Orman O. McKinley Co.

National Labor Relations Board - Board Decisions

Apr 21, 1978

235 N.L.R.B. 1069 (N.L.R.B. 1978)

ORMAN O. McKINLEY CO., INC.
Orman O. McKinley Co., Inc. and United Steelwork-
ers of America, AFL-CIO-CLC. Cases 25-CA-
8565 and 25-CA-8853
April 21, 1978
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On January 12, 1978, Administrative Law Judge
Thomas D. Johnston issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief. Counsel for the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Orman O.
McKinley Co., Inc., Indianapolis, Indiana, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
t Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3. 1951). We have carefully
examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge: These
consolidated cases were heard at Indianapolis, Indiana, on
August 8 through 12, 1977,1 pursuant to an amended
charge filed by the United Steelworkers of America, AFL-
CIO-CLC (herein referred to as the Union), in Case 25-
CA-8565 on February 1,2 and a charge filed by the Union
in Case 25-CA-8853 on April 18, and a complaint issued in
All dates referred to are in 1977 unless otherwise stated.
2 The original charge in Case 25-CA-8565 was filed on January 4.
3 Unless otherwise indicated the findings are based upon pleadings,
235 NLRB No. 154
Case 25-CA-8565 on February 25, and a complaint in
Case 25-CA-8853 issued on May 27.
These complaints, which were amended prior to and at
the hearing, allege that Orman O. McKinley Co., Inc.
(herein referred to as Respondent), violated Section 8(aX)(1)
and (3) of the National Labor Relations Act, as amended
(herein referred to as the Act), by threatening its employees
with discharge, layoff, putting them on the less desirable
night shift, reducing their pay raises, and other reprisals if
they did not refrain from becoming or remaining members
of the Union or giving assistance or support to it;
threatening its employees that the facility would be shut
down or closed, with the loss of benefits, including profit
sharing, and that bargaining would start from scratch if the
employees selected or elected the Union to represent them
for purposes of collective bargaining; laid off and refused
to reinstate employees Jerry Bales, Elisha Belcher, Joe
Blakey, Jr., Roselyn Boggs, Jefferey Burns, Richard Carl-
ton, Betty Feduccia, O'Dell Gillette, Raymond Jones,
Michael Maddox, David Morales, Cincie Rohrman, James
Shaffer, Derek Slater, Charles Tyler, and Danna Hotte
(herein referred to as the laid-off discriminatees) because
they joined and assisted the Union and engaged in other
union and concerted activities for the purpose of collective
bargaining and mutual aid and protection and because
Respondent believed they had done so or would so; issued
James Jones unwarranted written warnings because Jones
was a union election observer, a member of the employee
contract negotiating team, and engaged in other union and
concerted activities for the purpose of mutual aid and
protection; and transferred Harmon Hammond to less
desirable work shifts than he previously had been assigned
to and thereafter discharged and failed and refused to
reinstate him because he joined and assisted the Union and
engaged in other union and concerted activities for the
purpose of collective bargaining and mutual aid and
protection and because Respondent believed he had done
so.
Respondent in its answer in Case 25-CA-8565, filed on
March 4, and in its answer in Case 25-CA-8853, filed on
June 3, which were amended prior to and at the hearing,
denies having violated the Act.
The issues are whether Respondent violated Section
8(aX)(1) and (3) of the Act by unlawfully threatening its
employees because of their union memberships and activi-
ties or for selecting the Union to represent them, and by
discriminatorily laying off and refusing to reinstate the
laid-off discriminatees because of union activities; whether
it issued James Jones written warnings because of union
activities; and whether it transferred and subsequently
discharged and refused to reinstate Harmon Hammond
because of union activities.
Upon the entire record 3 in these cases and from my
observations of the witnesses and after due consideration
of the briefs filed by the General Counsel and the
Respondent,4 I hereby make the following:
admissions, stipulations, and undisputed evidence contained in the record,
which I credit.
4 The Charging Party did not submit a brief.
1069
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, an Indiana corporation, with its principal
office and place of business located at Indianapolis,
Indiana, is engaged in the business of the manufacture,
sale, and distribution of aluminum fabricated building
materials and related products.
During the 12-month period preceding February 25 and
May 27, both representative periods, Respondent in the
course of its operations purchased and received goods and
materials valued in excess of $50,000 at its Indianapolis,
Indiana, facility directly from States located outside the
State of Indiana and it manufactured, sold, and distributed
products valued in excess of $50,000, which were shipped
from its facility directly to States located outside the State
of Indiana.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION
United Steelworkers of America, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent, which has been in existence since 1946,
operates a plant located at Indianapolis, Indiana, where it
is engaged in the manufacture, sale, and distribution of
aluminum fabricated building materials and related prod-
ucts. It employs approximately 40 to 60 shop employees
and about I office personnel. Included among its official
and supervisory personnel are President Donald LeClare,
Personnel Manager Georgene Manzella, Foreman John
Robert Byers, Jr., Foreman Robert Cox, Foreman Hugo
Elberts, and Foreman John Kisella.5
Prior to 1977, Respondent's employees had never been
represented by a labor organization.
The Union engaged in two organizing campaigns among
Respondent's employees. The initial campaign resulted in a
Board-conducted election held on February 20, 1976,
which the Union lost. The last campaign began in early
December 1976. On January 19 the Union filed a represen-
tation petition and an election was conducted by the Board
on March 25, which the Union won, and on April 4 it was
certified as the bargaining representative of Respondent's
production and maintenance employees, including truck-
drivers.
B. Threats to Employees
The General Counsel presented various employees who
testified concerning threats made to them by Respondent's
official and supervisory personnel.
William McCurry stated during a conversation with
Foreman Byers, at Al-Keys Bar, about September or
I These six individuals are each supervisors under the Act.
6 According to Foreman Byers, McCurry had informed him the week of
October 1976, Byers told him if the Union came in LeClare
could shut the plant down and rent out the square footage
and still make enough money for the stockholders and
himself.
Foreman Byers acknowledged telling McCurry about the
end of December 1976 or the first part of January that
LeClare could rent the plant out as a warehouse and make
just as much money but stated this concerned production
and denied there was any reference to a union.6
Jeffery O'Neal, whose testimony was corroborated by
Dale Wicker, stated that in October or November 1976
Foreman Byers told Wicker, Harmon Hammond, Jr., who
is now deceased, and himself that should the Union be
voted in LeClare would probably just close the place down
and move some place else. Foreman Byers denied having a
conversation with them or making such threat.
Both Elisha Belcher and James Jones testified that about
the latter part of December 1976, Foreman Byers in the
presence of Smoot, Charlie Wilson, and themselves in-
formed them LeClare would close the plant down if the
Union got in. Belcher was uncertain whether Byers also
mentioned people would be fired.
Foreman Byers and Smoot, who was called as a witness
by Respondent, both denied Byers had made such a
statement.
Wicker stated that, about the first part of January,
Foreman Byers told Manuel Rhea and himself if the Union
came in LeClare would probably close the doors and make
a warehouse out of it and would make about the same
amount of money in making it into a warehouse. Rhea
corroborated Wicker's testimony concerning the threat to
close the plant, which threat was denied by Foreman
Byers.
Lester Wicker, whose testimony was corroborated by
Michael Maddox, testified that on January 4 Foreman
Byers told him in the presence of Maddox that LeClare had
told him if the Union got in the shop they would close the
shop down and rent it out as a warehouse.
Foreman Byers denied making the statements attributed
to him.
Based upon the testimony of McCurry, O'Neal, D.
Wicker, L. Wicker, Rhea, Maddox, Belcher, and Jones,
who I find were more credible witnesses than Foreman
Byers and Smoot, I find that Foreman Byers about
September or October 1976 threatened William McCurry
that if the Union came in LeClare could shut the place
down and rent out the space; in October or November
1976 threatened O'Neal, D. Wicker, and Hammond that if
the Union were voted in LeClare would close the place
down and move; in the latter part of December 1976
threatened Wilson, Jones, and Belcher that LeClare would
close the plant if the Union got in; about the first part of
January threatened D. Wicker and Rhea that if the Union
came in LeClare would probably close the plant and make
it into a warehouse; and on January 4 threatened Wicker
and Maddox that if the Union got in LeClare would close
the plant and rent it out as a warehouse.
Apart from my observations of the witnesses in discredit-
ing Foreman Byers and Smoot, such threats made to
December 27 that there was union activity going on among the employees in
the plant involving the Steelworkers Union.
1070
ORMAN 0. McKINLEY CO., INC.
different individuals and over a period of time, as here,
reflect a pattern of conduct engaged in by Foreman Byers
in making such unlawful threats.
Michael Thompson testified in January upon comment-
ing to Foreman Elberts in the presence of Moore that
Hammond and himself had been put on the night shift
because they had tried to organize the Union, his recollec-
tion was Elberts in response shook his head indicating
"yes," and said, "probably so." Pursuant to leading
questions, Thompson also stated Elberts said Hammond
was one of the best workers he had and that he had
probably gotten fired because he was active in the Union.
Moore, contrary to the testimony of Thompson, stated he
heard Thompson ask Foreman Elberts if he felt in his
opinion they were put on night shift because of possible
union activity, whereupon Elberts replied, "You are proba-
bly right." 7 Under cross-examination, Moore stated he
could not recall Thompson saying that Hammond and
himself were put on the night shift because they tried to
organize the Union. Moore also did not corroborate
Thompson's testimony about Elberts stating Hammond
had probably gotten fired because he was active in the
Union.
Foreman Elberts denied making the statements attrib-
uted to him by Thompson and Moore. According to
Elberts, when Thompson had asked him why Hammond
was no longer working for the Company, he told him
Hammond had quit.
I credit the testimony of Foreman Elberts rather than
Thompson and Moore. Besides my observations of the
witnesses, not only were the testimonies of Thompson and
Moore conflicting but Thompson's testimony was of a
contradictory and conclusionary nature and was elicited
through leading questions.
On December 23, 1976, LeClare at the annual Christmas
meeting made a speech to the employees during which he
informed them of the Company's policy against unioniza-
tion of the plant.s
Several employees also testified concerning threats made
by LeClare in his speech. Hammond stated LeClare said
any employee caught trying to organize a union would be
terminated. Barlow testified LeClare told them anyone
having any activities to do with the Union would automati-
cally lose their rights as an employee. O'Neal stated
LeClare said if they signed union cards they would
relinquish their rights as an employee and that, should the
Union be voted in, they would relinquish all of their
benefits such as uniforms and profit sharing and they
would be forced to raise the bids on jobs and if they raised
prices that would mean less work and there would
probably be a layoff. D. Wicker also testified that LeClare
said if the Union got in they would lose all the benefits, like
uniforms and Christmas bonuses. Rhea stated LeClare said
if the Union came in someone would have to be laid off.
7 Thompson, Moore, and Hammond along with other employees had
been assigned to the night shift the previous August.
I This policy, which is set forth in the employee handbook, states, "The
McKinley Company is non-union and believe that it is in the best interest of
all that we remain non-union. We want to operate without the intervention
of a union in the relationship between workers and management. We ask
that you support and respect this view."
LeClare, along with Foremen Cox, Kisella, and Byers,
who attended the meeting, could not recall or specifically
denied such statements were made.
According to LeClare, during the speech he informed the
employees that because of the Bechtel job they were having
to look for additional space because of the crowded
warehouse condition and found they could rent out the
present plant and probably make as much money for
stockholders as they were in manufacturing but added he
had no intention of doing that, at which time McKinley,
who was present, agreed.9 LeClare stated he told them the
Sheetmetal Workers had contacted him about organizing
the plant,' ° and said if they had signed union cards the
Union was then representing them as called for in the fine
print and cautioned them to read the cards carefully before
signing them.
Foreman Cox first stated he did recall some remark
made to the effect if the Union was voted in the Company
would be forced to raise the bids on jobs and that would
mean less work and would probably mean a layoff.
However, he did not know whether the statement was
made in that speech. Upon subsequent questioning, he
then claimed he did not remember such a remark. Foreman
Byers stated LeClare mentioned if there was a union at the
McKinley Company this would probably cause prices to go
up on their bids for jobs and in turn would probably cause
them to lose some jobs and not have as many and therefore
there may not be as many people employed there and
might not be as big a shop.
Based upon the testimony of Hammond, O'Neal, D.
Wicker, Rhea, and Barlow, which I credit concerning the
speech, I find, contrary to the testimony of LeClare,
Foremen Cox, Kisella, and Byers, that on December 23,
1976, President LeClare in his speech threatened employ-
ees they would be terminated for engaging in union
activities; threatened employees if the Union were voted in
they would lose such benefits as uniforms, profit sharing,
and Christmas bonuses; and threatened employees with a
layoff if they selected the Union to represent them. Besides
my observations of the witnesses and having previously
discredited Foreman Byers, Foreman Cox gave contradic-
tory testimony, and I do not find plausible LeClare's
contentions his statements were actually directed against
the Sheetmetal Workers Union, albeit the name may have
been mentioned, rather than the Union, which at that time
was the only union engaged in any organizational activities
among Respondent's employees and it had previously
attempted to organize them.
Maddox, who was one of the laid-off discriminatees, on
May 4 testified that upon calling in each week as the
employees on lay-off were instructed to do, Personnel
Manager Manzella told him that if he did not call in and
went and got another job they were not going to call him
back. Manzella's version was Maddox asked whether he
would be entitled for recall if he obtained employment
9 McKinley did not testify.
0o LeClare stated that on or about September 17. 1976. representatives of
the Sheetmetal Workers Union had contacted him about organizing the
plant and informed him they would return after the election year was up in
February. However, he denied having knowledge of any organizing
activities by the Sheetmetal Workers Union prior to the speech.
1071
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whereupon she told him it depended on whether it was full-
time permanent employment which according to her
understanding he would not be given priority for recall but
she wanted an opportunity to check it out and asked him to
check back with her. I credit Manzella's version and find
no unlawful threat was made by her on that occasion as
alleged.
C. The Transfer and Subsequent Termination of
Harmon Hammond
Hammond was employed by Respondent from about
April 1974 until his termination on January 3.
Hammond participated in both union organizing cam-
paigns. His union activities in the initial campaign included
contacting the Union about organizing the employees,
attending union meetings, soliciting other employees at the
plant to sign union authorization cards and serving as an
observer for the Union in the election held on February 20,
1976. During the most recent organizing campaign he
contacted the Union's representative about the first part of
December 1976 about organizing the employees, signed a
union authorization card on December 13, 1976, and about
the latter part of December 1976 solicited other employees
at the plant to sign union authorization cards.
According to Hammond on December 31, 1976, while
holding a union authorization card in his hand which he
was attempting to get another employee, Jessie Geralds, to
sign he observed Foreman Kisella standing about 6 to 8
feet away looking at him. Foreman Kisella denied the
incident. Although Kisella acknowledged hearing rumors
Hammond was trying to organize employees during the
second union campaign he stated he could not recall
whether he heard them before or after Christmas. I credit
Hammond, who I find was a more credible witness than
Foreman Kisella, and find that Kisella on that occasion
observed Hammond trying to get Geralds to sign a union
authorization card. Besides my observations of the wit-
nesses Kisella's testimony was both evasive and contradic-
tory.
Since he was first employed Hammond had worked as a
shear operator. Shortly after the election held on February
20, 1976, Hammond, without being given any reason was
removed from his shear operator's job and assigned to
work as a general laborer, without any reduction in pay, on
the panel gang under Foreman Kisella. Both LeClare and
Foreman Cox gave as the reason Hammond was taken off
the shear operator's job as being because he was too slow
and his work was sloppy. Although Hammond, on direct
examination, denied he had ever received any complaints
about his shear operator's work and stated at the time
Foreman Cox notified him of the change that Cox had told
him his work on the shears was satisfactory, under cross-
examination, Hammond acknowledged LeClare had told
him his work on the shears was too slow and he also denied
Cox at that time had made any reference about his work
II The removal of Hammond from his shear operator's job and his
assignment to perform janitorial work was proffered only as background
evidence by the General Counsel relating to Hammond's subsequent
transfer and termination which were alleged to be unlawful.
12 McCurry, who was an employee and Hammond's former son-in-law,
stated that about August 1976 LeClare, pursuant to his inquiry about
being satisfactory. Foreman Cox also denied having made
such statement. During June 1976, when the need for
another experienced shear operator arose as a result of a
shift change and no one else was available, Hammond was
offered the job by LeClare along with an additional wage
increase. Hammond refused to accept the job without
giving LeClare any reason. I credit the reasons given by
President LeClare and Foreman Cox for removing Ham-
mond from his shear operator's job.
While working on the panel gang, Foreman Cox told
Hammond they needed ajanitor and asked him whether he
would take an hour each morning for 3 or 4 days and
empty wastebaskets and ashtrays in the office, which
Hammond agreed to do. After performing this work for
several days, Hammond found a note, asking him to
perform additional duties such as mopping and running the
sweepers. Upon complaining to Foreman Cox and Person-
nel Manager Manzella that he was not hired as a janitor,
Hammond ceased performing such work. Several other
general laborers, besides Hammond, were also assigned to
perform those same tasks. The reason given by Manzella
for making those janitorial assignments, which I credit, was
because the regular janitor, Victor Troutman, left the
middle of April 1976 to have surgery performed and his
replacement did not take over until late May 1976.11
On August 12, 1976 the Respondent reverted back to a 5-
day-a-week day and night shift, which had been replaced
on June 1, 1976 by a 7-day-a-week shift arrangement.
Hammond, who had never worked on the night shift
previously, was assigned to the night shift to work under
Foreman Elberts, along with approximately 12 other
employees, 9 of whom, including 5 general laborers, had
also worked on the day shift. The night shift hours, which
were from 4 p.m. to 1:30 a.m., created a hardship on
Hammond because his wife worked at a hospital from 11
p.m. to 7 a.m., and he had a handicapped son living at
home who required someone to stay with him.
LeClare at a meeting of the employees held on August
10, 1976, to inform them of the shift changes, which were
posted on the bulletin board, told them if anyone had a real
hardship they could talk to either Personnel Manager
Manzella or himself.
Hammond did not request that his assignment to the
night shift be changed and denied asking anyone else to
make a request for him.' 2 Following his assignment to the
night shift Hammond arranged for his daughter, who lived
next door, to watch over his handicapped son until he
returned home from work.
LeClare, who at the time of the assignment, stated he was
aware Hammond had a handicapped son denied having
any knowledge until later that Hammond's wife worked
nights. LeClare's reasons for assigning Hammond to the
night shift were because they needed general laborers 13
and because of Hammond's general attitude. LeClare
Hammond working the day shift because of his problems, told him if he let
Hammond come on days he would have to let others. However, McCurry's
testimony concerning this alleged conversation was both vague and
conclusionary.
13 Of the approximately 12 employees assigned to the night shift, 8 were
classified as general laborers.
1072
ORMAN 0. McKINLEY CO., INC.
described Hammond as a noncooperative employee who
did not communicate with him 14 and had turned down the
shear operator's job. LeClare acknowledged through July
1976 Hammond was courteous to him and would answer
him. Foreman Cox stated Hammond had always been
sullen towards LeClare, which he defined as meaning
Hammond never said anything good or bad about LeClare.
Thompson, another employee assigned to the night shift,
upon asking LeClare whether he could get off of it because
his wife worked days and they only had one car making it a
hardship to get to work, LeClare informed him either he or
his wife could quit work.
Hammond was terminated on January 3. The reasons
given by Respondent for his termination were because he
had given verbal notice to Personnel Manager Manzella on
December 6, 1976, that he was quitting and it had been the
policy to only allow a 2 weeks' notice since employees
working beyond that point did not do the Company justice.
On December 6, 1976, Hammond met with the represen-
tative from financial design regarding enrolling in the
Respondent's pension plan. Enrollment in this pension
plan, which had been in effect 10 years and was contributo-
ry by both the Respondent and the employees, was
optional and not all the employees signed up for the plan.
Personnel Manager Manzella testified that same day
Hammond, pursuant to her inquiries, informed her he was
not interested in signing up for the pension plan because he
would be quitting after the first of the year when his
daughter got married because he would not have anyone to
babysit with his son, and his wife worked nights and had a
better job so it would be up to him to quit. She informed
Hammond maybe that was how he saw it at that point but
told him he ought to at least to go in and let the
representative explain the plan. According to Manzella,
when the representative informed her, pursuant to her
inquiry, that Hammond had not enrolled in the plan she
concluded he had meant what he said about quitting.
Hammond denied telling Manzella he wanted to or
intended to quit. He acknowledged telling Manzella he
might have to quit which was the reason he gave her for not
enrolling in the pension plan. His version was he told
Manzella he did not sign up for the pension plan because
his daughter, who was babysitting, was getting married in
February and both he and his wife were working, and that
probably he or his wife would have to quit and if someone
had to it would be him because his wife made more money.
The reason Hammond gave to the representative of
financial design for not enrolling in the plan was that he
could not afford it at the time but stated he might be able
to at a later date.' 5
I credit the testimony of Hammond, rather than Person-
nel Manager Manzella, and find Hammond did not tell her
he was quitting. Even Manzella's own version indicates
that she did not conclude Hammond planned to quit from
what she alleges he said but from the fact he declined to
enroll in the pension plan. Not only was it optional for him
to decline enrollment in the pension plan, but he indicated
to the representative he might enroll later when he could
14 Hammond denied he ever knowingly refused to speak to LeClare.
15 Personnel Manager Manzella did not inquire of the representative of
financial design the reason Hammond had given her for declining to enroll
in the plan.
afford it. Moreover, if as Respondent contends it had a rule
permitting employees to only work 2 weeks after giving
notice, and Hammond had stated he was quitting, it does
not appear plausible that an experienced personnel manag-
er as Manzella would not at sometime prior to Hammond's
termination have discussed a termination date with him.
According to both Personnel Manager Manzella and
LeClare, Manzella informed LeClare that same day Ham-
mond was quitting, whereupon they decided for humane
reasons because of the holiday pay, bonuses, and Christ-
mas to allow him to work through the remainder of the
year and to call his notice due the first of 1977 rather than
only letting him work the 2 weeks, which they contend was
company policy.16 This decision was never communicated
to Hammond before his termination.
On January 3, Personnel Manager Manzella, after
discussing the matter with LeClare, informed Hammond
they were calling his notice due. Upon Hammond asking
what notice, Manzella informed him the notice he had
given her on December 6 that he was quitting, which
Hammond denied. Despite his protests that he had not
given notice he was quitting, Hammond was then terminat-
ed. Hammond, contrary to Manzella's denials, testified
Manzella also ordered him off the premises and Manzella
stated Hammond told her he was going to take her to the
Labor Board. Although that same day LeClare was
informed by Manzella that Hammond had denied he
planned to quit, he took no action. LeClare gave as his
reasons that he did not want Hammond back because
Hammond had not been a cooperative employee, he had
refused to take the shear operator's job, he would not
communicate with him, and had indicated displeasure
working on the night shift. Although LeClare stated these
reasons were not bad enough to discharge Hammond, he
was not unhappy about his leaving.
Both LeClare and Personnel Manager Manzella denied
having any knowledge of Hammond's union activities prior
to his termination.
Regarding the alleged rule that an employee is only
permitted to work 2 weeks after giving notice he is quitting,
Hammond and McCurry both denied having any knowl-
edge of such a rule and Wicker, while denying knowledge
of any written policy, stated he had always heard of such a
rule since he first started working. Notwithstanding this
alleged rule, Maddox, on July 12, gave notice to Personnel
Manager Manzella he was quitting and was allowed to
work until July 29. Manzella's explanation for allowing
Maddox to work beyond the 2-week period was because
they had showed compassion to Hammond and Maddox
wanted to work until the end of that week and had a job
starting the following Monday. On June 24, McCurry, after
being written up for returning to work late from lunch, got
mad and gave Foreman Cox his 2-week notice. However,
on June 26, LeClare, at McCurry's request, permitted him
to withdraw his resignation notice.
m6 LeClare stated this unwntten policy had never been deviated from
before.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The April 13 Layoff
On April 13 near the end of the work shift LeClare held a
meeting of all the employees and, without any prior notice
having been given, informed them certain employees would
be laid off effective April 14. The reasons LeClare gave
them for the layoff were there was a reduction in orders
and they had not received additional work in the plant. He
informed them they would be recalled by seniority when
work picked up.
Those employees laid off were Jerry Bales, Elisha
Belcher, Joe Blakey, Jr., Roselyn Boggs, Jefferey Burns,
Richard Carlton,'1 Betty Feduccia, O'Dell Gillette, Ray-
mond Jones, Michael Maddox, David Morales, Cincie
Rohrman, James Shaffer, Derek Slater, Charles Tyler, and
Danna Hotte. A notice posted by Respondent on the
bulletin board on April 13 listed the names of all these
employees as being laid off effective April 14 and gave the
reason that due to a low rate of incoming sales orders there
was an indefinite lack of work.
The employees, with the exception of Shelby Christoff,
who was Respondent's only over-the-road truckdriver and
was retained, were laid off according to their seniority.
The record does not establish to what extent, if any, the
laid-off discriminatees participated in union activities but
among the laid-off discriminatees Foreman Byers acknowl-
edged Burns, Maddox, and Gillette had expressed or
indicated to him they favored a union in the plant and
Maddox and Belcher had been threatened concerning
union activities. However, on or about March 29, an
employee, Calvin Ballenger, gave LeClare a petition signed
by 19 employees including Feduccia, Gillette, Boggs, and
Hotte, stating they did not want to work in a shop
requiring them to belong to a union. The name of
Rohrman was also on the petition.
Prior to April 13, there had not been a layoff in over 25
years. Not only does the employee handbook reflect there
had not been a layoff in over 25 years, but Respondent, in
an antiunion campaign letter, dated March 21, sent to the
employees, explained Respondent had always been able to
provide employees with steady work and it had never had
to lay off an employee because of lack of work.
During prior years, including 1976 and 1975, when the
Respondent experienced short periods of work reduction,
no employees were laid off as a result. Instead, employees
were assigned to perform such work as maintenance,
manufacturing, and inventory work.
LeClare, while first unable to give the date he made the
decision to lay the employees off, subsequently stated he
made the decision on the Monday preceding the layoffs
after thinking about it a couple of weeks, because work was
gradually going down, they were not receiving materials,
and had not been successful in getting some jobs and on
that Monday nothing had come in they could work on.
17 Although Respondent denies that Carlton, who was on extended sick
leave from March 3 until June 22, before returning to work on June 28, was
laid off, inasmuch as his name was included on the posted notice listing the
employees who were laid off and he was sent a letter by Respondent on
April 13 to that same effect, neither of which notices were retracted, I find
he was also laid off effective April 14.
is A notice posted on April 6 announcing the April I I shift change stated
the new hours would be worked until business increased.
According to LeClare, since the summer of 1976 incoming
orders had been smaller than previously, in late December
1976 there was a fall in the volume of incoming orders, and
as of April 13 their sales were on a downward decline, they
had nothing to work on in the shop and the warehouse was
empty.
During the period January 20 to March 14, Respondent
in order to increase its production added a third 8-hour
shift with an optional 8 hours on Saturday at overtime. On
March 14 the three shifts were reduced to two shifts and on
April 11 the two shifts were reduced to one shift. s
LeClare denied the institution of the third shift on
January 20 resulted from the Union's letter demanding
recognition received on January 19 or the Union's repre-
sentation petition it received on January 20. The reason
given by him for increasing production by adding the extra
shift was the large volume of work being performed on the
Bechtel job.
The Bechtel job was the largest job being performed by
Respondent prior to the layoff. Respondent's contract for
this job, valued between $200,000 and $225,000, was with
Flower City Architectural Metals, a division of Seagrave
Corporation 19 to fabricate and paint panels and extensions
for use on the Bechtel Building. Respondent began work
on this job in September 1976, which reached its peak
during the period December 1976 to February 1977 and it
had completed approximately 92 percent of the job by the
middle of April. It employed at any one time between 11
and 15 employees working full time on the job. Respon-
dent's records for each of the 2-week periods preceding the
layoff and for the weekly periods following the layoff up
until the end of June reflect the following hours of work
were performed by its employees on the Bechtel job: April
6 - 177.84; April 13 - 301.48; April 20 - 180.99; April 27 -
131.52; May 4- 151.68; May 11 - 182.28; May 18- 98.12;
May 25 - 63.28; June I - 78.97; June 7 - 134.46; June 15 -
156.62; June 22 - 41.49; and June 29 - 201.70.
Respondent's records reflect that for the 6-month period
preceding the April layoff, 20 during which the average
monthly number of employees varied from 47 to 52, the
total approximate sales, less installation and cancellation
costs for each month, were as follows: October 1976 -
$86,711; November 1976 - $71,347; December 1976 -
$314,346; 21 January - $20,546; February - $138,643; and
March - $137,500. During this same period Respondent's
records reflect that the approximate amounts billed for
work completed, less installation charges, were as follows:
October 1976 - $143,343; November 1976 - $247,925;
December 1976 - $202,071; January - $254,452; February
- $177,033; and March - $156,548. Total approximate
sales, less installation and cancellation costs, for each
month during the period January to October 1976 were as
follows: January 1976 - $111,518; February 1976 -
$199,774; March 1976 - $65,787; April 1976 - $348,452;
1i Respondent also had two other contracts with Flower City Architec-
tural Metals valued at approximately $20,000 and approximately $2,000 and
work on the larger of these two contracts had started prior to April 14.
' Respondent's fiscal year, which LeClare described in his Christmas
speech as being a good year with a profit, ended September 30. 1976.
21 This figure included a contract, valued at approximately $201.000, to
perform work on the Portage High School job which Respondent is not
scheduled to begin work on until late summer 1978.
1074
ORMAN 0. McKINLEY CO., INC.
May 1976 - $237,296; June 1976 - $303,887; July 1976 -
$239,323; August 1976 - $106,200; September 1976 -
S148,784.
On April 14 the Respondent had approximately $200,000
in orders, excluding the Portage High School job.
On April I I a report prepared by Respondent's produc-
tion scheduler, Richkowski, for LeClare concerning the
number and volume of jobs in the plant, reflects there were
approximately 53 different jobs pending, not including
such jobs as awnings, canopies, roof vents, and steril-o-
matic for which no information was furnished. The work to
be performed on these jobs was either in progress or
scheduled for April and included such work as shear,
brake, welding, and painting. Only approximately 21 of
these approximately 53 jobs were awaiting needed materi-
als.
Respondent's records for April through June, during
most of which period the work force was reduced as a
result of the layoff, reflect the total approximate sales, less
installation and cancellation costs, as follows: April -
$118,942; May - $218,551; and June - $342,283. The
approximate amounts billed for work completed, less
installation charges, for this same period were as follows:
April - $132,741; May - $98,725; and June - $142,195.
Besides the work performed for customers during the
period following the layoff Respondent's employees spent
approximately 400 man-hours the first 2 weeks of May
performing maintenance work to correct OSHA violations
which were found during the first quarter of 1977.
Following the layoff, Respondent has not hired any new
employees and the only overtime work performed occurred
on May 14 when three employees each performed 8 hours'
overtime work on a Saturday to complete a job promised to
a customer.
During June, among those employees who had been laid
off, Bales, Belcher, Carlton, Feduccia, Jones, Maddox,
Morales, Shaffer, and Tyler were recalled and returned to
work.
On June 29 certified letters offering reinstatement were
mailed to laid-off employees, Slater, Gillette, Burns, Tyler,
Blakey, Jr., Jones, Rohrman, and Hotte.
Personnel Manager Manzella on June 16 offered work 22
to Boggs, who informed Manzella she would be in on June
20. However, on June 19 Boggs informed Manzella she
would not be reporting and was going to quit and was not
coming back.
E. Warnings Issued to James Jones
James Jones was employed by Respondent as a laborer
under the supervision of Shop Superintendent Wynn.
His union activities consisted of serving as an observer
for the Union in the Board election conducted on March
25 and since May he has served on the Union's negotiating
committee in contract negotiations with Respondent.
Jones, who had been off work because of illness on
Friday, April 8, returned to work Tuesday, April 12. After
working a short period that day he informed Shop
22 Personnel Manager Manzella did not testify specifically concerning
the job offer made to Boggs.
Superintendent Wynn and Foreman Kisella he was sick
and was told by them he could go home.
Jones did not return to work again until Tuesday, April
19, at which time he was giving a written warning signed by
Foreman Kisella and at the direction of Personnel Manag-
er Manzella, which contained the following reasons:
4-10-77 - no call and no show and 4-12-77 through
4-14-77, were 3 consecutive days of no call no show.
This is generally a termination. Since this is your first
violation, it is a final warning that all absences must be
reported either in advance or on the morning of the
absence. This is not a new rule and it is one that you
have complied with during your last two years of
employment.
This warning, which was the first warning James had
received, further stated future action to be taken was
dismissal.
Jones, who read the warning and signed it, stated
Foreman Kisella, upon giving him the warning, told him it
was not anything much. Kisella denied making such
statement.
During the period Jones was off work, he called Person-
nel Manager Manzella and informed her he had been ill
and would return to work. Although Jones on direct
examination stated he believed this conversation with
Manzella occurred the second day he was off, under cross-
examination he acknowledged he could not remember
when he called her or the dates of his absences.
Personnel Manager Manzella placed the date of this
conversation with Jones as occurring on the morning of
April 18, the day before Jones returned to work.
Jones did not contact his supervisor or any other
supervisory personnel besides Manzella during his absence.
Personnel Manager Manzella stated that after checking
with Jones' immediate foreman and other supervisors, who
informed her they had not heard from Jones, she prepared
the written warning.
Based upon the testimony of Personnel Manager Man-
zella, who I find was a more credible witness than Jones, I
find Jones did not call in prior to being absent for 3
consecutive days. Jones' own testimony was both contra-
dictory and uncertain. Contrary to his assertion, Foreman
Kisella had indicated the warning was not serious, the
warning itself, which he acknowledged reading, indicated
further action could result in his dismissal.
Respondent's records reflect other employees had previ-
ously been terminated for failing to call in or show up for 3
consecutive days and had been given written warnings for
failure to call in when they were absent from work.
Further, the employee handbook requires employees to call
the personnel office or their supervisor immediately when
they cannot come to work or to tell their supervisor in
advance when they know they are going to be absent.
On July 25 Jones was given another written warning
signed by Foreman Kisella and at the direction of Person-
nel Manager Manzella which contained the following
reasons:
1075
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Within the last 1-1/2 months (June & July) 1977 you
have reported back from lunch late. You must be
prompt in reporting for work at noontime. dates late
from lunch: 6-8, 6-14, 6-15, 6-20, 6-21, 7-11, 7-12, 7-
22.
The warning further stated future action to be taken was
disciplinary action up to and including discharge.
Jones stated that upon being given the warning by
Foreman Kisella, Kisella again told him it was not much.
However, after reading it, he refused to sign it and
informed Kisella he felt he had been harassed and would
confront personnel about it. Jones denied being aware
prior to the hearing that this warning, contrary to its terms,
pertained to more than one lateness.
Respondent's records reflect Jones was late on those
dates and for periods varying from less than a minute to
approximately 5 minutes. 2 3
According to Personnel Manager Manzella, she prepared
this warning after observing a pattern, which had not
previously existed, whereby Jones returned to work late
from lunch.2 4
Although Jones acknowledged being late during this
period he claimed he had previously been late on other
occasions without receiving a warning.
Personnel Manager Manzella denied and no records
were submitted to show Jones had previously returned to
work late from his lunch hour. The records do show during
1976 Jones arrived late for work on four occasions in
September, three occasions in October, and two occasions
in November for periods varying from 10 to 20 minutes.
McCurry, another employee, was given a similar warning
for being late returning from lunch about the same time as
Jones. Respondent's records also show other employees
had previously been written up and given written warnings
for being late to work.
Personnel Manager Manzella denied these warnings
were issued to Jones because of his union activities.
F. Analysis and Conclusions
The General Counsel contends, while Respondent de-
nies, that Respondent violated Section 8(a)(1) and (3) of
the Act by unlawfully threatening its employees concerning
their union memberships and activities and for selecting
the union to represent them; discriminatorily transferred,
discharged, and refused to reinstate Hammond because of
union activities; discriminatorily laid off the discriminatees
and refused to reinstate them because of union activities
and discriminatorily issued Jones written warnings because
of his union activities. Respondent asserts as its defenses
Hammond quit his employment; the layoffs were for lack
of work; and the warnings were given to Jones for cause.
Section 8(a)(l) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides in pertinent part:
"It shall be an unfair labor practice for an employer . . .
by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encourage
23 Jones' lunch hour was from 11:30 a.m. to 12.
24 Personnel Manager Manzella acknowledged she did not talk to Jones
about his being late.
or discourage membership in any labor organization
The findings, supra, establish that Foreman Byers about
September or October 1976 threatened McCurry thatif the
Union came in LeClare would shut the place down and
rent out the space; in October or November 1976 threat-
ened O'Neal, Wicker, and Hammond that if the Union
were voted in LeClare would close the place down and
move; the latter part of December 1976 threatened Wilson,
Jones, and Belcher that LeClare would close the plant if the
Union got in; about the first part of January threatened
Wicker and Rhea that if the union came in LeClare would
probably close the plant and make it into a warehouse; and
on January 4 threatened Wicker and Maddox that if the
Union got in LeClare would close the plant and rent it out
as a warehouse; on December 23, 1976, LeClare threatened
employees they would be terminated for engaging in union
activities; threatened employees if the Union was voted in
they would lose such benefits as uniforms, profit sharing,
and Christmas bonuses; and threatened employees with a
layoff if they selected the Union to represent them.
The test applied in determining whether a violation of
Section 8(a)(1) of the Act has occurred is "whether the
employer engaged in conduct which, it may reasonably be
said, tends to interfere with the free exercise of employee
rights under the Act," Electrical Fittings Corporation, a
subsidiary of I-T-E Imperial Corporation, 216 NLRB 1076
(1975). Further, while an employer may speak freely to
employees regarding issues arising in connection with a
union organizational campaign such statements are unlaw-
ful if they contain threats of reprisal such as plant closure.
Components, Inc., 197 NLRB 163 (1972). Applying this test,
I find that the Respondent by threatening its employees as
enumerated supra has interfered with, restrained, and
coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act and has thereby violated
Section 8(a)(1) of the Act.
Turning to the issues of whether the Respondent discri-
minatorily transferred, discharged, laid off, and refused to
reinstate employees as alleged, it is well settled that the
presence of a valid grounds for discharging an employee
does not legalize a dismissal which is due to a desire to
discourage union activity. Borek Motor Sales, Inc. v.
N.L.R.B., 425 F.2d 677 (C.A. 7, 1970), cert. denied 400 U.S.
823; and N.L.R.B. v. Symons Manufacturing Co., 328 F.2d
835, 837 (C.A. 7, 1964). Direct evidence of discriminatory
motivation is not necessary to support a finding of
discrimination and such intent may be inferred from the
record as a whole. Heath International Inc., 196 NLRB 318
(1972).
With respect to Hammond's transfer to the night shift,
the evidence, supra, establishes it occurred on August 12,
1976, almost 6 months after the February 20, 1976, union
election, during which period there was no evidence of any
union activities occurring or unlawful conduct engaged in
by Respondent directed against union organizing activities.
Hammond, who earlier had refused an offer to return to
the shear operator's job, was among six general laborers
transferred from the day shift to the night shift to fill
1076
ORMAN 0. McKINLEY CO., INC.
Respondent's undisputed needs for those job classifications
which was one of the reasons given for Hammond's
transfer. Although the transfer worked a hardship on
Hammond, Respondent was unaware of such hardship at
the time of the transfer and Hammond admittedly made no
attempt to obtain relief, notwithstanding employees had
been informed hardship cases would be considered. Under
these circumstances, even though Respondent was aware
of Hammond's earlier union activities, I find that the
General Counsel has failed to prove by a preponderance of
the evidence as is his burden that Hammond was discrimi-
natorily transferred to the night shift on August 12, 1976, in
violation of Section 8(a)(3) and (1) of the Act, as alleged.
However, with respect to Hammond's termination, the
findings, supra, establish Hammond was discharged on
January 3 rather than quitting his job as Respondent
contends. Moreover, any doubts Respondent may have
had about whether Hammond intended to quit would have
been dispelled that day when he denied he was quitting.
Even the claim Hammond had to quit because employees
were only allowed to work 2 weeks after giving notice was
disproven by the fact other employees after giving notice
had worked longer than the 2-week period and were also
permitted to withdraw their termination notice.
The findings, supra, further establish Hammond was an
active union adherent in both union organizing campaigns
and Respondent had reason to believe, as well as actual
knowledge of, his union activities. Prior to his discharge
LeClare on December 23, 1976, had threatened the
employees with discharge for engaging in union activities
and Hammond was discharged the next workday after
being observed by Foreman Kisella on December 31, 1976,
attempting to get another employee to sign a union
authorization card. Based upon the foregoing evidence
including Hammond's union activities; Respondent's
knowledge of such activities; Respondent's union animus;
Respondent's threat to discharge employees for engaging
in union activities; and the timing of his discharge in
relation to learning of his union activities on December 3 1,
1976, and having rejected Respondent's defense that
Hammond quit his job, I find that Respondent discrimina-
torily discharged Hammond on January 3 and thereafter
refused to reinstate him because of his union activities in
violation of Section 8(a)(3) and (I) of the Act.
The next issue is whether the April 13 layoffs were for
discriminatory reasons under the Act or for lack of work as
Respondent contends. The evidence, supra, establishes the
laid-off discriminatees were informed on the afternoon of
April 13, without any prior notice, they were being laid off
work effective the next day. Previously there had not been
a layoff in over 25 years and only as recently as March 21
Respondent in an antiunion campaign letter had empha-
sized to its employees that it had never had to lay off an
employee for lack of work. The employees were laid off
according to seniority. While the evidence establishes
Respondent had reason to believe at least four of the laid-
off discriminatees; namely, Burns, Maddox, Gillette, and
Belcher were in favor of the Union, the names of five of the
laid-off discriminatees including Gillette were on a petition
opposing the Union. However, the layoffs occurred only 9
days after the Union was certified as the bargaining
representative of the employees, including those employees
laid off, and prior to the layoffs Respondent had engaged
in the unlawful threats against the employees herein found,
including a threat by LeClare to lay off employees if they
selected the Union to represent them.
Upon examining LeClare's reasons for the layoff that
there had been a fall in the volume of incoming orders
since late December 1976 and they had nothing to work on
and the warehouse was empty, Respondent's own records
refute rather than support these assertions. The sales
records for both February and March show substantial
increases in sales over the previous 4-month period, which
began the new fiscal year excluding the Portage High
School job that was not scheduled to begin until late
summer 1978. Insofar as available work was concerned
Respondent at the time of the layoff had approximately
$200,000 in pending orders excluding the Portage High
School job and its records show there were approximately
32 jobs in progress or scheduled for April which were not
awaiting any needed materials. Moreover, the records
reflect during the period following the layoff substantial
amounts of work were completed and billed. Even assum-
ing a reduction in work existed, Respondent's prior
practice, unlike here, was to assign employees other work
such as maintenance, manufacturing, and inventory rather
than to lay them off.
Based upon the foregoing evidence including Respon-
dent's threat to lay off employees if they selected the Union
to represent them; the timing of the layoff in relation to the
Union's certification as the bargaining representative of
Respondent's employees including the employees laid off;
Respondent's knowledge that several of the laid-off discri-
minatees favored the Union; the absence of any prior
notice or layoffs in over 25 years and Respondent's
emphasis only 3 weeks before the layoff that it had never
had to lay off an employee for lack of work; Respondent's
union animus established through the unlawful threats
herein found; Respondent's departure from its established
practice of retaining rather than laying off employees
during any periods of work reduction which may have
existed; and having rejected Respondent's defenses for
those reasons indicated, I am persuaded and find that
Respondent on April 13 discriminatorily laid off and
refused to reinstate Bales, Belcher, Blakey, Boggs, Burns,
Carlton, Feduccia, Gillette, Jones, Maddox, Morales,
Rohrman, Shaffer, Slater, Tyler, and Hotte because em-
ployees selected the Union to represent them and to
discourage union activities in violation of Section 8(a)3)
and (1) of the Act. Having found the layoffs were for
discriminatory reasons the fact some of the laid-off
discriminatees may not have been members of or active in
the Union or their activities known to Respondent is
immaterial. Northwestern Publishing Company, 144 NLRB
1069, 1073, fn. 14, enfd. 343 F.2d 521 (C.A. 7, 1965); and
Arnoldware Inc., 129 NLRB 228 (1960).
The remaining issue is whether the warnings issued Jones
were for discriminatory reasons under the Act. The
findings, supra, with respect to the warnings issued Jones
establish Jones was issued written warnings after being
absent from work for 3 consecutive days without calling in
and after returning to work late from lunch on eight
1077
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasions in June and July. Not only does the evidence
establish Jones was absent without calling in for 3 consecu-
tive days and was late returning from lunch on eight
occasions which supports those reasons given by Respon-
dent for issuing Jones these warnings but the issuance of
such warnings is consistent with warnings previously given
to other employees for similar offenses. Under these
circumstances which establish Jones was not treated
dissimilar to other employees for the same offenses and
notwithstanding Jones was an active union adherent of
which Respondent had knowledge as well as Respondent's
union animus, and other conduct herein found to be
unlawful, I find, consistent with Personnel Manager Man-
zella's denials, which I credit, that these warnings were not
given to Jones because of his union activities. Accordingly,
I find the Respondent did not violate Section 8(a)(3) and
(1) of the Act by issuing these warnings to Jones, as alleged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, found to constitute unfair labor practices occurring
in connection with the operations of Respondent described
in section I, above, have a close, intimate, and substantial
relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow thereof.
CONCLUSIONS OF LAW
1. Orman O. McKinley Co., Inc., is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. United Steelworkers of America, AFL-CIO-CLC, is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening employees with closing, moving,
renting out, or making the plant into a warehouse if the
Union were voted in; by threatening employees with
discharge for engaging in union activities; by threatening
employees with the loss of such benefits as uniforms, profit
sharing, and Christmas bonuses should they select the
Union to represent them; and by threatening employees
with a layoff should they select the Union to represent
them, Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act and has engaged in
unfair labor practices in violation of Section 8(a)(l) of the
Act.
4. By discriminatorily discharging Harmon Hammond
on January 3, 1977, and thereafter refusing to reinstate him
because of his union activities and by discriminatorily
laying off Jerry Bales, Elisha Belcher, Joe Blakey, Jr.,
Roselyn Boggs, Jefferey Burns, Richard Carlton, Betty
Feduccia, O'Dell Gillette, Raymond Jones, Michael Mad-
dox, David Morales, Cincie Rohrman, James Shaffer,
Derek Slater, Charles Tyler, and Danna Hotte on April 13,
25 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
25 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.
1977, and thereafter refusing to reinstate them because
employees selected the Union to represent them and to
discourage union activities, Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and (1)
of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(aX 1)
and (3) of the Act, I shall recommend that it cease and
desist therefrom and take certain affirmative action to
effectuate the policies of the Act. Accordingly, Respon-
dent, if it has not already done so, shall be ordered to
immediately reinstate Harmon Hammond, Jerry Bales,
Elisha Belcher, Joe Blakey, Jr., Roselyn Boggs, Jefferey
Burns, Richard Carlton, Betty Feduccia, O'Dell Gillette,
Raymond Jones, Michael Maddox, David Morales, Cincie
Rohrman, James Shaffer, Derek Slater, Charles Tyler, and
Danna Hotte to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs, without prejudice to
their seniority and other rights and privileges and to make
each of them whole for any loss of earnings and compensa-
tion they may have suffered as a result of the discrimina-
tion against them in their employment herein found, by
discriminatorily discharging Harmon Hammond on Janu-
ary 3, 1977, and by discriminatorily laying off Jerry Bales,
Elisha Belcher, Joe Blakey, Jr., Roselyn Boggs, Jefferey
Burns, Richard Carlton, Betty Feduccia, O'Dell Gillette,
Raymond Jones, Michael Maddox, David Morales, Cincie
Rohrman, James Shaffer, Derek Slater, Charles Tyler, and
Danna Hotte on April 13, 1977. Backpay shall be comput-
ed on the basis set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), with interest computed in accordance
with the formula set forth in Florida Steel Corporation, 231
NLRB 651 (1977).25
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:
ORDER 2 6
The Respondent, Orman O. McKinley Co., Inc., India-
napolis, Indiana, its officers, agents, successors, and as-
signs, shall:
I. Cease and desist from:
(a) Threatening employees with closing, moving, renting
out, or making the plant into a warehouse if the Union is
voted in.
(b) Threatening employees with discharge for engaging
in union activities.
(c) Threatening employees with the loss of such benefits
as uniforms, profit sharing, and Christmas bonuses should
they select the Union to represent them.
(d) Threatening employees with a layoff should they
select the Union to represent them.
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.
1078
ORMAN O. McKINLEY CO., INC.
(e) Discouraging activities and membership in the United
Steelworkers of America, AFL-CIO-CLC, or any other
labor organization, by laying off, discharging, refusing to
reinstate, or in any other manner discriminating against
employees in regard to hire or tenure of employment or
any term or condition of employment.
(f) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer if it has not already done so immediate and full
reinstatement to Harmon Hammond, Jerry Bales, Elisha
Belcher, Joe Blakey, Jr., Roselyn Boggs, Jefferey Burns,
Richard Carlton, Betty Feduccia, O'Dell Gillette, Ray-
mond Jones, Michael Maddox, David Morales, Cincie
Rohrman, James Shaffer, Derek Slater, Charles Tyler, and
Danna Hotte to their former jobs or, if those jobs no longer
exist, to substantially equivalent jobs without prejudice to
their seniority and other rights and privileges and make
them whole for any loss of pay or other compensation they
may have suffered by reason of the discrimination against
them herein found in the manner set forth in that section of
this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amount of backpay
due under the terms of this Order.
(c) Post at its Indianapolis, Indiana, facility, copies of the
attached notice marked "Appendix." 27 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by the Respondent's
authorized representative, shall be posted by it immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to ensure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaints be,
and they hereby are, dismissed insofar as they allege unfair
labor practices not specifically found herein.
2T In the event that this Order is enforced by a Judgment of the 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 the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with closing,
moving, renting out, or making the plant into a
warehouse if the Union is voted in.
WE WILL NOT threaten our employees with discharge
for engaging in union activities.
WE WILL NOT threaten our employees with loss of
such benefits as uniforms, profit sharing, and Christmas
bonuses should they select the Union to represent
them.
WE WILL NOT threaten our employees with a layoff
should they select the Union to represent them.
WE WILL NOT discharge, lay off, refuse to reinstate,
or otherwise discriminate against our employees be-
cause of their membership in, sympathies for, or
activities on behalf of the United Steelworkers of
America, AFL-CIO-CLC, or any other labor organiza-
tion.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of their
rights to self-organization, to form, join, or assist any
labor organization, to bargain collectively through
representatives of their own choosing, to engage in
concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(aX3) of the
National Labor Relations Act, as amended.
WE WILL offer if we have not already done so
immediate and full reinstatement to Harmon Ham-
mond, Jerry Bales, Elisha Belcher, Joe Blakey, Jr.,
Roselyn Boggs, Jefferey Burns, Richard Carlton, Betty
Feduccia, O'Dell Gillette, Raymond Jones, Michael
Maddox, David Morales, Cincie Rohrman, James
Shaffer, Derek Slater, Charles Tyler, and Danna Hotte
to their former jobs or, if those jobs no longer exist, to
substantially equivalent jobs without prejudice to their
seniority and other rights and privileges and make each
of them whole for any loss of pay or other compensa-
tion they may have suffered by reason of our discrimi-
nation against them, with interest.
ORMAN 0. McKINLEY Co.,
INC.
1079