Mira-Pak, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1964

147 N.L.R.B. 1075 (N.L.R.B. 1964)

MIRA-PAK, INC. 1075
(c) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Trial Examiner's Decision and Recommended Order, what steps
the Respondent has taken to comply herewith .9
It is further recommended that unless on or before 20 days from the date of
the receipt of this Decision and Recommended Order the Respondent notifies the
said Regional Director in writing that it will comply with the above Recommended
Order, the National Labor Relations Board issue an Order requiring it to take such
action.
9In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT fail or refuse to bargain collectively with American Bakery
and Confectionery Workers Local 128, affiliated with American Bakery and
Confectionery Workers' International Union, AFL-CIO, as the exclusive rep-
resentative of all our employees in the appropriate unit described below, by
unilaterally granting wage increases to employees within the unit without prior
notice to, and consultation and bargaining with, the aforesaid union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the rights guaranteed them in Section 7 of the
Act.
WE WILL, upon request, bargain collectively with the said union as the
exclusive representative of all our employees in the appropriate unit with
respect to wage increases and related matters and, if an understanding is
reached, embody such understanding in a signed agreement. The bargaining
unit is:
All production and maintenance employees, including sanitation depart-
ment employees, shipping department employees, city pickup and delivery
drivers, and plant clerical employees, excluding all office clerical employees,
professional employees, guards, and supervisors as defined in the Act.
STANDARD CANDY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 746
Federal Office Building , 167 North Main Street, Memphis, Tennessee, Telephone
No. 534-3161, if they have any question concerning this notice or compliance with
its provisions.
Mira-Pak, Inc. and Ervin D. Flygare
Mira-Pak, Inc. and John W. Gentry . Cases Nos. 23-CA-1643 and
23-CA-1643-2. June 29, 1964
DECISION AND ORDER
On February 4, 1964, Trial Examiner Rosanna A. Blake issued her
Decision in the above-entitled proceeding, finding that Respondent,
Mira-Pak, Inc., had engaged in unfair labor practices in violation of
147 NLRB No. 126.
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Section 8 (a) (1) and (3) of the Act 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 to the Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Decision and the exceptions and brief,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order, the Order recommended by the Trial Examiner, and orders that
Respondent, Mira-Pak, Inc., its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as modified below :
Section 1(a) of the Trial Examiner's Recommended Order is deleted
and the following language substituted therefor :
(a) Threatening employees with discharge for engaging in
union activity or prohibiting employees from engaging in union
solicitation on company premises on nonworking time.
Delete the last substantive paragraph of the notice.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on June 17, 1963, by Ervin D. Flygare and a charge filed on
June 25; 1963, by John W. Gentry, the General Counsel, acting through the Regional
Director. for the Twenty-third Region, issued a complaint on July 31, 1963, alleging
that Mira-Pak, Inc., herein at times called Respondent or the Company, had engaged
in conduct which violated Section 8 ( a)(1) and (3) of the Act. In its answer, Re-
spondent admitted certain allegations of the complaint , such as the commerce allega-
tions, but denied having committed any unfair labor practices.
Thereafter, pursuant to due notice , a hearing was held before Trial Examiner
Rosanna A. Blake in Houston , Texas, on October 14, 1963.1 All parties were repre-
sented by counsel and were afforded full opportunity to be heard , to present evidence,
to examine and cross-examine witnesses , to argue orally , and to file briefs. The
parties waived oral argument. Thereafter counsel for the General Counsel and
counsel for the Respondent filed briefs.
Having considered the entire record in the case , the briefs , and from my observa-
tion of the witnesses while testifying , I make the following: 2
1 The following correction is made in the typewritten transcript of the record: the
word. "knowledge" in line 16 on page 143 is changed to "document."
2A11 credibility determinations made herein are based in part upon my observation of
the demeanor. of the witnesses while testifying.
MIRA-PAK, INC.
FINDINGS OF FACT
1077
I. JURISDICTIONAL FACTS; THE LABOR ORGANIZATION INVOLVED
Mira-Pak, Inc., a Texas corporation with its principal office and place of business
in Houston, Texas, is engaged in the business of manufacturing and servicing auto-
matic packaging machines. In the 12 months prior to the issuance of the, com-
plaint, a representative period, the Company sold and shipped from its Houston,
Texas, plant to points outside the State of Texas, products valued in excess of
$50,000. During the same period, goods and materials valued in excess of $50,000
were transported to the Company's Houston, Texas, plant directly from points out-
side the State.of Texas.
Upon the foregoing facts I find, as Respondent admits, that it is and has been at
all times material herein, engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Respondent admits and I find that Sheet Metal Workers International Association,
Local Union No. 54, AFL-CIO, herein at times called the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
IT. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In May 1963, John Gentry, Ervin Flygare, and a number of other employees dis-
cussed conditions in the plant and a number of them "thought a union was required
to better conditions." Gentry "started contacting unions to see which one would
help [the employees] most and which one was better suited for [their] type of
work." He finally called the Sheet Metal Workers and representatives of that union
distributed leaflets in the street in front of the plant on the afternoon of June 4.
B. The discharge of Gentry on June 6
John W: Gentry was first employed by Respondent in December 1962. He was
assigned to the electrical department where he worked for about 2 months. He was
then transferred to the assembly department and had been working in that department
for approximately 4 months when he was discharged on June 6, 1963.
As stated supra, Gentry was the employee who made the call to the Sheet Metal
Workers which led to the distribution of handbills in front of the plant on June 4.
The next day, Bob Gussman, the chief engineer in the experimental department,
asked Gentry if he had "another of those pamphlets, that he would like to see it." 3
Gentry answered in the negative. Gentry estimated that he asked 30 to 40 of the 60
to 65 shop employees to sign cards and also talked about the Union with Tom Hood,
the assistant supervisor in the electrical department, Dave Altenbaugh, the supervisor
of the electrical department, and Charles Rutledge and Larry McNatt, supervisors in
the assembly department. Rutledge and McNatt were Gentry's immediate supervi-
sors at the time of his discharge .4
Gentry testified that about 2 months before he was discharged, Assembly Depart-
ment Foreman Don Evans told him he "wasn't working fast enough" and that he
should' not'have ridden a forklift as Gentry had done when moving a piece of
equipment.
8 The above finding is based on the undenied testimony of Gentry . Gentry also testified
without denial that Gussman had men "working under him" and that he himself had
worked "under [Gussman 's] direction" on a number of occasions . Employee Flygare char-
acterized Gassman as "head" of the "Experimental Department people."
4 Although there is little evidence in the record concerning the "supervisory " authority
vested in Altenbaugh , Hood , McNatt , and Rutledge , Respondent's witnesses , as well as
those for the General Counsel , referred to each as a supervisor . Moreover , Respondent
has never contended that any of these men was not a supervisor within the meaning of
Section 2(11) of the Act and, In fact, appeared to be contending at the hearing that It
could validly threaten McNatt with discharge for going to a union meeting because he was
a supervisor. Accordingly, I find that Altenbaugh, Hood, McNatt, and Rutledge are super-
visors within the meaning of Section 2(11) of the Act. Although it appears that Hood
and McNatt were Interested In the Union because they believed It to be, a good thing,
Rutledge did not disclose his motive but testified only that, "I had my reasons."
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gentry also testified that on June 4 and 5 he broke three "taps" which are tools
for threading holes in metal. In one case , Foreman Evans told Gentry to "punch"
the tap out but when that was not successful, Evans told Gentry to drill a new hole,
"paint over" the old one, and "camouflage it so it couldn't be seen." Gentry also
broke a tap when working on a brass block .5 Also on June 4, Gentry drilled two
holes about one-sixteenth of an inch "off" but the errors were not serious enough
that the part had to be scrapped. There is no evidence that he was reprimanded
on either day either for the broken taps or the drilling errors.
During one period of his employment, Gentry worked in the tool locker and one
of his jobs was to check out taps. When a tap is broken, the employee signs his
name and notes both the size of the tap and where it was broken. According to
Gentry's undenied testimony, he had "about four or five pages of names there in
just about three months' time" and the breakage was such that he ordered taps
"just about every other week." He denied that he broke more taps than most of the
other employees and asserted that it was "quite customary" to break taps and that
"even" Assembly Department Foreman Evans broke one or two.6
On the morning of June 6, Foreman Evans notified Gentry that "we are going
to have to let you go." When Gentry asked why, Evans said Gentry's work was
"just not up to standard." Gentry inquired whether his work was any worse than
that of anyone else to which Evans answered, "No, there ' are several others here
just as bad or worse. We are going to get rid of them in the future, too." 7
C. The discharge of Flygare on June 15
Ervin Flygare began working for the Company in June 1962. Like Gentry, he
started in the electrical department and was transferred to the assembly department
after 2 or 3 months. Approximately 3 months later, he was transferred to the check-
out department. Within a few weeks, he was told he was not "satisfactory" to go
into the field and was sent back to the assembly department where he was working
at the time he was discharged.8 ,
Flygare was one of the employees who started "talking together about getting a
union" and he asked a number of employees to sign cards. According to Flygare,
he and the others talked to "just about everybody in the shop that we felt would
cooperate and listen to us," including "some of the supervisors."
On Saturday morning, June 15, the Union distributed green handbills in the street
in front of the plant. Flygare was given one and drew a map on the reverse side
showing how to reach his home. He prepared the map for employee Lynn Davis
who was going to buy a wrecked car from Flygare. Flygare left the leaflet on his
workbench where Checkout Department Foreman Luis Garcia saw it and asked
Flygare, "How do you feel about the Union?" Flygare replied, "It doesn't make
too much difference to me." 9
About 10 a.m., Davis went to get a drink at the water fountain which was "right
behind" the machine on which Flygare worked. Flygare handed Davis the handbill-
map saying, "Here's a map how to get to my place to pick up the car." If Davis said
anything, it was only a word or two. According to Flygare's undisputed testimony,
the entire incident took about 30 seconds.
Shortly thereafter, President William "Bill" Leasure came to Flygare's place of
work and said he had "caught" Flygare "talking union." Leasure said he knew what
5 Gentry testified without denial that it was the first time he had "tapped" brass.
0 Employee Flygare testified that taps are broken "all the time" and that he never
knew anyone to get -into "trouble"_ or even to be reprimanded for doing so even if it
occurred frequently. Supervisor Hood testified that taps are broken "quite frequently"
and Supervisor 14IcNatt that they are broken "frequently." '
7 Unless indicated otherwise, the findings in this section are based on Gentry's testi-
mony which is almost wholly denied.
8 Until late 1962 or early 1963, most but not all of the employees were being trained to
go into the field as servicemen: A new employee works for approximately 3 months in
the electrical department, 3 months in the assembly department, and spends a final 3
months in the checkout department. Beginning in 1963, a larger number of men were
regarded as "permanent" employees rather than service trainees.
'The findings with respect to Garcia 's conversation with Flygare are based on the
latter's undenied testimony . The, complaint alleges and the answer admits that Garcia is
a supervisor within the meaning of Section 2 ( 11) of the Act.
. MIRA-PAK, INC. 1079
the employees' rights were and he knew what his rights were and that Flygare was
"a fool" if he did not think Leasure would do what he could to "stop" the employees.
Flygare said.he had not been talking union and Leasure walked away.'°
Approximately 15 minutes later, Foreman Evans told Flygare he was discharged
and gave him his paycheck. Flygare asked if Bill Leasure had told Evans to fire
him and why he was being fired. Evans replied, "For passing out union literature."
Flygare explained that there was a map on the back of the handbill and that "it
didn't have anything to do with the Union at all." Evans' comment was, "Well,
it's too late now." Flygare then called Davis over and asked what was on the sheet
of paper Flygare gave Davis that morning. Davis replied, "It was a map how to
get over to your car."
Flygare lives with Arthur May and he sometimes calls May "uncle" although they
are apparently not related. In mid-April 1963, Shop Superintendent Richard Gibson
gave Flygare.a "week's notice" because he frequently came in late and because he
would not stay on the job but talked to the other employees and interfered with
their work. When May learned of Flygare's impending discharge, he went to the
plant and talked to Gibosn. May told Gibson that he had just bought a house near
the University of Houston to make it easier for Flygare to go to school and asked
Gibson to give Flygare another chance and promised to see to it that Flygare got
to work on time. The discharge notice was rescinded and there is no probative
evidence that Flygare was ever late thereafter."
On the Monday after Flygare's discharge, May talked to President Leasure and
the latter gave May a number of reasons why Flygare was discharged. One was
that Flygare had been drunk at the Christmas party in December 1962, and "it had
been pretty embarrassing to the other people." May protested that he had "picked"
Flygare up at the plant before the party started and May and Flygare drove to San
Antonio and Flygare was not intoxicated. Leasure admitted that he might have
been mistaken about Flygare's condition. Leasure also asserted that Flygare: (1)
was reckless with the forklift and that he "tried to make a race track out of the shop";
(2) fought with other employees; (3) did unsatisfactory work; (4) had trouble with
his neighbors; and. (5). got mad and threw tools around the shop.12 According to
May's undisputed testimony, Leasure said nothing about Flygare's "passing out a
green leaflet" on the day he was discharged.
A day or so later, May talked to Foreman Evans and asked why Flygare was dis-
"charged. Evans replied, "Passing out union literature."
Shop Superintendent Gibson was on vacation when Flygare was discharged. He
returned to work the following Monday and a few days later told May he was "sur-
prised" when he learned that Flygare had been fired.13 A termination memorandum
prepared by Gibson and dated June 19 reads as follows:
[Flygare] was hired as a Service Trainee on May 21, 1962; at this time he
told us that he had mechanical and electrical experience. By January 2, 1963,
he had been trained in the electrical and mechanical department, he had com-
pleted his training prior to going into the Check Out Department.
After being in the Check Out Department from January 2, 1963, thru Janu-
ary 24, 1963,.it was evident that he was not capable of operating a packaging
machine. We then transferred him back to the Assembly Department for more
training, but he became. arrogant and would not stick with the job he was ap-
pointed to do. He would interfere with other men and keep them from work-
ing and started coming in late; he also would defy supervision and argue with
Department Heads. He was warned about this several times.
10 After testifying on direct examination that Leasure said he had caught Flygare "talk-
ing union," Flygare testified on cross-examination that Leasure "didn't mention the word
'union.' 11 1 1 am convinced that Leasure used the word "union" as his own testimony dis-
closes and I credit Flygare's testimony on direct examination concerning the conversation.
My reasons for discrediting Leasure's version of the conversation are set forth infra. Ex-
cept in this instance, there is little conflict between the testimony of Flygare and that of
Respondent's witnesses.
11 Although Gibson testified that Flygare came in on time "for.a while" and then started
to "backslide," in my opinion such general. and conclusionary statements fall far short of
establishing that Flygare was late to work on any occasion after April and certainly not.
that he was frequently late. -
12 Respondent introduced no evidence in support of any of these charges and Supervisor
Flood testified that he had never seen anything which suggested that Flygare had a temper.
13 May's testimony on which this finding is based is undenied . Gibson's supervisory
status as admitted by Respondent.
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 17, 1963, I fired Ervin Flygare giving him one week's notice. The.
next day, Art May, Ervin's uncle, came to see me and ask[ed] why I was firing
him. After I had completely informed him of my reasons, he said that if I
would give Ervin another chance he would see that Ervin would come to work
on time and would quit interfering with the other men while working. I agreed
to give Ervin one more chance.
For a short time after this promise from his uncle, Ervin straightened out and
worked well. But this did not last long; he started to go back to his old habits
just before I went on vacation. While I was on vacation I am told he resisted all
supervision and constantly interfered with the other men while at work:
On June 15, 1963, my Department Head, Donald Evans was forced to fire
Ervin Flygare because be could not keep him on the job.
D. Respondent's statements in connection with the union meeting on June 15
A union meeting was scheduled for the afternoon of the Saturday Flygare was dis-
charged. As Supervisors McNatt and Evans and several employees were leaving the
plant, Evans either asked McNatt or McNatt volunteered the information that he was
going to the meeting. McNatt asked Evans "Would we get fired if we went" to the
meeting and Evans answered, "Yes." McNatt replied, "If it means losing my job,
I won't go." Evans protested that he didn't say that." McNatt also asked how
Evans would know who attended the meeting and Evans answered, "It might be me."
McNatt then told eight or nine employees who were standing outside to "use their own
judgment" about going to the meeting, "that they might get fired." 14 According to
McNatt, the men decided to go to the meeting.
The following Monday morning, Superintendent Gibson asked McNatt if he had
attended the union meeting and McNatt said he had. Gibson thereupon told McNatt,
"I want you to tell everyone that went that it's their right to vote . [to] do any-
thing like getting the Union into the Company off Company time if they want to
and no one will be fired for their activities." When Gibson asked if Flygare at-
tended the meeting, McNatt commented, "I thought you knew everyone that was
there." Gibson laughed and "that was the end of the conversation."
E. The no-solicitation rule posted by the Company
On or about June 20, Respondent posted the following notice in the plant:
NONSOLICITATION POLICY NOTICE
To ALL EMPLOYEES:
It has been the policy of the Company since its inception that no solicitation
of any kind, whether for such organizations as United Fund, Insurance groups
or any charitable or noncharitable promotional groups, has been permitted on
the Company's premises . No exception has been made to this policy.
Accordingly, this notice will reaffirm the Company's nonsolicitation policy.
Your strict adherence to this policy is requested.
F. Analysis and conclusions
1. The discharges
a. The discharge of Gentry
W. C. LEASURE,
President.
As set forth supra, it was Gentry who called various unions when some of the
employees became interested in union representation and his call to the Sheet Metal
Workers led to the distribution of union literature in front of the plant on June 4.
14 After testifying on direct examination that he asked Evans if "we" would get fired
for going to the meeting , McNatt testified on cross -examination that he could not recall
whether he asked Evans if he-McNatt-would be fired or if "everybody" who went would
be fired. I credit McNatt's testimony on direct examination for two reasons: (1) the un-
disputed fact that McNatt promptly told a group of employees that they might be fired If
they went to the meeting indicates that his contemporary understanding of Evans' re-
marks was that they applied not only to McNatt as a supervisor but to all employees ;
and (2) although Evans was present throughout the hearing, Respondent did not call him
as a witness as, I am sure, it would have done if he would have testified that his state-
ment was applicable only to McNatt and, presumably, other supervisors.
MIRA-PAK, INC. 1081
He talked about the Union to " 30 :to 40 of. the 60 to 65 shop employees and it is
undisputed that .he also discussed it with Supervisors Altenbaugh, Hood, Rutledge,
and McNatt. Both Hood and Rutledge testified that it was Gentry who "started"
the Union and experimental department "head" Gussman asked Gentry for a union
leaflet on June 5.15 Gentry was discharged the next day, the asserted reason being
that his work was "just not up to standard."
Although Rutledge, one of Gentry's immediate supervisors, testified that he had
asked on numerous occasions-in the past-that Gentry either be transferred out of
his department or discharged because he was not capable of doing the work, neither
Rutledge nor any other-witness for Respondent testified concerning the precipitating
cause of Gentry's discharge. In other words, Respondent did not explain why
Gentry was discharged, without warning, on June 6, 2 days after the first distribu-
tion of union. literature at the plant.16 In fact, the record does not even disclose
who made the decision to discharge Gentry.
The only specific criticism of Gentry's work contained in the testimony of Re-
spondent's witnesses is Rutledge's assertion that Gentry broke "my share and his
share of taps" and "at times" had trouble locating the point at which to drill holes.
Although Electrical Department Supervisor Morris Waldrop testified that he would
not have taken Gentry back into his department, he did not say why nor did he cite
any instance -of unsatisfactory work by Gentry. Indeed, Waldrop seemed to be
carefully avoiding characterizing Gentry as an "unsatisfactory" employee for he said
only that Gentry "wasn't exactly what you would call an outstanding worker" and
that Gentry did not do "exceptionally well" in the electrical department. Waldrop
also admitted that he could not recall any adverse reports-concerning Gentry's work
by Gentry's immediate supervisors and conceded that Gentry was transferred out of
the electrical department somewhat before he had completed his training. Finally,
General Counsel's witness Hood, Gentry's immediate supervisor in that department,
testified that Gentry was a good worker.
In short, Gentry was a "trainee" and made mistakes. He probably "broke" more
taps than he admitted but no one testified that this was the reason be was discharged.
There is no evidence that he was guilty of any major errors at any time, let alone
in the period immediately preceding his discharge, and he was never warned that he
would be discharged if his work did not improve. I am convinced, therefore, that
his work generally was as satisfactory as that of the average employee with his
experience and training and I do not believe that he was discharged on June 6
because, as he was told by Evans, his work was not "up to standard."
In view of Gentry's role in the union campaign and the Company's knowledge
thereof, Respondent's opposition to the Union, the timing of Gentry's discharge,
i.e., 2 days after the first distribution of union literature, and Respondent's failure
to offer any explanation for Gentry's sudden termination, I conclude and find that
a preponderance of the evidence supports the allegation of the complaint that Gentry
was discharged because of his union activity and that Respondent thereby violated
Section 8(a)(3) and (1) of the Act. Cf. Sardis Luggage Company v. N.L.R.B.,
234 F. 2d 190, 195-196 (C.A. 5).
b. The discharge of Flygare
As set forth supra, Flygare was one of the employees who initiated the union
campaign and thereafter sought to obtain support for the Union among the employ-
ees generally.17 Admittedly, there is no direct evidence that any management
representative knew of Flygare's general union activity. However, Supervisor Hood
was active in the union cause and Supervisors McNatt -and Rutledge were clearly
aware of what was going on. Furthermore, there are only 60 to 65 shop employees
and it is reasonable 'to infer, and I do infer from these facts, that management
representatives soon learned which of the employees were responsible for the or-
15 On the basis of foregoing facts, I find that Respondent knew of Gentry's prominent
role in the union campaign. Indeed, none of Respondent's witnesses denied knowledge of
Gentry's activities on behalf of the Union.
19 Although, as stated supra, Gentry testified that he broke three taps and drilled two
holes one-sixteenth of.an inch "off" on June 4 and 5, there is no testimony that this is
why he was discharged nor is there any evidence that employees were generally discharged
for breaking taps or making errors in drilling. Indeed, it is undisputed that employees
were not even reprimanded for breaking taps.
17 Although Flygare testified that "we talked to some of the supervisors" about the
Union, it is not clear that he personally talked to any supervisor prior to his discharge.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ganizational campaign and were most active in the Union's behalf. And, as a
matter of -fact, not a single one of Respondent's witnesses denied knowledge of
Flygare's role in the union campaign.
But whether or not Respondent knew of Flygare's union activity before June 15,
it clearly identified him with the Union on that date for he brought a union handbill
into the plant and placed it on his machine where it was seen by Supervisor Garcia
who asked Flygare how he felt about the Union. A little later, Flygare handed the
leaflet to employee Davis during working hours and not long thereafter President
Leasure went to Flygare's place of work and said he had "caught" Flygare "talking
union," that he [Leasure] knew what the employees' rights were and what the
employer's rights were and that Flygare was "a fool" if he thought Leasure would
not do what he could to "stop" the employees. Although Flygare truthfully asserted
that he had not been "talking union," he was discharged at approximately 10 a.m.,
the stated reason being for "passing out union literature." When he again asserted
that his conversation with Davis did not concern the Union, Evans told him, "Well,
it's too late .now." . i
Evans, who actually discharged Flygare, was not a witness and in his direct ex-
amination as a witness for Respondent, President Leasure did not state why Flygare
was discharged. On cross-examination, Leasure testified that Foreman Evans came
to him on June 15 and said, "Flygare is off the job again. I think he is passing
out union literature. Can I fire him?" Leasure replied, "Yes, you can fire him
if he is off the job." Finally, according to Leasure, Flygare would have been dis-
charged without regard to the subject of his conversation because he had a history
of being "off the job" and was a "marginal" employee.
The employees have no formal "coffee breaks" but are permitted to go to the
coffee, soft drink, and doughnut machines as often as they wish and take one or
more of the items back to their work benches.18 According to Respondent's own
witnesses, the employees talk briefly to each other on nonwork subjects as they come
and go. For example, President Leasure testified that it would not violate any
company rule for an employee to "kill thirty seconds . or a minute or two"
or to ask another, as he passed by, "Are you going to the beer party tonight?"
The evidence also clearly establishes that Respondent permitted the employees to
solicit-on company time-funds for parties and support for the baseball team.
Indeed, Flygare testified without denial that on two occasions he solicited for a party
on company time, that one was "not long" before his discharge,. and one of those
solicited was a supervisor. Flygare also testified without denial that the "latest"
solicitation was for the baseball team and was carried on by Bob Gussman, the
"head" of the experimental department.
It is undisputed that the Flygare-Davis incident took about 30 seconds and that
Flygare did not leave his machine but handed Davis the handbill-map as the latter
passed within 2 feet of Flygare on his way to the drinking fountain which was "right
behind" Flygare's workbench.
The foregoing facts convince me and I find that Respondent would not have dis-
charged Flygare if the leaflet he handed Davis had been an announcement of a party
or a baseball game or if Respondent had known that Flygare was not "soliciting"
on behalf of the Union but was giving Davis a map showing how to reach Flygare's
home. In short, I conclude that what Respondent objected to was not that Flygare
was "off the job" or was using 30 seconds of company time for a nonwork activity
but because it believed that he was engaging in union activity and that it seized upon
the fact that he appeared to be engaging in such activity on company time as a
pretext for discharging him.19 As President Leasure told Flygare shortly before he
was discharged, Flygare was a fool if he believed that Leasure would not do what
he could to "stop" the employees' activities.
Other facts, in addition to those previously set forth, lead me to conclude that
Flygare was not discharged either for being "off the job" or for engaging in union
activity on "company time." I note, for example, that on the Monday after Fly-
Is These items are provided by the Company without cost to the employees.
19 It is well settled that-broadly speaking-an employer may validly discharge an em-
ployee for engaging in union activity during working hours. The reasons, of course, is that
the employee is being paid to work and his employer may validly require that he spend
all of his working time working. If, on the other hand, the employer permits solicitation
for other employee activity on company time but discharges an employee for soliciting on
behalf of the Union, it is clear that what he objects to is not that the employee is wasting
time for which he is being paid but the purpose or nature of the employee's activity.
MIRA-PAK, INC. 1083
gare's discharge , Supervisor Gibson , asked Supervisor McNatt if Flygare attended
the union meeting on the afternoon following his discharge . I also note that Su-
pervisor Evans told both Flygare, at the time of the discharge , and May shortly there-
after, that Flygare was discharged for "passing out union literature ," not for passing
out union literature on company time. Furthermore, when President Leasure told
May the reasons for Flygare 's discharge , the June 15 incident was not one of them
and Supervisor Gibson referred in his termination report only to Evans ' inability to
keep Flygare on the job on June 15.
Indeed , even at the hearing Respondent seemed at times to be disclaiming that
Flygare was discharged for passing out union literature "on company time." Thus
when asked if Respondent was contending that Flygare was discharged because he
was generally an unsatisfactory employee , counsel replied:
... as a practical matter [Flygare ] has been fired three times and has been
permitted to come back, and still we have had all of these things. There is no
doubt that he was fired on that day because of this conversation with Lynn
[Davis]. But I think in judging the firing and the Company's attitude toward
[Flygare ] we are entitled to look at the record. We fired a whole employee,
not one incident.
Counsel was also asked if it was the Company's position that any employee would
have been discharged for doing what Flygare did on June 15. Counsel's answer
was, "It's obvious that they wouldn't because Lynn Davis wasn't." Even when it
was suggested that the reason why Davis was not fired was that he was the "innocent",
party, counsel denied that Davis was "innocent" stating that "He stood and talked as
much as [Flygare] did." In addition, in its brief, Respondent argues that because
of Flygare's history, "a seemingly small act such as being off the job discussing union
literature would be of considerable importance in the case of Flygare-and rela-
tively unimportant in the case of Lynn Davis .... . And at another point, the
brief asserts that,
The incident which led to the firing of Flygare on. June 15 would appear to. be
somewhat trivial unless examined in the light of all of the surrounding circum-
stances [i.e., his past history and the production situation in the shop.]
Finally, as previously stated, Leasure testified at the hearing that Flygare would
have been discharged without regard to the subject of his conversation with Davis
because of his history of being "off the job." In other words, according to Leasure,
he would have approved Flygare's discharge whatever the purpose for which he was
off the job.
Flygare had been working for the Company for approximately a year when he was
discharged on June 15. Respondent conceded that he was capable of being a very
good mechanic but asserted that he had been a problem employee in several ways
and there is some support in the record for its contention.
For example, Supervisor McNatt, who was a witness for the General Counsel, testi-
fied that Flygare's work was "exceptionally good. When he did something it was
letter perfect . . ." but that he was "moody" or `.`temperamental" and "sometimes
wouldn't work." 20 It is also undisputed that Flygare was late for work on a number
of occasions prior to April 1963, but, as noted supra, there is no probative evidence
that he was late thereafter, i.e., following the recision of his discharge notice as the
result of May's promise to see that Flygare got to work On time.
Concededly, Flygare had "moody" spells and at such times did little or no work.
However, the record does not disclose how frequently this happened or how long
Flygare's periods of inactivity lasted. More significantly, there is no evidence that
he had been guilty of any such "spell" in the weeks preceding his discharge. Nor
is there any probative evidence of any conversation between Flygare and any other
employee except his 30-second conversation with Davis on June 15. If Flygare was
frequently "off the job"' and interfered with the work of his fellow employees, the
facts were clearly known to Respondent. If it was a frequent occurrence, I am sure
Respondent would have cited at least some specific examples, giving the approximate
dates, the employees involved, and any reprimands by supervisors. Such general
and conclusionary charges are easily made but difficult for the accused employee to
20 Superintendent Gibson , a witness for Respondent , testified that Flygare "has a very
good talent" for being a mechanic but "I [ had trouble ] keeping him on the job . . . . He
was careless and wild and wanted to talk to other people and interfered with their job
too."
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disprove 21 And in the absence of specific facts, I cannot determine to what extent.
the charges were justified but . for the reasons just stated , I. am of the opinion that
they were not as serious as Respondent 's witnesses would have me believe 22
This conclusion is further supported by the fact that Respondent produced no, evi
dence that Flygare was in fact guilty of any of the complaints against him asserted.
by President Leasure in his conversation with May following Flygare's discharge or
the others (except the alleged charge that he was off the job on June 15) set forth.
in the termination memorandum prepared by Superintendent Gibson.
In sum , the foregoing facts convince me and I find that Flygare was a . very good
mechanic who, nonetheless , was something of a problem . Apparently there had
been a difference of opinion in the past about whether Flygare should be discharged
or retained and the decision was to retain him. Having considered all of the facts,
I do not believe that the 30 -second incident on June 15 would have caused Respond-
ent to reverse that decision had it not believed that Flygare was distributing union
literature . And I have found that what Respondent objected to was not that Fly-
gare engaged in a 30 -second conversation with employee Davis but that he had been
seen handing one of the union leaflets to Davis and that it seized upon the fact that
he had done so on company time as a pretext for discharging him. Cf . N.L.R.B. v.
Idaho Potato Processors , Inc., 322 F. 2d 573, 575 (C.A. 9), enfg. 137 NLRB 910,
911; N.L.R.B. v. Kohen-Ligon-Folz , Inc., 128 F . 2d 502, 503 (C.A. 5).
Having considered all of the facts , including the discharge of union leader Gentry
2 days after the first distribution of union literature , the timing of Flygare 's discharge,
i.e., a few hours after the Union 's second distribution of union literature , Respond-
ent's knowledge that Flygare had brought a piece of the literature into the plant and
handed it to another employee, Respondent 's opposition to the union campaign, its
giving of numerous and in most cases wholly unsupported reasons for its action, I
am convinced and find that a preponderance of the evidence supports the allegation
of the complaint that Respondent discharged Flygare because of his union activity
and not because he appeared to have engaged in such activity on company time or
because he was "off the job." It follows, therefore , and I find that Respondent
violated Section 8(a)(3) and ( 1) of the Act by discharging Flygare . N.L.R.B. v.
Idaho Potato Processors, Inc., 322 F . 2d 573 , 575 (C.A. 9), enfg. 137 NLRB 910,
911,23
c. Interference, restraint, and coercion
1. McNatt's statement on June 15
As set forth supra, a union meeting was scheduled for the afternoon of the day
Flygare was discharged and Supervisor McNatt asked. Supervisor Evans if the em-
ployees who attended it would be fired. Evans answered "Yes" but when McNatt
said he would not go to the meeting if doing so would mean losing his job, Evans
protested that he "didn't say that." McNatt also asked Evans how he would know
which employees went to the meeting and Evans replied, "It might be me." At the
close of this conversation , McNatt told eight or nine employees who were standing
nearby that they "might get fired" if they went to the meeting and to "use their own
judgment." Nonetheless , the eight or nine employees apparently went to the
meeting.
n Flygare testified that he was not "reprimanded any more for talking than anyone
else." Another example of the general rather than specific testimony by Respondent's wit-
nesses was Superintendent Gibson 's testimony that he had let other employees "go" for
not staying on the job but that he was unable to "remember specifically who they were."
=a See also the discussion ( infra ) of President Leasure's testimony concerning the ex-
tent of conversations about the Union during working hours in the period prior to Flygare's
discharge.
"3 In the case of an alleged discriminatory discharge , the issue is the employer's motive.
It is therefore enough that Respondent believed, as it clearly did on June 15, that Flygare
was seeking support for the Union when he handed Davis the green union leaflet. More-
over, Supervisor Garcia had seen the handbill on Flygare' s workbench and had asked him
how he felt about the Union. In addition , as indicated supra, various supervisors were
aware of the union activity among the employees , both Hood and Rutledge testified that
Gentry was the employee who "started" the union movement and it is reasonable to sup-
pose that they also knew of Flygare's only slightly less prominent role. Finally , as previ-
ously noted, no management representative denied knowledge of Flygare 's union activity
generally.
MIRA-PAK, INC. 1085
The following Monday morning, Superintendent Gibson asked McNatt if he
went to the meeting and also if Flygare attended it. Although Gibson then told
McNatt that no one would be discharged for engaging in union activity on his own
time, there is no evidence that McNatt reported Gibson's statement to any employee.
Although Gibson testified that he made a similar statement "probably a dozen times"
on June 17, he did not identify the persons to whom he made the statement and
did not even indicate that any of them was an employee.
Since McNatt was a supervisor, Respondent would not have violated Section
8(a)(3) of the Act if it had discharged him for attending a union meeting and did
not violate Section 8(a)( I) of the Act by telling McNatt that employees would be
discharged if they went to the meeting.24 However, Evans' statement caused McNatt
to tell a group of employees that they might be fired for going to the meeting. That
such a statement by a supervisor violates Section 8(a)(1) of the Act is too well
settled to require extensive discussion or citation of authority 25
In the instant case, however, it could be argued that Gibson's statement on the
following Monday to McNatt and others that no one would be fired for engaging
in union activity on his own time negated the coercive effect of McNatt's statement
on Saturday. If, on Monday or shortly thereafter, some management representative
had notified all of the employees that McNatt's statement was untrue, I might have
concluded that its coercive effect had been expunged. But I do not believe that either
Gibson's remark to McNatt, who apparently did not report it to anyone else, or
Gibson's statements to unnamed persons was sufficient to counteract the coercive
effect of McNatt's statement.
Furthermore, the timing of McNatt's statement made its coercive effect particu-
larly potent. Thus, it came on the day when union literature had been distributed
and only a few hours after Flygare, one of the union leaders, had been discharged.
And Gentry, the employee who "started" the union campaign, had been fired less
than 10 days before, again shortly after union literature had been distributed in
front of the plant.
Finally, a few days later Respondent posted its no-solicitation rule which, as
found below, violated Section 8(a)(1) of the Act by prohibiting union activity
by employees on company property.
The foregoing facts, in combination, cause me to conclude that McNatt's state-
ment that employees might be fired if they went to the meeting interfered with,
restrained, and coerced employees in the exercise of the rights guaranteed them by
Section 7 of the Act and that Respondent thereby violated Section 8(a) (1) of the Act.
2. The no-solicitation rule
As set forth supra, on or about June 20, the Company posted a notice which stated
that it was the Company's policy to permit no solicitation of any kind "on the
Company's premises." The rule as stated applied to employees as well as to out-
siders and to nonworking time as well as to working time and its natural tendency
would be to cause at least some of the Company's employees to refrain from engag-
ing in union activity on company property even on their own time. Although there
is no evidence that the rule was ever enforced with respect to employees, there is
no evidence that they were ever told it did not apply to them or that any of them
engaged in union activity on company property after the notice was posted. In
short, I assume that the employees believed that Respondent meant what it said,
i.e., that no solicitation of any kind would be permitted on company property.
The undisputed evidence establishes that the Company had long prohibited all
solicitation on company property by "outsiders" and that the rule had been strictly
enforced. It is equally clear that "solicitation" by employees on behalf of employee
activity had been permitted even on company time. Thus, as previously stated,
2t This does not mean , of course , that Evans' statement to McNatt cannot be considered
when determining Respondent 's motive in discharging union leaders Gentry and Flygare.
21 When statements such as McNatt'a are made by one who is part of management, and
"who has the power to change prophecies into realities, such statements , whether couched
in the language of probability or certainty, tend to impede and coerce employees in their
right to self-organization N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Com-
pany, 186 F. 2d 272, 276 (C.A. 5), cert. denied 344 U.S. 865. Since it is impossible to
estimate the effect of such antiunion activities on employees generally, the test in such
cases is not whether there is proof of actual coercion but whether it can reasonably be
said that the conduct tends to interfere with employee rights. N.L.R.B . v. 'Wilbur H.
Ford, d/b/a Ford Brothers, 170 F. 2d 735, 738 (GA. 6).
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is undisputed that employees regularly solicited funds for "beer" parties and sup-
port for the baseball team during working hours. Furthermore, every employee
witness testified that he was unaware of any rule prohibiting employee solicitation on
behalf of employee activity. Supervisors Hood and McNatt also testified that they
knew of no such rule and testified, without denial, that they were never instructed
to tell employees that there was a rule against solicitation by employees. It is
therefore clear that, contrary to Respondent's contention, the notice was not merely
a restatement of its long-standing policy. But even if it is assumed that the Com-
pany was not promulgating a new rule, the fact that such a rule existed in the past
would not justify its continuation if its effect was to interfere with the exercise of
rights guaranteed the employees by the Act. Moreover, the timing of its posting
and Leasure's hostility to the Union generally convince me that this was not only
its effect but also its purpose.
Although, in the circumstances of this case, Respondent could validly prohibit
all solicitation by outsiders, its right to prohibit solicitation by its own employees
on behalf of the Union is not unlimited but is circumscribed by Section 7 of the Act.
N.L.R.B. v. Walton Manufacturing Company, 289 F. 2d 177 (C.A. 5), enfg. 126
NLRB 697, 698. Although employers engaged in certain types of business may
validly prohibit employee union activity on company property even during non-
working time, none of the considerations which have caused the Board and the courts
to carve out exceptions to the general rule is present here. The general rule is that
"in the absence of any evidence that special circumstances made Respondent's
broad no-solicitation rule necessary in order to maintain production or discipline,
such rule is presumptively an unreasonable impediment to self-organization and is
therefore presumptively invalid" and violates Section 8(a) (1) of the Act. Idaho
Potato Processors, Inc., 137 NLRB 910, enfd. 322 F. 2d 573, 575 (C.A. 9); Walton
Manufacturing Company, 126 NLRB 697, 698, enfd. 289 F. 2d 177 (C.A. 5);
Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793, 803. Accordingly, I find
that Respondent's posting of a notice prohibiting all solicitation on company property
"infringed upon its employees' freedom to engage in union . activity protected
by Section 7 of the Act" and that Respondent thereby violated Section 8(a)(1) of
the Act. N.L.R.B. v. Walton Manufacturing Co., supra, 180. The basic reason for
this finding, of course, is that the rule could reasonably be interpreted by the em-
ployees as barring union activity by them on company property during nonworking
time. In addition, as indicated supra, I believe that this was its purpose as well.
. In an apparent effort to justify its. promulgation of the rule, Respondent claimed
that union activity on company time had caused a serious interruption in produc-
tion. In support of its claim Respondent introduced into evidence a photograph
of its checkout section, taken on June 17, which showed that it was empty of
finished machines. According to President Leasure, there should have been at least
six or eight finished machines in the area ready for shipping and he testified that
he believed that the absence of machines was due to the "on-the-job conversations"
the employees were having about the Union. When asked if he was saying that
"for a matter of a week or two there had been so many conversations about the
union on company time that you had produced no machines" during the week end-
ing June 15, Leasure replied, "We produced no machines that week . , . and this
in our opinion was the reason."
It is of course impossible for me to say that no employee had mentioned the
Union on company time during the previous week or two but there is no evidence
in the record that even one such conversation occurred. This is a small plant of
60 to 65 employees. There were nine supervisors-Altenbaugh, Gibson, Waldrop,
Evans, Garcia, Dominquiz, Hood, Rutledge, and McNatt-in addition to President
Leasure and Bob Gussman, the "head" of the experimental department. Most if
not all of the supervisors are in the plant regularly and are in close contact with
the employees daily. Under these circumstances, I am certain that if there had been
any union activity of consequence during working hours, Altenbaugh, Gibson, Wal-
drop, Evans, Garcia, Dominquiz, Hood, Rutledge, McNatt, or Gussman, would have
been aware of it and would have been asked about it at the hearing and would
have cited specific examples. In the absence of testimony concerning a single con-
versation on company time in the period prior to Flygare's discharge, except the
Flygare-Davis 30-second incident on June 15-which. did not in fact concern, the
'Union-I do not credit Leasure's testimony that he believed that union activity-on
company time was so extensive as to cause a total breakdown in production. Be
that as it may, his claim certainly did not justify a prohibition against union activity
on company property before or after work or.during lunch periods.
MIRA-PAK, INC. 1087
In my opinion, Leasure's testimony is also significant because it discloses that he
makes broad assertions without-at least as far as the record shows-any tangible
facts on which to base them. His demeanor on The stand was that of a man who
is tense and excitable and he was obviously seriously disturbed by the union activity
among his employees. Since there is not a scintilla of probative evidence in the
record that employee union activity on company time or property had the slightest
adverse effect upon the operation of the Company's business, I can only assume
that his feelings were based primarly upon his opposition to union activity generally
on the part of his employees. It is for these reasons that I discredit Leasure's
testimony concerning what he said to Flygare on the morning of June 15 for I am
certain both that he would have made his attitude toward the Union quite clear
and that his attitude was that he would do all he could to "stop" the employees from
obtaining union representation. The same reasons also contribute to my inability
to accept aE'face value Leasure's testimony concerning Flygare's past conduct and
the reason or reasons for Flygare's discharge. .
III. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall recom-
mend the customary cease-and-desist order and the affirmative relief which is con-
ventionally ordered in cases of this nature. Any backpay found to be due Gentry
and Flygare shall be computed in accordance with the formula set forth in F. W..
Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716. Since discrimination against an employee because of union activity goes to
the very heart of the Act (N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A.,
4) ), and demonstrates such opposition to the policies of the Act that it is reasonable.
to assume that the Employer will, under similar circumstances in the future, interfere
with its employees' rights under the Act, I shall include in my Recommended Order a
provision directing Respondent not to interfere with, restrain, or coerce its employees
in any manner in the exercise of their statutory rights. Since it is clear that Re-
spondent's conduct was not based on the identity of the Union involved but resulted
from its opposition to all union activity among its employees, my Recommended
Order will prohibit interference with the employees' right to engage in activity on
behalf of the Union or any other labor organization.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By telling employees that they might be discharged for attending a union meet-
ing and by posting a notice prohibiting solicitation of any kind on company property,
which the employees could reasonably interpret as barring union activity by them on
company property during nonwork time, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act.
. 4.. By discharging employees John W. Gentry and Ervin D. Flygare because of
their . union activity, Respondent has engaged in unfair labor practices within the
meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record,
and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent,
Mira-Pak, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a), Threatening employees with discharge for engaging in union activity and
prohibiting union activity by its employees on company property during nonwork-
ing hours.
(b) Discouraging membership in Sheet Metal Workers International Association,
Local Union No. 54, AFL-CIO, or any other labor organization, by discharging or
otherwise discriminating against employees because of their union membership or
activity.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist Local 54,
or any other labor organization, to bargain collectively through representatives of
their own choosing, or to engage in other concerted activity for the purpose of col--
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lective bargaining or other mutual aid or protection, or to refrain from any or all
such activity.
2. Take the following affirmative action:
(a) Offer John W. Gentry and Ervin D. Flygare immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice„ to their
seniority or other rights and privileges, and make them whole for any loss of pay
they may have suffered by reason of the discrimination against them in the manner
set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under this Recommended Order.
(c) Post in its plant copies of the attached notice marked "Appendix." 26 Copies
of said notice, to be furnished by the Regional Director for the Twenty-third Region,.
shall, after being signed by Respondent's representative, be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(d) Notify'the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of the receipt of this Decision, what steps Respondent has
taken to comply herewith 27
26 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Deci-
sion and Order."
27In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within. 10 days, from:,
the'date'of this Order, what steps the Respondent has taken to comply herewith."'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National. Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT threaten employees with discharge for engaging in union activity
and will not prohibit solicitation- on behalf of a union by our employees on
company premises on nonwork time.
WE WILL NOT discourage membership in Sheet Metal Workers International
Association, Local Union No. 54, AFL-CIO, or any other labor organization, by
discharging or otherwise discriminating against employees in regard to their
hire or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form, join, or assist
Sheet Metal Workers International Association, Local Union No. 54, AFL-CIO,
or any other labor organization, to bargain collectively through representatives
of their own choosing, or to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,. or to refrain from
anv or all such activities.
WE WILL offer to John W. Gentry and Ervin D. Flygare immediate and full
reinstatement to their former or substantially equivalent. positions, without prej-
udice to their seniority or other rights and privileges, and make them whole for
any loss of pay they may have suffered as a result of our discrimination against
them.
All our employees are free to become, remain , or to refrain from becoming or re-
maining, members of the above-named or any other labor organization.
All our employees are free to engage in union activity on company property on
nonwork time.
MIRA-PAK, INC.,
Employer.
Dated------------------- By--------------------..-------------- -------
(Representative) (Title)
ELMWOOD UPHOLSTERY CO., INC. 1089
NoTE.-We will notify any of the above -named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 6617 Fed-
eral Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capital
8-0611 , Extension 271, if they have any question concerning this notice or com-
pliance with its provisions.
Elmwood Upholstery Co., Inc. and United Furniture Workers of
America, AFL-CIO. Case No. 1-CA-4409. June 09, 1964
DECISION AND ORDER
On March 24, 1964, Trial Examiner Max Rosenberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Deci-
sion. Thereafter, the Respondent and the Charging Party filed ex-
ceptions to the Decision and supporting briefs, and the General
Counsel filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Examiner's Decision,
the exceptions and briefs, and the entire record in this case, and hereby
adopts the findings,' conclusions, and recommendations z of the Trial
Examiner as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
i We find it unnecessary to decide whether Plant Manager Thai's testimony as to what
he told groups of employees in the sanding department about 2 weeks before the sched led
election imported a threat of economic reprisal if the i'nion were successful . As the Trial
Examiner's other findings of Section 8(a) (1) violations are in our opinion clearly estab-
lished, the additional finding is to that extent merely cumulative . We shall therefore
delete from his Recommended Order the paragraph which was based solely on Thal's ad-
mitted statements on the comparative advantage of a nonunionized plant over a unionized
one.
2 Although the violations found occurred only at Respondent's Branford , Connecticut,
plant , we find merit in the Charging Party's contention that they also had an effect on
the employees at Respondent 's other plant in nearby New Haven, since the election
scheduled to be held on December 12, 1963 , among the employees at both plants was in-
definitely postponed by the filing of the charges herein. We shall therefore broaden the
Recommended Order to require the posting of appropriate notices at both plants.
147 NLRB No. 141.
756-236-65-vol . 147-70