Murcole, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1973

204 N.L.R.B. 228 (N.L.R.B. 1973)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Murcole , Inc. and Service Employees International
Union, Local 551, AFL-CIO. Case 25-CA-4438
June 18, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 10, 1972, Administrative Law Judge'
Joseph I. Nachman issued his Decision in the above-
entitled proceeding, finding that Respondent had en-
gaged in certain unfair labor practices within the
meaning of Section 8(a)(1), (3), and (4) of the Nation-
al Labor Relations Act, as amended. Accordingly, he
recommended that Respondent cease and desist from
engaging in such conduct and take certain affirmative
action, as set forth in the attached Decision. Thereaf-
ter, Respondent filed exceptions and the General
Counsel filed limited exceptions to the Administrative
Law Judge's Decision, together with briefs in support
of their exceptions.
In its exceptions, Respondent argued, inter alia,
that the Administrative Law Judge's conclusion that
the layoff of certain employees on July 13, 1971, was
in violation of Section 8(a)(3) of the Act was based on
an erroneous finding of fact made by the Administra-
tive Law Judge; namely, that the parties had stipulat-
ed that the Union had received valid union
authorization cards from 11 of the 12 full-time em-
ployees laid off on July 13, 1971. Upon consideration
of the evidence bearing upon this issue, the Board
concluded that the record evidence supported
Respondent's contention that no such stipulation was
entered into by the parties and, further, that the Ad-
ministrative Law Judge, acting on the basis of this
nonexistent stipulation, precluded the General Coun-
sel from adducing evidence conerning the union ac-
tivities of these employees and knowlege of such
activities by the Respondent. Accordingly, by Execu-
tive Secretary's order, dated June 30, 1972, the Board
ordered that the record be reopened and that the hear-
ing be reconvened before the Administrative Law
Judge for the purpose of allowing the parties an op-
portunity to adduce evidence concerning the authen-
ticity of the union authorization cards and any and all
employee union activities and Respondent's knowl-
edge thereof. The Board further ordered that, upon
conclusion of the hearing, the Administrative Law
Judge prepare and serve on the parties a supplemental
decision containing findings of fact, conclusions of
law, and recommendations to the Board based on the
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
evidence received pursuant to the Order. Thereafter,
Respondent filed a motion for reconsideration of the
Board's Order and the General Counsel filed a re-
sponse in opposition to Respondent's motion. On Au-
gust 30, 1972, the Board, by Executive Secretary's
order, denied Respondent's motion for reconsidera-
tion.
Following our remand Order, the parties entered
into a stipulation which was approved by the Admin-
istrative Law Judge on September 18, 1972, and made
a part of the record. In substance, the stipulation pro-
vided: (a) that the parties waived further hearing; (b)
that employees listed on General Counsel's Exhibit 17
signed union authorization cards on the dates indi-
cated by their respective names on the exhibit, and
that they were the only employees to sign such cards
prior to the layoff of July 13, 1971; (c) that certain
named employees if called at a reconvened hearing
would testify substantially in accord with the offers of
proof made by the General Counsel at the initial hear-
ing; (d) that the parties have no further evidence to
offer and waive the opportunity to do so; and (e) that
the parties waive their right to file briefs with the
Administrative Law Judge.
Pursuant to the stipulation, no further hearing was
held. On September 29, 1972, Administrative Law
Judge Joseph 1. Nachman issued his Supplemental
Decision, also attached hereto, in which he reaffirmed
his earlier findings that Respondent had engaged in
certain unfair labor practices within the meaning of
Section 8(a)(1), (3), and (4) of the Act. Thereafter,
Respondent filed exceptions and the General Counsel
filed limited exceptions to the Administrative Law
Judge's Supplemental Decision, together with briefs
in support of their exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision and Supplemental Decision in light
of the exceptions and briefs and has decided to affirm
the rulings, findings, and conclusions of the Adminis-
trative Law Judge, except to the extent they were
reversed by our prior Order, and to adopt his recom-
mended Order, as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
2 We note that throughout his original Decision , the Administrative Law
Judge has, in listing the discriminatees , inadvertently added the name Bessie
Willis and excluded the names of Virtle Nall and Betty Noel We hereby
correct this unintentional oversight
204 NLRB No. 46
MURCOLE, INC.
Order of the Administrative Law Judge and hereby
orders that Respondent, Murcole, Inc., Indianapolis,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the Administrative
Law Judge's recommended Order, as modified below:
1. Add the following as paragraph 1(a) and reletter
the existing paragraphs accordingly:
"(a) Coercively interrogating employees concern-
ing their union activities."
2. In paragraphs 2(a) and 2(c) delete the name of
Bessie Willis and add the names of Virtle Nall and
Betty Noel.
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF -HE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act, and ordered us, Murcole, Inc.,
to post this notice. We intend to carry out the Order
of the Board, the judgment of any court, and abide by
the following:
As the Board has found that we violated the
law when we discharged or laid off Annie B.
Beasley, Roxie L. Bridges, Hester Cousins, Katie
Drake, Sue Harper, Eugenia Haskins, Wilma Le-
dell, Virtle Nall, Betty Noel, Constance Walton,
and Anna Bell White, WE WILL offer to each of
them their old job back or, if the same no longer
exists , to a substantially equivalent job, and we
will make up to each of them the pay they lost,
together with 6-percent interest.
As the Board has found that we also violated
the law when we discharged or laid off Clara
Alexander and Jessie Bishop, Alexander having
declined our offer of reinstatement and Bishop
having been reinstated by us. WE WILL make up
to Alexander and Bishop the pay they lost by
reason of their unlawful discharge, together with
6-percent interest.
Section 7 of the National Labor Relations Act gives
all employees these rights:
To organize themselves
To form, join, or help unions
To act together for collective bargaining or
other mutual aid or protection
To refuse to do any or all of these things.
229
WE WILL NOT do anything to interfere with our
employees in the exercise of the aforementioned
rights.
WE WILL NOT coercively interrogate our em-
ployees concerning their union activities.
WE WILL NOT tell our employees that they will
be laid off or discharged if they sign cards for a
union.
WE WILL NOT secretly watch over the activities
of our employees on behalf of a union, nor will
we engage in any other conduct which will rea-
sonably give our employees the impression that
we are secretly watching over their activities on
behalf of a union.
WE WILL NOT threaten to discharge nor dis-
charge any employee because his name appears
on a charge filed with the National Labor Rela-
tions Board.
WE WILL NOT lay off or discharge any employee
because he has assisted or supported a union.
MURCOLE, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 614 ISTA Center, 150 West Market
Street, Indianapolis, Indiana 46204, Telephone 317-
633-8921.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner: This proceeding tried
before me at Indianapolis, Indiana, on November 22-24,1
with all parties present and duly represented, involves a
complaint 2 pursuant to Section 10(b) of the National Labor
Relations Act, as amended (herein the Act), which alleges
that Murcole, Inc. (herein Respondent or Company, during
an organizational campaign by Service Employees Interna-
tional Union, Local 551, AFL-CIO (herein the Union), vio-
lated Section 8(a)(1), (3), and (4) of the Act by (a)
interrogating its employees concerning their own and the
1 This and all dates mentioned are 1971, unless otherwise stated.
2 Issued September 29, on a charge filed July 21, and amended August 13
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union membership, activities, and desires of other employ-
ees; (b) giving employees the impression that their union
and concerted activities were under surveillance by Respon-
dent; (c) threatening employees with layoff or discharge if
they continue to give assistance or support to the Union; (d)
threatening an employee with discharge if she did not re-
move her name from a charge filed with the Board; (e)
laying off and discharging, on July 13, 12 employees and at
all times thereafter failing and refusing to reinstate them
because they assisted and supported the Union; and (f)
discharging one employee on August 18 because she permit-
ted her name to be used on a charge filed with the Board.
For reasons hereafter stated I find substantially all of the
aforesaid allegations sustained by the evidence and recom-
mend an appropriate remedial order.
At the trial all parties were afforded full opportunity to
introduce relevant and material evidence, to examine and
cross-examine witnesses, to argue orally on the record, and
to submit briefs. Oral argument was waived. Briefs submit-
ted by the General Counsel and Respondent, respectively,
have been duly considered. Upon the pleadings, stipulations
of counsel, the evidence, including my observations of the
demeanor of the witnesses while testifying, and the entire
record in the case, I make the following:
FINDINGS OF FACT 3
A. Background
For the 2 years prior to July 1, a concern known as Ken
Kleen held a contract from United States Army for the
janitorial service at the Finance Center. In early June, Re-
spondent was awarded the contract for janitorial services
for the year July 1, 1971, to June 30, 1972. The contract is
subject to the Provisions of the Service Contract Act (29
U.S.C. 351, et seq. ), and, pursuant to said Act, a prevailing
wage rate of $2.65 an hour to be paid to employees engaged
in the performance of said contract was fixed. Sometime in
late May or early June, while Ken Kleen was the contractor,
the Union began an organizational campaign among the
employees, which campaign was in progress on July 1, when
Respondent began performance of its contract.
Preparatory to assuming performance of its contract,
Kenneth Pennington, Respondent's director of operations
for the northern United States, arrived in Indianapolis
3
No substantial issue with respect to commerce or labor organization is
present for decision The complaint alleges, and by its answer Respondent,
whose principal office is at Los Angeles , California, admitted , that at all times
material it has been engaged at various places in the United States , including
the Fort Benjamin Harrison Finance Center, at Indianapolis, Indiana (herein
Finance Center), in performing janitorial services pursuant to contract with
the United Finance Center has an annual value of $336,000 I find the
aforesaid facts to be as pleaded , and on the basis thereof conclude that
Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act Although Respondent's answer denied that it had sufficient
information to form a belief as to whether or not the Union is a labor
organization within the meaning of the Act, Union Agent Stone testified that
the Union is an organization in which employees participate and that it
bargains and has contracts with employers concerning the wages , hours, and
terms and conditions of employment of its employee-members Respondent
introduced no contrary testimony Accordingly , on the basis of this uncon-
tradicted testimony , I find that the Union is a labor organization within the
meaning of Section 2(5) of the Act
about June 23 to make the necessary arrangements for the
takeover. He brought with him his brother, James Penning-
ton, who was to become manager of the operation after
Kenneth Pennington had effected the takeover in accord-
ance with Respondent's plans. Betty Pennington, wife of
James Pennington, was assigned by Respondent as its office
clerical at the Finance Center. She first arrived in Indian-
apolis on July 10. Her part in the critical events of this case
will be hereafter related.
Although Kenneth Pennington sought permission to talk
with the Ken Kleen employees shortly after his arrival at the
Finance Center, Ken Kleen declined to give its permission
for him to do so during working hours, and Pennington
made no effort to see them at other times. In any event,
Pennington spoke with the Ken Kleen employees for the
first time during the evening of June 30, when he addressed
them as a group. At this time Kenneth Pennington told the
employees that Respondent would give employment to all
of the Ken Kleen employees that filed applications with
Respondent; that Henry Dullen and Fred Triplett, who
were their supervisors while employed by Ken Kleen, would
be their supervisors while employed by Respondent;4 and
that they would continue to perform the same tasks they
previously performed, in the same locations in the building,
and under the same work schedule as they had while work-
ing for Ken Kleen, and that he would make no immediate
changes in that regard.5 A total of 52 employees attending
the meeting which Pennington addressed, filed applications
the following day for employment with Respondent, and
were put on Respondent's payroll. At the time of this meet-
ing as affirmatively appears from General Counsel's Exhibit
17, which the parties stipulated into evidence, the Union
had received signed authorization cards from 22 of the em-
ployees who came to work for Respondent, and 7 additional
employees signed cards on or before July 7,6 giving the
Union a total of 29 cards by the last-mentioned date.
B. Alleged Violations
1. The independent 8(a)(1) allegations
1. As heretofore indicated, when Pennington addressed
the employees on June 30, he told them that he had em-
ployed Dullen and Triplett, both of whom would supervise
the employees in the performance of their work while em-
ployed by Respondent. Both Dullen and Triplett attended
that meeting. As the employees were leaving the meeting,
4 The complaint alleges that at all times material Dullen and Triplett were
supervisors or agents of Respondent within the meaning of the Act. The
answer denied this allegation In the course of the trial, Respondent stipulat-
ed that the duties , authority, and responsibility it conferred upon Dullen were
such as to render him a supervisor within the meaning of Section 2(11) of the
Act, but made no such concession with respect to Triplett In view of the
stipulation with respect to Dullen, and Kenneth Pennington's admission that
Triplett had the same duties , authority, and responsibility as Dullen, except
in a different area of the premises, I find and conclude that both Dullen and
Triplett were supervisors within the meaning of the Act
5 All the employees involved in this proceeding worked on the night shift,
each day from 6 p in of a given day to 2 a in of the following day, excluding
Saturdays , Sundays, and Federal holidays
6 The Union received five additional cards on July 1; one additional card
on July 2, and one on July 7
MURCOLE, INC. 231
Triplett addressing the employees generally asked, "Where
is the Union going to be meeting?" None of the employees
made any response.7
2. During the afternoon of July 1, employee Woodward
attended a union meeting . When he reported for work that
afternoon, Supervisor Dullen told Woodward, "You been to
the union meeting. I saw you with Virtle [also an employee
of Respondent] in the car and a couple more women."
Woodward made'no response. 8
3. On or about July 7, an agent of the Union was distri-
buting union authorization cards in the parking lot area
among Respondent's employees. A security guard came to
the parking lot and obtained one of the cards which he gave
to Dullen. Receiving the card, Dullen, in the presence of
three or four employees who were signing in for work, re-
marked that anyone caught signing a card for the Union
would be laid off?
4. Also on or about July 7, employee Sue Harper, who
had signed card for the Union, heard Dullen tell a group of
employees reporting for duty, "You all keep filling out those
cards and you won't be here at work any longer."10
5. During the period between July 1 and the layoff on
July 13, Dullen on several occasions rode through the work
area on his mechanical cart and was heard telling employees
that those who signed union cards would be laid off."
6. A few days prior to the July 13 layoff, as employee
Beasley, who had theretofore signed a card for the Union,
was checking in for work at the guards desk, Supervisor
Dullen was standing close by and remarked to Beasley,
"You better get that thing going, because you are going to
get laid off." Beasley asked Dullen what he meant by the
"thing," and Dullen replied, "that union thing." 12
7. During the evening hours of July 2, just prior to the
layoff of July 13, Supervisor Triplett engaged employee Bes-
sie Willis in conversation, telling her that "this was the
night"; that she was a good worker that could make it
without a union; that his advice to her was "to stay away
from the Union"; and that if she wanted her job and wanted
to work, she should forget about the Union.13
8. On July 12, employee Sue Harper obtained permission
to leave early so that she might get a ride home with Supervi-
sor Triplett. She left work between 11:30 p.m. and midnight.
Before leaving she was given the layoff notice by Penning-
ton. During the ride home with Triplett, Harper asked the
latter how long the layoff would last and when they might
expect to be recalled. Triplett replied that as long as Pen-
nington could get help cheaper, and avoid dealing with the
7 Based on the uncontradicted and credited testimony of Bessie Willis
Although the record shows that Triplett was in Respondent's employ at the
time of the hearing , he was not called as a witness
s Based on the uncontradicted and credited testimony of D. T. Woodward
Dullen was not called as a witness . Although the evidence shows that Dullen
was no longer employed by Respondent at the time of the hearing , there was
no showing that his attendance could not have been secured by subpena
Respondent 's failure to call Dullen and Triplett gives rise to the inference
that had they been called they would not have supported Respondent's cause.
Brewton Fashions, Inc, 145 NLRB 99, 124, fn. 77
9 Based on the uncontradicted and credited testimony of Bessie Willis
10 Based on the uncontradicted and credited testimony of Sue Harper.
11 Based on the uncontradicted and credited testimony of Anne Bell White
12 Based on the uncontradicted and credited testimony of Beasley
13 Based on the uncontradicted and credited testimony of Bessie Willis
Union, those laid off that night would never be called back.
Triplett then asked Harper if she had signed a card for the
Union, and Harper replied in the affirmative.14
9. On or about August 13, employee Bessie Cross attend-
ed a union meeting. While at work the following day, Super-
visor Dullen told Cross that he thought he had done her a
favor by keeping her on when her husband was working
only 2 or 3 days week, but he had now learned that she
(Cross) had attended a union meeting. When Cross admit-
ted that she had attended the union meeting the preceding
day, Dullen told her she was "dirty" and "two-faced." 15
10. In the latter part of August, employee English, while
at work, engaged Supervisor Dullen in conversation and
asked why the Company was hiring new employees instead
of recalling those laid off on July 13. Dullen replied that he
had orders from Pennington not to hire anyone on the list.
English asked what list he meant, and Dullen replied the list
of those Respondent had been charged with discriminating
against. 16
2. The Union's recognition demands
On July 1, Union Representative Stone telephoned Pen-
nington at the Finance Center, and told the latter that the
Union represented a majority of the employees and that she
wanted to discuss with him the matter of recognition and
bargaining. Pennington told Stone that he was just getting
started, needed time to get organized, and asked that Stone
call him again the first of the following week. The same day
Stone telephoned Company President Mgrdichian at his
office in California telling him basically what she had told
Pennington. Mgrdichian replied that he would consider
Stone's request and would communicate with her later.
Stone did not thereafter hear from Mgrdichian. Also on July
1, Stone sent a letter to Respondent at its California office
requesting a meeting to discuss recognition and bargaining
and offering to prove the Union's majority status. Respon-
dent did not reply to this letter.
Pursuant to Pennington's request on July 1 that Mrs.
Stone call him the following week, she made such call on
Tuesday, July 6.17 A meeting for the following day was
arranged. At the meeting on July 7, in Pennington's office,
Mrs. Stone reiterated her claim of majority status, requested
recognition and bargaining for a contract. Pennington re-
plied that he was without authority to make any decision in
the matter; that such decision would have to be made by his
office in California; that he would communicate with said
14 Based on the uncontradicted and credited testimony of Sue Harper
15 Based on the uncontradicted and credited testimony of Bessie Cross.
16 Based on the uncontradicted and credited testimony of Cecilia English.
In addition to the foregoing, the General Counsel sought to adduce evi-
dence to establish that during the month of June, and before they were
employed by Respondent, Dullen and Triplett engaged in conduct that
would constitute interference, restraint, and coercion of Ken Kleen's employ-
ees in the exercise of their Section 7 rights, contending that Respondent
would be answerable for that conduct All testimony of that nature was
rejected on the ground that Respondent could not be held responsible for the
conduct of Dullen and Triplett engaged in by them prior to the time they
became agents of Respondent Testimony relating to the conduct and state-
ments of Dullen and Triplett made at the meeting of June 30, when Penning-
ton told the employees that Dullen and Triplett had been hired by
Respondent as supervisors, and thereafter, was received.
1 Monday, July 5, was celebrated as the July 4 holiday
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office and advise Stone later of Respondent's decision. The
testimony is uncontradicted that Pennington never commu-
nicated any decision on the subject to the Union. In the
course of this conference Pennington made a remark to the
effect that he did not know which of the employees wanted
a Union, to which Stone replied that she was not at liberty
to disclose the identity of the Union's supporters, but that
it was a majority. One of the Union's group asked how
many employees Respondent had on the payroll, and Pen-
nington replied with some figure. The union representative
then stated that they had a majority of that. Notwithstand-
ing Pennington's contrary testimony, I find that at this
meeting Pennington made no mention of a contemplated
reduction in force.18
Immediately following her July 7 conference with Pen-
nington , Stone filed a representation petition with the Re-
gional Office. According to the payroll records for the
month of July the number of employees on the payroll as
of July 7, excluding supervisors and clericals, was 52. The
parties stipulated that the Regional Office mailed a copy of
the representation petition and a letter explaining the
Board 's election procedures , to Respondent at its office in
the Finance Center on Friday, July 9, and that it was re-
ceived by Respondent. Although there was no stipulation,
nor is there independent evidence as to the date the Respon-
dent received said material, there is the presumption that
mailed matter is received in due course of mail, and this is
particularly true where the mailed material was in fact re-
ceived. See Bratten Pontiac Corp., 163 NLRB 680, 682, fn.
9, enforcement denied in part on other grounds, 406 F.2d
349 (C.A. 4, 1969). In view of the fact that the next work day
after the mailing was July 12, with a weekend intervening,
and Betty Pennington's testimony that she opened all mail
and placed it on the manager's desk, I find that the represen-
tation petition came to Pennington's attention on July 12,
and reject his testimony that he saw that document for the
first time about a week prior to the hearing herein which
began on November 21. Indeed, in his affidavit given the
Board on September 20, Pennington admitted that "Shortly
after the charge was filed with the Labor Board, I received
a copy of it."
3. The July 13 layoff
When the employees reported for work at 6 p.m., July 12,
they observed a group of new employees, estimated to num-
ber about 10 or 12. These employees were assigned to work
that shift along with the regular employees. When the shift
ended at 2 a.m., July 13, the employees checked out at the
guard's desk. Just beyond the guard's desk Pennington was
stationed, with Dullen off to one side, and as each employee
passed Pennington he asked the name, and looking through
a group of layoff notices he had before him, ave a layoff
notice to 12 employees." With one exception '29 the employ-
is My findings in this section are based on the credited testimony of Sue
Stone, Respondent's payroll records, and the stipulations of counsel. With
respect to this branch of the case Pennington's testimony is in some respects
inconsistent with that of Stone, but based on the totality of his testimony and
his demeanor while testifying, for reasons hereafter discussed, I do not regard
him as a credible witness in areas where substantial credibility issues are
involved
ees were given an identical notice which is headed "Employ-
ees Separation Notice," and advised that the reason for the
"termination" was "cut back in force," and that the employ-
ees would "be reinstated if needed." Of the 12 employees so
laid off on July 13, 11 had on or before July 7 signed a card
on behalf of the Union?' Although the layoff notices given
these employees stated they would be recalled if needed,
Respondent's payroll records show that between July 16
and October 26, Respondent hired a total of 31 new employ-
ees,22 24 of whom, according to Respondent's records, ap-
peared to be still employed by Respondent at the time of the
trial of this case. There is no dispute that none of the em-
ployees laid off on July 13 have been recalled.23
4. Defense to layoff
Pennington testified that because he was unable to in-
spect the operation or interview the Ken Kleen employees
and determine how many of them he could use until late on
June 30, he decided to take over all the Ken Kleen employ-
ees, and continue them in the operation they were then
employed until he could prepare proper schedules and de-
termine how many employees he would need, and to what
operations they should be assigned. Additionally, Penning-
ton testified that he wanted to use some employees to be
referred to him by the Vocational Rehabilitation Service,
and these would have to be worked into the force taken over
from Ken Kleen.24 According to Pennington, over the week-
end of July 10 and 11, he worked at home, assisted by his
i9 The employees receiving such notices are those named in paragraph 6(a)
of the complaint as amended at the hearing. The amendment added the name
of Constance Walton
20 The notice given Constance Walton was dated July 12, while the remain-
ing notices were dated July 13 Walton testified that she worked a full shift
on July 12-13, and that the notice was given her when she checked out. The
discrepancy in date is not otherwise explained At least inferentially, Pen-
nington denied that Walton was discharged on either July 12 or 13. Accord-
ing to Pennington, Walton 's last day of work was July 8 , and his work records
so indicate He was unable to say why she did not work after that date;
whether he terminated her or whether she quit . Based on Walton 's testimony
and the fact that she was given a layoff notice , I find that she worked until
July 13 when she was laid off with the remaining employees involved, and
the fact that the layoff notice is dated July 12, was an error.
21 The only employee referred to in paragraph 6(a) of the complaint, as
amended , who did not sign a union card was C. Alexander.
22 The dates these employees were hired are. one on July 16; three on July
29; one on August 2, three on August 16, one on August 20; one on August
25; one on August 26; one on August 30; one on September 9; one on
September 13, eight on September 24; one on October 1; one on October 4;
one on October 6; one on October 7; one on October 13; one on October
14; one on October 21, and two on October 26. These do not include some
employees who were referred to Respondent by the Rehabilitation Service,
as hereafter more fully detailed
23 A B. Beasley was recalled as a temporary for one day on September 1,
but on September 2 was told that Respondent had no further work for her.
24 Although, as indicated , a wage rate of $2.65 an hour had been fixed
pursuant to the Federal Service Contract Act, as the minimum rate to be paid
to employees engaged in the performance of the contract , Pennington, as he
had on other government posts, sought to obtain some employees through
the Vocational Rehabilitation Service, a State Agency which cooperates with
the Federal government in a program promoting the rehabilitation and em-
ployment of handicapped persons . By regulation , the Secretary of Labor has
provided for the employment of handicapped workers at a rate less than that
specified in the contract , provided such employment is in accord with the
terms of a certificate issued by the Wage and Hour and Public Contracts
Division of the Department of Labor. Without such a certificate , employ-
ment at a rate less than that specified in the contract is unlawful
MURCOLE, INC. 233
sister-in-law, Betty Pennington, who also serves as the cleri-
cal in Respondent's office, in the preparation of a work
schedule, which assigned each employee to the performance
of a specific operation at a specified location. 5 According
to Pennington-and his testimony in this regard is corrobo-
rated by Betty Pennington-in preparing his work charts, he
had before him a drawing of the work area and the applica-
tions for employment filed with him by the former Ken
Kleen employees who then worked for Respondent; that to
assign an employee to a particular location and job, he
would ask Betty Pennington to give him the name, for ex-
ample, of a female cleaner; that she went through the stack
of applications, which were arranged in no particular order,
and starting from top, called out to him the name on the first
application she found in the classification he had requested,
and he wrote that name at the proper place on his draw-
ing;26 that the same procedure was followed in filling all the
job slots, and when the work charts were completed at his
office on July 12, he directed Betty Pennington to prepare
layoff notices for all the people from whom applications had
been taken but had not been reached for assignment in the
preparation of the work schedules. According to both of the
Penningtons, each was unaware of the union affiliation of
any of the employees, and the fact that I I of the 12 employ-
ees laid off on July 13 were members of the Union was
simply a happenstance.
Additionally, Respondent contends that the July 13 lay-
off was made economically necessary by reason of the fact
that he had agreed to employ people to be referred to him
by the rehabilitation service, 13 of such people having re-
ported for duty at 6 p.m., July 12, and were then placed on
the payroll at a rate of $1.73 an hour instead of the contract
rate of $2.65. In this connection Pennington testified that he
conferred with the service about June 25, and then commit-
ted himself to take up to 15 people that they might refer,
25 Pennington testified , supported by a copy of an Army medical discharge
dated in 1953 , that he suffers from a "complete inability to recognize word
symbols," which medical authorities regard as "word blindness in a neurolog-
ical sense ," and for that reason is unable to read or write . There is no evidence
as to what therapy, if any, or what improvement , if any, Pennington has had
in the 18 years since his discharge from the military service . The evidence,
however, casts some doubt-a doubt unnecessary to resolve completely-
upon the accuracy of this testimony . Of the 12 employees discharged on July
13, 11 testified that on the night of their discharge they had finished work
and had checked out at the guard 's station , that Pennington was standing
a short distance beyond, and as they approached, Pennington asked them
their name ; that when they gave their name , Pennington leafed through a
stack of papers he had before him, pulled out a layoff slip which he handed
the employee and that said slip bore that employee 's name . This would
appear to be conclusive evidence that although Pennington might have had
some difficulty in the past in reading and/or writing , and perhaps suffers
some current disability in that regard , it is at least doubtful that his inability
to read at this time-some 18 years after the date of the medical report-is
as "complete" as the report states, or as Pennington would have us believe
z6 In this connection it is of some significance to note that although Pen-
nington testified that there were various classifications of employees , such as
trashers , sweepers , moppers and rest room cleaners, the payroll records show
only one classification for rank and file employees, namely, "Standard
Class," and that all received the same rate of pay. Pennington further testified
that all the employees were generally interchangeable in the several Jobs they
were to perform , and were at times switched from one task to another, and
back again , in the course of a particular day. Additionally, Betty Pennington
testified that she knew only of the "Standard" classification , and that no
other list of classifications existed in her office , nor elsewhere to her knowl-
edge.
with the understanding that the service would arrange with
the Department of Labor for issuance of the appropriate
papers that would permit their employment at the reduced
rate, and left blank, but numbered, applications for such
employees to fill out. According to Pennington, not only did
the Ken Kleen employees file applications for employment
on July 1, but a number of others who heard of possible
employment, including a great number who presented ap-
plications that he had left with the rehabilitation service.
Pennington testified that he discovered there were more
applications submitted by persons allegedly referred by re-
habilitation than the number of applications he had left;
and that investigation disclosed that the applications he left
had been duplicated and widely distributed so that he had
no way of knowing who had been referred by the service.
For this reason he refused to interview or hire any of these
allegedly referred by rehabilitation and called upon the lat-
ter to submit a list of those it had referred, and that the
people hired on July 12 were those ultimately referred by
rehabilitation. Pennington also testified that he told his
brother, Project Manager James Pennington, that after he
got his work schedules made up, he would start calling the
people referred by rehabilitation for interview and possible
hire. As heretofore found, Pennington completed his work
schedules late in the day on July 12, but there is no testimo-
ny as to when he called the rehabilitation referrals for inter-
view. It is undisputed, however, that 12 of them reported for
work at 6 p.m., July 12, and worked that entire shift 27
5. The discharge of Bishop
The initial charge filed herein on July 21 included the
name of Jessie M. Bishop as among those alleged to have
been discriminatorily discharged by Respondent on July 13.
In fact Bishop was not so discharged. Upon receipt of a
copy of the charge,28 Pennington sent for Bishop and ques-
tioned her about the fact that her name appeared on the
charge. Bishop denied that she had authorized the use of her
name on the charge and Pennington told her to get her
name removed from the charge, and if she failed to do so
she would be discharged, because the Company did not
want anyone working for it that was against it. Bishop
sought to communicate with Union Agent Stone but was
unable to do so. That evening when Bishop returned to
work she was asked by Project Manager James Pennington
if she had seen the union agent to get her name removed
from the charge. Bishop replied that she had been unable
to do so. James Pennington then told Bishop that she had
better do something because he had orders to fire her if she
did not get her name off the charge.
On August 13, Bishop, after informing Union Agent
Stone of Respondent's threat of discharge, obtained from
27 Pennington also testified that the rehabilitation service was unable to
provide the necessary certificates permitting employment at the reduced rate
of pay, and for that reason all those referred by the service were either
terminated by July 31, or were raised to the contract rate.
28 The record does not show the date Respondent received the charge. It
does show that a copy of the charge was mailed to Respondent at the Finance
Center on July 23 by registered mail. The signed registry receipt does not bear
a date of delivery , but does show that it was returned to the Regional Office
on July 26 at 10.16 a in. As July 26 was on Monday, the registry receipt must
have been signed by Respondent on July 23 or 24
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stone a letter addressed "To Whom It May Concern,"
which stated that the charge filed with the Board had been
amended at the request of Bishop by deleting her name, and
that the initial charge had been filed by the Union and not
by Bishop. The same day the Union amended the initial
charge by deleting the name of Bishop as one of the discri-
minatees , and adding a new allegation that Respondent
threatened to discharge or otherwise discriminate against
employees because their names appeared on the original
charge, and because it suspected employees of filing charges
against it with the Board. A copy of the amended charge
was served on Respondent on August 17. When Bishop
went to work the evening of August 13, she gave the state-
ment she had received from Union Agent Stone to Supervi-
sor Dullen (neither of the Penningtons being available), who
said he would turn it into the office. In a later conversation
with James Pennington, Bishop asked him if the statement
from Stone was satisfactory. As Pennington did not indicate
any dissatisfaction with the statement, Bishop assumed that
it was satisfactory, and she continued to work as usual until
August 19, when Dullen handed her a slip signed by Ken-
neth Pennington, which stated that she was being "Dis-
charged For Cause," the alleged cause being that she "Made
false accusations against company representatives as of 8-1
3-71. These charges have not been proved or disproved.
Termination depending." 29 Bishop heard nothing further
from Respondent until October 19, when she received a
registered letter signed by James Pennington dated the pre-
ceding day and stating:
Mrs. Bishop, we have tried many times to get hold of
you to let you know that your job is still open. If you
wish to return to your job, let us know.
Bishop called Respondent's office immediately upon receipt
of this letter and was told to report for duty on October 20,
which she did. She has worked continuously since that date,
but was not paid for the time she lost between the date of
her discharge on August 19, and her reinstatement on Octo-
ber 20.
Pennington admits that he caused Bishop to be dis-
charged, and that his reason for doing so was that she had
filed a charge which made unjust accusations against the
Company, and that he terminated her until the charges were
either proved or disproved. In his affidavit given the Board
on September 20, Pennington stated that "if a person
brought charges against me for discrimination, I felt they
shouldn't be on the payroll until the charges were re-
solved." 30
29 The notice of discharge is dated August 13, but I credit Bishop's uncon-
tradicted testimony that it was not given to her until August 19.
30 The findings in this section are based on the credited testimony of Jessie
Bishop , and some admissions by Kenneth and Betty Pennington . Based on
the entire record , I have concluded that I can credit the testimony of the two
Penningtons only in those instances where ( 1) the fact is not in dispute, (2)
the testimony is in the nature of an admission against interest , and (3) their
testimony is corroborated by other evidence which I credit. I reach this
conclusion not only because their demeanor while testifying did not impress
me as that of honest and reliable witnesses, but because of the many inconsis-
tencies between the testimony of Kenneth Pennington as a witness , and his
affidavit given the Board on September 20 A few examples will suffice.
When testifying as a witness called by the General Counsel under Rule 43(b),
Pennington stated that he did not recall whether Union Agent Stone told him
her union represented a majority of Respondent's employees at their confer-
C. Contentions and Conclusions
1. The 8(a)(1) violations
Upon consideration of the entire record, I find and con-
clude that Respondent violated Section 8(a)(1) of the Act by
the following:
(a) Triplett's query expressed generally to all the employ-
ees at the conclusion of the meeting on June 30, "where is
the Union going to be meeting?" The statement conveyed
to the employees that Triplett knew union meetings were to
be held, and carried the clear implication to the employees
that he might engage in surveillance of them. In that sense,
the remark was coercive. The contention that Respondent
may not be held responsible for Triplett's conduct on June
30, because he did not come to work for Respondent until
July 7, I must reject because at the June 30 meeting Pen-
nington told the employees that Dullen and Triplett would
be their supervisors.
(b) Dullen's statement to Woodward that he knew the
latter, accompanied by other employees, had attended a
union meeting, because it clearly created the impression
that the union activity of the employees was under surveil-
lance by Respondent. Rockingham Sleepwear, Inc., 188
NLRB 698, and the cases there cited.
(c) Dullen's statements to various employees during the
period from on or about July 1 to about July 13 that em-
ployees who signed union cards would be laid off, or would
ence on July 7, yet when testifying as a witness for Respondent he admitted
that she so informed him. Indeed, in his affidavit Pennington admitted that
at the July 7 conference, after he gave the union representative the number
of employees then on Respondent's payroll, one of them replied that the
Union still had 60 percent of the employees signed up. With respect to Jessie
Bishop, Pennington testified that he ceased working in Indianapolis about
August 20, returning immediately to the west coast about August 24; that on
the day he arrived the Company's president discussed Bishop 's discharge
with him , and directed that Bishop be immediately "reinstated with full
backpay"; that on the same day he telephoned the Indianapolis office and
directed Project Manager James Pennington and office clerical , Betty Pen-
nington , to telephone Bishop and get her back to work; that when the payroll
for the last half of August came in, he was again called by his Los Angeles
office and told that there was no timecard for Bishop, and that it was his
responsibility to see that Bishop was put back to work, that he immediately
placed a telephone call to Bishop, but when the phone failed to answer, he
called Betty Pennington and directed her to send a special delivery registered
letter to Bishop advising her that she might return to work. Pennington places
the time of the last-mentioned calls as between September 5 and 10 As
heretofore indicated, the letter to Bishop did not go out until October 18.
Betty Pennington testified that she made two calls to Bishop about returning
to work; the first during the latter part of August, and the second between
September l and 15, that on the first call someone answered but would not
give a name ; that on the second call she got no answer. No explanation was
given by either Kenneth or Betty Pennington for the delay from about
September 15 to October 18, the date of the letter offering reinstatement to
Bishop . James Pennington did not testify In his affidavit, however, Penning-
ton stated that the instructions to reinstate Bishop were given him the day
after Bishop was discharged (August 19) apparently by telephone; that when
he immediately telephoned Bishop and the phone did answer that Bishop told
him that she could not return to work because she was ill. And while
Pennington 's testimony with respect to effort by others to communicate with
Bishop is pure heresay, he claimed that other people in his Indianapolis office
made contact with Bishop and that she continued to claim that she was ill
and unable to work. This is at least contrary to the testimony of Betty
Pennington who testified that her two attempted contacts with Bishop were
unsuccessful In short, on the entire record, I am convinced that the testimo-
ny of both Kenneth and Betty Pennington, in its essential details, is contrary
to the facts, and I decline to credit the testimony of either of them. N.L R B
v Walton Manufacturing Company, 369 U S. 404, 408 (1962).
MURCOLE, INC. 235
no longer be working for Respondent , as well as his July 13
statement to Beasley that she had "better get that [Union]
thing going," because she was going to be laid off. These
statements were plainly threats to the job security of the
employees if they did not abandon their support of the
Union.
(d) Triplett's statement to employee Willis that if she
wanted to continue working for Respondent she should
forget about the Union, as well as his statement to English
that the employees laid off on July 13 would never be
recalled if that would assist Respondent in avoiding dealing
with Union. The first statement was plainly a threat to the
job security of employees if they assisted the Union, and the
second was a threat to retaliate against employees because
they gave aid and assistance to the Union. For the same
reason Dullen's statement to English that he had orders
from Respondent 's management not to rehire any of the
employees it was charged with having discriminatorily dis-
charged on July 13 was a threat to the job security of the
employee.
(e) Triplett's question to employee Harper as to whether
she had signed a card for the Union, the same being interro-
gation proscribed by Section 8(a)(1) of the Act. As the
Board said in Engineered Steel Products, Inc., 199 NLRB
No. 52:
Questioning selected employees about their union sym-
pathies without legitimate reasons , therefore and with-
out any assurance against reprisal , by its very nature
tends to inhibit employees in the exercise of their right
to organize.
I find nothing in the record to show that Respondent had
any legitimate reason to interrogate Harper as to whether
she had signed a union card . Certainly the question was not
asked to enable Respondent to ascertain whether it had an
obligation to deal with the Union, for the facts demonstrat-
ed that Respondent had no intention of dealing with the
Union. Moreoever , it is clear that no assurance against re-
prisal was given , and the violations which I find herein
strongly suggest that reprisal against employees who en-
gaged in union activity was intended by Respondent.
(f) Dullen's statement to Cross on or about August 13
that he thought he had done her a favor by keeping her on
the job, but had now learned that she had attended a union
meeting . This was a threat to Cross that her job might be
in jeopardy if she attended meetings or gave other assistance
or support to the Union.
(g) The statement made by both Kenneth and James
Pennington to Jessie Bishop that she would be discharged
if she did not get her name removed from the initial charge
herein . This was clearly a threat to Bishop 's job security if
she continued with her support of the Union. Likewise the
subsequent discharge of Bishop when her name appeared
on the amended charge independently violated Section
8(a)(1), because it restrained and coerced her in the exercise
of her Section 7 rights.
2. The 8(a)(3) violations
I find and conclude , upon consideration of the entire
record , that Respondent 's layoff of the 12 employees on
July 13 was discriminatorily motivated and hence violative
of Section 8(a)(3) of the Act. I reach this conclusion based
on the totality of the following considerations.
1. Respondent 's union animus is demonstrated not only
by the activity of Dullen and Triplett, prior to the July 13
layoff detailed above , and which I have found violative of
Section 8(a)(1) of the Act , but also by the statements of the
Penningtons to Jessie Bishop and the subsequent statement
of Dullen to English that those laid off would not be rehired.
Particularly , the conduct of Dullen in riding through the
work area and announcing to the employees generally that
those who signed union cards would be laid off, when cou-
pled with the testimony of Pennington that he was generally
about the premises , can lead only to the conclusion that
although there is no evidence that Pennington personally
participated in the restraint and coercion practiced upon the
employees , he must have been aware that it was going on.
2. Additionally, although I have made no findings with
respect to any restraint or coercion of employees by Dullen
and Triplett prior to June 30, the record leaves no room for
doubt that during that period they at least talked to the
employees about the Union. Under these circumstances, to
believe that neither Dullen nor Triplett conveyed to Pen-
nington , after they became Respondent 's agents, the infor-
mation they had acquired about the union activity among
the employees while they were supervisors for Ken Kleen,
and their views about the identity of the employees who
were probably supporting the Union, strains credulity be-
yond the breaking point.
3. Pennington was informed on July 1 , and again on July
7, that the Union represented a majority of the employees.
Indeed on July 7, after Pennington gave the figure as to the
total number of rank-and-file employees then on the payroll
(the records in evidence show that it was then 52), one of
the union representatives remarked that the Union still had
a majority, according to Pennington over 60 percent. Thus
Pennington knew at that moment that the Union had about
31 supporters , if not more , and that a layoff of 12 employ-
ees, which constituted almost 25 percent of the work force,
if most were union adherents , would completely destroy the
Union's majority.
4. It is of some significance that , at the July 7 meeting
with representatives of the Union , Pennington did not, as I
have found , mention an impending layoff , and the layoff
when it came less than a week later was without prior
notices or warning and in the midst of a payroll period,
which is itself some evidence of discriminatory motive.
5. Also indicating a discriminatory motive , I believe is
the fact that , although Respondent hired some 31 new em-
ployees between July 16 and October 26 , it did not offer
reinstatement to any of the employees laid off on July 13,
notwithstanding the fact that the layoff notices given them
indicated that Respondent had no complaint about their
work ; and stated that the layoff was only because of lack
of work , and that the employees would be recalled if need-
ed. The need being established by the hiring of 31 new
employees , the only reason that suggests itself for not recall-
ing those laid off on July 13 is that Respondent wanted to
rid itself of those specific employees whom it regarded as
union adherents, solely because of their union activity. That
this was Respondent's purpose is strongly indicated by
Triplett's statement to English which I have found violative
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Section 8(a)(1) that those laid off on July 13 would never
be recalled if that would assist Respondent in avoiding deal-
ing with the union.
6. The uncontroverted fact that, of the 12 employees laid
off on July 13, 11 had signed cards authorizing the Union
to represent them. As the Board said in Camco, Incorporat-
ed, 140 NLRB 361, 365, enfd. with modifications not here
material 340 F.2d 803 (C.A.5, 1965), in language fully appli-
cable to the instant case:
... As noted, the Respondent employs 95 employees
in its machine and tooling departments; 16 of these
employees attended a union meeting; and, of these, I I
employees, all of whom had attended the union meeting,
were terminated during February. The Respondent
contends in effect that it was by chance that all of the
terminated employees attended the February 10 meet-
ing. While it may be theoretically possible that the
Respondent should [sic] have fortuitously selected for
termination only those employees active in the Union,
commonsense and the laws of mathematical probabili-
ty indicate that such fortuity was highly improbably.
[Emphasis in text.]
Applying this principle to the instant case, the fact that I I
of the 12 employees laid off on July 13 were union adherents
is strong evidence that the layoff had a discriminatory mo-
tive, and that Respondent's contentions that the fact re-
ferred to was no more than a coincidence must be
rejected.31
It is true, of course, that a finding of discriminatory mo-
tive may not be based on probability alone, for the possibili-
ty exists, however remote, that the Employer was motivated
solely by lawful consideration, and that possibility cannot
be completely ignored. But when there is added to the great
mathematical improbability, the elements present in the in-
stant case, of strong employer hostility to the Union, state-
ments to the employees that they would be laid off if they
continued to assist the Union, the layoffs are closely related
in point of time to when the employer learns that the em-
ployees are organizing and, although in need of the people
and having no complaint about the services of those laid off,
fails to recall them, as well as Triplett's statement that they
would not be recalled if this would enable Respondent to
avoid dealing with the Union, the circumstances combine to
provide a prima facie case of discriminatory motivation, and
it is then up to the employer to come forward with a con-
vincing explanation that his action was based solely upon
nondiscriminatory considerations. Syracuse Tank & Manu-
facturing Company, Inc., 133 NLRB 513, 525.
7. The evidence upon which Respondent chiefly relies as
constituting the convincing explanation that the layoff was
based solely upon nondiscriminatory considerations is the
3i On the basis of pure chance and eliminating all other factors, the possi-
bility-in a work force of 52 employees of whom 29 are union members-of
selecting for layoff 12 employees, I I of whom would be members of the
Union , is comparable to a blindfolded person selecting at random 12 mar-
bles, I I of which would be red and I blue, from a bowl containing 52 marbles
of which 29 are red and 23 are blue. The mathematical probability of such
a selection , computed on the basis of the applicable formula, would be I
chance out of 260 See Uspansky, Introduction to Mathematical Probability
(McGraw-Hill, 1937), Chapter I In betting parlance even a 50-to-I shot is
considered very remote
testimony of Kenneth Pennington, corroborated by Betty
Pennington , that the work charts were prepared by assign-
ing employees to work stations from the stack of applica-
tions of the former Ken Kleen employees, which were not
arranged in any particular order, working down from the
top of the stack, and that when all the job slots had been
filled, there remained 12 applications filed by said employ-
ees for whom no work was available and that it was for
those 12 that layoff notices were prepared and distributed.
The Penningtons make no claim and by inference concede
that in selecting employees to be assigned to particular
work, where there were two or more equally qualified for a
particular job, that no consideration was given as to which
of those employees might be the more efficient performer.
This is another factor indicating that the selection was not
made in the manner they claimed, for an employer in such
a situation normally will make the selection at least on the
basis of his estimate of the competency of the employees
involved. In addition, for reasons heretofore stated, I am
unable to credit the testimony of the Penningtons that the
selection of those to be laid off was made in the manner they
testified . Indeed, upon consideration of the entire record, I
am convinced, and therefore find and conclude, that the
true facts are those which they deny; namely, discriminato-
ry considerations.32
The contention that the layoffs became economically ne-
cessary with the hiring of the rehabilitation referrals I reject
as nothing more than an afterthought seized upon to give
the layoff apparent legitimacy. Not only do I discredit
Pennington 's testimony generally, but his testimony on this
issue conflicts with his own explanation as to how those laid
off were selected. As heretofore pointed out, Pennington
claimed that he completed his work charts late in the day,
on July 12, by selecting at random from among the Ken
Kleen applicants sufficient people to fill all available jobs,
and that the remaining Ken Kleen applicants made up the
12 to be laid off. I find nothing in the evidence to show that
when Pennington prepared his work charts he had yet inter-
viewed any of the rehabilitation referrals, or that he knew
they were to report for work that day. Thus, according to
Pennington , there were no jobs to which the rehabilitation
referrals might be assigned. But if there were jobs for them,
as appears to be the case, they were obviously at the expense
of those destined for layoff. Additionally, as Pennington
32 Counsel for Respondent states in his brief that the testimony of the
Penningtons was uncontradicted and unrefuted , and relying upon the Fifth
Circuit's decision in N L R B v Walton Mfg Co., 286 F 2d 16 ( 1961), argues
that their testimony may not be disregarded because of suspicion that it may
not be true , that their testimony may be rejected only if there is direct
impeachment, or if it is inconsistent with "the positive sworn testimony on
the exact point." It is true that counsel 's argument is supported by the
Walton case which he relies upon , but what counsel has apparently over-
looked is that Walton was reversed by the Supreme Court (369 U.S 404), and
in specifically rejecting the principle for which counsel argues , the Court
quoted with approval from the opinion of Judge Learned Hand , speaking for
the Second Circuit in Dyer v MacDougall, 201 F.2d 265, 269 (1952), the
Supreme Court saying [at 408]
For the demeanor of a witness
.. may satisfy the tribunal , not only that the witness' testimony is
not true, but that the truth is the opposite of his story; for the denial of
one, who has a motive to deny, may be uttered with such hesitation,
discomfort , arrogance or defiance , as to give assurance that he is fabri-
cating, and that, if he is, there is no alternative but to assume the truth
of that which he denies
MURCOLE, INC. 237
testified and the payroll records show, no people employed
at rehabilitation rates remained after July 31. Those people
were terminated, according to Pennington, not for lack of
work, but because he could not lawfully employ them at
reduced rates, and yet he wholly failed to give any explana-
tion or any reason for his failure to recall those laid off on
July 13.
Upon the totality of the foregoing consideration, I am
satisfied and therefore find and conclude that, (1) absent the
union activity among the employees here, Respondent
would not have affected a reduction in force at the particu-
lar time it did, although it may have done so later; and (2)
but for Respondent's belief that the laid-off employees, or
most of them, were identified with the union activity, it
would not have selected for layoff, not laid off, those em-
ployees it did layoff on July 13. In short, I find and conclude
that said layoffs were motivated by unlawful discriminatory
considerations.
3. The 8(a)(4) violations
The testimony leaves no room for doubt that on August
19 Bishop was discriminated against by Respondent be-
cause she filed charges under the Act 33 Not only was Bish-
op threatened with discharge by both Kenneth and James
Pennington if she did not get her name removed from the
original charge , as I have heretofore found , supra, but Ken-
neth Pennington admits that he discharged Bishop because
the amended charge filed with the Board made what he
regarded as unjust accusations against the Company.
Under these circumstances it is plain that the motivating
cause of Bishop's discharge was both the original and
amended charge filed with the Board. It is quite true that
neither charge was filed by Bishop, and Section 8(aX4)
speaks in terms of an employee who has filed a charge 34
Congress obviously intended this statutory provision to be
broadly interpreted to afford an employee protection from
reprisal for the filing of any charge which might affect his
employee interests.3 Here the Union had been authorized
by Bishop and other employees to represent them in matters
dealing with their employee interests, and when the Union
filed a charge alleging discrimination against Bishop, the
33 Indeed , Respondent does not argue to the contrary. In its brief, the only
defense asserted to this allegation of the complaint is that Respondent exer-
cised due diligence in trying to get Bishop back on the job , and that through
no fault of its own it was unable to do so until October 20. Presumably, the
reason for this position is to diminish or eliminate the amount of backpay
due Bishop . Although I have discredited the testimony of the Penningtons
in this and other respects , it may not be amiss to point out that even if I
accepted this testimony as true, it would not advance Respondent's position
Having unlawfully discharged Bishop , it was Respondent's duty to communi-
cate its offer of reinstatement to her, and until it did so the backpay obliga-
tion continues That it may have had some difficulty in complying with that
obligation is beside the point, at least until it is shown that Bishop was for
some reason responsible for such difficulty.
34 Section 8(a)(4) makes it an unfair labor practice for an employer "to
discharge or otherwise discriminate against an employee because he has filed
charges or given testimony under this Act "
35 See N.L R B. v Indiana & Michigan Electric Company, 318 U.S 9, 17
(1943), where the Supreme Court held that one who has no interest in the
matters in controversy had standing to file a charge because the legislative
history of the Act shows that it is not always prudent for an employee to file
a charge against his employer
charge was in that sense Bishop's charge. Frank Miller's
Sons Fireproofing Company, 164 NLRB 192, 199.
Accordingly, I find and conclude that Bishop's discharge
on August 19 violated Section 8(a)(4) and (1) of the Act 36
Upon the foregoing findings of fact and the entire record
in the case, I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act and is engaged in commerce within the
meaning of Section 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 the conduct referred to in section C.I. paragraph
(a) through (g), Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
them by Section 7 of the Act, and thereby engaged in and
is engaging in unfair labor practices proscribed by Section
8(a)(1) of the Act.
4. By laying off employees Alexander, Beasley, Bridges,
Cousins, Drake, Harper, Haskins, Ledell, Willis, Walton,
and White on July 13, Respondent discriminated against
said employees in regard to their tenure of employment, and
terms and condition thereof, to discourage membership in
the Union, and thereby engaged in and is engaging in unfair
labor practices proscribed by Section 8(a)(3) and (1) of the
Act.
5. By discharging employee Bishop on August 19, Re-
spondent discriminated against her because her name ap-
peared on a charge filed against it, and thereby engaged in
and is engaging in unfair labor practices within the meaning
of Section 8(a)(4) and (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices , it will be recommended that it cease and
desist therefrom and take certain affirmative action set forth
below designed and found necessary to effectuate the poli-
cies of the Act.
Having found that Respondent interfered with, coerced,
and restrained its employees in the exercise of rights guaran-
teed by Section 7 of the Act, and discriminatorily laid off
12 employees-a violation which goes to the very heart of
the Act-I conclude from the totality of the unlawful con-
duct herein found that Respondent should be required to
cease and desist from in any manner interfering with, re-
straining, or coercing its employees in the exercise of rights
guaranteed to them by Section 7 of the Act. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941); California
Lingerie Inc., 129 NLRB 912, 915.
Having found that Respondent discriminatorily laid off
and thereafter failed and refused to reinstate Annie B. Beas-
36 Having reached this conclusion I find it unnecessary to decide whether
Bishop's discharge also violated Section 8 (a)(3) of the'Act , since in either
event the remedy would be the same . See N L.R B v Burnup and Sims, Inc,
379 U S. 21, 22 (1964)
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ley, Roxie L. Bridges, Hester Cousins, Katie Drake, Sue
Harper, Eugenia Haskins, Wilma Ledell, Bessie Willis, Con-
stance Walton, and Anna Bell White, it will be recommend-
ed that Respondent be required to offer to each of them
immediate, full, and unconditional reinstatement to her for-
mer or substantially equivalent position, without prejudice
to her seniority or other rights, privileges, or working condi-
tions. It will further be recommended that Respondent be
required to make whole each of the aforementioned em-
ployees, as well as Clara Alexander and Jessie Bishop whom
I have also found to have been unlawfully terminated by
Respondent, for any loss of earnings they suffered by rea-
son of the discrimination against them, by paying to each
a sum of money equal to the amount she would have earned
from the date of her discharge to the date Respondent of-
fered or offers reinstatement as aforesaid, less any amounts
she may have earned during said period. I do not recom-
mend a reinstatement order with respect to Bishop and
Alexander because Bishop has been reinstated and Alexan-
der was offered reinstatement which she declined. The
backpay herein recommended shall be computed in the
manner set forth in F. W. Woolworth Company, 90 NLRB
289, with interest at the rate of 6 percent per annum, as
provided in Isis Plumbing & Heating Co., 138 NLRB 716. It
will also be recommended that Respondent be required to
preserve and, upon request, make available to authorized
agents of the Board, all records necessary or useful in de-
termining compliance with the Board's Order, or in comput-
ing the amount of backpay due.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER37
Respondent, Murcole, Inc., Indianapolis, Indiana, its of-
ficers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Telling employees that they will be laid off or dis-
charged if they sign cards for or otherwise assist a labor
organization, or any statement of similar purport.
(b) Engaging in surveillance of the activities of its em-
ployees on behalf of a labor organization, or in any other
conduct which can reasonably be calculated to convey to its
employees the impression that their activities on behalf of
a labor organization are under its surveillance.
(c) Telling employees that they should "stay away from"
or "forget" about labor organizations if they wanted to
work for it, or any statement of similar import.
(d) Threatening employees with discharge unless they get
their names removed from charges filed with the Board.
(e) Discharging or otherwise discriminating against an
employee because he has filed a charge under the National
Labor Relations Act, as amended.
37 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes.
(f) Discouraging membership in or activities on behalf of
Service Employees International Union, Local 551, AFL-
CIO, or any other labor organization of its employees, by
discharging or otherwise discriminating in regard to the hire
or tenure of employment or any term or condition of em-
ployment of its employees.
(g) 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 labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining, or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain from
any or all such activities.
2. Take the following affirmative action, necessary to
effectuate the policies of the Act:
(a) Offer Annie B. Beasley, Roxie L. Bridges, Hester
Cousins, Katie Drake, Sue Harper, Eugenia Haskins, Wil-
ma Ledell, Bessie Willis, Constance Walton, and Anna Bell
White immediate, full, and unconditional reinstatement to
her former job or, if that job no longer exists, to a substan-
tially equivalent position, without prejudice to her seniority
or other rights and privileges.
(b) Make whole each of the aforementioned employees,
as well as Clara Alexander and Jessie Bishop, for the wages
they would have earned from the date of discharge to the
date of reinstatement, in the manner set forth in the section
hereof entitled "The Remedy."
(c) Notify Annie B. Beasley, Roxie L. Bridges, Hester
Cousins, Katie Drake, Sue Harper, Eugenia Haskins, Wil-
ma Ledell, Bessie Willis, Constance Walton, and Anna Bell
White if presently serving in the Armed Forced of the Unit-
ed States of their right to reinstatement as provided in the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(d) Preserve and, upon request, make available to au-
thorized agents of the National Labor Relations Board, for
examination and copying, records and reports, and all other
records, timecards, personnel records and reports, and all
other records necessary or useful in determining compliance
with this Order, or in computing the amount of backpay
due, as herein provided.
(e) Post at its business premises located at Fort Benjamin
Harrison, Indianapolis, Indiana, copies of the attached no-
tice marked "Appendix." 38 Copies of said notice, on forms
provided by the Regional Director for Region 25 of the
National Labor Relations Board (Indianapolis, Indiana),
shall, after being signed by an authorized representative, be
posted as herein provided, immediately upon receipt there-
of, and be maintained by it for a period of 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the aforesaid Regional Director, in writing,
38 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of a United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
MURCOLE, INC.
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith.39
39 In the event that this recommended Order is adopted by the Board after
exceptions have been filed, this provision shall be modified by deleting the
words "receipt of this Decision," and substituting therefor the words "this
Order."
SUPPLEMENTAL DECISION
Prior Proceedings
JOSEPH I. NACHMAN, Administrative Law Judge: On Feb-
ruary 10, 1972, I issued my initial Decision herein , finding
that Respondent violated Section 8(a)(1), (3), and (4) of the
Act, by (a) interfering with, restraining, and coercing its
employees in the exercise of their Section 7 rights; (b) discri-
minatorily laying off 12 employees on July 13, 1971; and (c)
discriminating against another employee because she had
filed charges under the Act; and recommended issuance of
a remedial order. To support the finding that the layoff of
July 13 was discriminatorily motivated, I relied in part upon
my interpretation of a stipulation in the record that 11 of the
12 employees so laid off had signed a card on behalf of the
Union on or before July 7.1
On June 30, 1972, the Board issued its Order holding that
by the stipulation referred to Respondent did not concede
but in fact challenged the authenticity of the cards. Accord-
ingly, the Board reopened the record and directed that the
hearing be reconvened:
. for the purpose of allowing the parties an opportu-
nity to adduce evidence concerning the authenticity of
the authorization cards and any and all employee
union activities and Respondent's knowledge thereof.2
The Proceedings Subsequent to Reopening
On September 18, 1972, the parties submitted to me a
stipulation which, by my Order of September 21, 1972, was
approved and ordered to be made a part of the record.3 The
stipulation recites that:
(a) The parties do not desire, and waive further hearing
in this matter.
(b) The employees listed on General Counsel's Exhibit
17 (received in evidence in the initial hearing ), signed union
authorization cards on the dates indicated by their re-
spective names, and that they were the only employees to
sign such cards prior to the layoff July 13, 1971.
(c) Sue Stone , Roxy Bridges , Wilma Ledell, Virtle Nall,
Eugenia Haskins , Sue Harper , D. T. Woodard, Annie B.
1 I interpreted Respondent 's reservation about the stipulation as not con-
ceding that the cards were effective as authorizations to the Union to be the
collective-bargaining representative of the employees, but that it did not
question that said employees did in fact sign the cards as indicated. As no
question regarding an 8(a )(5) violation or remedy was involved , the reserva-
tion was regarded irrelevant to the issues.
2 Respondent 's motion for reconsideration of said Order was denied by the
Board on August 24, 1972
3 My Order also directed that the reconvened hearing , which had been set
for September 25, be canceled.
239
Beasley, Jessie Bishop, Hester Cousins, Anna Bell White,
and Katie Drake, if called at a reconvened hearing, would
testify substantially in accord with the offers of proof made
by the General Counsel when said witnesses testified at the
initial hearing.
(d) The parties have no further evidence to offer, and
waive the opportunity to do so.
(e) The parties waive their right to file briefs with Admin-
istrative Law Judge.4
Based on the foregoing stipulation, and the entire record
in the case, I make the following:
FINDINGS OF FACT
1. I reiterate the finding in my prior Decision that, of the
12 employees laid off on July 13, 11 had on or before July
7 signed a card on behalf of the Union, and additionally
find that these were the only employees to sign cards prior
to July 13.
2. Based on the offers of proof made at the trial, and the
aforementioned stipulation, I make the following findings
to supplement the findings in my initial Decision:
(a) There were two union meetings at which attendance
lists were kept; the first on June 22, and the other on July
1, both in 1971. At the June 22 meeting the following then
employees of Ken Kleen were in attendance: Wilma Ledell,
D. T. Woodard, Roxy Bridges, Virile Nall, Bernice Cross,
Eugenia (Gene) Haskins, Neil Basham, Bertha Curry, and
Hester Cousins. At the July 1, meeting,5 the following em-
ployees were present: Scott, Bishop, Beasley, Willis, Novis,
Bridges, Nall, Ledell, Noel, and Woodard. Employees Le-
dell, Haskins, and Harper testified that at one of these meet-
ings they signed union cards. Employees Beasley, Bishop,
Cousins, White, and Drake also testified about the dates
and the circumstances under which they signed cards for the
Union .6
(b) About mid-June 1971, some five or six employees
were in the parking lot at the Finance Center talking with
Union Agent Stone about arranging for meetings at which
employees could meet with the Union, and it was pursuant
to this that the meeting of June 22, above referred to, was
arranged. Additionally, about June 28, 1971, several em-
ployees were in the parking lot at the Finance Center, with
Union Agent Stone, discussing plans for union meetings
and getting signatures to additional cards. Following this
discussion the employees went into work. As they came
through the door, they were asked by Ken Kleen Supervisor
Dullen, who became a supervisor for Respondent on July
1, what the discussion in the parking lot was about. The
employees stated that they were talking with the union rep-
The stipulation makes no reference to Respondent' s knowledge of the
union activity engaged in by the employees However, in my initial Decision
I infered that information acquired by Supervisors Dullen and Triplett while
they were employed by Ken Kleen, they must have conveyed to Pennington
after they became supervisors for Respondent
5 The Ken Kleen contract expired June 30, and on July 1, those who
desired such employment, which included all the discnmmatees involved,
were placed on Respondent's payroll.
6 In view of the stipulation that certain employees signed cards on specified
dates, the testimony of these witnesses in that regard seems unduly repeti-
tious and unnecessary.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative. Dullen replied, that anyone talking about the
Union would be laid off .7
7 Although in my original Decision I found certain statements by Dullen
to be violative of Section 8(a)(I), I did not find other statements by him to
be violative because they were made at a time when Dullen was a supervisor
for Ken Kleen and not for Respondent The statement above referred to falls
in the latter category
Conclusions
Upon consideration of the foregoing in light of the entire
record in this case, I find nothing that requires any change
in the findings, conclusions, and recommendations con-
tained in my Decision of February 10, 1972, and recom-
mend that the Board approve and adopt the same in its
entirety.