P. R. Mallory Co., Inc.

National Labor Relations Board - Board Decisions

Apr 10, 1969

175 N.L.R.B. 308 (N.L.R.B. 1969)

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
P. R. Mallory Co., Inc. and International Union of
District 50 , United Mine Workers of America.
Cases 25-CA-2719 and 25-CA-2841
April 10, 1969
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On August 6, 1968, Trial Examiner Sidney
Sherman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found
that the Respondent had not engaged in certain
other alleged unfair labor practices and
recommended dismissal of those allegations of the
complaint. Thereafter, the Respondent and General
Counsel filed exceptions to the Trial Examiner's
Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
Act, the National Labor Relations Board has
delegated its powers in connection with these cases
to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent, P.
R. Mallory & Co., Inc., Greencastle and
Crawfordsville, Indiana, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as so modified:
Add the following as paragraph 2(c) of the Trial
Examiner's Recommended Order, and reletter the
following paragraphs accordingly:
(c) 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
accordance 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
SIDNEY SHERMAN, Trial Examiner: The original charges
herein were served upon Respondent on January 30, and
May 28, 1967. The complaint in Case 25-CA-2719 issued
on April 19, 1967, and the complaint in Case 25-CA-2841
issued on June 30, 1967, and on that date both complaints
were consolidated for hearing. The hearing was held on
July 24, through 28, 1967, and on January 18, and May 8,
1968. The issues litigated involved alleged violations of
Section 8(a)(1) and (3) of the Act. After the hearing briefs
were filed by Respondent and the General Counsel.
Upon the entire record,' including my observation of
the witness, I adopt the following findings and
conclusions-
I RESPONDENT'S BUSINESS
P. R. Mallory & Co., Inc., herein called Respondent, is
a corporation under Delaware law, with plants at
Greencastle and Crawfordsville, Indiana, as well as
elsewhere, and is engaged in the manufacture of
capacitators. Respondent annually ships from Indiana to
other States products valued in excess of $50,000. It is
found that Respondent is engaged in commerce within the
meaning of the Act.
IL THE UNION INVOLVED
International Union of District 50, United Mine
Workers of America, hereinafter called the Union, is a
labor organization under the Act'
On March 22, 1968, f issued an order proposing certain corrections of
the transcript of testimony, and on March 30, 1968 , Respondent filed
objections to some of such proposed corrections and a motion proposing
additional corrections Such objections were disposed of at the hearing of
May 8, 1968 (Tr pp 1010-11) Respondent ' s motion of March 30, as
modified at that hearing (Tr pp 1011-12), is hereby granted and ordered
received in evidence as TX Exh I For additional corrections , see pages
1013-1016 of the transcript and my order of July 12, 1968
Pursuant to the order of May 22, 1968, there is hereby received in
evidence G C Exh. l(pp)
Pursuant to the order of June 24 , 1968, there have been received in
evidence the following documents , which have been marked as indicated
below in parentheses
1. Respondent 's petition in Case 25-CA-2719 to revoke subpoena duces
No B-54591 (TX Exh 2)
2 Respondent 's petition in Case 25-CA-2841, to revoke the same
subpoena (TX Exh 3)
3 The order of August 1, 1967, with respect to the foregoing petitions
(TX Exh 4)
4 The General Counsel 's Response of August 4, to the foregoing order
(TX Exh 5)
5 Respondent ' s Response of August 19, to said order (TX Exh 6).
6. The order of August 22 on Respondent's foregoing petitions to revoke
(TX Exh 7)
7 The General Counsel' s Response of August 24, to the order of August
22 (TX Exh 8)
8 The Supplementary Order of September 5, 1967 (TX Exh 9)
9 The General Counsel's petition of July 26, 1967, to revoke subpoena
duces B-54598 (TX Exh 10)
10 The General Counsel 's petition of August 2, 1967, to revoke a
subpoena duces (TX Exh I I )
II The ruling of August 9, 1967, on the foregoing petitions (TX Exh
12)
'Mr Reid P Davis , who entered the initial appearance for the Charging
Party, was succeeded by Mr 0 E Cole
175 NLRB No. 34
P. R. MALLORY, CO., INC. 309
Ill. THE UNFAIR LABOR PRACTICE
The pleadings raise the following issues.
1. Whether Respondent violated Section 8(a)(l) of the
Act by threats, promises of benefits, interrogation, and
solicitation of an employee to engage in surveillance of
Union activities of other employees
2 Whether Respondent violated Section 8(a)(3) and (1)
of the Act by discharging Hubble, Gray, Otis Witty,
Michael, and Chiles.
A. Sequence of Events at Greencastle
In August 1966, the Union began to organize the
Greencastle plant. Otis Witty signed a Union card that
month and shortly thereafter solicited others in the plant
In September, he attended the first Union meeting, and at
a meeting held on October 24 he was elected president of
the local branch of the Union. The next day he was
discharged, allegedly for running excessive scrap.
Michael signed a union card on September 29, 1966,
and attended a union meeting , apparently on the same
date On October 6, he was laid off, allegedly for lack of
work.
Chiles signed a union card on January 19, 1967, and
attended a union meeting on January 23, 1967. On
January 25, he ceased work under circumstances described
below
At Crawfordsville
The union campaign at Crawfordsville began in May
1967 Hubble signed a Union card and on May 19
solicited others at the plant Later that day he was laid
off, allegedly in the interest of economy. Respondent
admittedly had learned, prior to his layoff, of his union
activity.
Gray was hired in 1957, and was hourly paid until
March 1, 1965, when he was designated a foreman and
placed on salary. On May 23, 1967, he was discharged
admittedly for reasons related to his supposed union
activity. In his case, Respondent's defense is that he was a
supervisor and that he was therefore not protected against
discharge for engaging in union activity.
B. Discussion
requested her to keep her "ears open" when she "went out
on the floor . to see what [she] could find out about the
union " There was no evidence of any compliance with
this request.
Requesting an employee to engage in surveillance of the
union activities of other employees violates Section 8(a)(1)
of the Act, whether or not there is compliance with the
request.' However, Respondent would have Cook's request
construed as reflecting a desire to obtain information only
concerning any union activity by employees during
worktime, and Respondent contends that, so construed,
Cook's request was not unlawful The short answer to this
is that Cook's request was in terms broad enough to
embrace anything that Sarah Witty might find out about
the Union while in the production area, including the
names of union adherents, and was not limited to
reporting on any misuse of production time.
Respondent next contends that, since Sarah Witty, as
an office employee, was not within the unit that the Union
was seeking to organize, and since she quit her job about
a month after the foregoing conversation, the Board may
not find that Cook's request coerced any employee in the
exercise of rights guaranteed by the Act. However, there
was no evidence as to the exact scope of the unit which
the Union was seeking to organize nor that Sarah Witty's
job category was not included in that unit nor that she
was not, in fact, solicited to join. Moreover, at this late
date it hardly needs citation of authority that to find a
violation of Section 8(a)(1) there is no need to prove
actual coercion, it being sufficient that the employer's
conduct had a tendency to coerce'
I find that by Cook's foregoing conduct Respondent
violated Section 8(a)(1) of the Act.'
Threats and Interrogation
Cunningham testified that, when he was hired by
Marquis at Crawfordsville in February 1967, the latter
stated with reference to "the union" that "they were
trouble makers, he didn't want them." Under
cross-examination, Cunningham rephrased Marquis'
remark about "the union" as follows.
Something about they were trouble makers and "I
do not have any time for them."
Although Cunningham was not deemed a credible
1. Union animus in general
As related in more detail below, two employee
witnesses (Hubble and Otis Witty) testified without
contradiction, that, when hired by Respondent, a
representative of management made it clear that
Respondent did not want its plants organized by a union,
and Respondent's counsel candidly stated at the hearing
that this was in fact, Respondent's policy. Moreover, a
supervisor (Hartman) admitted at the hearing that he was
instructed by another supervisor to watch out for any
persons passing union cards.
2 Violations of 8(a)(1)
Solicitation
There was no contradiction of the testimony of Sarah
Witty,' an office employee at the Greencastle plant, that
after union literature was passed out at that plant,
apparently in August 1966, Cook, an admitted supervisor,
'She was the daughter-in-law of Otis Witty, one of the alleged
discnminatees , who was the leading proponent of the Union at
G reencastle
'United Fireworks Manufacturing Co, Inc , 118 NLRB 883, 895, Dixie
Shirt Co, Inc, 79 NLRB 127, Edward Fields, Inc v N L R B. 325 F 2d
754 (C A 2), The Bedford-Nugent Corp , 137 NLRB 1030, 1033-34,
Edmont Manufacturing Co, 120 NLRB 525, 526, George Norman Co,
101 NLRB 1127, 1132
'The vice of solicitation of the type here involved is that "the
information sought could have been used by the Respondent for no other
purpose but interference" with employee rights (Dixie Shirt Co , Inc ,
supra) - including discrimination against union adherents , once their
identity was ascertained Thus, Cook's request was tantamont to a
disclosure to Sarah Witty that Respondent was planning reprisals against
union adherents
'In view of this finding, there is no need to resolve the legal and factual
issues concerning a like request by Works Manager Dibble allegedly
addressed in September 1966, to Day, who Respondent contends, and the
record indicates, was a supervisor at the time
A complaint allegation that Dibble, in addition, threatened Day with
reprisals for not reporting on employee union activity was struck at the
hearing, as I did not construe Dibble 's remarks , as reported by Day, as
implying any such threat
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness with respect to another matter,' there was no
contradiction of the foregoing testimony, and I credit it.
However, as it is not clear from the remark that Marquis
was referring to union adherents rather than to unions,
themselves, and, as a statement by an employer that he
has no use for unions because they make trouble would be
privileged free speech, I am not persuaded that by
Marquis' foregoing remark Respondent violated Section
8(a)(1) of the Act
Otis Witty testified that in August 1966, the date after
the first distribution of literature by the Union at
Greencastle, Hartman, a group leader and an admitted
supervisor, remarked to some employees in Witty's
presence that anyone caught talking about the Union in
the plant would be discharged immediately, and that,
when Hartman called upon him to confirm this, the
witness demurred, observing that anyone had a right to
join any organization he pleased.
Hartman denied that there had been any such incident
However, in view of the circumstantiality of Witty's
testimony, as well as demeanor considerations, I credit
him and find that, by the foregoing threat of discharge for
discussing the Union in the plant, Respondent violated
Section 8(a)(l) of the Act.
The complaint alleged that Lawson, an admitted
supervisor, in November 1966, interrogated an employee
about his union activity and threatened him with discharge
if he engaged in such activity The only evidence in
support of this allegation was that of Chiles, discussed
below. For reasons there stated, it is found that this
allegation is without adequate support in the record and it
will be recommended that it be dismissed.
Fringe Benefits
The complaint alleged that certain wage increases and
other employee benefits were promised and granted by
Respondent to its Crawfordsville employees on or about
May 24, 1967, to deter them from engaging in union
activity The record shows that in May 1967, Respondent
distributed at its Crawfordsville plant copies of a
publication entitled "Cappy's Capacitator Topics," which
announced various improvements in fringe benefits, to be
effective May 22, and that about the same time
Respondent distributed at its other three capacitator
plants" similar announcements of improvements in fringe
benefits at those plants. Respondent's personnel director,
Ellis, testified that the net effect of these changes was to
equalize fringe benefits for all four plants He added that
pursuant to a survey made by him early in the summer of
1966, he recommended changes in fringe benefits and that
they be made uniform in all four plants, but that no "real
action" was taken on this recommendation until April
1967.9
'An allegation of the complaint, added by oral amendment at the
hearing, that Marquis on the same occasion interrogated Cunningham was
struck at the hearing, because of Cunningham 's repudiation of his own
testimony concerning such interrogation At the hearing, I also struck
Cunningham 's testimony regarding the "trouble makers" remark, but,
upon reconsideration , I issued an order after the hearing reinstating such
testimony, as it seemed to me, at least arguable, that the General Counsel
had thereby made out a prima facie case The hearing was thereafter
reopened to give Respondent an opportunity to refute Cunningham's
testimony , but it failed to do so, citing the fact that Marquis was no longer
in Respondent ' s employ and residing in Florida.
'At Greencastle, Glasgow, Kentucky , and Huntsville , Alabama
'Earlier he had testified that his "recommendations were made " in April
1967 This apparent inconsistency may be reconciled by inferring that he
meant there to say that his recommendations were acted upon in April
1967
Not only was there no contradiction of Ellis' testimony
that the decision to improve fringe benefits was made in
April, about a mont4i before the inception of union
activity at Crawfordsville, but there was also no
affirmative evidence that the new benefits were, in fact,
announced after the advent of the Union at
Crawfordsville. While the publication in which the new
benefits at Crawfordsville were announced was dated
"May 1967," there was no evidence as to the exact date in
May on which the publication was distributed to the
employees The record does not show that Respondent
was aware of any union activity at Crawfordsville before
Hubble's solicitation, which began on May 18, nor is there
any proof of any prior union activity there. Accordingly,
there is no basis for determining whether the new benefits
were announced before or after the Union campaign at
Crawfordsville began. As the burden of proof on the
timing of the announcement of the new benefits is on the
General Counsel, it must be found, that there is a failure
of proof on that issue.
Nor was there any impeachment of Ellis' testimony
that fringe benefits were revised upward at the same time
at all four plants, including Glasgow, where the Union
had launched an organizing campaign early in 1966,
Greencastle where such a campaign had been initiated in
August 1966, and Huntsville, as to which there was no
evidence of any union activity. It might be urged that the
simultaneous action taken at all four plants was merely
designed to mask Respondent's real purpose, which was to
chill union activity at the Crawfordsville plant. However,
in view of the aforenoted failure of proof that the timing
of the announcement coincided with the launching of the
union campaign at Crawfordsville there seems to be more
reason to find that the real purpose of Respondent's
action was to chill unionism at Greencastle or Glasgow,
where such a campaign had already been started, and that
the extension of benefits to Crawfordsville (and
Huntsville) was merely a "cover" for that purpose.
However, as the matter was not litigated on that theory,
no such finding may now be made."
The Wage Increase
The complaint in the Crawfordsville case (25-CA-2841),
which issued on June 30, 1967, alleged, inter alia, as
already noted, that on or about May 24, 1967,
Respondent promised and granted to its Crawfordsville
employees "pay raises and other fringe benefits" to induce
them to abstain from union activity. The allegation as to
fringe benefits has already been considered The General
Counsel offered no evidence as to pay raises, and it was
only through questioning by the Examiner that testimony
was elicited from Personnel Director Ellis that in July
1967, Respondent granted pay raises at Crawfordsville.
Although it was pointed out to the General Counsel that
the complaint did not appear to cover such raises," he did
not offer to amend the complaint, and, in view of this, as
well as the General Counsel's remarks at this point in the
record, it is not clear that he infact, wished to litigate the
matter of the July pay raise 'r
"In any case , there is no evidence that in May 1967, the Union was still
active at Greencastle or Glasgow
"This was due not only to the discrepancy with regard to the date of the
pay raises but also to the fact that, since the complaint had issued before
such raises were granted , they could not have been contemplated by the
complaint
"His brief makes no reference either to the pay raise or the fringe
benefits.
P. R. MALLORY, CO., INC. 311
In any case, assuming that the issue is properly before
me on the merits, I find no violation here. Ellis testified
that the July raise was granted uniformly and
simultaneously at all four capacitator plants, and that the
purpose thereof was to move Respondent's rates closer to
the level prescribed by the new Federal minimum wage
law, which had been enacted in September 1966, and
which provided for a minimum hourly wage of $1.40 as of
February 1, 1967, and $1 60 as of February 1, 1968."
There was no contradiction of this testimony and there
was, moreover, no evidence that in July 1967, there was
still any union activity at any of the plants affected by the
increase '
Accordingly, I find insufficient proof that the July
increase violated Section 8(a)(1) of the Act.
3. The 8(a)(3) issues
a. Hubble
When he was hired at Crawfordsville on February 6,
Hubble was told by Plant Manager Marquis that the plant
was nonunion, that a union had tried twice to organize the
plant, and that he hoped it would never happen again.
Hubble was initially assigned to the impregnation
room. When, after 2 months, he gave notice of intent to
quit, he was induced by Respondent to remain by the
offer of promotion to a higher paid job's in the stockroom
under Kessee There, Hubble's duties consisted in
receiving and storing supplies, delivering them to
production employees, and maintaining an inventory
thereof. His fellow employees in the stockroom were
Carmichael, Bishop, and Cunningham, of whom only
Carmichael had greater seniority
Bishop was laid off on May 12. About the same time
Cunningham gave notice of intent to quit as of May 19.
On May 17, Bishop was notified to return on May 22, as
a replacement for Cunningham In the morning of the
19th, Cunningham left the plant pursuant to his previously
announced intention to quit.
On May 18, Hubble signed a union card, and the next
morning passed out cards in the plant to other employees.
At the end of the day he was notified that he was being
laid off He has not been recalled.
According to Hubble's uncontradicted testimony, which
I credit, in the morning of the 19th Kessee asked him if
he would work all the next day, a Saturday, explaining
that the stockroom was shorthanded and that it had been
necessary for that reason to recall Bishop.
Dibble, who was manager of all Respondent's
capacitator plants, testified that about 2 p.m., on May 19,
he called Marquis, and told him that due to anticipated
unfavorable business conditions it would be necessary for
him to lay off "another indirect" employee," that
Marquis replied that this posed a problem, since the least
senior employee in the plant was Hubble and he had
learned that morning that Hubble was active on behalf of
the Union, and that he hesitated to lay Hubble off for
that reason; and that Dibble rejoined, in effect, that
Hubble's union activity did not immunize him against an
economic layoff.
"Thus, it was Ellis' position that the July 1967 raise represented part of
the increase that would be mandatory in February 1968
"At Crawfordsville , there was no evidence of any union activity after
May 1967 As to the other plants, see above
"This promotion involved a wage increase of 20 cents an hour Marquis
admitted that Hubble's work was satisfactory
"This term demoted employees not directly engaged in production but in
Marquis testified that he learned early on May 18, that
Hubble had been soliciting another employee to sign a
union card," that on May 19 Dibble instructed him to lay
off "one more man" from the "labor force"" because of
economic conditions; that the witness expressed fear that
there would be "trouble" because his least senior man was
Hubble, who was engaged in passing out union cards, but
Dibble had rejected this as a reason for retaining Hubble.
Marquis added that he demurred to the layoff on the
additional ground that Kessee, who was Hubble's
immediate supervisor, would not relish losing any more
men, but that, even after Kessee and Page were brought
into the conversation, Dibble still insisted on the layoff of
Hubble as the least senior man.
Dibble professed to be unaware of Cunningham's
resignation or that he had quit his job in the
Crawfordsville stockroom a few hours before the
telephone call described above, and that a few days earlier
Bishop, who was junior to Hubble, had been recalled from
layoff and ordered to report for work on May 22 as a
replacement for Cunningham. And, Marquis at first
corroborated Dibble on this point, opining that Dibble
knew nothing about Cunningham' s resignation and
asserting that the witness told him nothing about it.
However, when asked to explain why he did not mention
to Dibble, when he ordered the layoff of one indirect
employee, that one such employee had just quit, Marquis
attempted to retract the foregoing admission , stating that
he "tried" to tell Dibble about Cunningham, and he later
equivocated as to whether he was certain that he did so or
merely thought that he did.
The foregoing conflict between Dibble and Marquis on
a crucial point, as well as Marquis' own equivocation in
that regard, renders their versions of the telephone
conversation suspect. It is difficult to believe that, if, as
Dibble testified, he ordered that the labor force be reduced
by one man, neither Marquis nor Kessee would point out
to him that one member of the labor force had just quit,
thereby obviating the need for any further reduction of the
already depleted stockroom crew. For this reason,
Marquis' final version of the matter - that he did tell
Dibble about Cunningham's departure - seems the more
plausible. But Marquis failed to explain how Dibble came
to insist upon a further reduction of the labor force (by
laying off Hubble), despite his initial request for the
elimination of only one man and despite the concern
shown by Marquis and Kessee over the shortage of
manpower in the stockroom.
Under the circumstances, I am convinced that neither
Dibble nor Marquis gave a completely candid account of
the incident.
In any event, it is clear that Hubble was laid off a few
hours after Marquis' admitted disclosure to Dibble that
Hubble was engaged in union activity. As a result of such
layoff and the cancellation of the scheduled recall of
Bishop, Respondent found itself in a position where one
man (Carmichael) was attempting to do the work which
only a week before had been done by him and three others
(Bishop, Hubble, and Cunningham). This state of affairs
a service operation As already noted , at least one such employee (Bishop)
had already been laid off
"Although Rubble's testimony and an offer of proof on the subject by
the General Counsel refer only to solicitation by Hubble in the evening of
May 18 and the next morning, it is inferred from Marquis' testimony that
Hubble did at least discuss the Union with the other employee in the
morning of the 18th
"Evidently, this had the same connotation as the term "indirect
employee" used by Dibble in his testimony
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
did not continue long; for, shortly after Hubble's layoff
Respondent took the following actions with regard to its
"labor force" at Crawfordsville'"
(1) Keller, who was Hubble's senior, was transferred
from shipping to stockroom work, 2o and a new female
employee was hired to replace Keller."
(2) Smith, who was about to be laid off from his job as
foreman at Respondent's capacitator plant in Glasgow,
Kentucky, was transferred to Crawfordsville and
initially assigned exclusively to shipping.
(3) Howie, another Glasgow foreman who faced layoff,
was transferred to Crawfordsville and, up to the date of
the instant hearing, alternated between shipping and the
stockroom, spending about 40 percent of his time in the
latter operation
(4) Turner, who was to be laid off as a foreman at
Respondent's Indianapolis plant, was transferred to
Crawfordsville, where he, too, alternated between the
stockroom and shipping.
(5) Bullock, an employee in the winding room, was
assigned certain work formerly done by Hubble, on
which she spent I to 2 hours a day.
According to Marquis, the transfer of the, three
foremen - Smith, Howie, and Turner - was effected
pursuant to a telephone call he received, about a week
after Hubble's layoff, from Dibble, who offered him their
services, and Dibble acknowledged that he was responsible
for the foregoing transfers. When asked, in effect, why he
did not recall Hubble instead of transferring one of the
three foremen to Crawfordsville, Dibble answered that
there was not enough work for the foremen at their own
plants (in Glasgow, Kentucky, and Indianapolis), and
Respondent wanted to retain its supervisory force
whenever it could. Dibble was thus in effect saying that
Respondent had a policy of protecting supervisors from
layoff, which transcended the seniority rights of its
nonsupervisory employees, as well as those considerations
of economy which required the layoff of Hubble.
However, when Dibble was next reminded of his prior
testimony that Respondent had never transferred salaried
personnel from one plant to an hourly rated job in
another plant, he conceded that there had been no such
transfer before the three instances under consideration,
and offered only the following explanation:
We never had that [sic] occasion to do that This is a
new plant in Kentucky that had nothing but a hiring
policy up until that summer.
Dibble seems here to be saying that Respondent had
never before had occasion to consider transferring salaried
personnel from the Glasgow, Kentucky, plant to hourly
paid jobs in other plants because until the summer of
1967, that plant had been a new, expanding operation
However, Dibble's prior testimony had not been limited to
the experience at Glasgow but applied to all Respondent's
plants In any case, it is clear that the aforequoted
testimony falls short of explaining why the transfer of the
three foremen to Crawfordsville represented the first
"The ensuing findings are based on a synthesis of the testimony of
Marquis, Carmichael , and Dibble
"Keller ' s specific new assignment was to distribute matenals from the
stockroom to the winding room, work which had formerly been done by
Cunningham and, to a lesser degree, by Hubble
"Marquis explained that Hubble had not been recalled to replace Keller,
because the packing work in the shipping room had been mechanized to a
point where it could be handled by a woman Nevertheless , as related
below in the text , certain male employees were about the same time
assigned to the shipping room
occasion in Respondent's entire historyr2 that it
implemented its alleged policy of "superseniority" for
supervisors by transferring them between plants to hourly
paid work
Under all the circumstances, I do not credit Dibble's
testimony that such transfers were made solely because of
such a policy, and, absent any other explanation for the
apparent indifference manifested by Dibble to his indirect
labor costs only about a week after ordering Hubble's
"layoff," I do not believe that such layoff was for the
purpose of reducing those costs 2'
Upon consideration of all the foregoing matters, it is
concluded that there was no instruction on May 19, by
Dibble to Marquis to lay off an indirect employee as an
economy measure," and that, Hubble was not selected for
layoff because of any such instruction. Rather, under all
the circumstances, including the timing of Hubble's
"layoff" in relation to Respondent's admitted discovery of
his involvement with the Union, the avowed union animus
of Marquis, as well as of Respondent's higher
management, and the implausibility of, and the apparent
conflicts in, the testimony of Respondent's witnesses, it is
found that Hubble was terminated on May 19, because of
his known union activity, and that Respondent thereby
violated Section 8(a)(3) and (1) of the Act
Moreover, even if Hubble were deemed to have been
laid off for a legitimate reason, the fact that, instead of
recalling him, Respondent took the unprecedented action
of assigning work he could have done to salaried
personnel from another plant is persuasive, under all the
circumstances, that the failure to recall him was due to his
union activity
b. Gray
There is no dispute that Gray was discharged for
reasons related to his actual or supposed union activities,
and Respondent's only defense in his case is that he was a
supervisor and that his alleged activities on behalf of the
Union were therefore not protected by the Act. The
General Counsel contends (1) that Gray was not a
supervisor, and (2) that, even if he was a supervisor, his
discharge was unlawful because it was prompted, not by
his own union activity, which was nonexistent, but by his
failure to report on the union activity of others The
General Counsel here relies on the rule of the Talladega
Cotton Case,2$ which held that, while a supervisor may be
discharged for engaging in union activity, he may not be
discharged for refusing to combat, through unfair labor
"The record shows that Respondent had been in existence at least since
1951 (According to Marquis , that was when he came to work for
Respondent)
"Marquis testified that Dibble assured him that the three foremen would
not be charged to Marquis ' account, and Respondent's brief cites this,
inter alia , as justifying the transfer of the three men to Crawfordsville in
the midst of an alleged campaign to reduce overhead there However,
Dibble, himself, did not attempt at the hearing to justify his action on that
ground, and , in any case, such juggling of bookkeeping entries would
reduce any cost-cutting program at Crawfordsville to a fiction
"ln the light of subsequent events, it seems probably that what actually
happened on May 19, was that Marquis called Dibble to apprise him of (1)
Hubble's union activity, (2) the scheduled recall of Bishop as a replacement
for Cunningham , (3) the awkward position in which Respondent would be
placed if it ostensibly laid Hubble off for economic reasons, while recalling
Bishop, who was Hubble's junior, and (4) the need for more men in the
stockroom , and, that it was agreed at that time to terminate Hubble,
ostensibly for economic reasons, and to solve the manpower shortage in
the stockroom, without recalling Bishop, but by resorting to the more
devious means described above.
"N L R B v Talladega Cotton Factory, 213 F.2d 309 (C A 5)
P. R. MALLORY, CO., INC. 313
practices, the union activity of employees
As to (1), above, Gray, together with Wilson,26 directed
the work of seven or eight production employees From
Gray's own testimony, it appears that he effectively
recommended hiring and wage increases, and occasionally
adjusted grievances and granted time off. It is,
accordingly, found that he was at the time of his discharge
a supervisor.
As to the reason for his discharge, Works Manager
Dibble testified that on May 22, he ordered Gray's
discharge, upon being told of reports received by Marquis
that Gray had attended a union meeting. Gray's account
of the circumstance of his discharge was that on May 23,
Plant Superintendent Page notified him that he was being
"laid off" for lack of work and because of his attitude
toward Respondent, and that, when Gray asserted that the
only thing he did wrong was not to tell Page some things
he knew, Page remarked, "Why didn't you come tell me9"
Neither Marquis nor Page testified about the reasons for
Gray's termination.
While admitting that he was told by Hubble as early as
May 12 of his plans to solicit on behalf of the Union,
Gray denied that he was, himself involved in any union
activity.27
The General Counsel contends that Respondent could
not have discharged Gray because of his union activity,
since there was none, and that the true reason for Gray's
discharge is to be inferred from Page's query as to why
Gray had not disclosed to Page what he knew
However, the latter incident alone does not necessarily
refute Respondent's explanation for Gray's termination.
Page did not raise the issue of Gray's failure to report on
employee union activity, but merely commented on Gray's
voluntary statement that this was his only dereliction, and,
while such comment may be deemed to imply a reproach,
it is but equivocal evidence that this was the true reason
for Gray's discharge. It would have been quite natural for
Page to utter such a reproach in response to Gray's
voluntary disclosure, even if the true reason for his
discharge was something entirely different - Gray's own
supposed union activity.
Nor do I deem persuasive the fact that, as Gray
testified, he was apparently observed on May 19 by
Marquis to be going to lunch with Hubble, who by that
time was admittedly known by Marquis to be soliciting
for the Union The force of this testimony is considerably
weakened by Gray's admission that he usually lunched
with Hubble. Moreover, even if, in view of Hubble's
solicitation that morning, Marquis did deem it particular
significant that the two lunched together on the 19th, he
might as well have inferred therefrom that Gray was
sympathetic to, and involved in, the Union's
organizational efforts, as that, as the General Counsel
contends, Gray was not so involved, but merely guilty of
not sharing with Respondent his knowledge of such
efforts.28
Accordingly, after giving due weight to the failure of
Marquis and Page to testify for Respondent on this issue,
I am still not convinced that the evidence preponderates in
favor of a finding that Gray was discharged for not
disclosing to Respondent what he knew about employee
union activity
Finally, even if one were to accept the General
Counsel's theory that the true reason for Gray's discharge
was his silence concerning employee union activity, it is
far from clear that under Board precedents that
circumstance would render Gray's discharge unlawful. As
already noted, it is well settled that a supervisor may not
be discharged for refusing to combat employee union
activity or for refusing otherwise to engage in unfair labor
practices, and, had Respondent asked Gray to engage in
surveillance of union activity, and to report the results of
such surveillance, and discharged him for refusing to do
so, such discharge would have been unlawful. However,
here, there is no evidence of any request that Gray spy
upon, and report, employee union activity, but at the most
only that he was reproached for not reporting to
Respondent information about employee union activity
that he had innocently acquired. For, so far as the record
shows the only such information that Gray had was based
on Hubble's voluntary disclosure on May 12 that he
intended to help the Union organize the Crawfordsville
plant While it might have been a breach of confidence for
Gray to report this voluntary disclosure to higher
management, I am aware of no basis for holding that it
would have been an unfair labor practice.39 It follows that,
even if he were discharged for not making such report,
such discharge would not be attributable to his refusal to
violate the Act.
In view of all the foregoing considerations, I am not
persuaded that Gray's discharge was unlawful, and
dismissal of the pertinent allegation of the complaint will
be recommended.
c. Otis Witty
He was hired at Greencastle in March 1966, and
discharged on October 25, 1966, allegedly for cause. His
job involved performing certain steps in the fabrication of
capacitators It may be appropriate at this point to
explain the entire fabrication process.
The function of the capacitators manufactured by
Respondent was to store electrical energy- Witty worked
on the solid tantalum capacitators, which were divided
into two categories - TAS and TIMS - and the TAS
capacitators are subdivided according to size into five
types, designated "A," "B," "C," "F," and "G." The
tantalum capacitators are made by (1) pressing tantalum
powder into the shape of a slug, which constitutes the
anode, (2) heating or "sintering" the anode in a furnace,
to run the powder together, (3) welding to each anode a
piece of tantalum wire, referred to in the record as a
"lead," "user," or "stem," which, together with the
anode, constitutes the entire capacitator, (4) checking the
"Wilson was Gray's ,junior, and Gray acknowledged that he had more
authority than Wilson (The complaint alleged, and Respondent 's answer
admitted , that Wilson was a supervisor However, at the hearing the
General Counsel withdrew that allegation
"See next footnote
"At the conclusion of Respondent ' s case, Gray was called by the
General Counsel as a rebuttal witness, and denied that he was "active" in
the Union , but asserted that on May 19 he met Union Organizer Davis in
a tavern I reserved ruling on Respondent 's motion to strike such
testimony as improper rebuttal I now deny that motion insofar as it
related to Gray ' s foregoing denial, which was presumably addressed to
Respondent's defense that Gray was discharged for his own union activity
rather than his silence about the activity of others As to the meeting with
Davis, I now strike such testimony , since it does not appear to have any
rebuttal function In any event , such testimony is deemed immaterial, as
there was no evidence that Respondent knew of such meeting, and , even if
such knowledge were inferred , it would merely tend to convince
Respondent that Gray was, himself, involved in union activity
"For authority that a report by one supervisor to another concerning
employee Union activity is not forbidden by the Act, see J W Mays, Inc ,
147 NLRB 942, 948, South Rambler Co. 139 NLRB 1197, 1198
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
voltage of the capacitators, (5) welding them to a series of
parallel rods or stringers, which are set in a frame known
as the "head,""' (6) dipping the heads in a solution of
phosphoric acid and water, and applying voltage to the
heads, (7) dipping the heads in a tray containing a
solution of manganese nitrate," (8) baking the heads in an
oven for 10 minutes, (9) repeating the last two operations
I l times, (10) measuring with calipers the thickness of the
"build up" produced by the foregoing "conversion"
operation (i e , the dipping and baking) to determine that
it is not less than 008, nor more than 025 of an inch,
(II) subjecting the contents of the heads to a "reform"
process, which involved one more dipping and baking
operation like that described above, and (12) testing the
anodes for capacity to store electric energy, and for
leakage 'r If the anodes in a head do not pass these tests,
and the defects are not such as to require scrapping the
anodes, either steps 7 and 8, above are repeated a few
times or the manganese nitrate crust is stripped entirely
from the anodes by immersing them in a nitric acid
solution, and those steps are repeated I I times, as before.
Witty's work consisted of steps 7 and 8 above, which
are described in the record as the "conversion operation "
During his prehire interview Witty was asked by Plant
Superintendent Cox about his union sentiments. Witty
answered that he favored a union where it was needed,
and asked Cox whether he thought a union was needed at
the Greencastle plant , eliciting a negative answer Witty
was assigned initially to work on the TAS capacitators In
August, he signed a union card and soon thereafter
solicited other employees to sign cards on the plant
premises. About this time, as found above, employees at
Greencastle were warned by Supervisor Hartman of
discharge for talking about the Union in the plant Witty
attended several union meetings, the first on September
29, and at a meeting held on October 24, was elected
president of the union organization at the Greencastle
plant.
On October 5, he received his first written reprimand or
"AVO" - for producing an allegedly defective "head""
of TAS anodes. According to Witty, he protested that the
reprimand was unwarranted." In any event, there is no
contradiction of Witty's testimony, which I credit, that
before this incident his work had never been criticized and
that his group leader had, in fact, complimented him for
running less scrap than the other operators. A day or so
after the "AVO" incident he was transferred to the fob of
dipping and baking the TIMS capacitators, which were
much smaller than the "F" and "G" sizes of TAS
capacitators on which Witty had theretofore been
principally employed, and admittedly required greater
visual acuity on the part of the operator.
On October 14, he received a second-AVO for excessive
scrap On October 22, he was handed a third AVO, dated
October 21, which stated that over 50 percent of the heads
he processed had to be reworked and that he had been
warned of discharge if there was any recurrence
"In the case of TIMS, 22 anodes are welded on a single rod, and there
are 30 rods in each head Thus, each head contains 660 capacitators
"in connection with this operation it is important not to let the solution
rise to a point more than one-thirty second of an inch from the top of the
anode
"There are several additional operations which are not relevant to this
discussion.
"For an explanation of this term, see the text , above.
"1 credit the uncontradicted testimony of Steele that in the course of
such protest Witty made a vulgar suggestion as to what Blaugrund could
do with the AVO
As related above, on October 24, Witty was elected
president of the union organization at the Greencastle
plant. Early the next day, he was accosted in the plant,
according to his testimony, by a technician, Huller, who
asked him about the union meeting held the night before,
remarking, "We happen to know you had a union meeting
last night You was elected president Who was
the other officers" Witty refused to answer. About 15
minutes later he was notified of his discharge
Huller denied that there was any such conversation or
that he had reported Witty's election to management in
any case it was not shown that Huller was a supervisor
At the hearing, Blaugrund admitted that some time in
September he learned through Steele that Witty was
active on behalf of the Union Steele testified that he
heard of Witty's union activity from some of the
employees either in mid-October or the "first quarter" of
October As Steele's recollection concerning the date
seemed more exact than Blaugrund's, and since
Blaugrund's information was derived from Steele, I regard
his testimony as more reliable and find that during the
first half of October Steele received information
concerning Witty's union activity, which was
communicated at that time to Blaugrund
However, both Steele and Blaugrund denied that they
knew on October 25, of Witty's election on October 24, as
president of the union organization at Greencastle,JS and
they denied that his discharge was due to his union
activity
Respondent contends that Witty was discharged, inter
alia, for excessive scrap. To document this contention,
Respondent introduced the scrap records of all three
TIMS conversion operators, including Witty, as reported
on October 13, 14, 18, 21, and 24," which records also
contained data concerning the operators' total daily
production. However, if one excludes those production
and scrap figures which pertain to batches on which Witty
collaborated with another operator," these records show
the following with respect to Witty's contribution to total
output and to the total amount of scrap
The report of October 13, shows that he processed 28
percent of the TIMS capacitators and was responsible for
29 percent of all those scrapped, the October 14 report
shows that he processed nearly 23 percent of all such
capacitators and was responsible for 24 percent of the
scrap, the October 18 report shows that he worked on 50
percent of all the capacitators and produced 50 percent of
the scrap, the October 21 report shows that he was
responsible for nearly 57 percent of the total production
and 54 percent of the scrap, and, according to the report
of October 24, he accounted for 53.6 percent of the total
production and only 41 percent of the scrap."
"In view of such denial, and, as there is insufficient basis in the record
for imputing to Respondent any knowledge that Huller may have had of
this matter , I do not rely on the proximity of Witty's discharge to his
election to Union office in reaching my ultimate conclusion regarding the
reason for Witty's discharge
"No records were offered by Respondent as to any of the other 10 or so
days that Witty worked on TIMS. Steele explained that he checked only
the work for those days on which it was reported to him by the conversion
monitor that scrap was running too high
"Steele conceded at the hearing that, in the case of such collaborations,
it was impossible to ascertain which operator was responsible for the scrap
"it does not appear that the above figures would be materially different,
even if one added to Witty's account 50 percent of the production and 50
percent of the scrap with respect to all batches on which he collaborated
with another operator (See preceding footnote ) On this basis, on October
24, for example , he would have had 53 percent of the total production and
49 4 percent of the scrap
P. R. MALLORY , CO., INC. 315
Thus, Respondent's own records, submitted to prove his
excessive output of scrap, show that he did not produce
significantly more than his pro rata share of the scrap and
towards the end, in fact, produced less than such share
The same records establish also that Witty's productivity
improved sharply and that during the last week of his
employment he was putting out more work than the
combined production of both the other operators in his
department, despite the fact that they had had more
experience in working on TIMS capacitators.
Although the foregoing facts must have been apparent
to Witty's supervisors, Blaugrund maintained at the
hearing that the scrap reports showed that Witty had the
worst scrap record of all the operators and that at times
he was "50 percent worse"; and Steele testified that on
October 14, he determined from a review of the scrap
records for the preceding day - Respondent's Exhibit 25
- that 40 percent of the scrap was found in batches
processed exclusively by Witty, and reported this in
writing to Blaugrund." However, as already related,
Respondent's Exhibit 25 shows that only 29 percent of the
scrap reported on October 13 was found in batches
processed exclusively by Witty.00
In addition to Witty's scrap record, there was evidence
that, in deciding to discharge Witty, Blaugrund considered
also the fact that on October 20, an excessive proportion
of Witty's output contained defects which, while not
requiring that the capacitators be scrapped, necessitated
that they be reworked, which fact caused Blaugrund to
issue the AVO of October 21, referred to above, reciting
that over 50 percent of Witty's output had to be
reprocessed and that he was warned of discharge if this
situation recurred. However, there is no evidence that
there was any such recurrence. In fact, Respondent's
records show that on October 21 none of the work
performed solely by Witty had to be reprocessed,
comparing most favorably in this respect with the work of
other operators, and that on October 24, of 14 batches
handled exclusively by Witty, only 4 had to be reworked
There was no testimony that Blaugrund considered this
ratio to be so great as to constitute a "recurrence" of the
October 20 incident, and, in fact, Blaugrund vacillated as
to whether, before discharging Witty, he even saw the
report of work reprocessed on October 24.41
Moreover, elsewhere, in testifying about the sequence of
events on October 25, Blaugrund made no specific
reference to Witty's production on October 24 of items
requiring reprocessing, 42 but testified only that in the
morning of October 25, Steele adverted to Witty's
unsatisfactory work record, with specific reference to his
excessive scrap, citing the "scrap reports" for October 21
and 24, and that it was thereupon decided to discharge
Witty. However, Respondent's scrap reports contained no
data on work reprocessed but only on production and
scrap, and, as already noted, such reports for October 21
"This report was introduced in evidence According to this report and
the testimony of Steele, all three TIMS operators were warned at this time
about the need for reducing their scrap rate
"When it was pointed out to Steele that, even on the basis of his
erroneous 40 percent figure, and assuming that Witty was responsible for
one-third of the day's production, his scrap ratio was higher by only 7
percentage points than it would be on a pro rata basis , Steele's answer
implied that he deemed the 40 percent figure excessive , in view of the fact
that Witty might have been at least partly responsible for the scrap in
those batches which he processed jointly with another operator However,
Resp Exh 25, shows no such "joint" batches
"This data was not contained in the same document as the scrap reports
referred to above but only in so-called Monitor's Reports
and 24, showed that Witty was by far the outstanding
producer in his department, and that his scrap rate
compared favorably with that of the other operators
As for Steele's testimony concerning the events of
October 25, he related that about 8 a.m. a conversion
monitor called to his attention some batches of
capacitators that had been processed by Witty and
rejected; that this impelled the witness to consult
Blaugrund, to whom he showed the rejected batches, and
with whom he reviewed the records pertaining to Witty's
past performance, and that, after Witty was summoned,
Blaugrund told him he was being discharged because he
was running an intolerable amount of scrap, was showing
no improvement, and had displayed a very poor attitude 43
Witty's version was that he was told he was being
discharged for running too much scrap.
Thus, so far as appears from the testimony of
Blaugrund and Witty, no specific reference was made to
the amount of work done by Witty on October 24, or at
any other time that required reprocessing, the only aspect
of his job performance pinpointed by such testimony being
his scrap record, and, it is not clear from Steele's
testimony whether the "rejected" lots referred to by him
involved scrap or reprocessing It is clear, in any event,
from the testimony of all three that a major, if not the
only, consideration was Witty's scrap record. However, as
already shown, Respondent's own records belie the
testimony of Blaugrund that Witty's scrap rate was worse
than that of his fellow operators, and, if his discharge was
deemed warranted for that reason it would seem that
similar action would have been taken against the other
two operators. Yet, although all three operators were
warned on October 13 that their scrap rate was too high,44
Witty alone was discharged,4$ notwithstanding that he was
the only one of the three whose scrap rate, according to
the records submitted at the hearing, showed any
improvement, and notwithstanding that by October 25,
according to those records, the volume of his output far
outstripped that of the others.
The foregoing circumstances point to a pretextual
discharge Moreover, even if one were to assume that
management honestly believed that Witty's scrap rate, in
conjunction with his "reprocessing" rate, warranted his
removal from the TIMS conversion operation, there
would still remain the question why he was not transferred
back to the TAS operation, which he admittedly had
handled acceptably for a 7-month period. The TIMS
anodes were a good deal smaller than the "F" and "G"
sizes of TAS anodes on which Witty had previously
worked,45 and in a precision operation such as was here
involved, it would seem to have been reasonable to
attribute to this difference in size any difficulty that Witty
may have had with TIMS.47
"Blaugrund testified that on the 25th he showed Witty "the various
scrap reports , and Conversion Monitors' Reports," but Blaugrund did not
further identify the latter reports
"According to Steele, after the discharge interview, he was shown three
more defective batches of capacitators which Witty had worked on that
morning However, it is clear that this was not a factor in the discharge,
which had already been effected
"See in 39 above
"The two other operators are identified in the record only by their
initials as "D W " and "D S " (Resp Exhs 29 and 30 indicate that "D
W's" first name was David ) General Counsel ' s Exhibit 9, which contains
data as to all terminations at Greencastle from July 1966 to July 1967,
shows that no employees with those initials were discharged during that
period
"See Resp Exh. 7
"Note that , as related below , Respondent refused to transfer Michael
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Blaugrund acknowledged that, on the whole, Witty had
done a good job on the TAS capacitators, but, when
asked whether he had considered retaining Witty on the
basis of seniority instead of one of the TAS operators,
Blaugrund answered only, "I didn't think it was really
necessary to put him on any job after the work he had
shown " Steele acknowledged that Witty was senior to a
TAS operator on the second shift; and, while not
disputing that his performance on TAS was good, Steele
explained that he did not put Witty back on TAS because
of his past record and "attitude" - namely, his reaction
to the first AVO -ie and because he did not believe Witty
was capable of doing the job.
Thus, it appears that Witty admittedly had more
seniority than one of the TAS operators on the second
shift, and the only reason assigned by Blaugrund for not
permitting Witty to "bump" the junior operator, in
accordance with Respondent's seniority policy, was that
he did not deem Witty entitled to consideration for any
other job because of "the work he had shown." However,
if, as Blaugrund admitted, Witty had on the whole done a
good job on the TAS operation, it is not clear why his
alleged inadequacy on TIMS should preclude him from
being put back on TAS. In the case of Michael, which is
next discussed, his demonstrated ineptness on one
operationd9 did not preclude him from being transferred to
the TAS operation, with which he was totally unfamiliar.
Nor is there any more apparent substance to Steele's
explanation that Witty was not transferred back to TAS
because of his defiant reaction to the first AVO and
because Steele did not believe that Witty "was capable,
and didn't want to do the job." The latter reason is belied
by Steele's own admission, as well as Blaugrund's, that
Witty did an acceptable job on TAS. As to Witty's
reaction to the AVO of October 5, this was not cited by
Blaugrund as a reason for refusing to retain Witty as a
TAS operator, and it is clear that at the time of that
incident Respondent did not regard it as sufficient ground,
in itself, to discharge him; for, he was retained until
October 25, notwithstanding that incident.
Thus, Steele's position was essentially that Witty was
not retained as a TAS operator because of an incident on
October 5 that was overlooked at the time and because of
Steele's unexplained belief that Witty did not have the
ability or desire to do a job, which he had admittedly
performed competently until his transfer to TIMS.
The foregoing deficiencies in the explanations offered
for the failure to retain Witty as a TAS operator,
pursuant to Respondent's avowed seniority policy,
considered in conjunction with Respondent's misplaced
reliance on his scrap record, the timing of his discharge in
relation to the date that Respondent admittedly learned of
his union activity,'" and Respondent's conceded union
animus, all combine to convince one that Witty was
discharged because of such activity and not for the
reasons assigned by Respondent. I find, therefore, that by
discharging Witty on October 25, Respondent violated
Section 8(a)(3) and (1) of the Act "
from TAS to TIMS because of the greater visual acuity required in the
TIMS conversion operation
"See fn 34, above
"He was involved in two incidents, which caused Respondent to lose a
total of about $6,000 in damages to a furnace as well as 7 days production
from that furnace Resp Exhs I1 and 13
"As found above, Steele and Blaugrund learned only a few weeks before
Witty ' s discharge that he was an active union adherent
"Respondent contends that Witty's entire testimony should be stricken
because of the General Counsel ' s failure at the hearing to produce an
d Jesse Michael
He was hired at Greencastle in May 1966. He signed a
union card on September 29, 1966, and on the same date"
attended a union meeting, where he received two Union
cards, which he later gave to a "friend." On October 6, he
was told by Steele and Blaugrund that he was being laid
off for lack of work, and his request that he be assigned
to other work was rejected on the ground that there was
no other work available that he was qualified to do On
November 25, 1967, Respondent mailed him an offer of a
job as a factory serviceman, but the letter was returned
undelivered.
Michael's first assignment was in the sintering
department, where he was responsible for damage to a
furnace, which necessitated a 3-day shutdown " He was
thereafter, in August, transferred to the TAS conversion
operation, where he worked on the larger sizes of TAS
capacitators ("F" and "G") He had no vision in one eye,
and, according to company records, had 20/30 vision in
the other.
General Foreman Blaugrund testified that Michael was
laid off because of the decline in orders for the "F" and
"G" TAS capacitators and a change in method of
operation, which permitted a reduction in the complement
of TAS operators, and that such reduction was
accomplished by laying Michael off (and, as already
noted, transferring Witty to the TIMS conversion
process) Blaugrund explained that because of Michael's
limited vision it did not seem feasible to transfer him to
any other work, an assignment to the TIMS conversion
operation being out of the question because of the small
size of the TIMS capacitators and the importance of
visual acuity. When asked about a job performed by a
"reform operator," Blaugrund explained that he did not
think that Michael was capable of grasping the technical
aspects of that work As to a job on the assembly line,
Blaugrund said he did not consider that because only
women had theretofore done that work," and it also
required good vision
alleged, handwritten , pretrial statement by Witty (in addition to the two
typed affidavits actually produced at the hearing ) As to such alleged
statement , I find as follows on the basis of the testimony of Witty, Board
Agent Duffy, and Kenney , the General Counsel's representative at the
hearing
That the General Counsel had no such statement in his possession at the
time of the hearing, that Witty's initial testimony , disputed by Duffy, and
retracted by Witty, that at their first meeting Witty approved a
handwritten statement prepared by Duffy was mistaken and that the only
statement then prepared was the typed affidavit produced at the hearing;
and that at their second meeting Duffy did make some handwritten notes
concerning Witty' s postdischarge employment (a matter not in issue and
not mentioned in Witty's testimony), which were not retained by Duffy
In view of these findings , I adhere to my denial at the hearing of
Respondent's motion to strike Witty' s testimony In any event , even if
Witty's entire testimony were stricken , it would not affect the result, since
I would find his discharge discriminatory on the basis of the other evidence
in the record
"While Michael testified that the date of the meeting was October 2 or
3, the record shows that the only union meeting before Michael 's layoff
was held on September 29 Accordingly, I find that to be the correct date
of the meeting he attended
"Respondent's records show that such damage necessitated repairs
costing $3,000 In addition , such records show that about a week later
Michael was involved in an incident which again caused damage to a
furnace in the amount of $3,000, and required a 4-day shutdown
"it appears from the record that it was Respondent 's practice to reserve
certain assembly line operations exclusively to women, because men did
not take to work of that type.
P. R. MALLORY, CO., INC.
Steele testified that Michael's layoff was due to a
decline in orders for the "F" and "G" size TAS
capacitators, and that, although several, junior employees
were retained, Michael did not have the technical ability
or visual acuity to fill any of their jobs
Steel denied that he was aware of Michael's union
activity," and there was no direct evidence to the
contrary. As to circumstantial evidence, it is apparent
from the cases of Hubble and Gray that Respondent had
an effective "grapevine" at Crawfordsville, which was
attuned to employee union activity However, the
Greencastle plant, where Michael worked, had about 8 to
10 times as many employees as Crawfordsville,56 and,
while Witty's activities at Greencastle admittedly came to
Respondent's attention, they were more extensive than
Michael's. Moreover, the fact that Steele candidly
acknowledged that he was aware of the union activities of
Witty lends credence to his denial of any like knowledge
in the case of Michael. Finally, the General Counsel
adduced no evidence to rebut the economic reasons
assigned for Michael's layoff or the testimony that his
limited vision and comprehension of technical matters, as
demonstrated by the incidents in the sintering room,
precluded his being considered for other, available jobs.
Accordingly, I do not deem the evidence to preponderate
in favor of a finding that Michael was laid off for
discriminatory reasons, and will recommend dismissal of
the pertinent allegation of the complaint.
e. Chiles
Chiles was hired at Greencastle in July 1966. He
testified that in November 1966, his supervisor, Lawson,
told him that he had heard from higher management that
Chiles was active on behalf of the Union, eliciting from
Chiles an emphatic denial, and that Lawson commented,
"Well, that's a good way to get let out of this plant.. .
There's been two or three discharged over this"; that later
the same day Maintenance Superintendent Buchanan told
Chiles he had received a "bad report" about the foregoing
incident, and inquired what had happened between him
and Lawson; that, after he related his version to Buchanan
and Plant Superintendent Cox, Lawson was summoned
for a confrontation with Chiles, and gave the lie to Chiles;
that Cox then assured Chiles that nobody had been
discharged for union activity, that Lawson had not been
told to question Chiles about the Union, and that, if the
employees wanted to organize the plant, Cox would have
to go along with it.
Lawson testified that on several occasions in August
and September 1966, he reprimanded Chiles for
absenteeism, pointing out that there was no available
replacement for Chiles and that his absences hampered the
operations of Lawson's crew; that the witness reported
this matter to Buchanan and Cox, that before November
1966, he had on more than one occasion observed signs
that Chiles had been drinking, and admonished him not to
drink before coming to work, that on November 6, a
Saturday, about 1 30 a.m., he observed that Chiles showed
signs of unsteadiness on the job and that there was an
odor of alcohol about him; that Chiles admitted that he
had had a drink before coming to work; that the witness
warned Chiles that his absenteeism and drinking habits
were endangering his job; that Chiles then brought up the
"The question was not put to Blaugrund
"There were 400 to 600 employees at Greencastle , as against 50 to 60 at
Crawfordsville
317
subject of the Union, disavowing any interest therein, and
remarking that Michael had lost his job shortly after
going to a union meeting; that the witness assured Chiles
that Michael was not laid off for union activity; and that,
because of Chiles' physical condition, he was excused by
the witness from any further work that morning. The
witness denied that he at any time made any of the
remarks ascribed to him by Chiles. Lawson added that the
next workday (Monday) he reported to Buchanan that he
had sent Chiles home because of his condition; that the
following day he had the confrontation with Chiles
described above, and denied that he had threatened Chiles
with discharge for Union activity; and that Chiles then
remarked, "Well, maybe it didn't quite happen that way.
No, I don't think so." The witness denied that he had any
knowledge of Chiles' union activity.
Maintenance Superintendent Buchanan testified that on
November 8, Lawson reported that Chiles had been
excused from work because of his physical condition, that
the next day the witness discussed the matter with Chiles,
who charged that Lawson had interrogated him about his
union activities; and that Lawson denied that he had done
so or that he had referred to the fact that men had been
laid off.
Chiles' aforedescribed testimony concerning his
conversation with Lawson in November 1966, forms the
basis of an allegation in the complaint of unlawful
interrogation and threat of reprisal by Lawson. As he
impressed me as more sincere and candid than Chiles, I
credit Lawson's version of the incident, and find no
violation of the Act therein
On January 19, 1967, Chiles signed a union card and
on January 23, attended a union meeting. The next day,
Chiles reported sick, and on January 2557 came to work a
few hours late. Chiles testified that Buchanan greeted him
with a reprimand for missing the previous day and
reporting late that morning; that the witness explained
that he had been held up by the icy condition of the roads,
that the conversation was interrupted by a toolroom
employee, who told Buchanan that, if conditions should be
as bad the next morning as they were that morning, he
would not come to work, that Buchanan merely remarked,
"All right," but at the same time, insisted to Chiles that
the condition of the roads did not excuse his tardiness,
that Buchanan declared that Respondent could not
tolerate Chiles' absenteeism and asked for his resignation,
that the witness answered, "Well, if that's the way it is, I
guess that's the way it is", and that Buchanan instructed
him to pick up his timecard. Chiles denied at the hearing
that he quit. In any case, it is clear from his version that
any resignation by him was involuntary
Buchanan's version was that on the 25th Chiles came to
work at 9:30 a.m.; that the witness warned him of
discharge, if he did not improve his attendance; that
Chiles promptly announced that he was quitting and left
the plant; that the witness did not ask Chiles to quit, and
would have permitted him to remain at work; and that the
witness knew nothing of Chiles' union activity.
As to the events of January 25, on the basis of
demeanor I credit Buchanan's explanation, and find that
Chiles voluntarily quit, because of his resentment of
Buchanan's reprimand."
"The General Counsel contends that the correct date of this incident was
January 27, and that the fact that Buchanan gave the date as January 25,
impairs his credibility However, Chiles, himself, gave the date as the 25th
"In any event , there is no evidence that Respondent was aware that
Chiles had signed a union card or attended a union meeting Accordingly,
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, it will be recommended that all allegations
of the complaint as to Chiles be dismissed.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of the
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V THE REMEDY
It having been found that the Respondent violated
Section 8(a)(1) and (3) of the Act, it will be recommended
that it be ordered to cease and desist therefrom and take
certain affirmative action designed to effectuate the
policies of the Act.
It having been found that the Respondent
discriminatorily terminated the employment of Otis Witty
and Vorris Hubble, it will be recommended that
Respondent be required to offer the foregoing employees
immediate reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges.
It will also be recommended that Respondent be
required to reimburse the foregoing employees for any
loss of pay they may have suffered by reason of the
Respondent's discrimination against them, by paying to
them a sum of money equal to the amount they would
normally have earned as wages from the date of their
termination to the date of Respondent's offer of
reinstatement, less their net earnings during that period
Backpay shall be computed on the basis of calendar
quarters, in accordance with the method prescribed in F
W Woolworth Co , 90 NLRB 289, and interest at the
rate of 6 percent per annum shall be added to net
backpay, in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716.
In view of the nature of the violations found herein,
particularly the discriminatory terminations, a potential
threat of future violations exists which warrants a broad
cease-and-desist provision.
Conclusions of Law
1. By soliciting an employee to engage in surveillance of
the union activities of other employees and by threatening
employees with discharge for Union activity, Respondent
has interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7 of the
Act, and has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
2. By terminating Otis Witty and Vorris Hubble for
union activity, Respondent has violated Section 8(a)(3)
and (1) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing
findings of fact and conclusions of law, it is recommended
that Respondent, P. R Mallory & Co., Inc., Greencastle
even if one were to find that Chiles was discharged , an essential ingredient
for a finding of discrimination would be lacking
and Crawfordsville, Indiana, its officers, agents,
successors, and assigns, shall be required to:
1. Cease and desist from.
(a) Discouraging membership in International Union of
District 50, United Mine Workers of America, or in any
other labor organization, by discriminating against
employees in regard to their hire or tenure of employment
or any term or condition of employment
(b) Soliciting its employees to engage in surveillance of
the union activities of other employees and threatening
discharge for engaging in union activity
(c) In any other manner, interfering with, restraining,
or coercing its employees in the exercise of their right to
self-organization, to form, join, or assist the above-named
Union, or any other labor 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 or all such activities, except to the
extent that such right is affected by the provisos in
Section 8(a)(3) of the Act.
2. Take the following affirmative action, which is
deemed necessary to effectuate the policies of the Act:
(a) Offer to Otis Witty and Vorris Hubble immediate
and full reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or
other rights and privileges, in the manner prescribed in the
section of the Trial Examiner's Decision entitled "The
Remedy."
(b) Make whole the said employees, in the manner set
forth in the section of said Decision entitled "The
Remedy," for any loss of pay they may have suffered by
reason of Respondent's discrimination against them.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination or copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amounts of backpay due
under the terms of this Order.
(d) Post at its plants in Crawfordsville and Greencastle,
Indiana, copies of the attached notice marked
"Appendix."" Copies of said notice, on forms to be
provided by the Regional Director for Region 25, shall,
after being duly signed by the Respondent's representative,
be posted by the Respondent immediately upon receipt
thereof, and maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
insure that such notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith.'"
IT IS FURTHER ORDERED that all allegations of the
complaint as to which no violation has been found are
hereby dismissed.
"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
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
P. R. MALLORY, CO., INC. 319
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discourage membership in
International Union of District 50, United Mine
Workers of America, or in any other labor
organization , by discriminating against them in regard
to their hire or tenure of employment or any term or
condition of employment.
WE WILL NOT ask our employees to engage in
surveillance of the union activities of other employees.
WE WILL NOT threaten that employees will be
discharged for engaging in union activity.
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
International Union of Distnct 50, United Mine
Workers of America, or any other labor 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
or all such activities , except to the extent that such
right may be affected by the provisos in Section 8(a)(3)
of the Act.
WE WILL offer Otis Witty and Vorris Hubble
immediate and full reinstatement to their former or
substantially equivalent positions , and make them
whole for any loss of pay suffered by reason of the
discrimination against them.
All our employees are free to become, remain, or
refrain from becoming or remaining , members of
International Union of District 50, United Mine Workers
of America, or any other labor organization.
Dated By
P R. MALLORY & CO,
INC
(Employer)
(Representative) (Title)
Note: WE WILL 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 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, 614 ISTA
Center, 150 West Market Street, Indianapolis , Indiana
46204, Telephone 633-8921.