Nopco Chemical Co.

National Labor Relations Board - Board Decisions

Jul 1, 1966

160 N.L.R.B. 23 (N.L.R.B. 1966)

CLARK PRODUCTS, IN C. 23
nization , by discriminating in any manner with regard to hire, tenure of employ-
ment , or any term or condition of employment.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor orga-
nizations , to join or assist the above -named or any other labor organization, to
bargaining collectively through representatives of their own choosing or to engage
in other concerted concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any or all such activities.
WE WILL offer to Leon Cowart immediate and full reinstatement to his former
or substantially equivalent employment without prejudice to his seniority or other
rights and privileges and will make him whole for any loss of earnings and
benefits suffered as a result of our discrimination against him.
WE WILL NOT interfere with, restrain , or coerce our employees in the exercise
of their rights set out in the second paragraph above by coercively interrogating
them concerning membership in or activities on behalf of Amalgamated Cloth-
ing Workers of America , AFL-CIO , or any other labor organization ; by directly
or indirectly promising benefits to them for abandoning union membership, sup-
port, or activity ; by directly or indirectly threatening reprisals against them for
union membership , support, or activity, by directly or indirectly soliciting and
encouraging them to form, support , and utilize a "Grievance Committee" or
other similar organization as a substitute for and instead of Amalgamated
Clothing Workers of America , AFL-CIO, or any other labor organization, as
their representative for the purpose of adjusting their disputes over wages, rates
of pay, hours, and other conditions of employment.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their rights set out in the second paragraph above.
All our employees are free to become or remain , or to refrain from becom-
ing or remaining , members of the Amalgamated Clothing Workers of
America, AFL-CIO, or any other labor organization.
WAYCROSS SPORTSWEAR, INC.,
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 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.
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
provisions , they may communicate directly with the Board 's Regional Office, 528
Peachtree -Seventh Building , 50 Seventh Street NE., Atlanta, Georgia , Telephone
526-5741.
Clark Products, Inc., Subsidiary of Nopco Chemical Company and
Upholsterers ' International Union of North America, AFL-
CIO, Local Union 227 . Case 25-CA-f249. July 1, 1966
DECISION AND ORDER
On February 16, 1966, Trial Examiner Samuel M. Singer issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's Decision. He
also found that the Respondent had not engaged in other unf air labor
practices and recommended that the complaint be dismissed as to them.
160 NLRB No. 5.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter , the Respondent filed exceptions to the Decision and a sup-
porting brief, and the General Counsel filed a 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 Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the 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, with the following modifications.
We agree with the Trial Examiner that the Respondent discrimi-
nated with regard to the hire and tenure of employee Wanda Rider,
in violation of Section 8(a) (3) of the Act, by discharging her on
April 30, 1965 , and by refusing to rehire her in September 1965. How-
ever, contrary to the Trial Examiner, Rider is not entitled to reinstate-
ment, as recommended, but to an offer of employment and backpay
front the date of Respondent's refusal to rehire her. Accordingly, we
amend the Recommended Order and notice.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board adopted as its Order
the Recommended Order of the Trial Examiner, as modified below,
and hereby orders that the Respondent, Clark Products, Inc., subsidi-
ary of Nopco Chemical Company, Evansville, Indiana, its officers,
agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the following
modifications :
1. Delete the name of Wanda Rider from subparagraph 2(a) of the
Recommended Order.
2. Reletter subparagraphs 2(b) through 2(g) as subparagraphs
2 (c) through 2 (h), and insert the following new, subparagraph 2 (b) :
"(b) Offer Wanda Rider immediate employment at the same or a
substantially equivalent position at which she would have been ern-
ployed had she not been discriminated against, and in addition to
making her whole for her first period discrimination under relettered
subparagraph 2(d), make her whole for any loss of earnings she may
have suffered by reason of the later discrimination against her , by pay-
ment of a sum of money equal to the amount she normally would have
earned from the date employment was denied to the date the Respond-
end offered or shall offer, as the case may be, employment, less net
CLARK PRODUCTS, INC. 25
earnings during that period, backpay and interest thereon to be com-
puted in the manner set forth in the section of this Decision entitled
"The Remedy."
3. Amend relettered subparagraph 2 (c) to read :
"(c) Notify Dorothy Hale and Harold Vincent if presently serving
in the Armed Forces of the United States of their right to full re-
instatement 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; and notify Wanda Rider,
if presently serving in the Armed Forces of the United States of her
right to employment upon application, in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces."
4. Delete the name of Wanda Rider from the sixth paragraph of the
Appendix attached to the Trial Examiner's Decision.
5. Add the following as the seventh paragraph of the notice :
WE WILL offer Wanda Rider immediate employment at the same
or substantially equivalent position at which she would have been
employed had she not been discriminated against, and in addition
to making her whole for her first period of discrimination under
relettered subparagraph 2(d), make her whole for any loss of
earnings she may have suffered by reason of the later discrimina-
tion against her, by payinent of a sum of money equal to the
amount she normally would have earned from the date employ-
ment was denied to the date the Respondent offered or shall offer,
as the case may be, employment, less net earnings during that pe-
riod, backpay and interest thereon to be computed in the manner
set forth in the section of this Decision entitled "The Remedy."
6. Amend the note paragraph in the notice to read:
"NOTE.-We will notify Dorothy Hale and Harold Vincent if pres-
ently serving in the Armed Forces of the United States of their right
to full reinstatement upon application, in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces; and we
will notify Wanda Rider if presently serving in the Armed Forces of
the United States of her right to employment upon application, in ac-
cordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the
Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Samuel M. Singer, in Evansville,
Indiana, on October 27 and 28, 1965,1 pursuant to a charge filed June 7 and amended
i Unless otherwise noted , all dates herein refer to the year 1965
DECISIONS OF NATIONAL LABOR RELATIONS BOARD26
charges filed July 7 and 27, and a complaint issued August 13. The complaint al-
leged that Respondent violated Section 8(a)(5) of the Act by unlawfully refusing
to recognize and bargain with the Charging Party (herein called the Union) as
majority representative of its employees; that it violated Section 8(a)(3) by dis-
criminatorily laying off, discharging, and refusing to reinstate or reemploy employees,
and that it also violated Section 8 (a) (1) by the foregoing conduct. At the hearing
I granted General Counsel's motion to amend the complaint so as to allege that the
discharge of one of the employees also violated Section 8(a)(4) and that Respond-
ent further violated Section 8(a)(1) by coercively questioning and threatening em-
ployees for union activities. Respondent denied the commission of these unfair
labor practices.
All parties appeared and were afforded full opportunity to be heard and to examine
and cross-examine witnesses Briefs were received from General Counsel and
Respondent.
Upon the entire record in the case,2 the briefs, and my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY; THE LABOR ORGANIZATION INVOLVED
Respondent is engaged in the manufacture and sale of foam rubber, vinyl, and
other fabricated products, at various plants in the United States including Evansville,
Indiana, involved in this proceeding. During the past year, a representative period,
Respondent shipped from its Evansville plant to points outside Indiana products
valued in excess of $50,000. I find that at all material times Respondent has been
and is engaged in commerce within the meaning of the Act.
The Charging Party is a labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Union's organizational activity
The Union first attempted to organize Respondent's employees about 11/2 to 2
years before its April 1965 campaign involved in this proceeding. Plant Manager
Fischer called the employees into his office during the first campaign to "set a few
things straight," telling them that although "this was a free country," nevertheless
"no damn union or anybody else, a man off the street or anybody was gonna come in
and tell him how to run his place of business because he would close his doors
first." 3
The April 1965 organizational drive was spearheaded by employee Vincent, assisted
by employees Riggle and Starkey. All three distributed union cards in the plant,
including the lunchroom, by the evening of April 21 obtaining signed authorizations
from 11 of Respondent's 17 production employees 4 Each card stated:
I do hereby designate and authorize the Upholsterers' International Union of
North America, AFL-CIO, and its representatives to act as my representative
for the purpose of collective bargaining in respect to rates of pay, wages, hours
of employment and other conditions of employment.
Vincent mailed all 11 cards to the Union on the same day (April 21). On April 25
or 26 Marks, the Union's regional representative, asked Vincent to notify the employ-
ees of a meeting to be held at the union hall on April 26. Vincent did so and "went
around telling the employees . that signed the cards" about the meeting. Marks
told the assembled employees later that night that the Union had a "clear majority"
and that he "would proceed notifying the Company that we do represent the majority
and ask for recognition."
B. The Union's April 27 recognition and bargaining request
The next morning (April 27), Marks called Respondent 's office, identified him-
self, and asked to speak with Plant Manager Fischer . He was told that Fischer was
2 The hearing transcript is hereby corrected so as to include "disposition" following
"amicable" on page 5, line 25
3 The above finding is based on the uncontradicted credited testimony of employee Rider.
4 Benedict, Hale, Hargett, Kempf, Leer, Raymond, Rider, Riggle, Starkey, Stinson, and
Vincent. The status of Starkey as an employee is discussed infra, "F, 1, a "
CLARK PRODUCTS, INC. 27
out of town and would not be back for 3 weeks. Marks thereupon, the same day,
sent Fischer the following letter:
You are hereby notified that the employees of Clark Foam Rubber Products
Inc.[;] have authorized our Union to represent them as their representative for
the purpose of collective bargaining in respect to rates of pay, wages, hours of
employment and other conditions of employment.
Our Union therefore requests the company to recognize it as the exclusive
collective bargaining agent for all production and maintenance employees em-
ployed by Clark Foam Rubber Products Inc.
The Union also requests a meeting with Company representatives within the next
(10) ten days for the purpose of negotiating a collective bargaining agreement
for the employees above described. Please advise of a date, time and place
suitable to you for such a meeting.
Respondent received this letter on April 28. On Friday afternoon (April 30) its
office manager, Higgins, discussed the letter on the telephone with Fischer, then on
business in Texas. On May 5, Fischer wrote the Union:
I am in receipt of your letter dated April 27th, 1965. • We do not believe you
represent a majority of our employees, therefore your request for recognition
is denied.
C. The April 30 layoff
Meanwhile, on Friday, April 30, Respondent had laid off 14 of its 17 production
workers, Foreman Gustafson telling the assembled work force (day and night shifts)
around 4.30 p.m. he was laying them off for lack of work Employee Rider credibly
testified that Gustafson remarked that he himself had "just got [the] word."
Employee Vincent was on leave the afternoon of the layoff. When Gustafson told
him on Monday (May 3), of his layoff he (Gustafson) remarked that "it would
probably be a long layoff, that work was kind [of] slow," and that he "may as well
find . . another job."
About a day or two before this layoff, Gustafson had told employee Hale, "What
are you trying to do, get unionized and lose all our jobs for us," and that "hell was
going to break loose." Several days before, Gustafson had also remarked to a group
of employees, including Rider, that "All hell's going to break loose " 5
All 11 union card signers were included in the April 30 layoff.6 None of the
three retained employees (Durcholz, Warren, and Emory Gerbig) had signed cards,
but all had worked longer than those laid off.
Gustafson testified that he had first discussed with Plant Manager Fischer the
possibility of a layoff on Wednesday or Thursday, April 21 or 22, shortly before
Fischer left on his business trip. He stated that "as near as I can remember" he
agreed with Fischer "that because of the amount of orders that we had, it look[ed]
like we would probably have to lay some people off." According to Gustafson, he
again spoke to Fischer about the layoff on Tuesday, April 27, when the latter tele-
phoned from out of town. Gustafson testified that he reported to Fischer that "we
had at that time two orders in the plant," that new orders were coming in "very
slow," and that Fischer "told [him] that if by the end of the week things did not
pick up, that [he] was to lay the people off." Gustafson testified that although
Fischer again called the plant on Friday, April 30, he did not talk to him further, al-
though he was in the office when the call came in; that Fischer spoke only with the
office manager (Higgins) and his son (Donald Fischer); that he (Gustafson) alone
made the decision as to the number and identity of the employees to be laid off;
and that he did not confer nor consult with any one else in Respondent's divisional
headquarters (Chicago) before announcing it.
5 The findings in the above paragraph are based on the credited testimony of Hale and
Rider Gustafson denied talking to any employee, including Hale, about the Union , indeed,
he denied knowledge of any organizational attempt before June However, Gustafson did
not impress me as a forthright and credible witness It stretches credulity to suppose that
the foreman of the plant, who, according to Respondent, was entrusted with power to
select the number and identity of the employees to be laid off (infra), was totally bypassed
about and uninformed of the Union's April 27 recognition and bargaining request and,
later, of the Union's May 12 petition for election (Respondent consented to an election
on June 8, but the Regional Director declined to process this, in view of the pendency of
the unfair labor practice charges herein.)
6In addition, Respondent laid off Cutter, Nurrenbern, and Carroll Gerbig
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I do not credit Gustafson's testimony concerning the events leading to the layoff
of the 14 employees. I have already commented upon his unreliability as a wit-
ness in discrediting his testimony that he was unaware of any organizational at-
tempt prior to June (supra, footnote 5). It is difficult for me to believe that
Gustafson-a young foreman-took it upon himself, as he claims, to determine
"which employees to keep and which employees not to keep" and "how many" to
lay off in what was a layoff unprecedented in impact and scope (affecting 82 per-
cent of the work force), without first consulting thereon with his superiors. Gustaf-
son's testimony that he did not talk to Plant Manager Fischer on the day of the
layoff is contradicted by Fischer's testimony that he "talked with the foreman," as
well as with Higgins (the office manager), when he telephoned the office in the
afternoon of that day. As previously found (on the basis of Fischer's testimony),
it was in the course of that call that Higgins read and discussed with Fischer the
Union's April 27 recognition and bargaining demand.
I find that Gustafson spoke to Fischer on the telephone prior to effecting the lay-
off; that based thereon he thereupon assembled the employees and told them that
he "just got word" to take such action; and that he selected the employees to be laid
off on the basis of Fischer's instructions.
D. The recall of the laid-off employees
Between May 10 and 21, Respondent sent telegrams to all laid-off employees, ex-
cept Riggle and Vincent, to report to work by a specified date (usually on 2 day's
notice) or face removal "from the Company payroll." Riggle was recalled on
September 7 and Vincent never.? Hale did not receive any telegram from
Respondent8
Respondent thereafter removed six employee 9 from its payroll for failing to re-
port to work as instructed A seventh, Riggle, quit for "personal" reasons after
returning to work in September.
About 3 or 4 weeks after his layoff, Starkey encountered Plant Manager Fischer
at a local bank. Fischer told Starkey, "I don't want to ever see you in my plant
again . . If you ever come on my premises, I'll have you prosecuted for
trespassing." is
Around the beginning of September, employee Rider met Foreman Gustafson
After telling Rider that he had a call in regard to her application with another com-
pany, Gustafson suggested she see him about job with Respondent. Rider went to
the plant the next morning. Gustafson told her at that time: "Boy, this place is
a mess . . . I really need you . . . Now, Wanda, I have to talk to John [Higgins,
the office manager] because he takes care of the business part of the deal . . . The
Union has got our hands tied and I don't know which way to go . I'll have
to check with him so I won't do anything wrong." When later in the day Rider
called back Gustafson as arranged previously, the latter informed her that "they
couldn't call [her] back in right then the way things was." 11
C On September 22, Vincent contacted Respondent's attorney "concerning reinstatement
of employment" as instructed in Respondent's telegram to Vincent, but lie was never
offered reinstatement According to Vincent's uncontradicted, credited testimony, the
attorney advised him that the Company had laid him off because "evidently . dissatis-
fied" with his work However, no such dissatisfaction was mentioned to Vincent at the
time of layoff, nor did Respondent at the hearing adduce evidence of any work dissatis-
faction at that time or any time. Although the attorney told Vincent he would hear from
him about this matter "in a couple of days," he never did. The record shows, and I find,
that Vincent had performed a variety of jobs at the plant
8 Hale had moved from the address to which the telegram was sent 3 weeks before the
layoff ; she had given her new address to Respondent prior to the layoff I credit Hale',;
uncontradicted tetstiniony to this effect.
8 Benedict, Kempf, Rider, Starkey, Stinson, and Hale The first five testified that they
declined reinstatement because they had obtained other employment Rider reapplied
for employment at the beginning of September
1o Fischer did not contradict Starkey's testimony to this effect Respondent failed to
deny or come forward with any explanation for Fischer's outburst As hereafter found
(section F, 1, a), Respondent had regarded Starkey, an active unionist, as a key employee
and as its conduit with the night-shift employees
11 Based on the uncontradicted testimony of Rider ; Gustafson did not mention this
incident.
CLARK PRODUCTS, INC. 29
Respondent's records establish that it hired 25 new employees between the April 30
layoff and the week ending September 20. The first new employee was hired in
the week ending June 13, after Respondent sent its telegrams recalling all except
two (Riggle and Vincent) of the laid-off employees. By September 7, the date of
Riggle's recall, Respondent had recalled 19 employees. As already noted, Vincent
has never been recalled.
E Conclusions respecting the alleged 8(a) (1) and (3) violations
Whether Respondent laid off or discharged its employees for discriminatory rea-
sons or legitimate economic reasons presents only a question of fact, the ultimate
inquiry being the true motive of the employer. As recently observed in N.L.R.B. v.
Melrose Processing Co, 351 F.2d 693, 698 (C.A. 8), "It would indeed be the un-
usual case in which the link between the discharge and the union activity could be
supplied by direct evidence. Intent is subjective and in many cases the discrimina-
tion can be proven only by the use of circumstantial evidence." 12 Based on the
entire record, I find that Genercal Counsel met the burden of showing that
the layoffs, discharges and refusals to hire here were discriminatorily motivated. I
particularly rely on the following facts and circumstances:
1. Respondent's opposition to the unionization of its plant. This opposition is evi-
denced by Foreman Gustafson's warning to employee Hale (a day or two before the
April 30 layoffs) that all employees could lose their jobs if the plant were unionized,
and his prediction to Hale (and also a few days earlier to a group of employees in-
cluding Rider) that "hell was going to break loose" in the plant, which, under the
circumstances, I infer was prompted by his knowledge of the employees' union
activities and of Respondent's hostility and predicted reaction to unionization.
Shedding additional light on Respondent's union animus is Plant Manager Fischer's
consistent statement to Respondent's employees in the Union's first campaign that
no "damn union" would tell him how to run his business and that he would close
the plant before accepting the union.13
2. The "coincidence" that the laid-off employees included all 11 union card signers,
including the Union's chief protagonist (Vincent) and his two assistants (Riggle
and Starkey) in the organizational drive. Cf. N.L.R.B. v. Shedd-Brown Mfg. Co., 213
F 2d 163, 174 (C.A. 7); N.L.R B. v. Piezo Manufacturing Corporation, 290 F.2d
455, 456 (C.A. 2).
3. The fact that when Respondent ultimately recalled the laid-off employees, it
failed to recall Vincent, supplying no credible reason for this omission even at the
hearing. Nor was Riggle (Vincent's assistant) recalled until September 7, by which
time Respondent had hired no less than 19 new employees.
4. Plant Manager Fischer's warning to employee Starkey (Vincent's other as-
sistant) 3 or 4 weeks after the layoff not to set toot on Respondent's property, under
pain of prosecution for trespass
5. Gustafson's statement to Rider (in the beginning of September) that although
he needed her and could use her at the plant, he first had to clear her hiring with
Higgins, the office manager, because of the union problem; and Gustafson's failure
to rehire her after checking with Higgins.
6. The timing of the layoffs within 2 days after Respondent received the Union's
recognition and bargaining request and on the very day Fischer admittedly learned
of that request. Gustafson's incredible explanation that he was unaware of the
Union's organizational attempt until June, would itself suggest that the Company was
attempting to conceal its true motive for the layoff.
7. Respondent's claim that the layoff was motivated by lack of orders does not
rebut the strong inference of discriminatory motivation established by the total cir-
cumstances. Although Foreman Gustafson and Company Comptroller Kos testified
(and a summary sheet of Respondent's work orders at various stages of processing
purportedly indicates) that Respondent had only two customer orders on hand on
April 30, both officials in effect admitted that the number of orders did not bear a
direct relationship to the amount of available work. Thus, for example, Gustafson
is See also N.L R B. V. Angwell Curtain Company, Inc, 192 F 2d 899, 903 (C A. 7) ;
N.L.R B. v. International Brotherhood of Electrical Workers, Local 340 (Walsh Constr.
Co ), 301 F.2d 824 (C.A. 9) ; NLRB v. Tepper, d/b/a Shoenberg Farms, 297 F.2d 280,
284 (C A. 10).
13 Although Section 10(b) of the Act bars Fischer's statement as the basis for an in-
dependent finding of unfair labor practice, his statement may be used for the purpose of
assessing "the true character of later events within the limitations period." N L.R B. v.
Fitzgerald Mills Corporation, 313 F 2d 260, 264 (C A. 2).
"3o DECISIONS OF NATIONAL LABOR RELATIONS BOARD
acknowledged that a critical factor was the size of orders; and both he and Kos
stated that the number of orders varies from day to day.14 Although Kos indicated
that the Company's shop order records could show the extent of the work to be done
on the two specific orders on hand on April 30, Respondent failed to produce such
records.15 Nor did it produce any data as to orders on hand before and after April 30,
indicative of layoffs in comparable situations. The record clearly shows that Re-
spondent never before effected an economic layoff of the magnitude and scope taken
on April 30. Gustafson recalled only one occasion-the time of a fire-when Re-
spondent laid off more than 4 or 5 employees. Furthermore, Kos stated that a
significant portion of Respondent's business at the Evansville plant here involved,
entailed reshipment and delivery of stock fabricated at affiliated plants 16-presuma-
bly requiring unpacking, shipping, and processing not involving the two specific pro-
duction orders on hand on April 30.17 Finally, Respondent's records indicate a
higher dollar volume of shipments in April 1965 (the month of layoff) than in any
month since January 1964, except September 1964.18
8. To be sure, there is here, as in other cases of this nature, countervailing evidence
tending to negate discrimination. Thus, the April 30 layoff included 3 nonunion
employees; 19 the 3 retained employees had most seniority; Respondent ultimately
sent recall telegrams to all but 1 of the laid-off employees, and hired no new person-
nel until 12 of the 14 in layoff status were afforded opportunity to return to their
jobs; and, finally, 2 of the 6 plants comprising the division of which Respondent is
a part, are unionized. However, giving full weight to these countervailing factors,
I find that they are far outweighed by factors supporting a finding of discriminatory
motivation. Cf. General Electric Company, 155 NLRB 208; Alton Box Board Com-
pany, 155 NLRB 1025; the General Tire & Rubber Company, 149 NLRB 474.
Based on all of the foregoing and the entire record, I find and conclude that Re-
spondent's layoff of April 30 was discriminatorily motivated, in order to discourage
and defeat the employees' attempt to organize and to avoid bargaining with the
Union, in violation of Section 8(a)(3) and (1) of the Act. Respondent, indeed,
succeeded in its objective since at least five union employees obtained other jobs dur-
ing the layoff and declined Respondent's offers of reemployment.20
I also find and conclude that Respondent's. refusal to rehire Rider, an applicant
for employment, at the beginning of September, was discriminatorily motivated, in
violation of Section 8 (a) (3) and (1) of theAct.21
14 Gustafson expressed "a guess," that the average number of daily orders would be
10 or 12
11 Starkey, "group leader" on the night shift, testified that about 2 or 3 days' work
remained on one of the two orders (a 10 thousand-piece zinc order) which his shift was
processing that evening.
10 In addition to its Evansville plant, Respondent has plants at Chicago, Minneapolis,
Ralston, Salt Lake, and Denver. Its divisional headquarters are at Chicago
17 In making these findings, I do not rely on the fact (stressed by General Counsel) that
Respondent found it necessary to request Manpower, Inc. to supply it four or five men for
a day's work (unloading box cars) during the layoff. Fischer's credited testimony (cor-
roborated by Rider) shows that it was Respondent's practice to obtain temporary help to
perform special (and particularly heavy) work. For ought that appears, the four or five
men may have been called to do that type of work-even though it might be suggested that
there is no employer showing that supernumeraries were called for on prior occasions when
regular employees were in layoff status
18 Although dollar volume shipments in April 1965 ($48,809) were off in May ($38,377),
this still exceeded the value of shipments in 5 of the 15 months preceding April, despite
the mass layoff in effect during May.
19 This factor alone is not determinative. An antiunion employer may deliberately in-
clude nonunion employees in a mass layoff, or retain union employees in a mass discharge,
"to lend an air of legitimacy" to his discriminatory action. N L R B. v. L. J. Williams,
d/b/d Wolliam8 Lumber Company, 195 F 2d 669, 672 (C.A. 4). See also N L.R.B v Shedd-
Brown Mfg. Co, 213 F 2d 163, 174-175 (C.A. 7) ; N.L.R B. v. Ertel Mfg Co., 352 F.2d
916 (C.A. 7).
201f, as here, the Union's majority was dissipated by the employer's unfair labor prac-
tices (ie, the discriminatory layoff) Respondent of course continues to be obligated to
bargain with the Union for a reasonable period, despite the loss of majority. Franks Bros
Company v. N L R B , 321 U S. 702 ; N L.R.B v. P1ezo Manufaotursng Corporation, 290
P 2d 455, 456 (C A. 2)
21 The allegation in the complaint (as amended at the hearing) that Respondent's refusal
to rehire Rider was also motivated by the fact that the Union had filed unfair labor
practice charges-and therefore was violative of Section 8(a) (4)-is unsupported by proof
CLARK PRODUCTS, INC. 31
I further find and conclude that Foreman Gustafson 's threat to employee Hale, a
day or two before the layoff , that all employees could lose their jobs because of the
Union, constituted an independent violation of Section 8(a)(1) of the Act.
F. Conclusions respecting the alleged 8(a) (5) and ( 1) violation
1. The Union 's majority status
As found, by the evening of April 21, the Union had obtained signed cards from
11 of Respondent 's production employees . On April 26, the Union 's representative
advised its members that it was proceeding to request recognition as majority repre-
sentative of Respondent 's employees.
It is undisputed that the appropriate unit for collective bargaining consists of Re-
spondent's production and maintenance employees at the Evansville , Indiana, plant.
Although Respondent stipulated at the hearing that 17 named employees were in-
cluded in that unit, it contends in its brief (p. 7) that one of these , Starkey, was
a supervisor and should be excluded . It now additionally contends that Starkey's
and three other authorization cards should be voided because they allegedly were
obtained by Starkey ; and that several cards were defective because the dates thereon
were omitted or not inserted by the signatories.
a.
Although it may be, as Respondent urges, that I am "not bound " by the parties'
stipulation at the hearing that Starkey was a unit employee if "the record shows to the
contrary" ( Wigmore, Evidence § 2590 ( 3d ed. 1940 )), I cannot lightly ignore that
stipulation in view of Respondent 's failure to give the other party thereto ( General
Counsel ) advance notice of its desire to be relieved therefrom and fair opportunity
to litigate this issue.
In any event , the record fails to establish that Starkey was a supervisory employee,
although Respondent had vested him with a degree of extra responsibility and regarded
him as a valuable adjunct. Starkey described himself as a "group leader or possibly
foreman," but like the three other employees on the night shift in the period relevant
here, he performed routine production work, including operating a saw machine,
fabricating materials , loading boxcars and trucks , and cleaning. Indeed, Respond-
ent's own records classify Starkey as a "sawman ," same as seven other rank and
file unit employees . Furthermore , as Starkey 's undisputed testimony shows, Starkey
merely transmitted Foreman Gustafson 's orders to the other night shift employees.
(Gustafson worked on the day shift .) Finally, Starkey was paid on an hourly basis
like all production workers, whereas the foreman and non-unit employees were on
salary.
I find that Starkey was not a supervisor with indicia of such status enumerated in
Section 2 ( 11) of the Act, including the right to hire, fire , transfer , reward , discipline,
responsibly direct other employees , or effectively to recommend such action. See
The Little Rock Downtowner , Inc., 145 NLRB 1286 , 1289-91, enfd. 341 F.2d 1020
(C.A. 8); General Tire and Rubber Co ., 149 NLRB 474. At most, he was a "lead-
man" or a "straw boss," but this fact does not "require that [he] be put in the
supervisor class, and so deprived automatically of the organizational privileges of the
Act." N.L.R.B. v. Brown & Sharpe Manufacturing Company, 169 F . 2d 331, 335
(C.A. 1). See also N.L.R.B. v. Southern Bleachery & Print Works , 257 F.2d 235,
239 (C.A. 4); N.L.R.B. v. Merchants Police, Inc., 313 F.2d 310, 312 (C.A. 7). It
follows that Starkey's card and the three others, he may have solicited 22 were not
tainted by the fact that they were executed or obtained by a supervisor.
b.
Nor is there merit to Respondent 's contention that three union cards are invalid
because they were dated by persons other than those who filled them out; or that one
card (Leer's) is defective because undated and the signature thereon executed in
printing by the executing employee rather than in "longhand." Since it was clearly
established that all cards were in fact signed on April 21 and that their unambiguous
and express purpose was to authorize the Union to represent the signatories, it matters
not that the date of signing was not shown on the card or that it was filled in by the
22 Although Starkey assisted Vincent in distributing and soliciting cards, the identity of
the employees he solicited is unclear For example, Hale, one of the three night-shift
employees, testified that it was Vincent who gave her the card.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
card solicitor or other individual . Southland Paint 'Company, 156 NLRB 22; nor
that the mode of signature was printing rather than "longhand " Jas H. Matthews
& Co., 149 NLRB 101, enfd. 354 F.2d 432 (C.A. 8).
Accordingly, I find and conclude that all cards constituted valid designations; and
that the Union possessed valid cards from 11 of the 17 employees in the appropriate
unit at the time of its recognition and bargaining request.
2. The adequacy of the Union's bargaining demand
Respondent further seeks to excuse its refusal to bargain because the Union's
"demand for recognition [its April 27 letter] fails to make any claim of majority
status and contains no offer to prove this status."
It is settled that no "special formula or form of words" is necessary to invoke
bargaining. Joy Silk Mills, Inc. v. N.L.R B., 185 F.2d 732, 741 (C.A.D.C.). See
also N.L R.B. v. Barney's Supercenter, Inc., 296 F 2d 91, 93 (C.A. 3); Dallas Con-
crete Company, 102 NLRB 1292, 1312, enfd. 212 F.2d 98 (CA. 5). There is no
requirement that the Union assert its majority status in haec verba, so long as the
claim is implicit from the bargaining demand. The Union's letter of April 27 noti-
fied Respondent that "the employees" of the Company "have authorized our Union
to represent them" and requested that Respondent recognize it "as the exclusive
collective bargaining agent for all production and maintenance employees." That
the Union's claim of majority was at least implicity conveyed by this formal com-
munication and, further, that Respondent indeed fully understood it as such, is
plainly established by Respondent's reply letter of May 5, declining recognition
because of the Company's professed belief that the Union did not "represent a ma-
jority of ouiitemployees."
Nor was the Union under the circumstances shown obligated to make technical
proffer of proof of its majority where, as here, the employer swiftly reacted to the
Union's bargaining request by discriminatorily laying off and discharging employees,
including the active union leaders, in order to defeat the organizational drive and
to avoid bargaining. Clarksburg Publishing Company, 120 F.2d 976, 980 (C.A. 4);
Roy Miller Freight Lines, 149 NLRB 10071. Further, if Respondent had really
entertained doubt about the Union's majority, it could have demanded proof thereof,
which, since it was a fact, could readily have been supplied. See Idaho Potato
Gioweis v. N.L.R B, 144 F 2d 295, 296, 306-308 (C.A. 9).
I find and conclude that Respondent's refusal to recognize and bargain with the
Union was not based upon genuine doubt as to the Union's status as collective-
bargaining representative of its unit employees, but was in fact based upon its desire
and intention to avoid unionization of its plant, in rejection of the collective-
bargaining principle, and in order to gain time in which to undermine the Union's
representation status-all in violation of Section 8 (a) (5) and (1) of the Act.
CONCLUSIONS OF LAW
1. All production and maintenance employees of Respondent at its Evansville,
Indiana, plant, exclusive of all office clerical employees, professional employees,
guards, and all supervisors as defined in the Act, constitute a unit appropriate for
purposes of collective bargaining within the means of Section 9(b) of the Act.
2. At all times since April 27, 1965, the Union has been the exclusive representa-
tive of all employees in the aforesaid unit for purposes of collective-bargaining
within the meaning of Section 9(a) of the Act.
3. By refusing to recognize and bargain with the Union as the exclusive repre-
sentative of the employees in the aforesaid unit, Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
4. By discriminating in regard to hire and tenure of employment of the employees
listed below, in order to destroy the Union's majority status and to avoid its statutory
duty to bargain collectively with it as the majority representative of its employees,
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) of the Act:
Michael Benedict Linda Kempf Shirley Riggle
Clara Culver Martha Leer Wanda Rider
Carroll Gerbig David Nurrenbern Ralph Starkey
Dorothy Hale Donald Raymond Lawrence Stinson
Connie Hargett Harold Vincent
5. By the foregoing conduct and by threatening its employees with job loss be-
cause of the Union, Respondent has interfered with, restrained, and coerced its
CLARK PRODUCTS, INC. 33
employees in the exercise of their Section 7 rights and thereby has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative
of Section 8(a) (1), (3) and (5) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative actions designed to effecutate the policies
of the Act.
Having found that Respondent has refused to bargain collectively with the
Union as the duly designated representative of its employees in an apppropriate unit,
I shall recommend that Respondent, upon request, bargain collectively with the
Union as the exclusive representative of said employees, and if an agreement is
reached, embody such understanding in a signed statement.
Having found that Respondent discriminatorily laid off or discharged and refused
to rehire employees, I shall recommend that it be required to offer the employees
discriminated against reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges. 23 I shall
further recommend that each discriminatee be made whole for any loss of pay suf-
fered by reason of Respondent's discrimination, by payment of a sum of money
equal to the amount he (or she) normally would have earned from the date of the
discrimination to the date Respondent offered or shall offer, as the case may be,
reinstatement, less net earnings during that period, backpay and interest thereon to
be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB
389, and Isis Plumbing & Heating Co., 138 NLRB 716.
The unfair labor practices found herein are of such character and scope that in
order to insure Respondent's employees of their full rights guaranteed them by the
Act, it will be recommended that Respondent cease and desist from interfering in
any manner with, restraining, or coercing its employees in the exercise of those
guaranteed rights.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that Respondent , Clark Products , Inc., subsidiary of Nopco Chemical
Company, its officers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Upholsterers' International Union of North
America, AFL-CIO, Local Union 227, or any other labor organization of its em-
ployees, by discriminating in regard to their hire , tenure, or any terms or conditions
of their employment.
( b) Threatening employees with loss of employment or with any other economic
reprisal for selection of the Union as collective -bargaining representative.
(c) Refusing upon request , to bargain collectively with the above -named Union,
as the exclusive representative of all employees in the following appropriate unit:
All production and maintenance employees , employed by Respondent at its Evans-
ville, Indiana , plant, exclusive of all office clerical employees , professional em-
ployees, guards , and supervisors as defined in the Act.
(d) 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 any labor
x'As found supra (section II (D)), on various dates between May 10 and September 7,
Respondent sent telegrams to the employees discriminatorily laid off on April 30, except
to Vincent; five employees specifically testified that they declined reinstatement because
they accepted other employment. I find, contrary to General Counsel's contention, that
the telegrams to all employees, except Hale, constituted valid and bona fide offers of rein-
statement; as previously noted (footnote 8), Hale did not receive any telegram because,
through no fault on her part, it was not properly addressed to her Accordingly, I shall
not recommend reinstatement of any employee who was sent a telegram except Hale
Rider's reinstatement is herein recommended not on the basis of her April 30 layoff (she
accepted Respondent's telegraphic reinstatement offer but thereafter quit voluntarily), but
on the basis of Respondent's discriminatory refusal to hire her as an applicant for em-
ployment in September (supra, section II, D).
257-551-67-vol. 160-4
34 -/, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization , to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any and all such activities.
2. Take the foll;wing affirmative action which is necesary to effectuate the policies
of the Act:
(a) Offer to Dorothy Hale, Wanda Rider , and Harold Vincent immediate and
full reinstatement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges , in accordance with the
recommendations set forth in the section of this Decision entitled "The Remedy."
(b) Notify the above-named employees if presently serving in the Armed Forces
of the United States of their right to full reinstatement upon application in accord-
ance with the Selective Service Act and the Universal Military Training and Service
Act, as amended , after discharge from the Armed Forces.
(c) Make whole Michael Benedict , Clara Culver , Carroll Gerbig , Dorothy Hale,
Connie Hargett , Linda Kempf, Martha Leer, David Nurrenbern , Donald Raymond,
Shirley Riggle, Wanda Rider , Ralph Starkey, Lawrence Stinson , and Harold Vincent
for any loss of pay they may have suffered by reason of Respondent 's discrimina-
tion against them in accordance with the recommendations set forth in the section
of this Decision entitled "The Remedy."
(d) Upon request, bargain collectively with Upholsterers International Union of
North America, AFL-CIO , Local Union 227, as the exclusive bargaining representa-
tive of all of its employees in the bargaining unit described herein , with respect to
rates of pay , wages, hours of employment , and other conditions of employment and,
if an understanding is reached , embody same in a signed agreement.
(e) Preserve and, upon request , make available to the Board or its agents for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records relevant and necessary to
compliance with paragraphs ( a), (b), and ( c) above.
(f) Post at its plant in Evansville , Indiana, copies of the attached notice marked
"Appendix ." 24 Copies of said notice , to be furnished by the Regional Director for
Region 25 , after being duly signed by an authorized representative of Respondent,
shall be posted by it immediately upon receipt thereof 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. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered , defaced , or covered by any
other material.
(g) Notify said Regional Director , in writing, within 20 days from the date of this
Decision , what steps Respondent has taken to comply herewith.25
IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other
respects.
24 In the event that this Recommended Order is adopted by the Board , the words "a
Decision and Order" shall be substituted for the words " the Decision and Recommended
Order of a Trial Examiner ." In the further event that the Board 's Order Is enforced by a
decree of a United States Court of Appeals , the words used shall be "a Decree of the
United States Court of Appeals , Enforcing an Order."
29 In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to read : "Notify said Regional Director , in writing , within 10 days from
the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Upholsterers ' International Union of
North America, AFL-CIO, Local Union 227, or any other labor organization,
by discriminating against our employees in any manner in regard to their hire
or tenure of employment , or any term or condition of employment.
WE WILL NOT threaten employees with loss of employment or with any other
economic reprisal if this plant is unionized
WE WILL NOT refuse to bargain with the above -named Union as the exclusive
bargaining representative of our employees in the appropriate unit noted below
with respect to wages, hours of employment , and other terms and conditions of
employment.
-ANACONDA ALUMINUM COMPANY 35
WE WILL NOT in any other manner interfere with, restrain , or coerce employ-
ees in the exercise of their rights to self-organization , to form , join, or assist
the above -named or any other labor organization , to bargain collectively through
representatives of their own choosing , and to engage in concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
WE WILL bargain , upon request , with the above -named labor organization as
the exclusive bargaining representative of all employees in the bargaining unit
described below with respect to wages, hours of employment and other terms
and conditions of employment , and if an understanding is reached embody such
understanding in a signed agreement . The bargaining unit is:
All production and maintenance employees , employed in our Evansville,
Indiana, plant , exclusive of all office clerical employees , professional em-
ployees, guards and supervisors as defined in the Act.
WE WILL offer Dorothy Hale, Wanda Rider, and Harold Vincent immediate
and full reinstatement to their former or substantially equivalent positions with-
out prejudice to their seniority and other rights and privileges.
WE WILL make whole Michael Benedict , Clara Culver, Carroll Gerbig, Doro-
thy Hale, Connie Hargett, Linda Kempf, Martha Leer, David Nurrenbern,
Donald Raymond , Shirley Riggle, Wanda Rider , Ralph Starkey, Lawrence
Stinson, and Harold Vincent whole for any loss of pay they may have suffered
as the result of the discrimination against them.
All employees are free to become or remain , or to refrain from becoming or remain-
ing, members of any labor organization.
NOTE: Notify Dorothy Hale, Wanda Rider, and Harold Vincent if presently serv-
ing in the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act, and the Universal Millitary
Training and Service Act, as amended , after discharge from the Armed Forces.
CLARK PRODUCTS , INC., SUBSIDIARY OF No co CHEMICAL 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
provisions , they may communicate directly with the Board's Regional Office, 614
ISTA Center , 150 West Market Street, Indianapolis , Indiana 46204 , Telephone
ME3-8921.
Anaconda Aluminum Company and Aluminum Workers Trades
Council . Case 19-CA-3179. July 1, 1966
DECISION AND ORDER
On May 9, 1966, Trial Examiner James T. Barker issued his Deci-
sion in the above-entitled case, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
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].
160 NLRB No. 7.