Mitchell Plastics, Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1966

159 N.L.R.B. 1574 (N.L.R.B. 1966)

1574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assist International Union of Operating Engineers , Local Union No. 1, AFL-
CIO, or any other labor organization , to bargain collectively through represent-
atives of their own choosing , and to engage in collective bargaining or other
mutual aid or protection.
NATIONAL BISCUIT 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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 609 Rail-
way Exchange Building, 17th and Champa Streets, Denver, Colorado 80202, Tele-
phone 297-3551.
Mitchell Plastics, Incorporated and International Union , Allied
Industrial Workers of America , AFL-CIO. Case 6-CA-3373.
June 27, 1966
DECISION AND ORDER
On March 7, 1966, Trial Examiner William Seagle issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged 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. The Trial
Examiner also found that Respondent had not engaged in certain
other unfair labor practices alleged in the complaint, and recom-
mended that these allegations be dismissed. Thereafter, the
Respondent and the General Counsel filed exceptions to the Trial
Examiner's Decision, and the General Counsel filed supporting briefs.
- 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 [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error as committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case including the Trial Examiner's Decision,
the exceptions and briefs, and finds merit in some of the General
Counsel's exceptions. Accordingly, the Board adopts the findings,
conclusions, and recommendations of the Trial Examiner only to the
extent consistent herewith.
Respondent is engaged in the manufacture of plastic products in
Pittsburgh, Pennsylvania. In mid-1965, it employed approximately
six nonsupervisory employees, and on June 1 of that year it moved
its plant from the north to the east side of Pittsburgh. Shortly
thereafter, Respondent's employees began to engage in organizational
activities. A petition for a representation election was filed with the
159 NLRB No. 89.
MITCHELL PLASTICS, INC. 1575
Pennsylvania State Labor Board on June 17. Eight days later
employee Matt Laush was discharged. On this same day the Union
learned that the Pennsylvania board did not have jurisdiction over
Respondent's business and a petition was filed with this Board. The
election, held on, August 25, 1965, resulted in a 3 to 3 tie with one
vote, that of Matt Laush, being challenged.
Petitioner filed unfair labor practice charges on July 7, 1965, and
a complaint was issued on November 24, 1965, alleging that Respond-
ent had violated Section 8(a) (1) and (3) of the Act by: (1) creat-
ing an impression of surveillance, (2) - unlawfully interrogating
employees, (3) promising economic and other benefits in order to
influence the employees' choice, (4) suggesting the formation of an
employee committee as an alternative to the Union, and (5) dis-
charging. employee Matt Laush because of his organizational activi-
ties and sympathies.
The Trial Examiner found that Respondent had violated Section
8 (a) (3) and (1)- of the Act by, discriminatorily discharging em-
ployee Matt Laush, but he found that Respondent had not committed
any of the independent violations of Section 8(a) (1) with which it
was charged. We agree with the Trial Examiner that Respondent
did not promise employees benefits contingent upon the defeat of the
Union. The only evidence to substantiate this allegation was in the
testimony of employee Stanley Perinis. The Trial Examiner, how-
ever, found Perinis to be an unreliable witness and explicitly discred-
ited certain portions of his testimony, a determination which we do
not disturb., Consequently, we shall not base a ,finding of an unfair
labor practice on Perinis' testimony, even though the Trial Examiner
failed to mention other portions which also dealt with benefits
allegedly promised by Respondent.
However, unlike the Trial Examiner, we find that the evidence
establishes that Respondent did commit the other unfair labor prac-
tices set forth-in the complaint. On two occasions, Foreman George
Gano, who had noticed employee John Frasco's car in the company
parking lot the previous evenings, approached Frasco and inquired
whether he had been attending union meetings. In another incident,
Gano informed Frasco and employee Gene,Shanklin that he had not
been surprised by the posting of the petition for a Pennsylvania State
board election because he had observed their organizational meeting
taking place in the parking.lot.z And discriminatee Laush testified
' Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (CA 3).
We do not accept the Trial Examiner 's statement that "according to his own testimony"
Gano had recognized the Union representative 's (John Boleski ) car. Gano merely stated
that he had seen "John 's" car in the lot. Presumably , he was referring to John Frasco.
Nevertheless , there is substantial credible testimony to establish that Gano observed some
activity taking place in an out-of- State car parked in the company parking lot , that he
surmised that some of the employees were engaged in organizational activities , and that
he so informed Shanklin and Fresco.
1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, shortly before his discharge, Gano remarked to him that he
"knew what was going on" and that he "was in a position to know." 8
Laush naturally understood these comments as being references to
the organizational activities of the employees.
We find that these statements of the plant foreman,, occurring as
they did in the midst of the organizational campaign, tended to create
the impression that Respondent was closely watching the protected
activities of the employees.' While we agree with the Trial Exam-
iner that Gano's observation of employees' activities on the company
parking lot and of cars left there after working hours (from which
he apparently guessed that an organizational meeting was occurring
nearby) did not constitute unlawful surveillance, his comments to the
employees about these observations were entirely unnecessary and
plainly created an impression of surveillance. Accordingly, we con-
clude that Gano's statements tended to restrain and interfere with the*
employees in the exercise of their rights guaranteed under the Act.
We also find that Gano's questioning of Frasco was unlawful inter-
rogation.in violation of the Act. The questions, which occurred in a
context of other unfair labor practices, were not asked to gain knowl-
edge for any legitimate purpose and Frasco was given no assurances
against reprisal.5 The Trial Examiner relied on the fact that
Frasco was openly active in the Union as negating any coercive effect
of the interrogation. However, 'we reject this view, for an employer
is not granted a license to inquire about the activities of the union
merely because employees are open about their sympathies. And
insofar as the Trial Examiner's Decision rested upon his characteri-
zation of Gano's remarks as "ribbing," there is no basis in the record
for such a finding with 'respect to these questions.
We further find that Respondent violated Section 8(a) (1) of the
Act when, in a speech made just before the election, its President,
James Whitcomb, suggested that the employees form their own
unions The Trial Examiner concluded that the reference was men-
tioned merely as a possible alternative which the employees might
consider a year later in the event the Union lost the election. ' How-
ever, a careful reading of the portion of Whitcomb's testimony
quoted by the Trial Examiner convinces us that the suggestion was
it present and not a future one. This conclusion is buttressed by
another segment of Whitcomb's testimony, wherein he admitted that
he had made the suggestion, but gave no indication that it was some-
Although this incident is not mentioned by the Trial Examiner , Laush's testimony was
uncontradicted and undenied.
4 See Bonham Manufacturing Company, Inc., 140 NLRB 1135 , enfd 325 F.2d 508 ( C.A. 5).
5 See Blue Flash Express , Inc., 109 NLRB 591.
6 See Bangor Plastics , Inc , 156 NLRB 1105.
MITCHELL PLASTICS,- INC. 1577
thing to be thought about a year later., Furthermore, John Frasco
testified that Whitcomb outlined the proposal of an inside union as
an alternative to voting for the Union at the upcoming election, not
as a future possibility.
Turning to the alleged violation of Section 8(a) (3) of the Act,
we agree with the Trial Examiner that Matt Laush was discharged
for discriminatory reasons. Laush's activities and sympathies in
behalf of the Union were well known to Respondent. The evidence
established that Gano had observed Laush participating in the orga-
nizational meeting and that he had overheard a conversation about
Laush's union activities at a previous job. Gano's awareness of
Laush's sympathies in favor of the Union was further demonstrated
by Gano's remark that he knew What was going on.
Respondent decided to discharge Laush just after the Union's
organizational drive had been revealed and the petition for a State
board election had been filed.' It thus appears that the decision to
fire Laush was made at a time when it was obvious that the employees
would be asked whether or not they desired a union. At this time
there were six employees actually working at the plant. A seventh
employee, Doyle, had been hired, but did not begin work until after
Laush had departed. Whitcomb testified that he was aware that
Shanklin and Frasco favored the Union while employees Myers and
Hattie opposed it, but he denied knowing Perinis' affiliation. Indeed,
it is not clear where Perinis stood, for while Gano testified that Peri-
nis had made an antiunion remark to him, Perinis himself testified
that he had signed a union card. In any case, it is apparent that
Respondent knew that the lineup of his current employees was either
4 to 2 in favor of the Union or' tied 3 to 3. Thus, regardless of
whether or not Respondent knew how Doyle would vote, by removing
one prounion employee, Respondent could' substantially increase its
chances of defeating the Union.
Respondent's asserted reasons for Laush's discharge-that he was
slow, argumentative, and no longer needed-are unconvincing. If
Laush was at times a difficult employee, he was also a valuable one-
so valuable, in fact, that, as the Trial Examiner found, Respondent
7 The transcript shows the following colloquy between Whitcomb and counsel for the
General Counsel:
Q. And at that speech did you suggest-did you tell the employees that they could
select a spokesman to represent their grievance problems to you?
A. I indicated this was one of the alternatives They could have their own
spokesman.
Q. An alternative to petitioning for a Union or no Union And in your view there
was a third alternative, selecting somebody to speak for them?
A. That is right.
8 "Coincidence in timing between events in a union organizing campaign and company
activities which have an adverse effect thereon should be considered in reviewing NLRB
inferences of illegal motivation for such acts " N L.R.B v. Schnell Tool & Die Corpora-
tion, 359 F.2d 39, 45 (C.A. 6) ; N.L.R.B. v. Montgomery Ward & Company, 242 F.2d 497,
502 (C.A. 2).
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made persistent efforts to persuade him to move over to the new plant,
even promising him a shop of his own. Indeed, Gano mentioned him
as one of the employees who would eventually become supervisors in
the new plant. In this context, we reject Respondent's contention
that Laush's services were no longer required less than a month after
the move was made. Even if Respondent's explanation that Laush
was asked to come over to the new plant only to help get it started is
accepted, it appears that a substantial amount of the initial work was
still to, be completed when the discharge occurred. We agree with
the Trial Examiner that digging up the complaints about Laush's
alleged slowness and argumentativeness at this particular time was
pretextual.9
In sum then, the timing of the discharge, its potential effect on the
results of the election, and the weakness of the alleged justification,
in light of Respondent's union animus and hostility, lead us to con-
clude that Laush's discharge was motivated by antiunion considera-
tions and was therefore violative of Section 8(a) (3) and (1) of
the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair labor
practices in violation of Section 8 (a) (1) of the Act, we shall order
that it cease and desist therefrom.
AMENDED CONCLUSIONS OF LAW
Delete the Trial Examiner's Conclusions of Law 3 and 4 and add
the following Conclusions of Law :
(3) By discharging Matt Laush on June 25, 1965, because he was
a supporter of the Union, Respondent committed an unfair labor
practice within the meaning of Section 8 (a) (3) and (1) of the Act.
(4) By creating an impression that the union activities ,of the
employees were under surveillance, by interrogating an employee
concerning his attendance at union meetings, and by suggesting to the
employees that they elect a spokesman or form an "inside" union to
present their grievances, Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (1) of the Act.
(5) The aforesaid unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
6 "Nor is the trier of fact-here the Trial Examiner-required to be any more naif than
is a judge . If he finds that the stated motive for a discharge is false, he certainly can
infer that there is another motive. More than that, he can infer that the motive is one
that the employer desires to conceal-an unlawful motive-at least where , as in this case,
the surrounding facts tend to reinforce that inference " Shattuck Denn Mining Corpora-
tion v. N L.R.B., 362 F.2d 466 (C .A. 9). N.L.R.B. v. S. S. Coachman & Sons, Inc., 203 F 2d
109 (C.A. 5).
MITCHELL PLASTICS, INC . 1579
I
(6) Except as specifically found herein, Respondent has not
engaged in other unfair labor practices within the meaning of Sec-
tion 8(a) (1) of the Act.
ORDER
Pursuant to Section-10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board adopts the Recom-
mended Order of the Trial Examiner, as herein modified, and hereby
orders that the Respondent, Mitchell Plastics, Incorporated, Pitts-
burgh, Pennsylvania, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, Allied
Industrial Workers of America, AFL-CIO, or any other labor orga-
nization of its employees, by discharging any of its employees, or in
any other manner discriminating against them with respect to their
hire or tenure of employment or any term or condition of their
employment.
(b) Creating an impression of surveillance of union activities.
(c) Interrogating employees in a manner constituting interfer-
ence, restraint, or coercion, within the meaning of Section 8 (a) (1),
concerning their attendance at union meetings and other union
activity.
(d) Inducing employees to select a spokesman or to form their
own union,in preference to belonging to or supporting International
Union, Allied Industrial Workers of America, AFL-CIO, or any
other labor organization.
(e) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Union, Allied
Industrial Workers of America, AFL-CIO, or any other labor orga-
nization, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
mutual aid or protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action in order to effectuate the
policies of the Act:
(a) Offer to Matt Laush immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his
seniority or other rights and privileges and make him whole for any
loss of pay he may have suffered by reason of the discrimination
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
against him, in accordance with the formula prescribed in F. W.
Woolworth Company, 90 NLRB 289,with interest thereon to be com-
puted in accordance with Isis Plumbing cC Heating Co., Inc., 138
NLRB 716.
(b) Notify the above-named employee, if presently serving in the
Armed Forces of the United States, of his right to full reinstatement
upon application, in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as amended, after
discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the Board, or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount of back-pay due
under the terms of this Order.
(d) Post at its Pittsburgh, Pennsylvania, plant copies of the
attached notice marked "Appendix." Copies of said notice, to be fur-
nished by the Regional Director for Region 6, after having been duly
signed by Respondent's representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to assure that said notices are not
altered, defaced, or covered by any other material.
(e) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps have been taken to comply
herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in International Union,
Allied Industrial Workers of America, AFL-CIO, or in any
other labor organization of our employees, by discriminating
with respect to the hire or tenure of their employment or any
term or condition of their employment.
WE WILL NOT create the impression of surveillance of union
meetings or other concerted activity in a manner constituting
interference, restraint, or coercion within the meaning of the Act.
WE WILL NOT interrogate employees in a manner constituting
interference, restraint, or coercion, within the meaning of Section
8 (a) (1), concerning their union activities.
MITCHELL PLASTICS, INC. 1581
WE WILL NOT induce employees to elect their own spokesman
or to form their own union in preference to belonging to or sup-
porting International Union, Allied Industrial Workers of
America, AFL-CIO, or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-
organization , to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in any other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized
by Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
WE WILL offer to Matt Laush immediate and full reinstatement
to his former or substantially equivalent position without preju-
dice to his seniority or other rights and privileges and make
whole for any loss of pay he may have suffered by reason of our
discrimination against him.
All our employees are free to become or remain, or to refrain from
becoming or remaining members of any labor organization, except to
the extent that such right may be affected by'an agreement requiring
membership in a labor organization as a condition of employment, as
authorized in Section 8(a) (3).
MITCHELL PLASTICS, INCORPORATED,
Employer.
Dated---------------- By---------------- --------------
(Representative ) ( Title)
NOTE.-We will notify the above-named employee if presently
serving in the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act, 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 thaterial.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Board's Regional Office, 1536 Federal Building, 1000 Liberty Avenue,
Pittsburgh, Pennsylvania 15222, Telephone 644-2969.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Trial Examiner William Seagle heard this case at Pittsburgh, Pennsylvania, on
January 11 and 12, 1966, upon a charge filed by the Union on July 7, 1965; a com-
plaint issued on such charges by the Regional Director under date of November 24,
1965, in which it was alleged that the Respondent had committed unfair labor prac-
tices in violation of Section 8(a)(1) and (3) of the National-Labor Relations Act
as amended; and the answer of the Respondent denying the commission of any
unfair labor practices.
The principal issue presented by the evidence is whether the Respondent dis-
charged Matt Laush, one of its employees, because of his support of the Union.
The other alleged acts of interference, restraint, and coercion are subsidiary.
Upon the evidence adduced at the hearing, the posthearing briefs filed by counsel
for the General Counsel and for the Respondent, and in view of my observation of
the demeanor of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent, Mitchell Plastics, Incorporated, is, and at all material times has
been a Pennsylvania corporation which has been engaged in the manufacture of
plastic products. Until June 1, 1965, the plant of the Respondent was located on
the north side of Pittsburgh, but on this date the Respondent moved to a new plant
on the east side of Pittsburgh, near Wilkinsburg, which now constitutes its principal
office and place of business. During the past 12 months, the Respondent has sold
and shipped products valued in excess of $50,000 from Pittsburgh, Pennsylvania,
directly to points outside the Commonwealth of Pennsylvania.
II. THE LABOR ORGANIZATION INVOLVED
International Union , Allied Industrial Workers of America , AFL-CIO (herein-
after referred to as the Union ), is a labor organization that has sought to organize
the employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent's is a small business which at the time of the Union's organiza-
tional attempt had only six employees. Its operations had been even more limited
when its plant was located on the north side of Pittsburgh. While its business was
the same-fabricating plastic products-a good deal of the work consisted of experi-
mental and pilot projects rather than quantity production of items directly for cus-
tomer use. The president of the Respondent until June 1, 1964, was Dave Mitchell,
Jr., but on this date James S. Whitcomb, Jr., who had been a member of the board
of directors, succeeded Mitchell as president of the concern. Whitcomb planned,
apparently, to expand the Company's operations, which would involve the restriction
of pilot and experimental work, and a considerable increase in quantity production.
But this shift of emphasis in the nature of the business also dictated the acquisition
of a larger plant, and after the beginning of January 1965, Whitcomb began debat-
ing with himself whether to move or not to move. The chief problem in his mind
as he soliloquized on this theme seems to have been whether his employees would
move with him, for only one of them lived close to the contemplated location of the
new plant. But, finally, Whitcomb became satisfied that there would be no mass
desertion of his employees, and in May 1965, decided to make the move on June 1.
The new plant had about four times the floor space of the old plant, and at the
time of the hearing in the present case the Respondent had 10 employees, and was
planning to put on additional shifts which would entail the hiring of still more
employees.
At the time of the move on June 1, 1965, all seemed hopeful and serene. Whit-
comb is one of those employers who regards an outside union as a cloud in the
industrial skies. While there was no such cloud on the horizon, it was beginning
to take shape. It seems that one of the Mitchell Plastics employees by the name of
Eugene Shanklin was acquainted with one Angelo Pitts, who worked for the Rock-
MITCHELL PLASTICS, INC. 1583
well Manufacturing Company which was located close to the new Mitchell Plastics
plant . Pitts had two avocations of a rather incongruous character : doing electri-
cal contracting work and acting as a part -time union organizer . Shanklin needed
to have some electrical work done, and was talking to Pitts about it when the
latter asked him whether Mitchell Plastics was organized. Receiving 'an answer
in the negative, Pitts asked Shanklin whether he would be interested in helping to
organize the Mitchell Plastics employees. Shanklin expressed the opinion that a
majority of his fellow employees would be interested in organizing, and Pitts then
put Shanklin in touch with John Koleski, an International representative of the
Union. Shanklin arranged to have Koleski meet with him and two of his fellow
employees after work on June 7 in the Mitchell Plastics parking lot located behind
the plant.
Consequently, on June 7, Koleski, accompanied by another International repre-
sentative by the name of Charles F. Street, who was a Negro, drove out to the
Mitchell Plastics plant, and parked his car in the plant lot at a distance of about
100 yards away from the plant. Pitts soon arrived at the scene to introduce the
employees when they came out of the plant at about 4:15 p.m. These employees
were Shanklin, John Frasco, and Matt Laush, but they came out of the plant sepa-
rately rather than together, and Laush stood for awhile outside the car. When he
got into the car, he got in the back on the right-hand side , which placed him toward
the plant building. Alongside of him in the back seat of the car were also Shanklin
and Frasco. Pitts left the scene , and the three employees remained inside the car,
discussing union organization with Koleski for about an hour.
While the occupants of the car were carrying on their discussion, another car,
which was being driven by Lee Hattle, one of the Mitchell Plastics employees,'
who was known to his fellow employees to be strongly antiunion, passed very close
to Koleski 's car-perhaps within 5 feet-and slowed down to look at its occupants,
one of whom exclaimed, "There goes the company stooge." Hattie lost no time
the following morning in reporting the car meeting to George Gano ,2 the shop fore-
man. According to Hattle, as soon as he came into work that morning of June 8,
he remarked to Gano that "he had pushed these guys so much that now they got to
the point where he is going to have a union on his back," and Gano replied, "What
makes you think that?" whereupon, he observed to Gano, "What would you think if
you saw two of your employees sitting in the parking lot after working hours talking
to a colored fellow?" Actually, Hattle's report to Gano did not come as a bit of a
surprise to the shop foreman. During the car meeting Gano had been looking out
of a third-story window of the plant, and, according to his own testimony, he had
recognized Koleski's car, and surmised that union activity was underway. Gano,
in turn, hastened also to report to Whitcomb his conversation with Hattie. As
Whitcomb himself testified Gano told him that "he heard from one of the employ-
ees that some of our fellows had been meeting in a car, in the parking lot with a
Negro and he wondered that if perhaps there was some union activity going on."
The three employees who met with Koleski in the car on June 7, namely Shank-
lin, Laush, and Frasco, did not sign union membership or authorization cards that
day. They did so, however, the following day. The other three employees, Hattie,
Stanley Perinis, and William Meyers, were not even solicited by Shanklin to sign
union cards, because their rabid antiunionism was well known to their fellow
employees.
Having obtained the three union authorization cards, Koleski, who thought,
apparently, that the Mitchell Plastics business was too small to meet the jurisdic-
tional standards of the National Labor Relations Board, filed a petition for an elec-
tion with the Pennsylvania State Labor Board. Koleski took this step on June 15,
and when on June 17 a notice of the petition was posted on the bulletin board of
the Mitchell Plastics plant, all the employees gathered around the bulletin board to
read it. The notice came as a complete surprise to the three employees who were
opposed to unions . Meyers indeed ranted and raved when he read the notice ; Perinis
remarked to Gano that "he hoped to hell that a union didn't get in" because a
union had cost him his last job.
1 In the transcript Hattie's name appears as "Haddel" or "Haddle," up to the point where
he himself appeared as a witness and gave the reporter the correct spelling of his name.
The transcript is corrected accordingly.
2 Gano became shop foreman in January of 1964, about 6 months before Whitcomb be-
came president of Mitchell Plastics. Both Whitcomb and Gano had formerly been employed
by the Westinghouse Electric Company, and had been acquainted with each other while
there. In fact, Gano came to Mitchell Plastics directly from Westinghouse.
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shortly after the posting of the notice Gano began ribbing the union supporters.
Finding Shanklin and Frasco in conversation with each other while they were
setting up a job, Gano approached them and jokingly chided them for talking
about the Union on company time. Shanklin remarked that the petition for the
State board election must have taken him by surprise . But Gano told Shanklin
that he knew perfectly well what was going on because he had been looking
through the third floor window and had, observed the gathering in Koleski's car.
In fact Gano also revealed to Shanklin that he had seen "Matt and John Frasco
and a white guy and colored guy in the front seat."
There was a hearing on June 25 on the petition filed with the Pennsylvania Labor
Board. Whitcomb was represented by an attorney, and Koleski was accompanied
by Leonard Darnell, the recording secretary of the Union, and by John Frasco,
one of the Mitchell Plastics employees. At this hearing the Respondent presented
Koleski with an eligibility list of the employees. It was at this hearing that it was
also established, however, that the State labor board did not have jurisdiction,
and Koleski hastened at once to the Regional Office of the National Labor Rela-
tions Board to file a petition for an election., At the end of that same day Matt
Laush, one of the three. employees of the Respondent who had, signed union cards,
was discharged, and in the middle of the following week Koleski, on behalf of
the Union, filed the unfair labor practice charge leading to the present proceeding.
The Union and the Respondent in the persons of Koleski and Whitcomb, respec-
tively, now girded for battle. During the month of July 1965, Koleski held sev-
eral meetings with the Mitchell Plastics employees who were supporting the Union.
These meetings were held at the Evergreen Bar, which was located only a block
or so -away from the plant. As this meeting place was so close to the plant,.
Frasco would walk there and leave his car in the Mitchell Plastics parking lot,
where it was duly observed by the vigilant Gano. Every morning following a
union meeting Gano would ask Frasco whether he had been to a union meeting
the night before .3
. It sebms to have been the practice for a long time in the Mitchell Plastics plant
to hold group meetings with the employees whenever there was an occasion for
communicating a particular development to. them. Within a week after the peti-
tion for an election had been filed with the Regional Office of the Board, Whit-
comb had a meeting with the employees in which he mentioned the lack of jurisdiction
of the State, board and appealed to them not to force him into negotiations with
a union so soon after 'the plant had been moved to a new location, and while the ex-
pansion of the business was being planned. He suggested that the employees
at least wait `.`until the dust had settled." In a second talk made shortly before
the election , which was scheduled for August 25, Whitcomb dwelt upon the same
theme but also added general remarks on the disadvantages of unions , and the
advantages, in the form of vacations and insurance and other fringe benefits, which
the employees already enjoyed. Apparently in a third meeting just before the
election, in which Whitcomb outlined the election procedure to the employees, he
also specifically pointed out to them that the choice before them was not simply
between a union and no union . He told the employees that if the Union lost the
election, it could still petition for another election in a year, and that if they
still wished to have representation they could then organize their own union by
selecting a spokesman to negotiate with management for them. Thus, as Whit-
comb testified:
I said that this was not a final decision (i.e. the result of the election) but
that once they had a union it would be hard to get rid of that. If they voted
against the union at this point there would be a year's lapse before they
could, have another right. I told them that if they felt in a year's time, if
they felt at the time that they wanted one, they would be free to petition for
the union. We were a small Company, we were a very close knit group. In
most cases they could get their grievances heard by management and in most
cases resolved. I didn't feel at this point any need for a Union. I also told
them that they had other choices than just a Union or new Union. That they
could well-they could organize, they could select a spokesman and he would
be recognized by the National Labor Relations Board the same as a union
representative. And they could negotiate with Management for them.
3 Gano admitted that he had noticed Frasco's car in the parking lot, but he only further
undermined his credibility, which he had already demonstrated was none too great, when
he testified that he assumed simply that Frasco's car must have broken down
MITCHELL PLASTICS, INC:') 1585
The election was held as scheduled on August 25, 1965, in the ladies' room at
the plant . The election resulted - in a tie , three votes being cast in favor of the
Union , and three votes being cast against it. Matt Laush also attempted to vote
in the election but his ballot was challenged by a Board - agent because his name
did not appear on the list of eligible voters. As Laush was an alleged discrimina-
tee, and other charges of unfair labor practices were pending against the Respond-
ent, ruling on the challenge was deferred until such time, as the - unfair labor • prac-,
tice charges should be disposed of.
B. The employment history of Matt Laush
Matt Laush , who was discharged by the Respondent on June 25, 1965, had been
hired on or about July 27, 1963. Thus, he had been working for the Respond-
ent for a period of about 2 years at the time of his discharge.
Laush's job embraced a considerable variety of functions . He did machine
work and material preparation , but the production work that he did included a
considerable amount of experimental or pilot work . In addition , however, he
frequently *-helped Gano with the maintenance work on the machines . In fact,
Laush was the ' only one in the employ of the Respondent , other than Gano him-
self, who could ' net. up the machines , and more than half of his time was spent in
this way., He was also the only employee who could set ,up the lathe, and the
same was true of the milling machine.
When Laush signed his union card on June 8, it was not the first time that he
had engaged in union activity. He had been elected union steward for Local 636
of the Teamsters at his previous place of employment . This item of his pre-
vious employment history has considerable significance in the present case. One
day in January 1965, Laush, in talking to Shanklin while they were both at work
in the old plant, mentioned that he had been union steward at his previous place
of employment , and that he had been involved in contract negotiations while there.
Laush also mentioned that he had pressed his employer so hard in these negotia-
tions that the latter had accused him of crucifying him. Shanklin , who knew that
Laush was not given to fraternizing very much with the other employees at
Mitchell Plastics , expressed surprise that Laush had been able to get himself elected
union steward , and this led Laush to boast that he had been elected by a 100 per-
cent majority . Gano, who was within earshot, overheard the conversation between
Laush and Shanklin , and stopped to remark to Laush that he did not know that
the latter was so popular . Gano admitted overhearing this conversation but he
could'not recall participating in it.
Laush's previous stewardship came up again in an argument between him and
Gano about how a job should have been done. This argument occurred shortly
before the move from the old plant, which would place the incident in the month
of May 1965. The argument must have become very heated, for, in the course of
it, Laush remarked to Gano, as he himself put it , that "if I ran the union affairs
as he ran the shop that I wouldn't have lasted two weeks in this stewardship."
In fact , Laush, who had a supreme self-confidence in his own ability, was much
given to arguing with anyone whose ideas might differ from his own as to how a
particular job should be set up or done. He admitted that he had once had an
argument about a job with Dave Mitchell , Jr, the former president of Mitchell
Plastics, and he had also argued with the foreman who preceded Gano and whose
name was Dunay. Asked whether it was not true that his opinion of Gano was
not the highest , Laush testified : "Well, let 's say that I feel that in this particular
line his experience isn't what the job requires ," and he added : "That is no fault
of his. That does not reflect on him . That is the way it is." Laush also testified
that when Gano chose to disregard his ideas as to how a particular job should be
done, it was he rather than Gano who usually turned out to be right , and that
more than half the time they "ended up with a lot of scrap ." Asked whether there
were not some cases where he was proven wrong, Laush replied : "I believe one
or two. No one is perfect."
It is true that arguments between foremen and employees about how jobs should
be set up, are not unknown in machine shops but it is apparent that Laush was
given more than most to arguing , and that also he was not given to sparing his
foreman 's feelings . He was also moody and withdrawn , and could be described
as something of a loner. Laush himself conceded that he was not "the party
243-084-67-vol. 159-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
type." It came as a great surprise to Shanklin, evidently, that Laush had pre-
viously been a union steward, and Gano was no less surprised when he learned
this.
There can be no doubt that Laush was a personality problem throughout the
period of his employment at Mitchell Plastics, and it would be readily under-
standable if his superiors had fired him after one of his outbursts. In fact, how-
ever, they always put up with him. When Dave Mitchell was still responsible for
the management he once called Gano into his office and told the latter to dismiss
Laush immediately. But Gano talked Mitchell out of it. Gano pointed out to
Mitchell that he had only been there a short time, and pleaded for an opportunity
to change Laush's attitude. The opportunity was granted to Gano but, of course,
he failed in his effort at reform.
After Whitcomb became president he introduced two new policies. One of these
policies was to give the employees a semiannual merit rating review in an effort
to improve their performance, and the other was a policy clearly related to this
one, namely, to get along with the employees whom they already had, whether,
as Whitcomb put it, they were "good, bad or indifferent." The adoption of this
policy was all the more significant because it came immediately after one of the
heated arguments between Gano and Laush in the fall of 1964 at which
time Whitcomb explicitly cautioned Gano to try to get along with Laush. Accord-
ing to his own testimony, Whitcomb told Gano: "Okay, Matt is the not the
greatest employee in the world but we want to hold on to whatever we have until
we can find an adequate replacement." In January 1965, Gano himself recom-
mended to Whitcomb that Laush be discharged but Whitcomb would not carry
his recommendation into effect because they were then actually advertising for
employees, and it did not seem advisable to him to let Laush go. Whitcomb's deci-
sion is all the more significant because in December 1964, they had Meyers'
who, according to Whitcomb, was supposed to be the ultimate replacement for
Laush. It is plain that, although the difficulty of recruiting employees may have
been a factor in the retention of Laush, the important reason was his exceptional
value as an employee. Indeed, Laush, on whom Whitcomb and Gano relied for
the performance of a good deal of the maintenance work, and for setting up the
machines, was actually the key employee. Although, in their testimony, both
Whitcomb and Gano were seeking to justify the discharge of Laush, they could not
now and then refrain from giving utterance to some remark indicating their aware-'
ness of Laush's exceptional abilities and capacities. His principal defect in their
minds was his inclination to be a perfectionist, which sometimes, they thought,
affected the quantity of work that he produced, although not its quality. But this
was only a defect of his chief virtue, which was an instinct for workmanship that
would permit him to brook no compromises. After the merit rating review of
Laush's work in January 1965 Whitcomb and Gano actually gave Laush a 5-cent-
an-hour raise,4 and Gano even mentioned to Frasco just before the move to the
new plant that Laush was one of the two employees-the other being Meyers who
was a full-fledged machinist-who would eventually become supervisors in the new
plant.
If there can be said to be any doubt concerning Laush's value as an- employee,
it must be regarded as removed by the persistent effort made by Gano in May 1965
to persuade Laush to join the move to the new plant. This effort was all the more
significant because it was made on the very eve of Laush's discharge. When the
move was first proposed, the reaction of the employees was very negative.
Meyers, who was supposed to be the ultimate replacement for Laush, indeed
declared that he would not join the move even if his salary were doubled.
Eventually, Meyers did join the move but quit after working in the new plant.
several months. Indeed, Meyers was repeatedly threatening to quit. Shanklin and
Frasco wavered about moving. Indeed on the eve of the move Frasco threatened
to quit but changed his mind the next day and told Gano that he would join the
move. When first approached about moving, Laush was noncommittal. He did
not even ask Gano where the new plant would be located. Indeed, the only
employee who was pleased by the prospect of moving was Hattle, who lived very
close to where the new plant would be located. All this uncertainty about whether
the employees would join the move, only made it all the more important to per-
suade Laush to do so. Gano indeed was relying on Laush to set up the machinery,
4 The raise seems to have made little impression on Laush, so far as the money was
concerned, for Gano testified : "Matt never appeared to be after more money." 'This would
seem to be quite characteristic of him.
MITCHELL PLASTICS, INC. 1587
equipment , and shelving in the new plant , and he pleaded with Laush to give him
a definite answer . Gano told Laush that he would be doing maintenance work
primarily at the new plant and promised him a shop and everything he needed to
do the work. Laush himself testified with relative modesty to what Gano told
him on this occasion . But the testimony of Shanklin , who overheard the conver-
sation between Gano and Laush , reveals more clearly than Laush's own testimony
the importance attached by Gano to persuading Laush to join the move. Thus .
Shanklin testified:
He said to Matt that the Company was moving and they were going to be in a
new location and have new machines and they didn 't want to have to train
new personnel at the same time. They wanted to have the people they could
count on , rely on and that they trusted to move with them . He actually said
to Matt, "Please , I need you to come with us to get started" [emphasis
supplied].
Laush could not resist such a flattering appeal , and he agreed to join the move.
Whitcomb himself testified that he decided to discharge Laush the very same
week that the Union 's petition was filed with the Pennsylvania State Labor Board,
but that he delayed carrying out the decision until June 25, the last working day of
the following week . It thus appears that he decided to discharge Laush when
everything was still in a state of the utmost confusion-when many of the old
machines were still not properly installed ; when some of the new machines had not
yet arrived ; when shelves and cabinets remained to be constructed ; and even the
stock was scattered all over the floor . All this represented work that Laush was to
do, and he was still in the midst of doing it . Whitcomb ' never explained why he
delayed 10 days or so in carrying out his decision to discharge Laush, but a not
unreasonable surmise would be that he waited until Laush should bring a greater
degree of order into the chaos that existed in the new plant. In his testimony
Laush enumerated at least 10 machines or pieces of equipment which still remained
to be satisfactorily adjusted or repaired or installed , and even then the shelving had
not yet been provided. Gano attempted but not very successfully to explain away
some of Laush's testimony but it is plain that Gano's estimate that appro, imately
90 percent of the old equipment had been installed-he said practically nothing
about the new equipment and the other housekeeping duties-erred on the side of
overstatement.
The actual discharge of Laush turned out, to be an elaborate mummery. In late
June, Whitcomb and Gano were conducting one of the recently initiated semiannual
merit rating reviews of the employees. As they had already decided at least 10
days earlier to get rid of Laush , there was hardly any point in giving him a merit
rating review . Nevertheless , they called Laush in also for this purpose , and in the
course of the interview discharged him on the ground that the installation work was
completed , and that they, therefore , had no further need for his services. Laush
was not the sort of person to take his discharge calmly, and he filled the air with
his loud cries of protest. Whitcomb escaped from Laush 's ululations to keep a
medical appointment and Gano was left behind to ride the storm as best he could
until late in the evening it had subsided.
C. Concluding findings
1. The alleged violations of Section 8(a)(1) of the Act
In the complaint the Respondent is charged with , surveillance , interrogations,
promises of economic benefit, and with suggesting the formation of an employee
committee in the place of the Union. It seems to me that these charges have no
real substance. The only real attempt to dissuade the employees from supporting,
the Union was made in Whitcomb's speeches. The activities attributed to Gann,
do not appear to have been very purposeful, and, while he-made some remarks to
employees in connection with their union activities that could with some straining
be converted into interrogations, or even promises of benefit, the evidence as a
whole shows that he was simply engaged in one of his favorite pastimes, which was,
ribbing the employees. It is apparent, moreover, that the employees knew that be
was merely having his little jokes. It should not be forgotten that the Mitchell.
Plastics plant was a very small one, and that Gano worked very closely with the
employees. Not every little remark which he made to them should be magnified
into an unlawful act of "interference, restraint and coercion." .
Perinis testified, to be sure, that Gano, about a week before the election, "said
something about that there is a chance of me going on salary, if the union didn't
1588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
get in." But Perinis did not strike me as a very reliable witness, and I do not
credit his testimony. I believe that he was distorting whatever Gano may have said
to him. It is significant , moreover, that in his prehearing affidavit he failed to
include the specific remark about the chance of his going on salary.
It would also be unrealistic to believe, in the circumstances of the present case,
that Gano was bent on creating among the employees an impression of surveillance,
or intentionally subjecting them to surveillance itself. So_ far as his observation of
the car meeting is concerned, there is nothing to show that he had any advance
notice of the meeting, and that he was looking out of the third floor window to
spy on the employees. It would be too much to expect him, as soon as he saw
Koleski's car, to retreat posthaste from the window, and busy himself with some-
thing else . I am aware that the Board once held in Davidson Rubber Company,
134 NLRB, 57, that a supervisor who happened to live next ' door to where the
union was holding a meeting, and who watched what was going on from his win-
dow, had engaged in unlawful surveillance. But the First Circuit denied enforce-
ment to this portion of the Board's decision,5 and the case is, in any event, dis-
tinguishable on its facts from those in the present case, since the supervisor in
Davidson Rubber had to lift a drawn blind to observe who was driving in and out
of the driveway, and kept the meeting under observation for a considerable length
of time.
It seems to me also that there is nothing to show that Gano was intentionally
spying on Fiasco when he left his car to go to union meetings. Gano could not help
but observe Frasco's car when he himself went into the Company's parking lot,
and it was only natural that he should surmise that he had walked over to the
Evergreen Bar to attend a union meeting. His mentioning this to Frasco the fol-
lowing morning could hardly have had any coercive effect, for by this time it had
long been known to everyone that Frasco, who had appeared with Koleski at the hear-
ing before the Pennsylvania State Labor )3oard, was next to Shanklin, himself, the
most active of the union ' employees.
The actions deliberately taken by the Respondent in its opposition to the Union
are to be sought in the activities of Whitcomb which consisted of making several
speeches to the employees. Whitcomb spoke from notes, which are in evidence, but
the evidence concerning what he said is extremely sketchy. While the notes cover
three long pages , all that Frasco, for instance, could remember concerning what
Whitcomb said in his speeches was that he had declared that "we needed a Union
like we needed a hole in the head." . Perhaps this was the essence of Whitcomb's
remarks but, if so, it is a matter of-opinion . Whitcomb undoubtedly did plead with
the employees not to saddle him with a union immediately after the move to the
new plant and while his plans for expansion were underway. He did point to the
greater opportunities that would open_ to the employees as a result of this expansion
but there is nothing to show that he directly coupled these opportunities with
refraining from union activities, or limited them to nonunion employees, or made
them contingent on rejecting the Union in the election. As for Whitcomb's remarks
on the possibility of forming an employee committee, I am aware that the Board
has held it to be unlawful for an employer to suggest to his employees that they
form an inside union 6 but what Whitcomb said on this subject did not really
amount to that. He was discussing the law and procedure governing elections, and
he merely mentioned the possibility or organizing an inside union as one of the
alternatives which could be considered a year later if the Union should lose the
scheduled election.
2. The violation of Section 8(a)(3) of the Act
Although I have concluded that the Respondent has not independently violated
Section 8(a)(1) of the Act, I am nevertheless convinced that Laush was discharged
by the Respondent because he was one of the known union adherents rather than
because of his past personality difficulties, or because he was too slow in produc-
tion, as the Respondent seems to contend. It is true that when an employer has
not engaged in other acts of interference, restraint, or coercion, it is less likely that
he has been guilty of the discriminatory discharge of any of his employees. But,
after all, the commission of other independent unfair labor practices is significant
only as establishing the antiunion attitude of the employer. Such an attitude may
'See N.L R.B . V. Davidson Rubber Co., 305 F 2d 166 In which the court commented:
-Seemingly , one's house is one's castle only so long as one does not look out of the window."
6 See, for Instance, Bangor Plastics , Inc., 156 NLRB 1165.
MITCHELL PLASTICS, INC. 1 1589
exist nevertheless even though the employer has managed to keep otherwise within
the law. If anything is clear in the present case it is that Whitcomb regarded the
unionization of his employees as a badly timed absurdity.. He himself testified at
the hearing: "It seemed ridiculous at this point to start a union."
Although Whitcomb proceeded covertly, as almost all employers do, when they
have determined to rid themselves of a union adherent, his reasoning in selecting
Laush as the victim may readily be reconstructed from the evidence., He knew that
Shanklin, Frasco, and Laush were the union supporters, and that Meyers, Hattle,
and Perinis were opposed to the Union. This made the lineup of his employees 3
to 3. To defeat the Union it was necessary, therefore, to get rid of only one of the
prounion employees. Having decided to do so, he proceeded to consider the prob-
lem of selection and the choice inevitably fell on Laush. It would have been par-
ticularly dangerous to have selected Shanklin precisely because hey had been respon-
sible for launching the organizational drive and was the most active of the union
adherents. It would have been most difficult to justify the discharge of Frasco who
was an extremely good employee? Moreover, the union activities of both Shanklin
and Frasco were so open and notorious, that neither Whitcomb nor Gano could
possibly have denied them. But from every point of view Laush was an ideal vic-
tim. Although he' had participated in the car meeting, and had signed a union
card, he had kept pretty much in the background, and there was a possibility, there-
fore, of denying any knowledge of his union activities. Moreover, while Laush
was also in actuality extremely valuable as an employee he did present a person-
ality problem, and he had on several occasions engaged in conduct which would
have justified his discharge. By resuscitating these incidents his discharge could
be made to seem plausible.
The timing of the decision to discharge Laush, as well as the implementation of
that decision, are further indications of Whitcomb's actual motives. It may seem
that the decision to discharge Laush, which was taken immediately. after the filing
of the election petition with the Pennsylvania Labor Board on June 17, came too
early to assure a favorable outcome of the election on August 25, conducted by
the National Labor Relations Board. But actually the decision to discharge Laush
was perfectly timed, since it was made in order to affect the outcome of the State
labor board election rather than of the national Board, which at the time was not
even in the picture. The decision was also perfectly timed in that it came imme-
diately after the Union's organizational drive was revealed. From Whitcomb's
point of view, the termination of Laush was bound to 'have a beneficial effect in
any event even if he assumed that the actual election would be delayed for several
months. In a plant, whose employee complement was so small that it did not
exceed six employees at the time of decision and seven at the time of election, the
elimination of even one known union adherent might well prove decisive. Even if
Whitcomb had not known the precise alignment of the employees, he would figure
that he had nothing to lose and everything to gain by terminating the employment
of Laush. The present case is unusual only in the respect that a discriminatory dis-
charge planned to affect the outcome of a State labor board election became the
basis of a proceeding before the National Labor Relations Board. This did not
render the act, however, any less discriminatory and unlawful.
Whitcomb's considerable delay in carrying out his decision to discharge Laush
also betrays his true motives. One of the reasons he planned to advance as a justi-
fication for Laush's discharge was that he had been asked to join the move only in
order to set up the facilities of the new plant, and that he was discharged as soon
as the facilities had been set up. This explanation in itself harbors an inherent
contradiction, for an employee who was that important would not lose his value as
soon as everything had been put,in order in the new plant. The fact that Laush
did a good deal of the maintenance work no more unfitted him for general produc-
tion work than the fact that he had in the past done pilot and experimental work,
and that this part of the work was now to be curtailed in favor of quantity produc-
tion. In fact, Laush also did some production work in the weeks following the
move to the new plant when installation work had to be temporarily halted because
of missing parts. But, apart from its inherent contradictions, Whitcomb's explana-
tion of the timing of Laush's discharge was not factually true, since there was still
good reason for holding on to him at the very time of his discharge.
T At the hearing, Whitcomb himself referred to Frasco as "our oldest and most ex-
perienced employee." When Frasco quit his job on September 21, 1965, Whitcomb him-
self attempted to induce him to stay on.
J 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Whitcomb and Gano contended at the hearing that Laush was dis-
,charged because the installation work at the new plant had been completed, this
'was not, moreover, the justification for his discharge advanced in the answer which
the Respondent caused to be filed. In the Respondent's answer, it is alleged that
Laush had been discharged because of his "substandard work ." In their testimony,
however, Whitcomb and Gano emphasized rather his personality difficulties and the
slowness with which he worked.
In an effort to substantiate the latter allegation , Whitcomb and Gano produced
what was supposed to be a tabular analysis of the time taken by Laush in per-
forming various jobs in comparison with the time taken by other employees. This
proved to be virtually valueless not only because it was based on a very small
percentage of Laush's work (it certainly was not more than 10 percent) but also
because the practice of the employees in clocking particular jobs was so lax that
it would be difficult to determine with any precision just how much time they
spent on particular jobs. This was especially true in the case of Laush, who fre-
quently left production work to set up machines or perform maintenance work.
It is quite apparent that Whitcomb and Gano, the Respondent's two principal
witnesses, were attempting to reshape history, a sort of venture that has rarely
proved successful. Part of this effort was to attempt to assert that Laush was being
kept on only until a replacement for him could be found. This "replacement"
turned out to be none other than Meyers, who, having been hired as far back as
December 1964 , could be regarded at most as an ultimate replacement only. But
Whitcomb was forced to retreat even from this unsatisfactory position. Asked on
cross-examination when the new man to replace Laush had been obtained, ' Whit-
comb testified: "Actually he was already there. That was Mr. Meyers. He was a
machinist. That didn't mean we were going to let Matt go" [emphasis supplied].
Whitcomb was. then asked: "I thought you were looking for somebody to replace
Matt?" and he testified: "We had to back him up." But Gano made no claim
whatsoever that Meyers had ever been a replacement for Laush. Thus Gano
testified:
Q. Was he (Meyers) in any way a replacement in your mind for Laush?
A. No, he was not a replacement for Laush [emphasis supplied].
Whitcomb and Gano were also attempting to reshape history in denying that
they knew that Laush, who was such a loner, had had anything to do with the
Union. But, Laush's union stewardship aside, it is incredible that they should not
at least have suspected Laush of participation in the car meeting. If Hattie was
indeed telling the truth when he testified that he did not tell Gano who was in the
scar, it is impossible to believe that Gano did not ask him. Indeed, when directly
challenged on this point, Hattie did not flatly deny that Gano had asked him.
Thus Hattie testified:
Q. . . . Did you tell Mr. Gano who the employees (in the car) were?
A. No, sir.
Q.- Did he ask you?
A. Not 'that I recall.
However, my conclusion that both Whitcomb and Gano knew that Laush was a
union supporter is not based merely on my rejection of their denials. There is the
positive testimony, given by Shanklin and corroborated by Frasco, both of whom
I regard as very credible witnesses, that establishes that Gano knew that Laush had
participated in the car meeting. Gano admitted this in the conversation with
Shanklin and Frasco'that followed his ribbing them about talking union on com-
pany time. On this occasion, Shanklin had remarked to Gano that the notice of
the State board election had taken him by surprise, but Gano denied that this was
,true. As Shanklin testified, Gano said that "he had remembered the night that I
and Matt and John Frasco and a white guy and a colored guy were in the front
seat and we were out in the parking lot" [emphasis supplied]. Gano added that
"he had been up in the third floor window," and in looking out had seen them.
Frasco's testimony was precisely to the same effect.
Both Gano and Whitcomb further undermined their credibility by denying the
historical fact that Laush had agreed to join the move before it took place. Indeed,
their testimony on this subject is curiously contradictory. Gano, after testifying
that when he asked Laush whether he would join the, move the latter "didn't give
MITCHELL PLASTICS, INC. 1591
me any specific answer," added: "I assume that he was going to sever his rela-
tionship with us after we moved" [emphasis supplied]. Similarly Whitcomb
testified:
Even up until the time we moved we had no idea whether he was going to
go with us. We hoped that he would not. He showed up at the new plant.
We didn't know until he walked in. George told me that he was actually
going to work out there. George had asked him if he would come out and
help set out the equipment. He agreed with that .. . .
Cross-examined about this testimony, Whitcomb testified further as follows:
Q. Did you know whether Mr. Gano encouraged him to come over or not?
A. I don't know what he did.
Q. Did you suggest to Mr. Gano that he do something to get him to come
over to help install the machinery?
A. No.
Q. If he did it was on his own to get this man to help install the
machinery?
A. Yes.
This testimony is utterly incredible. It is impossible to believe that Whitcomb and
Gano decided to move to the new plant without knowing whether Laush would
be available to install the machinery.
In an effort to buttress the Respondent's case, there was called as a witness on
its behalf a lawyer by the name of Clyde W.-Armstrong, who had acted as gen-
eral counsel for the Respondent since Whitcomb became president and who was
also a member of its board of directors. Armstrong proceeded to testify that in
a series of conversations that he had had with Whitcomb, either at board of direc-
tors' meetings or on the telephone, the latter had outlined the unsatisfactory
behavior not only of Laush but also of Shanklin as employees, and had finally
sought his advice as to whether to discharge Laush. Thus Armstrong testified that
Whitcomb, in a discussion of the employees in September 1964, during which they
had decided to set up a personnel committee to look into their performance, had
told him that Laush was not living up to his- potential and, that he had been
denied a raise; that Whitcomb told him in January 1965, that Laush. had then been
granted a raise in the hope that it would prove an incentive to him; that in
May 1965, Whitcomb told him in a discussion of the contemplated move to the
new plant, which had been decided well before then, that Laush and Shanklin
were question marks, so far as moving was concerned, and that it would be best
for the Company if they did not join the move; that when he asked Whitcomb on
the second Tuesday in June 1965, which would be June 8, whether Shanklin and
Laush had joined the move, he had been told by Whitcomb that he had asked
Laush to do so in order to set up the machinery, although he knew that Laush
had been offered a job in Connecticut; that he had thereupon remarked to Whit-
comb that it was not fair to Laush to hold on to him in these circumstances and
that he ought to tell Laush that he would be discharged; that on Monday or
Tuesday of the following week, which would be June 14 or 15, Whitcomb told
him either that there was a movement afoot to file an election petition or that one
had already been filed with the Pennsylvania State Labor Board, and that he had
then given to Armstrong the names of the persons in his office who could represent
him in labor matters; that on Friday of the same week, which would be June 18,
Whitcomb had raised the question whether it would be advisable to discharge
Laush at a time when a union organizational drive was underway; that he had then
asked Whitcomb whether he was aware of any union activities on Laush's part and
that' having received an answer to this question in the negative, he had advised
,Whitcomb that he could discharge Laush if in his judgment the discharge of Laush
was warranted because of sound business reasons.
It is apparent that Armstrong himself had no personal knowledge concerning
Laush's merits as an employee, and that Armstrong also knew nothing about Whit-
comb's motives in discharging Laush, except insofar as Whitcomb chose to reveal
them. Armstrong's testimony must, therefore, be regarded in the same light as
any self-serving declaration, even if it be assumed that Armstrong's recollection
of the sequence of the events, and the substance of his conversations with Whit-
comb, were infallible. In any event, all that Armstrong's testimony adds, if his
1592 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
recollections are to be trusted, is that even in September 1964, which would be
before the union drive began, Whitcomb thought that Laush was not living up to
his potential, which few human beings ever do, and that Laush had been denied
a raise, which is hardly significant, since even-such a paragon as Frasco had also
been denied a raise on one occasion. All the rest of Armstrong's testimony relates
to conversations with Whitcomb after the Union had appeared upon the scene, and
merely reflect the version of Laush's discharge put forth by Whitcomb in his own
testimony.
Actually, there is reason to doubt the accuracy of Whitcomb's recollections, and
insofar as they may have been reliable, they do not further buttress but seriously
damage the Respondent's case. The idea of the setting up of a personnel commit-
tee not only sounds a bit formidable for a plant with six employees but at the
very time that it was, supposedly, being created Whitcomb was instructing Gano
to hang on to the employees "good, bad or indifferent." Although Armstrong testi-
fied that Whitcomb told him that Shanklin and Laush were the two employees who
were question marks, so far as moving was concerned, the fact is that all the
employees except Hattle hesitated to move right down to the last moment.
Although Armstrong testified that Whitcomb told him that Laush had been asked
to join the move to help set up the machinery, Whitcomb himself in his own testi-
mony denied this to be true. Although Armstrong testified that the move to the
new plant had been decided "well before May," the testimony of the other wit-
nesses shows that the decision was not firmly made until May. Although Arm-
strong testified that it was he who advised Whitcomb that he could safely proceed
with the discharge of Laush, Whitcomb himself testified that Armstrong referred
him to an associate who was an expert in labor matters, and that it was this associate
who gave him the advice he was seeking.8 It would be strange indeed if this
advice were given by Armstrong, who admitted that he was no expert, in labor
matters, unless, indeed, having an economic stake in the matter as a 'member of
the board of directors, he was as anxious as Whitcomb to get rid of Laush as soon
as possible. Perhaps the two most revealing elements in Armstrong's testimony
are that he accused Whitcomb of unfairness in attempting to hold on to Laush,
who had an offer of another job, although it was his intention to discharge him,
and that Shanklin's name was coupled with Laush's as an unsatisfactory employee.
It would seem that in the present case an unfair labor practice was in the end
committed in an effort to be fair, after the most suitable victim had been selected.
IV. THE REMEDY
In view of the serious nature of the violation involved in the discharge of Matt
Laush, I shall recommend a broad form of cease and desist order, restraining the
Respondent from infringing upon any of the rights guaranteed to employees by
Section 7 of the Act.
To remedy the discharge of Matt Laush, I shall also recommend, by way of
affirmative relief, that the Respondent offer to him immediate and full reinstate-
ment to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges previously enjoyed by him, discharging,
if necessary, any new employee hired subsequent to the date of his discharge in
order to replace him. I shall also recommend that the Respondent make Matt
Laush whole for any loss of pay he may have suffered by reason of his discharge
by payment to him of a sum of money equal to the amount which he would nor-
mally have earned as wages from the date of his discharge to the date of the
Respondent's offer or reinstatement, less his net earnings during the said period.
The amount of backpay is to be determined in accordance with the formula pre-
scribed in F. W. Woolworth Company, 90 NLRB 289, and interest is to be com-
puted on the amount so determined in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent, Mitchell Plastics, Incorporated, is an employer engaged in
commerce, or in an industry affecting commerce, within the meaning of Section
2(6) and (7) of the Act.
2. International Union, Allied Industrial Workers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
e This associate was the lawyer who represents the Respondent In the present proceeding.
COLETTI COLOR PRINTS, INC. 1593
3. By discharging Matt Laush on June 25 , 1965, because he was a supporter of
the Union, the Respondent committed an unfair labor practice affecting commerce
within the meaning of Section 8 ( a)(3) and (1) of the Act.
4. The Respondent has not committed any other independent unfair labor prac-
tices affecting commerce within the meaning of Section 8(a)(1) of the Act.
[Recommended Order omitted from publication.]
Coletti Color Prints, Inc. (formerly Coletti Associates ) and Local
1, Amalgamated Lithographers of America . Case 29-CA-341.
June 27, 1966
DECISION AND ORDER
On March 25, 1966, Trial Examiner James V. Constantine 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. The Trial Examiner further found that
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that those allegations be
dismissed. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief, and the Respond-
ent filed cross-exceptions and a supporting brief.
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 [Members Fanning, Brown, and Zagoria].
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 and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified herein.
We find merit in the General Counsel's exceptions to the Trial
Examiner's dismissal of that part of the complaint which alleged
that Respondent unlawfully refused to bargain with the Union. The
dismissal was predicated on the ground that the record failed to dis-
close that Richard Coletti, alleged to be Respondent's president, had
the authority to act for the Respondent in the conduct of collective-
bargaining negotiations.)
The Trial Examiner found that, at best , the evidence showed that Coletti exercised
supervisory authority , and that, as a supervisor , be had engaged in conduct violative of
Section 8(a) (1) of the Act. We adopt this 8(a) (1) finding of the Trial Examiner, but,
as indicated , we cannot accept his additional finding that Coletti had no authority to bind
the Respondent in collective -bargaining negotiations.
159 NLRB No. 135.