharge he had already decided to make for unlaw-
ful reasons as soon as he could find what might seem to be
a plausible reason therefor. A more realistic and reason-
able view is that Leiter's remark, under the circumstances
shown, reflected no more than her-as well as another
employee's, who was neither discharged nor disciplined-
chagrin and bitterness at the apparent failure of the em-
ployees' efforts to gain outside representation, rather than
a downright accusation of the commission of serious crime,
as Miller would now have it believed. But even if Respon-
dent is to be believed, at the very best from its point of
view, it overreacted to a stray remark. Since that remark
occurred within the context and envelope of protected con-
certed activity, the Burnup and Sims 36 principle would
seem to apply; i.e., the burden of proof is upon the employ-
er to establish that what actually occurred (as distinguished
from the employer's mere belief, even in good faith, of
what it supposed had occurred) justified the discharge grow-
ing out of concerted protected activity. Respondent's ipsi-
dixit assumptions, inferences, misinterpretations, and over-
reactions cannot themselves justify a discharge under the
circumstances shown, without the Board's abdication of its
function in deference to Respondents, who insist their as-
serted "beliefs" must be taken at face value as establishing
absolute defenses to alleged violations of the Act.
Needless to say, nothing herein is intended to condone
31 I find that in no way were Leiter's remarks misstatements which were
"'deliberately or maliciously false "' Cf Texaco Inc v N L R B, 462 F 2d
812, 815 (C A 3, 1972), cert denied 409 U S 1008, (1972), American Shuffle-
board Company, 92 NLRB 1272, 1275 (1951), enfd 190 F 2d 898 (C A 3,
1951) (While an employee's remarks in the "deliberately or maliciously
false" category could justify discharge, this is not to say that an employee's
remarks need necessarily be in that category to justify discharge, nor that an
employee's remarks not in that category exempt him from discharge-all
within the context of protected concerted activity ) Cf Linn v United Plant
Guards, 383 U S 53 (1966), regarding the availability of the usual civil reme-
dies for the resolution of aggrievements or possible torts of this nature
36 N L R B v Burnup and Sims, Inc, 379 U S 21 (1964)
695
thoughtless, ill-tempered, abrasive, flippant, or vacuous ut-
terances by employees casting discredit or odium upon
their employers; but I am persuaded that Leiter's remark-
whatever it was of the ones suggested-was, under all of
the background and other circumstances here, not the true
reason for her discharge by Respondent, whose principal
did not impress me as being as thinskinned as is now por-
trayed. Rather, it was Respondent's volcanically simmering
resentment over Leiter's leadership in the attempt of the
employees to obtain a genuine outside union-totally un-
wanted by Respondent in its shop-which caused her dis-
charge, with her stray remark seized upon as the useful
pretext to accomplish that result by cloaking its true reason
and thereby to avoid running afoul of the Act. Under all of
the circumstances, it is apparent to me that the true and
activating cause of Leiter's discharge was her continuing
and determined leadership of the lawful effort of the em-
ployees to supplant the "Shop Committee" with a genuine
outside union, which made her an intolerable thorn in
Respondent's side. Although in the wake of Letter's dis-
charge the employees apparently succeeded in achieving
outside union representation'37 it was not without the loss
of her job by Letter, who as their leader paid the price for
all. When the employees she had led reached the promised
land, she was not among them. Since she was unfairly cut
down, she should be restored to her fob.
It remains to deal with the complaint allegations con-
cerning interrogations and threats on December 5 and 7.
President Miller's remarks to the three members of the em-
ployees' special "election committee" (Colbetzor, Davis,
and Fogg), set forth in detail above, in his office on De-
cember 5 clearly constituted coercive interrogation and
economic threats in interference with and restraint and
coercion of their and other employees' rights under the
Act, and I so find It is difficult to envision a scene more
appallingly coercive to female factory hands of the level
here involved than the formal confrontation and dressing-
down in President Miller's office-that awesome "locus of
final authority" 38 to which they had been summoned and
personally escorted by Plant Manager Standen.
With regard, however, to the remarks of James Miller on
December 7,39 when one of the members of the special
"election committee," Nellie Davis, sought him out for the
purpose of ascertaining whether he intended to take puni-
tive action, or further punitive action, against the members
of that committee, I am unable to discern anything in the
remarks credibly ascribable to Miller on that day (both in
his office and in the plant shortly thereafter) which would
justify a finding of coerciveness or other violation of the
Act On the contrary, as credited, Miller appears to have
reassured Davis that he would not fire them (also) or take
them "to court"-true, apparently, because he felt he could
not do so. It is not a violation of the Act for an employer to
state that he does not intend to do something which would
be legal or illegal, whether his motives for not doing it are
correct or mistaken. His mere remark that he was consider-
ing or contemplating placing the matter before the Board
was not, in my opinion, under the credited circumstances,
77 See In 31, supra
38 General Shoe Corporation, 77 NLRB 124, 127 (1948)
31
Complaint as amended at trial
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sufficient to constitute interference with, restraint, or coer-
cion of employees within the meaning of the Act. I so find
and shall accordingly recommend dismissal of this allega-
tion (December 7) of the complaint as amended 40
Upon the foregoing findings and the entire record, I
state the following:
CONCLUSIONS OF LAW
A. Jurisdiction is properly asserted in this proceeding.
B. By its conduct set forth and found in "III," supra,
consisting of its dismissal of its employee Shirley Leiter
from its employ on December 3, 1973, under the circum-
stances described, and its failure and refusal to rehire her
since that time, Respondent has engaged and is continuing
to engage in unfair labor practices in violation of Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended.
C. By its conduct set forth and found in "III ," supra,
consisting of coercive interrogation and economic threats
to its employees Yvonne Colbetzor, Nellie Davis, and Glo-
ria Fogg, on December 5, 1973, as alleged in the complaint,
under the circumstances described, Respondent has inter-
fered with, restrained, and coerced employees in the exer-
cise of their rights under Section 7, thereby violating Sec-
tion 8(a)(1) of the Act.
D. Said unfair labor practices have affected, affect, and
unless permanently restrained and enjoined will continue
to affect commerce within the meaning of Section 2(6) and
(7) of the Act
E. It has not been established by substantial credible
evidence that Respondent committed any unfair labor
practices in violation of the Act on December 7, 1973, as
alleged in the complaint as amended
40 Respondent also contended in summation at the conclusion of the trial
(as also for the first time shortly before General Counsel rested his case)
that the Board should defer to "arbitration" in this case under its Collyer
principle (Collyer Insulated Wire, 192 NLRB 837 (1972)) I reject this con-
tention for a variety of reasons (i) at no time did Respondent in any way
seek or indicate that it wished or was willing to arbitrate the matter, (2)
there is no mandatory or binding arbitration requirement in Respondent's
"collective agreement" with the Shop Committee (see Tulsa-Whisenhunt Fu-
neral Homes, Inc, 195 NLRB 106 (1972), enfd 84 LRRM 2300 (CA 10,
1973), in the instant case, the "Shop Committee" has no more than the right
to "request" the employer to arbitrate, with no obligation on the employer
to do so, (3) Respondent did not plead such a defense or raise such a
contention in its answer or otherwise in timely fashion, (4) under the terms
of Respondent's "collective agreement" with the Shop Committee, arbitra-
tion cannot take place unless "the arbitrator" is agreed upon by Respondent
with its Shop Committee, (5) under the terms of that "collective agree-
ment," the expense of arbitration must be borne equally by the Shop Com-
mittee with Respondent, and there are no dues paid by the employees here
under the "collective agreement ," which specifies there shall be none (al-
though there is a provision for special assessments ), (6) Respondent elected
to proceed with the litigation of this proceeding, (7) Respondent stated that
it is not willing to waive a contention that such an arbitration would be
"untimely", and (8) the background, nature, character, and operation of the
"Shop Committee" and its relationship to Respondent indicate it would be
inequitable, unfair, and contrary to the purposes and policies of the Act to
require Leiter's discharge to be "arbitrated" by an arbitrator agreed upon by
that Committee with Respondent under the circumstances shown, particu-
larly where that Committee has no funds and has at no time evinced any
indication that it wished or was willing to proceed therewith
REMEDY
Having been found to have violated Section 8(a)(3) and
(1) of the Act in respect to its dismissal of Shirley Leiter
and its failure to reinstate or reemploy her, Respondent
should be ordered to cease and desist therefrom and to
offer her reinstatement to her former (or, if no longer avail-
able, in that case equivalent) job, together with backpay as
appropriate, less applicable interim earnings if any, plus
interest, computed as delineated in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Isis Plumbing & Heating
Co, 138 NLRB 716 (1962), making necessary records
available for computation purposes. With respect to coer-
cive interrogation and economic threats of the nature
found, Respondent should be required to cease and desist
from any repetition thereof. And since the unfair labor
practices here are of a nature which strike directly at basic
rights of employees squarely within the Act's most funda-
mental guarantees, the recommended Order will contain a
provision requiring Respondent to cease and desist from
any infringement upon the rights of its employees under
Section 7 of the Act. Respondent should, finally, be re-
quired to post the usual Notice to Employees to the effect
that it will repair such violations and desist from further
violations and interference with its employees' rights under
the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following:
ORDER 41
Respondent, Merryweather Foam Latex Company, its
officers, agents, successors, and assigns, shall:
A. Cease and desist from
1. Discharging, terminating the employment of, laying
off, suspending, or failing or refusing to reinstate, rehire, or
reemploy any employee, in violation of Section 8(a)(3) or
(1) of the National Labor Relations Act, as amended, be-
cause said employee has engaged in Union organizational
or other concerted activity protected by and lawful under
said Act.
2. Discriminating against any employee in regard to his
or her hire, tenure, or terms and conditions of employment,
so as to discourage membership in, affiliation with, sympa-
thy for, or lawful activity on behalf of International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, or any other labor organization.
3. Interrogating any employee concerning his or her, or
any other employee's, union or other concerted activities,
sympathies, or affiliation, in violation of the National La-
bor Relations Act, as amended
4. Threatening any employee with discharge, layoff, sus-
pension, or any other economic or other reprisal or disci-
plinary action because of his or her union or other concert-
41 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order which follows herein shall, as provid-
ed in Sec 102 48 of those Rules and Regulations , be adopted by the Board
and become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
MERRYWEATHER FOAM LATEX COMPANY
ed activities, sympathies, or affiliation, in violation of said
Act.
5. In any other manner interfering with, restraining, or
coercing employees in the exercise of their right of self-
organization; to form, join, or assist any labor organiza-
tion; to bargain collectively through representatives of
their own choosing; to engage in concerted activities for
the purposes of collective bargaining or other mutual aid or
protection; or to refrain from any and all such activities.
B. Take the following affirmative actions necessary to
effectuate the policies of the Act:
1. Offer to Shirley Leiter immediate and full reinstate-
ment to her former position (or, if not available, to a sub-
stantially equivalent position), without prejudice to her se-
niority and other rights, privileges, benefits, and emolu-
ments; and make her whole for any loss of pay (including
overtime, holiday and vacation pay, and insurance benefits
if any), together with interest, in the manner set forth in
"The Remedy" section of the Decision of which this Order
forms a part.
2. Preserve and, upon 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 neces-
sary to determine the amount of backpay and other sums
due under and the extent of compliance with the terms of
this recommended Order.
3. Post at its premises in Barberton, Ohio, copies of the
attached notice marked "Appendix." 42 Copies of said No-
tice, on forms provided by the Board's Regional Director
for Region 8, shall, after being signed by Respondent's au-
thorized representative, be posted in said premises by Re-
spondent immediately upon receipt thereof, and main-
tained by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to
insure that said Notices are not altered, defaced, or cov-
ered by any other material.
4. Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply therewith
IT IS FURTHER ORDERED, that the complaint herein dated
January 18, 1974, as amended at the trial, be and it is here-
by dismissed insofar as it alleges any threats of reprisals on
December 7, 1973, by Respondent against employees.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
697
After a hearing before an Administrative Law Judge of the
National Labor Relations Board, at which all sides had the
opportunity to present evidence and arguments, it has been
decided that we, Merryweather Foam Latex Company,
have violated the National Labor Relations Act. We have
therefore been ordered to post this notice and to do what it
says.
The National Labor Relations Act gives you, as employ-
ees, certain rights, including the right to engage in self-
organization, to form or join or help unions, and to bargain
collectively through a representative of your own choosing
(or, if you wish, not to do so), without discrimination, in-
terference, restraint, or coercion by us as your employer.
Accordingly, we assure you that:
WE WILL NOT violate your rights under the National
Labor Relations Act.
WE WILL offer Shirley Leiter immediate, full and un-
conditional reinstatement to her former job and se-
niority with us and we will reemploy Mrs. Leiter just
as if we had not discharged her on December 3, 1973;
and we will pay her for any wages lost, plus interest,
because of that discharge.
WE WILL NOT interrogate any employee in violation
of the National Labor Relations Act concerning his or
her or any other employee's union or other lawful or-
ganizational concerted activities, sympathies, affilia-
tion, or interest.
WE WILL NOT, in violation of the National Labor Re-
lations Act, discharge, lay off, suspend, fail or refuse
to reinstate or rehire, or take other economic or other
reprisal or disciplinary action against any employee,
or threaten to do so, because of his or her union or
other lawful organizational concerted activities, sym-
pathies, affiliation, or interest.
MERRYWEATHER FOAM LATEX
COMPANY
42 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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 "