Midwest Hanger Co.

National Labor Relations Board - Board Decisions

Oct 8, 1971

193 N.L.R.B. 616 (N.L.R.B. 1971)

616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Midwest Hanger Co. and Liberty Engineering Corp.
and United Steelworkers of America , AFL-CIO.
Case 17-CA-4331
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
October 8, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On May 21, 1971, Trial Examiner Ivar H. Peterson
issued his Decision in the above-entitled proceeding,
finding that the Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions and the General Counsel
filed cross-exceptions to the Trial Examiner's Deci-
sion, each with supporting briefs. The Respondent
also filed a reply brief to the General Counsel's cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-excep-
tions, and briefs, and the entire record in the case, and
hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondent, Midwest Hanger Co. and Liberty
Engineering Corp., Liberty, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order.
I An apparent typographical error appears in the Trial Examiner's
Decision where he finds that Respondent's crew coverage sheets for the
week of June 7 showed an employee complement of 83, rather than 93,
employees A reading of the following paragraph indicates the Trial
Examiner, in his analysis of the figures, relied on the accurate figure of 93
rather than the inaccurate one of 83
IVAR H. PETERSON, Trial Examiner: I heard this case on 6
days commencing January 12 and ending January 21, 1971,
in Kansas City, Missouri, upon a charge filed on June 16,
1970, amended on July 7, by United Steelworkers of
America, AFL-CIO, herein called the Union, which
resulted in the Regional Director for Region 17 issuing a
complaint dated September 30, 1970, against the Respon-
dent. Briefly stated the complaint as amended at the
hearing, alleged that the Respondent interfered with,
restrained, and coerced its employees in the exercise of the
rights guaranteed them in Section 7 of the Act by
unlawfully threatening, interrogating, and offering benefits
to the employees; that it unlawfully discharged 18
employees and failed to reinstate another striking employee
upon the termination of a lawful strike conducted against
the Respondent; and that it failed and refused to bargain
collectively with the Union which had been chosen as the
exclusive bargaining representative by a majority of the
employees. In its answer the Respondent denied the
commission of any unfair labor practices. On or about
March 15, 1971, counsel for the Respondent and counsel
for the General Counsel filed helpful briefs with the Trial
Examiner, which have been carefully considered.
Upon the entire record' in the case and from my
observation of the demeanor of the witnesses as they
testified, I make the following.
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The two companies here involved, Midwest and Liberty,
are operated as a single economic entity. Midwest
manufactures and distributes laundry and dry cleaning
packaging products whereas Liberty produces certain
machinery used in Midwest's manufacturing operations
and also sells such machinery to other users. Liberty serves
as the maintenance department of the joint enterprise and
is commonly referred to as the machine shop. The
Respondent maintains its principal office and plant in
Liberty, Missouri. The Respondent admits and the record
establishes that it is engaged in commerce within the
meaning of the Act and that its annual operations meet the
Board's discretionary jurisdictional standards. I so find.
II. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. Background
Carl Jones is president of both companies and the major
stockholder in each . Reginald Ward is vice president and
I Pursuant to leave granted at the hearing, counsel for the General
Counsel submitted six crew coverage sheets for the weeks of June 14, 21,
28, July 5, 12, and 26 These are received in evidence as GC Exhs 45, 46,
47, 48, 49, and 50, respectively Also submitted and received as GC Exh 51
is the employment application of Shirley Lauderdale
193 NLRB No. 85
MIDWEST HANGER CO
general manager, having assumed those positions approxi-
mately 2 years prior to the hearing. He is also a shareholder
and member of the board of directors. The plant manager is
Eugene Brown, who has held that position for a little less
than 2 years. Mike Ashenfelter is the personnel manager
and controller. The number of foremen has varied from 14
to as few as 4 because of the fluctuation in the complement
of rank-and-file employees In June 1970, prior to the
termination of some 20 employees, Midwest had slightly
more than 80 employees and Liberty had 12 or 13.
On May 10 the Respondent announced a price increase
on its products effective the following month. In conse-
quence, the Respondent during May and June experienced
substantially increased business as jobbers were stocking
their warehouses in order to avoid, insofar as possible, the
impact of the price increase Because of this fact, as well as
the customary summer slump in orders, Jones anticipated
that the Respondent's production would decline sharply
after June 15. On June 12 Jones was in Oklahoma City
surveying the market. He testified that from his observation
he anticipated that the decline in orders would be
considerable immediately after the price increase went into
effect Accordingly, so he testified, on Friday, June 12, he
telephoned General Manager Ward and emphasized to him
that the anticipated layoff of personnel should be
implemented the following Monday because the "situation
was worse than I thought it was so far as orders were
concerned."
During the latter part of May Harry Andrew, business
representative of the Union, began organizing the Respon-
dent's employees. He first spoke to three employees, June
Elliott, Betty Johnson, and Marilyn Kimberlin, at the
Respondent's parking lot. Thereafter, on June 1, he and
another union representative, Fred George, met with these
three employees and another, John Sells, and discussed
with them an organizational plan The four employees
signed union membership cards at this time. On Thursday,
June 11, another meeting was held at 2:30 p.m., at a shelter
house in a public park about a mile and a half or 2 miles
from the plant. Employees were informed of this meeting
by Kimberlin. Six additional employees signed membership
cards at this meeting. They were told by Andrew that if he
obtained a strong card majority by the following day he
would petition the Board for an election and would also
request recognition from the Respondent. Later that same
day Andrew met with an additional 13 employees who
signed membership cards. They also were advised by
Andrew to the same effect as the employees attending the
earlier meeting that day.
On Friday, June 12, Andrew sent the Respondent a
certified letter requesting recognition and also filed a
representation petition with the Board. The letter was
received by the Respondent on Monday, June 15. Jones
testified, somewhat ambiguously, that he saw the envelope
with the Steelworkers name and return address and the
certified mail sticker "a little after noon" on Monday and
then stated that he saw the envelope "approximately
Monday evening" and that he got his mail "sometime in the
afternoon. I have no idea when." Admittedly, the
Respondent did not reply to the Union's recognition
request
617
During the weekend preceding Monday, June 15, Ward
and Brown conferred and selected the employees who were
to be terminated, advising them of their termination by
telephone or in person. They attributed the reduction-in-
force to a cutback in production. Interestingly enough,
however, a frequent reason assigned in the personnel sheets
for termination was "excessive absenteeism." Nor did the
Respondent follow a system of seniority in selecting
employees to be terminated, as was its customary policy. To
the contrary, the Respondent selected many individuals
who were experienced and capable of performing a variety
of jobs. Also, the cuts were substantially confined to the
second shift, where union activity was concentrated. The
Respondent continued the third shift, whose employees
were paid a 5 to 10-cent differential.
On October 22 the employees on the second shift walked
out and were later joined by the employees on the other two
shifts. They picketed the plant. On October 30 the
Respondent sent a letter to its employees stating, in part,
that the Respondent "hoped that you will return to your job
Monday morning as we will be officially reopening our
plant," and added that employees who "do not wish to
report to work as scheduled will be given until Wednesday,
November 4, to seriously consider" their decision. The
Union terminated the stake on November 3, and so
notified the Respondent. During the preceding weekend the
Union and the Company met and considered which
employees wished to or should be reinstated. However, no
resolution was reached as the striking employees demanded
backpay.
Against this background, counsel for the General
Counsel contends that the June terminations were prompt-
ed by the union activity of the individuals involved and that
one employee, Grover Speck, was discriminatorily refused
reinstatement after the strike was terminated. On the other
hand, the Respondent urges that the June terminations
were occasioned by an economic cutback in production,
and further contends that Speck was refused reinstatement
because he engaged in misconduct during the strike. We
turn then to a consideration of the specific evidence bearing
upon these contentions.
B. Interference, Restraint, and Coercion
Employee John Sells related that during the first part of
February, when he had been hired by Liberty, General
Manager Ward asked him: "How do you feel about the
Union?" Sells related that he told Ward:
That without a doubt in concept the labor union for the
working man is about one of the greatest things that has
ever been brought about. However, I had had some
experience in dealing with labor unions that I could see
conceivably where they had not necessarily been a
benefit, sometimes they get misused.
To this, according to Sells, Ward replied, "You know, we
are nonunion here" and added that "We may have some
union trouble here." Ward testified that Sells brought up
the subject of unions and engaged in a "little tirade about
the corruption in unions ," to which Ward responded by
expressing "a few opinions" on the subject and stated that
he was not "really interested in whether you (Sells) are
union or not, because if I was I wouldn't be contemplating
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hiring you knowing you are in a union at Ford (Sells' then
employer.)"
Richard Covey, who was a foreman until about June 14
when he became a rank-and-file employee at his own
request, was asked by Plant Manager Brown if he "had
heard anything about any union or anything like that"
because Brown stated that "he thought there was something
on second shift creating the turmoil or something like that."
In addition, sometime before the June terminations,
Foreman Billy MacElwee asked Covey if the latter had
heard anything about the Union. In answer, Covey asked
MacElwee if the latter had heard anything about the Union
and MacElwee laughed and would say nothing more about
the matter. On Sunday, June 14, Foreman MacElwee went
to the home of employee Joe DeMent and told DeMent
and another employee who was there, Walter Forbes, that
there was a "work shortage" and the men were being laid
off. DeMent undertook to question MacElwee about this
matter and MacElwee responded by stating: "All I know is
they had a big meeting last night and Mr. Brown called me
and told me to come to your house and tell you you were
laid off." DeMent rejoined by observing, "It's over that
union activity, because the Union petitioned the Company
just the day be before.. .." MacElwee replied, "Well, it
might be, but I can't talk to you about it . . . I would be
placing my own self in jeopardy." Following DeMent's
discharge but prior to the time MacElwee quit the
Respondent's employ, DeMent attempted to engage
MacElwee in conversation about his discharge, but
MacElwee stated, "Joe, I can't talk to you about this . . . I
can't talk to you about it." MacElwee was not produced as
a witness and there was no explanation offered for the
Respondent's failure to do so. About a week after
MacElwee quit he and DeMent had another conversation.
DeMent related that MacElwee told him "that we were laid
off for union activity," and that the Respondent was
attempting to "get the key ones out because the Company
didn't want a union in there."
On June 15, shortly before Sells was discharged, Ward
came to him and stated, "I hear there is some union talk
going on around the plant," and asked Sells if he had heard
anything to that effect. Sells stated that he had and Ward
then asked how long he had heard such talk. Sells replied
that he had heard it for at least 2 weeks, whereupon Ward
replied, "Well, if you hear anything else, let me know."
Ward was not questioned about this incident.
C. The Alleged Discriminatory Discharges
Most of the Respondent's employees are unskilled,
primarily females, and over the years there has been a very
substantial turnover on an annual basis which is substan-
tially greater in the months of May, June, and July. Indeed,
counsel for the Respondent states in his brief that the plant
"had had a tremendous turnover problem amounting to
over two hundred percent (200%) in 1970 ..." The
personnel data shows that from January through June the
Respondent had the following experience relative to
employee turnover:
Employees
Month hired
January 16
February 8
March 20
April 26
May 41
June 18
As the foregoing figures indicate, terminations for absen-
teeism ranged from a low of approximately 29 percent in
January to a high of over 44 percent in June. As counsel for
the General Counsel points out in his brief, an analysis of
the employment figures shows that of the 26 employees
hired in April, only 5 remained on the June 15 payroll; of
the 41 hired in May, 11 remained on the June 15 payroll;
and of the 13 employees hired on or prior to June 15, 7
remained on the June 15 payroll.
The absentee record and union status of the 25 employees
hired in or subsequent to April, and on the payroll for the
week ending June 20, is shown in Appendix A. By way of
comparison, Appendix B shows the comparable figures for
Employees
terminated
Terminations for
absenteeism
24 7
25 10
14 5
23 8
32 11
36 16
the employees involved in this complaint as alleged
discriminatees.
General Manager Ward, called as an adverse witness by
counsel for the General Counsel, testified that the
termination of the various employees herein involved "was
just a run of the mill of people being terminated, nothing
different than any other month of the year." In his rather
extensive testimony, both on direct and cross, he made no
mention of a call being received by him on Friday, June 12,
from Jones, directing him to make the layoffs by the
following Monday. By contrast, Jones testified that the
employees were terminated only for economic reasons,
because he "didn't anticipate business picking up for quite
some time ." In fact, most of the discharged employees were
MIDWEST HANGER CO. 619
told they were being terminated for excessive absenteeism
and many of them were asked to sign a statement to that
effect. The Respondent's records show that about half of
the employees terminated were released because of
"repeated absenteeism" while the balance were shown as
having been terminated because of a "reduction in work
force." The Respondent's records further show that some
64 employees were hired following June, and that 10 of
these were hired in July and 22 in August. Moreover, an
analysis of the personnel records of employees terminated
for excessive absenteeism prior to and following the
discharges involved in the instant case shows a considerable
dissimilarity in the actual situations involved.2
1. Terminations at Midwest
(a) Marilyn Kimberlin. Kimberlin was first employed by
the Respondent on January 2, 1969, and was terminated on
June 15, 1970. Compared with the vast majority of other
employees, Kimberlin had long tenure. She worked on the
first shift, from 7:30 a.m. to 4 p in., in the paper
department, being supervised by Foreman MacElwee. She
had worked in a number of departments and in conse-
quence was a more valuable employee than many of the
newer employees who were not as versatile As recited
above, she was one of the four employees who initiated the
union organizational campaign during the latter part of
May and attended a union meeting on June 1. She had
never been given any warnings, written or verbal, regarding
her absentee record. At approximately 9 p m , Sunday, June
14, Kimberlin received a telephone call from Plant
Manager Brown, advising her that some changes had been
made over the weekend and that Kimberlin was to work on
the second shift (4 p.m to midnight) in the hanger
department beginning the following day Although Kim-
berlin had previously told Brown she could not work on the
second shift because of personal reasons, she nonetheless
agreed to take the assignment.
At about 3 p.m., Monday afternoon, June 15, Brown
again called Kimberlin and told her to come to the office
before she reported for work at 4 p m Kimberlin inquired
what Brown wished to discuss and Brown informed her that
he had been going over her work record and she was being
terminated for absenteeism . She reported to the office and
was asked to sign a document (apparently an acknowledge-
ment of the reason for her termination) but she refused to
do so She requested a service letter from the Respondent
and on July 15 she received such a letter stating, in part,
that her "services on the job were satisfactory" but that it
"was necessary to terminate you because of excessive
absenteeism," and that the records showed that she had
been absent 53 hours in the 5 months preceding June 15
and had been warned by her foreman and the plant
manager on more than one occasion The record is clear,
however, that Kimberlin had not been warned by anyone
with respect to her absenteeism. Kimberlin solicited
signatures on union membership cards from four employ-
ees, two of whom were handed to her at the Respondent's
parking lot on June 11 or 12. Also, Kimberlin obtained the
signature of employee David Schwartz who testified that
this occurred after work and that Kimberlin "was catching
everybody as they came out of work."
(b) June Elliott. Elliott first worked for the Respondent
from May 6, 1968, until the latter part of May 1969. She
returned to the Respondent's employment November 3,
1969, and was terminated on June 16, 1970. At that time she
was working in the hanger department as a spreader. As
pointed out above, she was one of the four individuals who
initiated the union campaign, and obtained signatures on
membership cards from five employees while on the
Respondent's premises.
On the first shift on Tuesday, June 16, she noticed that
her timecard was not in the rack. Apparently, Elliott had
worked the previous day. She asked her foreman,
MacElwee, if he had her card. He replied: "No, June .. .
I'm sorry, there have been changes made over the weekend
and due to a cutback I'm going to have to let you go."
Elliott protested, asking him how he intended to operate the
plant with all the work that remained and considering the
number of people who had already been terminated.
MacElwee replied, "I am sorry, June, that is my orders."
Elliott was asked to sign a paper stating that she was being
discharged because of excessive absenteeism. She had not
been given any warnings or reprimands concerning
absenteeism. She asked for and received a service letter
from the Respondent, dated July 15. In part, it stated that
her "services on the job were satisfactory" but that she was
terminated for "excessive absenteeism," and that the record
showed that she had been absent 53 hours in 1970 and had
been warned by her foreman with respect to absences.
Elliott, however, testified without contradiction that she
had not been given any warnings or reprimands with
respect to absenteeism.
(c) Kim Bristow. Bristow was hired by Foreman
MacElwee in April 1970 and assigned to work in the hanger
department as a spreader. On June 16, Bristow had been
absent and the following day MacElwee had her sign a
warning slip. However, he told her not to be concerned
about that, as it was company policy that employees had to
have three warning slips before being terminated. Although
Bristow had been absent in times past, she had never been
asked to sign a warning slip. The statement she signed read:
"This is a warning of your previous absenteeism and
unreported absence for 6-16-70." The record shows the
following with respect to Bristow's absences following her
employment:
2 See the detailed analysis of 14 individuals made by counsel for the
General Counsel beginning at p 9 of his brief
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
April 29 --- Missed 1 hour Babysitter was late.
May 6 --- missed 3/4 hours Babysitter was late.
May 7 -- missed 8 hours Said she was sick.
May 8 -- missed 1-1/2 hours Having trouble getting babysitter.
May 12 --- missed 8 hours Had to go to doctor.
May 20 -- missed 1/4 hours Cab was late.
May 23 --- missed 2 hours Didn ' t have a babysitter after 2 p.m.
June 10 --- missed 8 hours Sick , went to doctor.
June 11 --- missed 8 hours Sick.
June 13 -- missed 5-1/4 hours Got sick.
June 16 --- missed 8 hours Did not call in.
Between June 17 and June 29 Bristow did not have any
absences. On June 29, she asked Foreman MacElwee if she
could take the following day off to see her doctor about a
kidney infection. Permission was granted. The following
working day, July 1, when Bristow came to work she
discovered that her timecard was not in the rack. She
attempted to show Foreman MacElwee her doctor's slip,
but he told her that Brown had instructed that her
termination papers were to be filled out MacElwee stated
that it was not his idea to terminate her but that he had no
choice in the matter
The preceding week, Bristow assisted Bill Greathouse
and Marilyn Kimberlin (both of whom had previously been
discharged) in carrying a large banner outside the
Respondent's premises, in the parking lot, which had the
following legend on it "United We Stand And Divided We
Fall." Both Plant Manager Brown and Foreman MacElwee
were standing in the doorway of the plant some 20 to 25
feet away, watching Bristow and the others carry the
banner.
(d) Sharon Meier Meier was hired on November 5, 1969,
and terminated June 14. She worked in the caping
department on the second shift. On Sunday, June 14, Plant
Manager Brown telephoned her and told her that "they
were going to shut down the caping room, and he didn't
have any other place to put me, and that I missed
Saturdays." When hired, Meier had told Brown that she
had trouble getting babysitters on Saturday. Meier did miss
work some Saturdays during her last 2 months of
employment, but received no verbal or written reprimands
about this. She signed a union membership card on June 11.
The crew coverage sheets show that Saturday work was
discontinued after the week of June 14, and the Respon-
dent's records further show that Meier had only 27 hours of
absenteeism at the time of her discharge and was never
warned about missing Saturdays.
When Brown on June 13 told Richard Covey (who
voluntarily relinquished his position as a foreman for a
rank-and-file job on June 14) that Sharon Meier was going
to be discharged, Covey responded'
I told him that I knew she hadn't come in on a lot of
Saturdays, but that she was a real good worker and we
needed good workers That was the thing, how could we
run the plant if we didn't have a lot of good people We
had a lot of people in that caping room that weren't
working out and it is hard to train someone for that
Covey further added that he had three girls in the caping
room and they put out three times the production of the
third shift Gaping room employees, and it did not seem to
him to make sense "to cutback on the second shift when
you have twice as many people on the third not getting any
production." According to Covey, Brown replied that he
realized this was the situation.3
(e) Virgie Peterson. Peterson, who did not testify at the
heanng, was hired on March 20. Her personnel file shows
that she missed work fairly frequently (a total of 103 hours)
from the time she was hired until she was terminated on
June 13 She worked with Marilyn Kimberlin in the paper
department on the first shift and also had worked in the
strut department. The reason given for her termination was
"excessive and chronic absenteeism." She missed work 8
hours each day on June 8, 9 and 10, but nevertheless she
had received no warnings or reprimands. She signed a
union card on June 11.
(f) Elaine Peukert. She was employed by the Respondent
on November 7, 1969 and terminated July 1, 1970. She was
on the third shift under Foreman James Hobbs. Her
employment record is as follows:
January 6-missed 8 hours-(unreported).
January 25-missed 8 hours-Sick.
March 1-missed 6 hours-Left plant ill.
March 5-missed 8 hours-Called in ill.
March 15-missed 8 hours-She called in and said
she was not feeling well.
March 18-"Elaine had walked away from her Job at
that time without being relieved or asking anyone about
it. I warned her at that time not to leave again without
authorization. J. Hobbs."
March 20-"Tuesday night I talked to Elaine and
asked her to improve on her attendance record."
March 29-"Elaine has missed work excessively and
I have talked with her about this before. She was not at
work on 3rd shift (3-29-70) and I received no call. I am
giving her a letter in the form of a warning J. Hobbs."
May 30-missed 8 hours-Scheduled in on Sat. but
did not work.
June 15-missed 8 hours-Elaine called in and said
she was ill and would try to be in tomorrow night.
June 16-missed 8 hours-I received no call.
She testified that early in the morning of June 15 at a
meeting of third shift employees General Manager Ward
stated that despite the "scuttlebut" going around about
people being laid off the third shift "didn't have anything to
worry about it."
4 It should be observed that on this occasion Brown did not terminate
Shirley Lauderdale, a caping department employee hired June 10, just 5
days before the June 15 discharges
MIDWEST HANGER CO 621
On June 17 Kimberlin gave a union membership card to
Neva Paine in the Respondent's parking lot. That night, on
the third shift, Mary Wisenbach and Peukert came over to
Paine's machine and , according to Paine, the following
transpired. Wisenback and Peukert demanded that Paine
and another female employee sign a union card right away
and that if they did not they would be fired. Paine finally
asked Foreman Hobbs if he would tell her that it was up to
the individual whether they sign or not. On July 1, Foreman
Hobbs told Peukert that he was sorry but he had to let her
go although she was a good worker. He indicated that he
was required to follow Brown's orders, and told her that she
was being terminated for absenteeism. Peukert had not
missed any work since June 16, and had not been warned or
reprimanded by Hobbs or anyone else regarding her
absences of June 15 and 16. In total, Peukert had been
absent 55-1/2 hours during her employment. Foreman
Hobbs, so Peukert testified, stated he did not want Peukert
to be discharged.
(g) Betty Johnson. Johnson worked continuously for the
Respondent from the middle of July 1968 until August 11,
1970. She had been absent fairly frequently (a total of 80.9
hours) It will be recalled that she was instrumental in
launching the Union's organizational campaign and
succeeded in obtaining several signed union cards. Despite
her prior absences, she was first given a written warning on
June 16, which stated "This is a warning of your previous
absenteeism ." Johnson refused to sign the warning slip. She
had not been absent since June 6, nor had she been warned
verbally about absenteeism in May
On July 13, Johnson received the following warning from
Foreman MacElwee:
Subject employee is being formally warned (after one
other formal warning) that if excessive absenteeism
continues she will be terminated. Also she is to bring
ddctor's slip if she calls in sick
On August 11, she was terminated, the reason reading as
follows (R. Exh 3):
Subject employee is being terminated after two formally
(sic) warnings and verbal warning of excessive absen-
teeism and tardiness
(h) Margaret Buckley Buckley was hired on April 11,
1969, and worked continuously for the Respondent until
May 14, 1970, when she went to the hospital for an
operation. On June 12 she telephoned Brown and stated
that she was able to report back to work. Brown told her
that he was going over the worksheet and would call her
back the following day, Saturday. On the evening of June
13 Brown did call and told her that she was going to be
terminated because of a "cutback in the caping room."
Buckley had worked and was capable of working in other
sections of the plant. Her termination report states the
following as the reason for her separation: "Reduction in
Caping Production-No other jobs available." To the
contrary, the record abundantly shows that there were
numerous other jobs available and that the Respondent was
having difficulty finding employees to fill these jobs.
(i) Shirley Lauderdale Lauderdale was not called as a
witness at the hearing. Subsequent thereto (fn. I above)
counsel for the General Counsel without objection
submitted her application for employment as an exhibit,
and this shows that Lauderdale began working for the
Respondent on June 10. She was employed in the caping
department on the second shift until that shift was shut
down on June 15. She was then transferred to the hanger
department and was not discharged. She complained about
an allergy or skin infection which apparently did not
develop until after she had been transferred from the
taping room. It is the position of counsel for the General
Counsel that but for the union activity the second shift
taping room operation would not have been shut down
and, in consequence, that if it had not been shut down
Lauderdale would have continued working in the caping
room at work she was capable of performing.
(I) Ronald Greathouse. Ronald Greathouse was em-
ployed by the Respondent approximately 5 weeks and was
terminated on June 12. He worked on the third shift, from
12:30 p.m. to 9 a.m., on the trouser guard machine. On June
12, Foreman Hobbs approached Greathouse while he was
at the machine with a paper stating that he was being
terminated because he was not suitable for the job and
there was no other work available. Foreman Hobbs said
that if Greathouse used the Respondent as a job reference
no unfavorable statement would be given. While employed
by the Respondent Greathouse drove a forklift truck, did
packing, worked in the paper department, assisted on the
strut machine, and also did janitorial work. Greathouse had
never been warned or reprimanded about his work and, at
the time Foreman Hobbs terminated him, Hobbs stated
that he had not made the decision to discharge him but that
it came from a higher source. There is credible testimony
that during his period of employment Greathouse was only
able to work on the trouser guard machine for a limited
time because it was inoperative.
Brown testified that the reason for discharging Great-
house was "that his performance on the job, his effort that
he was putting into it did not look like he was going to make
a good strut operator, or, for that fact, any other job he
might be put on." Foreman Hobbs at first testified that he
thought he had recommended the discharge of Greathouse
because he had been seen in the parking lot during working
hours. However, he later testified, and the testimony of
Ward and Brown also shows, that the request to terminate
Greathouse did not originate with Hobbs but was made by
either Ward or Brown. At no time did the Respondent warn
or notify Greathouse about his being in the parking lot. In
this connection, it is noted that in the case of Peukert, supra,
Hobbs gave her a written warning for being away from her
job but did not discharge her.
(k) William Greathouse. Greathouse was employed on
May 14 and terminated June 15. Foreman MacElwee
interviewed him and, so Greathouse testified, explained the
Respondent's absentee procedure as follows: "He told me
that the first week that we were there that we could not be
absent, that it was the policy if you were absent any day
within the first week you would be automatically terminat-
ed. He told me if you were absent you had to call in in 3
days or you would be terminated. If you call in within a 3-
day period, that it would be all right." Richard Covey, who
had been a foreman on the second shift and hired and
discharged employees, explained the absentee policy as
follows: "Well, to my knowledge, unreported absenteeism
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.. . . We usually waited around 3 days and if they did not
call in we automatically terminated them . On the reported
absenteeism , I can't remember having any certain set policy
about that ." Later on Covey testified that Brown "had told
me that , I am pretty sure that it was three, to issue to each
person a warning about absenteeism and unreported
absence or something like that and . . I believe it was
three , three, well, they were automatically terminated."
Greathouse was hired specifically to operate the trouser
guard machine, and was trained for that work for 3 days by
another employee .4 He was then transferred to the second
shift, under Foreman Covey. He obtained signatures on 22
union membership cards on June 11, in the lunchroom
during his break , and some before and after work . On June
1 I he was standing outside the Respondent 's premises in
the parking lot with Marilyn Kimberlin passing out union
cards for about 30 minutes . On Sunday night, June 14,
Brown transferred him to the third shift after Greathouse
asked Brown if this could be done because the opening was
available due to the discharge of his brother, Ronald.
During the 2 days that Greathouse had been on the third
shift , the trouser guard machine had been operated for 6
hours. He had reported to Foreman Hobbs that the
machine was inoperative and Hobbs assigned him other
work such as packing, working in the paper department and
in the caping room , and boxing and packing boxes which he
placed on skids.
On Monday, June 15, General Manager Ward called a
meeting of the third shift at 7:30 a.m., just after they came
off duty. He told them "that there had been some changes
made within the plant," but that the employees were not to
"pay any attention to the rumors" they had heard and that
the people on the third shift "need not worry about
anything because they had already made the changes they
were going to make on that shift."
On June 15, the night before he was discharged, Foreman
Hobbs told Greathouse that he was doing a good job. At
that time Greathouse was driving a forklift and loading a
truck. When Greathouse was working on the second shift
under Foreman Covey, the latter also told him that he was
doing a good job.
About 6.30 on the morning of June 16, Foreman Hobbs
told Greathouse that he had been terminated, and
explained that the termination did not have anything to do
with his work but that he had received orders to discharge
Greathouse.
On June 13, Ward told Covey that Greathouse was going
to be moved to the third shift because there was no one on
that shift who was familiar with the trouser guard machine.
On June 16, at about 3 a.m., so Covey testified , Foreman
Hobbs told him that he (Hobbs) had orders to terminate
Greathouse that morning and asked Covey what he thought
about it Covey was somewhat noncomittal and Hobbs
asked him how he (Covey) thought the trouser guard
machine was operating . Covey answered that it was not
operating properly and had not been for approximately a
year. Hobbs commented that he did not understand how
anyone could train on a machine that was not working
properly and asked Covey how much training usually was
4 According to former Foreman Covey, Foreman Hobbs asked him how
much training was usually given an employee on the trouser guard
given an individual on that machine . Covey answered that
it required approximately a month . Later that morning
Hobbs again expressed concern about having to discharge
Greathouse , saying to Covey that he did not "think much of
terminating him" but stated Brown had instructed him to
do so. Greathouse was given a separation notice , signed by
Hobbs and dated June 16 , which stated : "Not suited for
this type work . No other work available."
(1) John Ashby. Ashby was hired by the Respondent on
May 15, and was assigned to work on the second shift as an
adjuster on the strut machine . Ashby is a relative of Covey.
In addition to working as an adjuster on the strut machine
Ashby made boxes and relieved other employees as needed.
He worked 6 days a week . On June 11 he signed a union
card.
About midday on Monday , June 15, Brown told Ashby
that he would be released due to the cutback and stated that
it was not a layoff but a termination.
Covey, who had been Ashby's foreman until he
voluntarily relinquished that job, was told by Brown on
June 13 that the plan of having an adjuster in the strut
department had not worked out and that the Respondent
was going to hire a general technician for that job which
would have a lower wage scale than that of an adjuster.
Brown also indicated to Covey that the day shift adjuster
would be discharged.
Brown testified that at the request of Foremen Covey,
MacElwee , and Hobbs , it had been decided to hire adjuster
trainees on the strut machine but he added that the job
would be eliminated if production performance did not
improve . When Ashby and James Walter Forbis, another
adjuster , were discharged, the Respondent hired two new
employees to perform that work and gave them a lower
classification of "general" employees . So far as it appears,
there was no alteration in .,es.
(m) James Walter Fort .,rbis was hired, according to
the Respondent , on May . -). He was terminated on June 13.
He, along with Ashby, was assigned as a trainee on the job
of strut adjuster and placed on the first shift under
Foreman MacElwee . He signed a union card on June 11.
According to Forbis, he was told that his shift might be
changed but was not informed that his job was temporary.
He worked on Saturday , June 13 . On Sunday when he and
DeMent were together enjoying some recreation by riding
horses, Foreman MacElwee came to see them about the
middle of the afternoon . According to Forbis, MacElwee
stated that "there had been a shakedown or something like
that" and that they should see their foreman before
clocking in on Monday morning . Forbis testified that
DeMent "started haggling a little bit" and "in a roundabout
way" indicated that the layoff was due to the union activity.
In addition to his job as adjuster , Forbis had been
assigned to clean and repair water machines and in
connection with his adjusting job was told by Brown that he
would need to purchase various tools. Forbis did so,
spending some $30 for tools.
(n) David Covey. David Covey , the father of Richard
Covey, was hired about May 18. Covey did not appear as a
witness at the hearing , but the record shows that on
machine, and Covey said approximately a month
MIDWEST HANGER CO. 623
Saturday evening, June 13, his son Richard and Brown had
a conversation with respect to David Covey. David Covey
was a wire-hanger adjuster on the third shift, and had hurt
his back on the job a few days before June 13. Brown
informed Richard Covey that his father was being
terminated because of the back problem and in considera-
tion of his age , stating that it was felt that David Covey's
injuries might prove to be something of a more serious
nature . Richard Covey told Brown that his father had had
some trouble with his back for several years but it never
seemed to bother him and was not regarded as serious. In
addition , Richard Covey mentioned that there were two or
three other openings available , but Brown said that he did
not think that David Covey would be able to handle these
jobs. Brown asked Richard to notify his father of the
termination . Contrary to the Respondent 's absentee report,
David Covey did not resign for health reasons.
2 Terminations at Liberty
(a) Joseph DeMent . DeMent was hired on April 3 as a
maintenance welder under Troy Keys. During his employ-
ment he worked on all of the machines except those in the
coathanger department and in addition did some mainte-
nance work. When he was hired he told Keys that he was
looking for a job that would give him steady work and Keys
replied, "We have enough work right here, if they never get
another order , this factory can go six months "
On Sunday, June 14, Foreman MacElwee came to the
home of Forbis and told Forbes and DeMent, who was also
there, that they did not need to be to work on time Monday
for the reason that they were terminated . DeMent inquired
why the Respondent was laying him off and MacElwee
responded that it was due to a work shortage . MacElwee
further stated that- "All I know is they had a big meeting
last night and Mr. Brown called me and told me to come
out to your house and tell you you were laid off." DeMent
commented that the layoff was due to union activity and
MacElwee answered, "Well, it might be, but I can't talk to
you about it .. I would be placing my own self in
jeopardy "
On Monday, June 15, DeMent spoke to Keys about the
discharge. DeMent was told to check it about 7:30 that
morning, but did not find Keys until approximately 9
o'clock. Keys was in the plant and, according to DeMent,
was watching Sells working DeMent walked up behind
Keys and, when he addressed Keys the latter, so DeMent
testified, "jumped like he was shot, you know." He asked
Keys why he had been laid off after having been told that
he had a steady job and that he need not worry about a
layoff. Keys responded by saying they should go to the
office There, Jones gave DeMent his paycheck and Keys
asked DeMent to sign a paper, but DeMent refused.
According to the Respondent's records, DeMent was laid
off because of a reduction in force.
After his discharge, DeMent went to pick up his tools and
while doing so encountered his foreman , Bill Betz. Betz
asked DeMent to do some welding and DeMent responded,
"I don't work here any more." Betz asked what he meant
and DeMent stated he had been discharged. Thereupon,
Betz threw up his hands and said, "That God damn union,
they have tried it here before." Betz then asked DeMent not
to say anything about his comment , stating that he was an
old fellow and about ready to retire.
Betz' job was to supervise the building of new machines
both for sale and use by Midwest . However, he was
handicapped in this on many occasions by reason of the
fact that Keys would take his men and use them on
maintenance work at Midwest . As a result , Betz and Keys
frequently had arguments over this matter . Neither Betz
nor Keys had mentioned the possibility of a layoff to
DeMent and the latter testified that there was so much
work waiting to be done that he thought he was "behind 12
horses going the other way."
About a week or two after his termination , DeMent met
Foreman MacElwee at a bar in town . MacElwee would not
talk to DeMent about his termination saying, "Joe , I can't
talk to you about this." After MacElwee quit he did tell
DeMent that the latter and others were laid off for union
activity and that the Company was "trying to get the key
ones out because the Company didn ' t want a union in
there."
When General Manager Ward was first called as a
witness by the General Counsel, he testified that if there
was a slack in the business of Midwest there would not
necessarily be a slack at Liberty and, in fact, a slowdown at
Midwest might result in an increase in work for Liberty
employees. He stated that Liberty was losing money
because it did not have the properly skilled employees and
that Liberty lost money in 1970 and that condition
worsened as time went on until the end of the fiscal year in
May.
Keys testified that he had spoken to DeMent several
times about his work, which he characterized as "poor,"
and that he had told DeMent if his work did not improve he
would be replaced. Keys further testified that earlier in the
week he had told Brown that DeMent would have to be
replaced unless his work improved . Brown gave Keys a list
of employees to terminate on Monday morning, June 15.
DeMent was the only employee the two had discussed
discharging . Nothing was placed in DeMent 's personnel file
regarding the quality of his work although Keys admittedly
had been instructed to wnte up such matters and place
them in employees ' personnel files.
Foreman Betz had not been made aware of the fact that
Liberty employees were going to be terminated.
President Jones testified as follows regarding the
termination of Liberty employees:
We were out of funds. Most of those people we laid off.
I did dictate this, I did say to lay those people off. My
reason was they were maintenance type people, they
were not machinists . Of necessity we had to extend our
maintenance program. We had plenty of work. I have
heard several of them get up here and say we had plenty
of work , there is no questions about it, but we were out
of funds and couldn ' t do it . We had machines all over
the plant that needed repair. I suppose if you had all the
money you wanted , you'd hire a lot of repairmen and
you'd go out there and fix them all, but we had to
extend that maintenance time based on how much
money we had . Liberty Engineering was out of funds, it
had no money.
624
r
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There was plenty of mechanical work around there and
there still is There is no question about the amount of
mechanical maintenance work . If I had twelve people
working out there, they wouldn ' t be able to finish in six
months, but it is not a question of a lot of work, it is a
question of do you have the money to pay them
In addition , Jones testified that Liberty had shipped one
machine prior to June 1970 and only one after June and, as
of the date of the hearing, another machine was about
ready to be shipped Jones further testified that the monthly
profit and loss statements of Liberty showed that from
December 1969 through December 1970 there had been a
loss in each month and that the total loss for that period
was $16,000
(b) Michael Owens. Owens was hired on March 30, 1970,
by Keys as a general maintenance employee. He repaired
machines , hung fire extinguishers and hoses , worked on
hanger machines in the plant , and did general maintenance
work. Betz was his immediate foreman
Owens signed a union card on June II and obtained
membership cards from three other employees-Gerald
Williams , Charles Lankford , and Charles Dittemore.
On Monday , June 15, at about 3.40 p m. Keys told
Owens : "Mike , I hate to tell you this, we are having a
cutback . . . there is no work coming in and we are going to
have to lay you off " Owens inquired when he would be
called back and Keys replied that he did not know. Owens
then asked , "Troy, is this a layoff or . or is this over a
union deaf" Keys responded that he did not know
anything about a union deal
No member of management had ever expressed dissatis-
faction with Owens' work; indeed, the week prior to his
termination Supervisor Keys told Owens that it would be
nice if they had a few more men like Owens at the plant In
a conversation with Brown following his discharge Owens
was told that the termination was not due to union activity
but was occasioned by the fact that the maintenance
department had run out of funds.
(c) Charles Lankford . Lankford was hired on May 18, as
a maintenance machinist . He was not called as a witness.
Keys testified that Lankford could not perform , that he was
very slow, and required a lot of supervision He signed a
union card on June 11. On Monday, June 15, Keys told him
that he was being laid off due to a reduction in force
(d) John Sells Sells was hired on February 27, and was
assigned the job of machine adjuster and machinery
maintenance Before being hired he was told by General
Manager Ward that the Respondent intended to automate
some of their machines in order to speed up output, and
Sells expressed interest in doing that type of work
Sells was called in on occasion at night when the
Respondent needed assistance in getting machines running.
At the time of his discharge , one machine had just been
taken out of the plant and brought into the shop for
overhaul
On Monday, June 15, Sells came to work at the usual
time and discovered that his timecard was missing from the
rack. He told Foreman Betz that he did not have a timecard
and Betz said he would find it. In the interim, Sells noticed
that Supervisor Keys was "peeking around" watching him.5
At about 10:30 in the morning General Manager Ward
came to Sells and stated, "I hear there is some union talk
going on around the plant . . . did you hear anything like
that?" Sells replied that he had heard it and, in answer to
Ward's further inquiry, stated that he had heard such talk
"at least a couple of weeks." Ward responded that, "Well, if
you hear anything else, let me know."
After finishing some work Sells went to the machine shop
to pick up a work order for the repair of some machines and
again noticed that he was being closely watched. In the
afternoon he picked up a work order and pursuant thereto
went into the plant to work on a machine. He noticed, but
did not overhear, an argument between Keys and
MacElwee. A few moments later Keys came to Sells and, so
the latter testified "more or less pounced on me" about
working machines without a work order. Sells "just let him
rave" and shortly thereafter pulled out the work order from
his pocket and showed it to Keys who thereupon left.
About 3 p.m. Keys told Sells he was being terminated and
handed him his check.
C The Refusal To Reinstate Grover Speck
Grover Speck was employed by the Respondent on
February 27, 1967, as an over-the-road truckdriver. The
day the strike began Speck went to the plant about 5 o'clock
to pick up a truckload of hangers, as he intended to leave
for his destination about midnight. When he arrived at the
plant he found that the employees were picketing. Speck
stopped and talked to some of the pickets to find out what
was occurring. He was told that the employees were on
strike and he stated that he had come to take a load out.
One of the strikers, Vincent Brian, asked Speck if he was
going to cross the picket line; Speck answered that he was
not and would go along with whatever the rest of the
employees did. The following day President Jones called
Speck but the latter was not at home. Finally, Speck's wife
did get in touch with him at about 6 o'clock. Speck did not
know Jones' home telephone number so he attempted to
call General Manager Ward, but Ward was not at home.
Eventually Speck went to the plant and talked with
Ashenfeld, the controller.
Speck testified that during the strike he was out of town
about three-fourths of the time working at various places.
He was present at the meeting when the strikers met and
voted to return to work. By arrangement with Greathouse,
Speck hauled a small camper trailer behind his pickup,
which the strikers had used while on strike. Two or three
cars of strikers accompanied Speck. After returning the
camper trailer one of the strikers did not have transporta-
tion back to the plant, so Speck took him back. While on
the way, Speck stopped at a friend's house to pick up some
material the friend had obtained for him. A few days later,
in talking to a driver on the telephone, Speck learned that
he was supposed to have been following one of the
replacement drivers. Speck vigorously denied that he had
5 As previously related DeMent also noticed that Keys was watching
Sells
MIDWEST HANGER CO. 625
followed any company trucks or threatened any employees
or drivers of the Respondent.
On the morning of November 4, Speck telephoned Ward
concerning the Respondent's return to work letter. While
speaking to Ward, Jones came on the line and told Speck
that he had been named for harrassing, threatening, and
following drivers of the Respondent and that Jones did not
care whether Speck came back to work or not. Speck
endeavored to explain the situation but Jones stated he was
not interested. After Jones got off the phone, General
Manager Ward talked to Speck and told him to call the
following Monday, that the Company was having problems
getting matters lined up and loads made for the drivers.
Speck did call Ward on Monday but was told that Ward
could not tell him anything. He called back the following
day and Ward then stated that the entire matter was up to
Jones, but that Jones was then out of town. Speck tried
again on Wednesday but was unable to reach Jones
During the strike Speck applied for work at an
establishment called Desert Gold and spoke to one Paul
Smith. Smith asked Speck whether he was no longer
working for Respondent and Speck replied that he had
been accused of doing things. Smith asked Speck how he
felt toward Jones and Speck replied that he had always
respected Jones and enjoyed working for him, but added
that there were a number of things of which Jones was not
aware. He related that on one occasion while in Oklahoma
he had been injured and worked 3 hours unloading one
trailer and loading another and had hired some men to
assist him When he turned in his time Ward, after several
conversations concerning the matter, told him that he
should collect from the Shock Truck Leasing Company
(which leased the trucks to the Respondent) as his claim
was an insurance claim and it was up to the lessor of the
trucks to satisfy it.
During his employment Speck had two major accidents
and three minor ones The last accident occurred some 6 to
9 months prior to March 1970. Speck related that he had
considerable trouble with one truck that was assigned him
and told the manager of the lessor that there must be
something wrong with it because on practically every trip
he made he had mechanical failure of some kind. It appears
that William Wilhite, the lessor, spoke to Jones about
Speck's alleged abuse of the truck, the last time being late in
September of 1970. At this time Jones replied, as in times
past, "that he wasn't so sure that all of this was his (Speck's)
fault nor could we actually prove this beyond any shadow
of doubt, and that he didn't have anybody else right then to
put on the equipment." According to Wilhite, the
equipment driven by Speck sustained maintenance costs
equal to the other two units leased by the Respondent. He
also stated that Speck's equipment required a major
overhaul after being driven 100,000 miles, whereas the
other two units did not require major overhaul until they
had been driven 200,000 miles.
D. Conclusions as to Terminations
1. The layoffs
We note at the outset that the Respondent has a very
difficult problem in obtaining and retaining competent
employees. As counsel for the Respondent correctly points
out in his brief, the Respondent had "a tremendous
turnover problem amounting to over two hundred percent
(200%) in 1970." By reason of the puce increase of its
product, which was announced in May and was to become
effective in mid-June, the Respondent anticipated, with
reason, that its sales of products would rise sharply but then
would drop considerably after the effective date of the price
increase . In consequence, it made plans to reduce the
number of employees. During the weekend preceding
Monday, June 15, Brown and Ward conferred and
determined which employees were to be released. Quite
inconsistently, however, as is shown in a preceding section,
the Respondent continued in April, May, and June to hire
new employees. It chose to retain many of these despite the
fact that most of those that it released were employees with
considerable experience as well as with seniority over the
new hires.
President Jones testified that the Respondent, in making
layoffs, attempted to go by seniority but then qualified that
by stating that it selects the most inefficient and least
trained employees for termination. As to whether the
Respondent followed departmental or job description
seniority he replied: "We have attempted to mainly go by
the tenure with the Company, the longer they have been
there, then they are the senior employees, senior people,
regardless of department. There are other times when we
have had to exercise seniority within the department
because people are not trained to work in other depart-
ments, so it makes it almost impossible to use one system."
Aside from the large turnover, which averages well over 20
per month, about 50 percent of the employees are women
and, as Jones testified, their attendance is spotty and worse
than that of male employees. It would appear to me that a
more sensible course for the Respondent to have followed
would have been to hire fewer replacements as the effective
day of the price increase approached and thus avoid the
alleged necessity for terminating experienced, senior
employees. As ex-Foreman Covey testified, he told Brown
when he learned of the proposed terminations.
First off, he said the entire caping room on the second
shift, and I told him, I said, "Gene, that's-why are you
cutting back on the second shift," I said, "The third
shift has just started their caping room, the people are
not trained, they don't get any kind of production out."
I said, "I have three girls back there in that caping room
and they run the caping room by themselves and they
get three times the production of the third shift." I said,
"It doesn't make sense to cut back on the second shift.
when you have twice as many people on the third not
getting any production."
Brown's response was that he realized the validity of
Covey's observation. Covey told Brown that Sharon Meier
was the best worker he had and that she had stayed over on
a number of nights to fill orders and that the entire caping
room staff would stay over an extra hour to fill special
orders for truckloads. In addition, it should be noted that
General Manager Ward had previously told Richard Covey
that he (Ward) thought that the union turmoil was being
created on the second shift. At the same time the
Respondent retained the trainees on the third shift, at a
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
differential of 5 to 10 cents more per hour, and this at a time
when the Respondent allegedly was experiencing financial
difficulties.
Although the Respondent contends that the principal
reason for the terminations was because of the economic
need to reduce its force, it does not explain or clarify its
reasoning in discharging so many employees for
"absenteeism" rather than assigning the termination to a
reduction in force. If the true reason for termination was
the union activity of the employees, most of whom had not
received prior warnings or reprimands with respect thereto,
then it would seem plain that it could not justify laying
them off because of a reduction in force while at the same
time hiring new employees. This consideration suggests that
"absenteeism" was but a pretext. In the case of Margaret
Buckley, who was on leave of absence, the reason
"absenteeism" could not be used and the reason assigned in
her case was "reduction in force, no other jobs available."
In fact, however, there were many Jobs available.
President Jones testified that the layoffs were occasioned
by dropping business and that he did not anticipate
business picking up "for quite some time." Somewhat
inconsistently, however, he also testified that he thought
that business "would pick up again in a matter of maybe a
couple of weeks, three weeks, four weeks."6
There is credible evidence that the layoff with which we
are here concerned was not consistent with the Respon-
dent's past practices. Ex-Foreman Covey testified, without
contradiction, that during the years he had been a
supervisor when there was a seasonal lull (which did not
always occur), the third shift employees would be laid off or
transferred to other shifts. Understandably, some of these
employees would eliminate themselves because they would
be unable, for personal reasons, to work on other shifts.
The Respondent would have us believe that the
terminations for "excessive absenteeism" were a customary
and commonplace occurrence both before and after the
advent of union activity and the discharges with which we
are here concerned. Counsel for the General Counsel
argues that this contention "is simply not true as can be
readily seen by a comparison of other employees' personnel
files who were terminated" for this reason, with the
employment history and personnel files of the individuals
discharged around June 15, for this reason. As related
above, it is the Respondent's position that President Jones,
by telephone, told Ward on June 12 to get rid of the
necessary employees during the weekend of June 13-14.
Customarily, the Respondent's management makes up the
crew coverage list for a week during the latter part of the
preceding week or over the weekend. The crew coverage
sheet for the week of June 14, so Brown testified, must have
been an accurate draft by late Sunday night, June 14, for
the secretaries were to type it up Monday morning This
crew coverage sheet contains the names of Bristow, Elliott,
Kimberlin, Lauderdale, William Greathouse, Owens, and
Lankford, all of whom were discharged about June 15.
Thus, counsel for the General Counsel argues that "these
employees could not have been discharged as a result of
Jones' phone call on June 12, to get rid of the excess
employees over the weekend...." Counsel for the General
Counsel continues as follows:
It is important to remember that Jones told Ward and
Brown to discharge employees in April (T. 536) and
both Brown and Ward admit that they were aware
that they had an excess number of employees on the
payroll for a year or so, and had been told by Jones to
reduce the employee complement as much as a year
prior to June 15, continuously. Jones' testimony about
the June 12 phone call to Ward to get rid of the
employees, which testimony was later adopted by Ward
and Brown in their subsequent testimony, but which
they apparently didn't "remember" when called earlier
in the hearing by the General Counsel, is nothing more
than a frantic effort to supply an answer to a question
which both Ward and Brown were, at first, unable to
answer. At first, Ward said the discharges were just a
run-of-the-mill, every day, customary occurrence. Then
he was "reminded" of the phone call by Jones'
testimony. Obviously Jones' testimony is a fabrication.
While I hesitate to label the testimony of President Jones in
this regard as a "fabrication," I must observe that, in view
of the earlier testimony of Ward and Brown, it is suspect
and in any case self-serving. Analysis of the Respondent's
crew coverage sheets beginning with the week of June 7
reveals the following: Week beginning June 7-83, week
beginning June 14-90, week beginning June 21-80
(despite the discharges), week beginning June 28-79, week
beginning July 5-78, week beginning July 12-70, week
beginning July 26-74. Thus, during the critical week the
number of employees was reduced by only three, a
negligible number considering the high rate of turnover. It
was not until the week beginning June 28 that the number
of employees dropped to 79, but we must not overlook the
fact that earlier most of the discharges here involved had
occurred.
Counsel for the General Counsel points out that with
respect to the service letters given certain employees, stating
that they had been discharged for excessive absenteeism
and had been previously warned, this "simply is untrue."
Except for one employee, General Counsel is correct.
Subsequent to June 15 or 16 several employees were
terminated for the stated reason of excessive absenteeism.
Counsel correctly points out that these discharges were
based, in part, upon the warnings given these employees on
or about June 15 and 16, a practice that varies with the
Respondent's standard operating procedure. He therefore
argues that the Respondent "was attempting to institute a
warning policy that it had not implemented in the past, in
order to attempt to Justify the discharges of the employees"
b Sales in 1970 were as follows July 127 000
January $202,000 August
,
145 000
February 203,000 September
,
218 000
March 227,000 October
,
139 000
April 236,000 November
,
192 000
May 210,000 December
,
201 000June 315,000
,
MIDWEST HANGER CO. 627
here involved and also "in order to setup other employees
for discharge."
Regarding the discharges of Forbis and Ashby, the two
adjusters, it seems plain that the Respondent had not had a
sufficient opportunity to evaluate their performance. The
adjusters were hired as a result of a request by foremen, but
they were terminated without any consultation with the
foremen as to their opinion of how that operation was
working out. Moreover, they had not completed an
adequate training period and therefore, quite obviously,
would be encountering some difficulties with the job.
The discharges of William Greathouse and his brother
Ronald were not for "absenteeism" since they had not been
employed long enough to have an absentee record
sufficient to warrant terminating them. William Greathouse
was scheduled to work during the week of June 14, and the
morning of Monday, at about 7:30 a.m., before the
Respondent had received the letter requesting recognition
from the Union, Ward told all the employees on the third
shift, including Greathouse, that there was nothing more to
worry about and that there would not be any more
discharges of third shift employees. Ronald Greathouse
was not terminated pursuant to a request by Foreman
Hobbs, as the latter originally testified. Moreover, the
record also shows that Hobbs was not disposed to
discharging employees merely for being absent from their
work stations for a brief period.
The record also shows that a substantial number of
employees were not discharged although their absenteeism
was, as of the week beginning June 14, in excess of the
absenteeism of the discharged employees. In addition, it
should be noted that these employees, listed in Appendix A,
were more recent hires than most of the employees with
which we are concerned. Two of these employees, Hoevet
and Cook, had 44 and 40 hours of absenteeism, respective-
ly, and were third shift caping room employees. They had
been hired in March and May, respectively, and were paid
5 or 10 cents more per hour because they were on the third
shift. Nonetheless, the Respondent did not see fit to
discharge them and put experienced second shift caping
room employees in their place, or at least make such an
offer.
The selection of those discharged on June 15 was not
based on recommendations by the foremen, the normal
method, but instead the employees were selected for
discharge by Ward and Brown; in some cases the
employees' foremen opposed the selection.
At the same time that the discharges were being made,
the Respondent continued to advertise for machine
adjusters, machinery maintenance men, and machinists,
and in one advertisement stated that it had openings on the
second and third shift. In explanation of this, Jones gave
the lame excuse that the ads were merely for "advertising
purposes."
Although the record does not reveal that the Respondent
ascertained that each of the discharged employees had been
engaged in union activity, it is nevertheless a fact that
approximately 99 percent of those terminated were
members of the Union, whereas the Union had signed up
only about 75 percent of the employees. As the Second
Circuit Court of Appeals observed in N L.R B. v. Piezo
Manufacturing Corporation, 290 F.2d 455 (C.A. 2), "a
finding that Ligh, respondent's vice president, knew
whether or not the employees whom he laid off had signed
union authorization cards was not essential to the Board's
decision. The layoffs occurred almost immediately after
Ligh had been informed that a majority of respondent's
production and maintenance employees had selected the
union to represent them. The Board could infer both from
the timing of the layoffs, and from Ligh's statements made
almost contemporaneous with them, that they were
intended to discourage respondent's employees from
adhering to the union at a period critical to its future at
respondent's plant and also to affect the union's majority,
which they in fact did. Under these circumstances the
Board was warranted in rejecting respondent's contention
that the layoffs were economically motivated." The timing
and circumstances of the discharges, coupled with the
Respondent's inadequate explanation thereof, warrant in
my opinion the inference that the discharges were effected
because of the union activity of the employees. See, e.g.,
McKinnon Services Inc., 174 NLRB No. 169.
The terminations at Liberty are sought to be justified on
the basis that Liberty was losing money and that the men
who were terminated were not machinists and, although
there was an abundance of work for maintenance
employees, there were no machines being turned out by
machinists for outside consumption. Somewhat by contrast,
the Liberty employees at the time they were discharged
were told that the reason was that work was not coming in.
Although there is creditable testimony (Sells) that the
Respondent did build machines for Midwest rather than
solely for outside consumption, Jones testified that the
reason for not building many machines for outside
consumption was that the Respondent did not accept
orders for new machines. It is also worth noting that the
terminated Liberty employees were not machinists and
were not hired as such but, rather, each terminated
employee was a maintenance employee. Although Jones
testified that Liberty was losing money, that had been the
fact for the last 5 years and Jones was aware of this.
Nevertheless, Liberty hired all the discharged maintenance
employees, except for Sells, in the spring of 1970. Finally, it
seems somewhat odd that the Respondent should wait until
the latter part of September 1970 to borrow money to
relieve Liberty's financial situation if, in fact, the Respon-
dent was in severe financial trouble more than 2 months
earlier.
To conclude, after a careful consideration of the entire
record I am convinced that a substantial and motivating
factor in the termination of all the employees named in the
complaint is attributable to union animus on the part of the
Respondent and the union activity of the involved
employees. I so find. With respect to Grover Speck, the
Respondent defended on the ground that he had harassed,
threatened, and followed drivers and other employees. The
record, in my opinion, does not support this defense to the
Respondent's refusal to reinstate him following the strike.
President Jones stated that on several occasions strikers
followed trucks, and he described one such incident,
involving two supervisors, Jerry Yockel and Dave Steele.
According to Jones, Speck and other strikers followed the
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
two supervisors and Jones called the chief of police and
suggested that he follow the truck down the highway and
stop the persons trailing the truck The chief of police did so
and spoke to the occupants of the car. With regard to
Speck's alleged abusive treatment of equipment the only
testimony indicating that he did mistreat equipment came
from Wilhite, the lessor of the trucks. Significantly,
however, Wilhite did not produce any records to substanti-
ate his statement, although it would appear reasonable to
believe that such records were readily available. In sum, I
am convinced and find that the Respondent refused to
reinstate Speck because of Speck's union membership and
activity. By the foregoing layoff and discharge, the
Respondent violated Section 8(a)(3) and (1) of the Act.
Moreover, by the acts of interference, restraint, and
coercion found in section 3(b) above, the Respondent
independently violated Section 8(a)(1) of the Act.
E. The Refusal To Bargain
1. The unit and majority
The Respondent admits, as alleged in the complaint, and
I find, that all production and maintenance employees,
including truckdrivers, at the Respondent's Liberty,
Missouri, plant, but excluding office clerical employees,
professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act. I further find that on and after June 15, 1970, when
the Union's demand for recognition was received by the
Respondent, the Union represented a clear majority of the
Respondent's employees, as evidenced by valid member-
ship cards signed by the Respondent's employees, and that,
therefore, the Union was the exclusive bargaining repre-
sentative of the employees in said appropriate unit at all
times on and after June 15, 1970
The Respondent argues in its brief that the Union, by
"filing the representation petition on the day of its demand
for recognition, submitted the representation question to
the processes of the Board and abandoned its reliance on
establishing majority by card check " I find no merit in this
contention . The Union's letter of June 12 clearly stated that
it was willing to submit the authorization cards to a
"mutually acceptable agency or person in order that our
majority status in the bargaining unit described above may
be verified." It also stated that it had filed a petition with
the Board in order "to protect our legal rights in the event
you refuse to recognize us on the basis of the proposed card
check," and that if the Respondent consented to a card
check the Union would promptly withdraw its representa-
tion petition. Moreover, I am persuaded that the Respon-
dent's flagrant and widespread unfair labor practices, as
detailed above, were of such a nature as to make impossible
the holding of an election in an atmosphere free from fear
or coercion Consequently, a bargaining order is warranted
in these circumstances as established by Board and Court
precedent. Gissel Packing Co, 395 U.S. 575 Accordingly, I
find that the Respondent has unlawfully refused to bargain
with the Union as the exclusive representative of the
employees in the appropriate bargaining unit and that
thereby the Respondent violated Section 8(a)(5) and (1) of
the Act.
CONCLUSIONS OF LAW
1. The Respondent , Midwest Hanger Co. and Liberty
Engineering Corp., is an employer within the meaning of
Section 2(6) and (7) of the Act.
2 The Union , United Steelworkers of America,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By terminating the employment of the 18 employees
set forth in the complaint as amended , and by refusing to
reinstate Grover Speck , the Respondent unlawfully dis-
criminated against them and thereby violated Section
8(a)(3) and ( 1) of the Act.
4. By questioning employees concerning their feelings
about the Union , by questioning them about their union
activity and the union activity of other employees, and by
threatening employees with discharge or other reprisals for
engaging in a strike , the Respondent violated Section
8(a)(1) of the Act.
5. All production and maintenance employees , includ-
ing truckdrivers , at the Respondent 's Liberty , Missouri,
plant, but excluding office clerical employees , guards, and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act.
6. At all times since June 15, 1970, the Union has been
the exclusive bargaining representative of the employees in
the aforesaid unit within the meaning of Section 9 (a) of the
Act
7. By refusing on and after June 15, 1970, to recognize
and bargain collectively with the Union as the exclusive
representative of the employees in the aforesaid appropriate
unit , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(5)
of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices burdening and affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(5), (3), and (1) of
the Act, it will be recommended that it cease and desist
therefrom and take the necessary affirmative action to
effectuate the policies of the Act. Since I have found that
the Respondent unlawfully terminated the employment of
the employees named in the complaint as amended, and
unlawfully refused to reinstate Grover Speck, and such of
the laid-off employees as have not heretofore been fully
reinstated , I shall recommend that the Respondent offer the
latter and Speck immediate and full reinstatement with
backpay computed on a quarterly basis dating in the case of
the employees laid off from the date of their layoff, and in
the case of Grover Speck from November 4, 1970, plus
interest at 6 percent per annum, as prescribed in F. W.
Woolworth Co., 90 NLRB 289, and Isis Plumbing & Heating
Co, 138 NLRB 716, and to post appropriate notices.
Upon the foregoing findings of fact , conclusions of law,
MIDWEST HANGER CO. 629
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following
recommended:7
ORDER
Respondent, Midwest Hanger Co. and Liberty Engineer-
ing Corp., Liberty, Missouri, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discouraging union membership or concerted activi-
ties of its employees by discriminatorily discharging or
refusing to reinstate any employee, or by discriminating in
any other manner in regard to their hire or tenure of
employment, or any term or condition of employment.
(b) Refusing to recognize and bargain collectively with
United Steelworkers of America, AFL-CIO, as the
exclusive representative the employees in the appropriate
unit.
(c) Questioning employees concerning their union
membership or activities or threatening to discharge
employees because of their membership or activities in the
Union, or in any other manner interfering with, restraining,
or coercing employees in the exercise of their right to self-
organization, to form labor organizations, to join or assist
the above-mentioned Union or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer to such of the employees named in the
complaint, as amended, who have not heretofore been fully
reinstated, and to Grover Speck, their former fobs, or if
these jobs no longer exist, to substantially equivalent
positions, and make them whole for any loss of earnings
they may have suffered by reason of the discrimination
against them, in the manner set forth above in the section
entitled "The Remedy."
Name of Employees Date Hired
Wanda Travis 4/6/70
Corrine Wilson 4/8/70
Elsie McDonald 4/6/70
Ada Worth 4/3/70
David Schwarz 4/10/70
Gerald Williams 4/15/70
Daniel Eckersley 5/6/70
Evelyn Butler 5/15/70
Marianna Clevenger 6/3/70
Jeff Van Riper 6/3/70
Kim Bristow 4/?/70
Betty Cook 5/?/70
May Cline 5/?/70
Thomas Eckersley 5/?/70
APPENDIX A
(b) Notify immediately the above-named employees, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Upon request, bargain collectively with United
Steelworkers of America, AFL-CIO, as the exclusive
representative of the employees in the unit described above
concerning wages, hours, and all other terms and
conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(d) Post at its Liberty, Missouri, plant, copies of the
notice attached hereto as "Appendix C." 8 Copies of said
notice, on forms provided by the Regional Director for
Region 17, shall, after being duly signed by an authorized
representative of Respondent, be posted immediately on
receipt thereof, and be maintained for a period of 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of the receipt of this
Decision, what steps Respondent has taken to comply
herewith.9
' In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102 48 of the 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
8 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 be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
9 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 17, in writing, within 20 days
from the date of this Order, what steps the Respondent has taken to
comply herewith "
Hours Absent
25.00
8.80
3.75
8.50
16.25
0
32.00 (incl. 24 hours' leave of abs.)
10.20
0
0
42.75 (8(a)(3), later terminated)
40.00
20.25
44.56 (incl. 24 hours' leave of abs.)
APPENDIX B
Date Days Date Signed
Name of Employee * Date Hired Terminated Reason Given Absent Union Card
GC (brief )-reduction in work Record
force dosen't
Margaret Buckley (N) 4/11/69 6/14/70
Resp .-her shift was eliminated indicate car
0 was signed
GC 6/14/70 repeated absenteeism
Sharon Meier (M) 11/5/69 Res .6/13/70 (GC-no prior warning) 27 hrs 6/11/70
GC 5/70
David Covey (M) Res p. 5/18/70 6/13/70
-
resigned-health reasons 19 hrs . 6/ 11 /70
GC 5/15/70 GC 611 5770 GC-reduction in force
John Ashby (M) Resp . 5/18/70 Resp . 6/13/70 Rasp-temporary employee 0 6/11/70
GC 5/70 GC 6/15/70 GC-reduction in force
Walter (J) Forbis ( M) Reap. 5/15/70 Reap. 6/13/70 Res p. temporary employee 28.8 hrs 6 11
Ronald Greathouse (M) 5 weeks prior 6/12/70 not suitable for job 24, hrs. 6/11/70
Marilyn Kimberlin (N) 1/2/69 6/15/70 excessive absenteeism GC-53 hrs.
(never warned) Resp.-
11 days
(1970) 17
da (1969) 6/1/70
excessive absenteeism
Virgie Peterson M 3/20/70 6/13/70 (never warned ) 10 rs
5/6/68 5/69 excessive absenteeism 53 hrs.
June Elliott (M) 11/3/69 6/16/70 (never warned) a 6/ 1 /70
GC 7/1/70 excessive absenteeism
Kim Bristow (11) 4/70 Res p. 6/30/70 ( received prior warning) 51 hrs.
excessive absenteeism
Elaine Peukert M 11/7/69 7/1/ 70 (never warned ) hrs .
GC 7/68 excessive absenteeism
Betty Johnson M Resp . 1969 8/11/70 (first warning 6/16/70) 80.9
Joseph DeMent (L) 4/3/70 GC 6/14/70 GC (exh.)-reduction in work
force
Resp.6/13/70 Resp. (brief)-work
unsatisfactor
Charles (J) Lankford (L 5/18/70 GC 6/15/70 GC (exh.)-reduction in work
force 6/11/70
Reap. 6113/70 Res lacked necessary
Mike Owens L 3/30/70 6/15/70 eduction in work force
John Sells (L) 2/27/70 6/15/70 reduction in work force
GC 5/14/70
William Greathouse (M) Res p. 5/18/70 GC 6/15/70 work unsatisfactory 0 /11/70
esp. brief
Allergy, no work available indicates card
that would not aggravate 0 igned before
Shirley Lauderdale M 6/9/70 6/15/70 condition 0 ermination
* M refers to Midwest; L to Liberty
MIDWEST HANGER CO. 631
APPENDIX C
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal Law by questioning
employees regarding their union activity, threatening to
discharge employees to avoid dealing with a union, by later
discharging employees because of their union activity and
refusing to reinstatement them, and refusing to bargain
with the Union:
WE WILL OFFER full reinstatement to the employees
listed below, if not heretofore fully reinstated, and pay
them for the earnings they lost as a result of the
discrimination against them, plus 6 percent interest.
Margaret Buckley
Sharon Meier
David Covey
John Ashby
Walter Forbis
Ronald Greathouse
Marilyn Kimberlin
Virgie Peterson
June Elliott
Kim Bristow
Elaine Peukert
Betty Johnson
Joseph DeMent
Charles Lankford
Mike Owens
John Sells
William Greathouse
Shirley Lauderdale
Grover Speck
WE WILL NOT discharge or discriminate against any
employee for supporting United Steelworkers of
America , AFL-CIO, or any other union.
WE WILL NOT question any employee regarding his
union activity , threaten to discharge or refuse to
reinstate employees in order to avoid dealing with the
Union.
WE WILL NOT unlawfully interfere with our employ-
ees' union activities.
WE WILL bargain collectively with the Union as the
exclusive collective bargaining representative for the
employees in the appropriate unit and if an understand-
ing is reached we will sign a contract with the Union.
The bargaining unit is:
All production and maintenance employees,
including truckdrivers, at our Liberty, Missoun,
plant, but excluding office clerical employees,
guards, and supervisors as defined in the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of any labor
organization, except to the extent that such right may be
affected by an agreement conforming to the provisions of
Section 8(a)(3) of the Act.
MIDWEST HANGER CO. AND
LIBERTY ENGINEERING
CORP.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's Office, 610
Federal Building, 601 East 12th Street, Kansas City,
Missouri 65106, Telephone 816-374-5181.