Rotek, Inc.

National Labor Relations Board - Board Decisions

Dec 7, 1971

194 N.L.R.B. 453 (N.L.R.B. 1971)

ROTEK, INC. 453
Rotek, Incorporated and Billy Fowler. Case
8-CA-5993
December 7, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
February 8, 1971, issued a complaint and notice of hearing
which was duly served on Respondent. Respondent filed its
answer in which it denied all allegations of unfair labor
practices. A hearing on the complaint was held before me at
Akron, Ohio, on May 25 and 26,197 1, at which the General
Counsel and Respondent were represented by their
respective counsel. Both parties have submitted briefs.
Upon the entire record and from my observation of the
witnesses, I make the following:
On August 26, 1971, Trial Examiner George Turitz
issued the attached Decision in this proceeding.
Thereafter, Respondent and the General Counsel
filed exceptions and supporting briefs, and Respon-
dent filed a brief in opposition to the General
Counsel's exceptions.
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 Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions 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 Trial Examiner and hereby orders that
the Respondent, Rotek, Incorporated, Ravenna,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.
i In holding that the General Counsel had not sustained his burden of
proof with respect to certain allegations of violations of Section 8(a)(1) of
the Act, the Trial Examiner relied solely on the fact that the employees
who testified concerning the incidents in question- were "interested
witnesses ." In our view, this factor , standing alone, does not necessarily
require rejection of a witness' testimony . However, we find it unnecessary
to pass on these 8(aXl) allegations, since additional findings of unlawful
interrogation would merely be cumulative and, therefore, would not affect
our remedy herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITz, Trial Examiner: Upon charges filed by
Billy Fowler (Fowler) on August 17 and October 1, 1970,
and January 27 and February 8, 1971, and respectively
served on August 19 and October 1, 1970, and January 28
and February 8, 1971, respectively, upon Rotek, Incorpo-
rated (Respondent and, at times, the Company), the
General Counsel of the National Labor Relations Board
(the Board), through the Regional Director for Region 8, on
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, Rotek, Incorporated, is an Ohio corporation
having its principal office and place of business in
Ravenna, Ohio, where it is engaged in the manufacture,
sale, and distribution of bearings. In the course of its
operations Respondent annually sells and ships from its
plant in Ravenna directly to its customers located outside
the State of Ohio products valued at in excess of $50,000. I
find that Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
National Labor Relations Act, as amended (the Act).
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW) (the
UAW), is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The issues litigated at the hearing were: (a) whether
various supervisors had coerced employees with respect to
self-organization by threats, interrogation, and promises of
benefit; and (b) whether Respondent's discharge of six
employees on August 12, 1970, and of one on August 19, in
connection with a reduction in force, was violative of the
Act because the reduction was not in accordance with usual
policy but was discriminatorily motivated, and/or because
the selection of employees for discharge was discriminato-
ry.
A. Background
Respondent, which was organized in 1962 with about
four employees, was engaged in the manufacture of
bearings for use on excavators, cranes, Army tanks,
turntables, and various other types of heavy equipment and
machinery. It succeeded another company which in 1960
did a gross business of $100,000; Respondent's gross
business in 1970 was $8.7 million. Throughout that period a
substantial part of the necessary work was subcontracted.'
i Weber, Respondent's general manager and president, testified as to
this, "I would guess about half " At least some of the subcontracted work
could not be performed in Respondent's plant. Respondent also had a
plant for the manufacture of bearings at Lorain, Ohio, and one in West
Germany, neither of which is involved in this proceeding.
194 NLRB No. 73
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prior to the events here in question Respondent had
never had a layoff. It had a policy of having projects
planned, "such as painting, fixing up," on which employees
could work during slow periods. At a meeting of all the
employees held in downtown Ravenna on May 25, 1970,2
Weber told the employees that enough work was on hand to
carry Respondent through the fall of 1970.3 He also told the
employees that he did not expect any layoffs, but would cut
hours instead .4 On July 3, 1970, Mitchell, head of the
factory department and plant superintendent, held a
meeting of all the factory employees at which he stated that
the slowdown in the economy would be affecting the
Company and that the employees should therefore save
their money and put it in the bank. He said that
Respondent had never had a layoff, but there was always a
possibility of one; and he also told the employees that a
possible way of handling the expected slowdown was to go
to 40 hours.
B. Discussion of Unionization-Interrogation,
Threats, Promises of Benefit
1. Fowler testified that in May 19705 his foreman,
Welling, summoned him to his office, where, after
commenting that he supposed that Fowler had "heard the
talk that was going around the plant," he said, "We don't
want a union"; that when Fowler replied that a union
would benefit employees, especially as to wages, Welling
said that he had worked in a plant where an attempt was
made to organize a union, and he had been put out on the
street. Fowler also testified that on that same occasion
Welling asked him to submit a list of tools or anything else
he needed to make his job easier. Welling admitted telling
Fowler, as well as other employees, that on another job he
had been put out on the street when an attempt had been
made at organization, but he denied talking to Fowler
against unions or, in fact, saying anything at all to him
about his attitude toward unions. As Fowler was an
interested witness and was not corroborated, I find that the
General Counsel has failed to prove by a preponderance of
the evidence that Welling on this occasion made the
comment about "the talk that was going around" or that he
said, "We don't want a union." In view of this finding, there
is insufficient evidence that Welling's inquiry, made in
2 Several witnesses for the General Counsel testified that the meeting
took place in the middle of July, but since they so testified in response to
the General Counsel's leading questions, I found their testimony as to the
date unconvincing, and it has not been credited. On this point I have
credited the testimony of Weber, who was corroborated by Mitchell,
Respondent's plant superintendent.
3 The General Counsel's witnesses testified that he said the fall of 1971,
but I have credited Mitchell and Foreman Lloyd, who testified that the
year mentioned was 1970
4 Weber, while testifying that he had no recollection of what he had
said, stated that his thinking on the subject indicated to him that if he had
said anything about cutting hours, it would have been a statement of a
possible alternative, and not a promise The testimony that Weber's
statement was that he would cut hours rather than lay employees off was
not otherwise denied, and it is significant that Superintendent Mitchell,
who testified about that meeting, did not touch on this point.
5 Unless otherwise stated all dates hereafter mentioned in this Decision
were in 1970.
6 Welling denied that such a meeting took place at that time, namely, on
the same day as a meeting of his employees with Weber, president of
Respondent. However, he was contradicted not only by General Counsel's
May, about Fowler's need for tools or anything else to
make his job easier was violative of the Act. I shall
recommend dismissal of paragraphs 7(A) and 7(B) of the
complaint.
2. In the last week of June, Foreman Welling held a
meeting in his office which was attended by William Pratt,
Fowler, Rice, Waters, Burt, and White, then a leadman but
later a foreman.6 Rice and Fowler testified that Fowler did
most of the talking; Pratt testified that both he and Fowler
did. All three testified that Fowler said that wages should
be raised and if that could not be accomplished within the
shop, they would have to get help or support "from the
outside." Pratt and Rice also testified that Welling replied
that before a union was brought in Respondent would close
the plant and move to Irondale.7 White testified only that
the meeting was about working conditions and whether the
employees needed tools or had "gripes." I found Rice's
testimony about the meeting, which was corroborated by
Fowler and Pratt, convincing8 and I find that Fowler did
most of the talking, that he threatened to resort to help
"from the outside ," meaning a union, if wages were not
raised, and that Welling replied that if a union was brought
in Respondent would close the plant and move to Irondale.
I further find that Respondent thereby violated Section
8(a)(1) of the Act.
3. At the insistence of Welling's men a meeting with
Weber, Respondent's president and general manager, was
arranged for the same afternoon.9 Fowler testified that
between the two meetings Mitchell came to the assembly
table where he and Pratt were working and, accusing Pratt
of being "an instigator," warned him that he did not want
to hear any more union talk. Pratt testified to a similar
statement to him by Mitchell in the assembly area, but he
did not connect it with Fowler or with the short period
between the two meetings, placing the incident, pursuant to
the General Counsel's leading, "around the first part of
July." Significantly, he did testify that Mitchell had come to
his assembly table between the two meetings, but only to
tell him that the second meeting, the one with Weber, had
been arranged. Pratt testified, 'further, that on other
occasions Mitchell asked him if there was any more talk
about the Union going on, and whether Pratt would back
witnesses, but also by White; and Superintendent Mitchell testified that the
employees' foreman transmitted to him their request for the meeting with
Weber. Welling impressed me unfavorably with respect to credibility.
7 Respondent's Irondale plant, located 62 miles from Ravenna, was in
the process of being prepared since early or middle 1970, but had no
equipment installed prior to November 1970. It was ultimately to
manufacture bearings up to 16 feet in diameter , as compared with a
maximum of 9 feet at Ravenna, but it was also to produce smaller
bearings. At the time of the hearing the Irondale plant had five employees,
the same number as on the day of the reduction in force.
8 On cross-examination Rice agreed with Respondent 's counsel that all
prior witnesses had been at the meeting . Both Rice and counsel were
plainly mistaken ; only two of the five prior witnesses , namely, Fowler and
Waters-had been at the meeting . Waters did not testify about the incident
at all Fowler testified that Welling said that the purpose of the meeting
was to ascertain gripes-"nghts" in the transcript is an obvious error-of
the employees, and that he expressed himself against unions. Fowler was
preoccupied with his own prominence in the discussion , especially with
respect to wages and resort to "help from the outside"; his recollection of
the meeting as a whole was weak
9 At this meeting Fowler again did most of the talking. However, I find,
contrary to Pratt's testimony , that on this occasion Fowler did not threaten
(Continued)
ROTEK, INC. 455
denied substantially all this testimony. I have credited
Mitchell and find that he did not make the various
statements or ask the questions described in this paragraph.
I shall recommend dismissal of paragraphs 6(A) and 6(B) of
the complaint.
4. Hards testified that about June 15, in the assembly
and inspection area, he and Fowler were discussing the
Union, and that Hutchinson, the chief inspector and
foreman, who was beside them, told them that "union" was
a nasty word around there and they should not talk about
it. Fowler testified that about July 6 or shortly thereafter,10
at the inspection table in the assembly area, Hards
commented, to Hutchinson's presence, that he was doing
two men's work, whereupon Fowler said that if the men had
a umon they would put a stop to that and a lot of things. He
further testified that Hutchinson said that "union" was not
a good word around there. Hutchinson denied ever having)
made the comment. I find that the General Counsel has
failed to prove that Hutchinson warned Hards or Fowler
not to talk about the Union, or threatened them with
reprisals. I shall recommend the dismissal of paragraph 8 of
the complaint.
5. About July 1 James Lloyd, foreman of the shipping
department, called a departmental meeting which was
attended by five of his six employees. He commented, ".. .
there is talk going around the shop about organizing the
shop with a union," and he asked the men at the meeting if
they were for or against having a union. John Suzelis
replied, "As long as we are treated good, I have no use for a
union." Lloyd informed the employees that Mitchell had
instructed him to hold the meeting in order to find out
what, if any, complaints they had, and he explained that he
wanted to know how Respondent could make improve-
ments with respect to wages or anything else so that the
employees would have no need for a Limon.
Mitchell held regular monthly meetings of all the factory
employees to hear their complaints, so that the employees
had no reason to read any coercive intent into Mitchell's
action in continuing to hold his meetings in the face of the
manifestation of interest in unionization. However, Lloyd's
meeting was markedly different from Respondent's usual
practice. There had been no practice of holding departmen-
tal meetings in his department. The mere fact that the
institution of such more careful searching out of employee
complaints coincided with their manifestation of interest in
unionization went far to indicate to the employees that
what Respondent was doing was improperly motivated and
was intended to induce the employees not to unionize. Cf.
Raytheon Company, 188 NLRB No. 42, separate opinion by
Chairman Miller, concurring in part:
But when the timing of either [solicitation of grievances
or granting of improvements] is such as to coincide with
the origination of employee union activity, then, absent
affirmative showing of some legitimate business reason
for the timing, it is not unreasonable to draw the
inference of improper motivation and improper inter-
ference with employee freedom of choice.
However, Respondent did not rely on the mere timing to
bung its message home to the employees; Lloyd stated in so
many words that Respondent's purpose was to ascertain
what benefits to grant the employees "so that they wouldn't
need to get a union in." It is true that nothing concrete was
promised. However, that did not detract from the necessary
tendency of the meeting to cause the employees to
anticipate improved conditions of employment which
might make union representation unnecessary. See Reliance
Electric Company, Madison Plant, Mechanical Driver
Division, 191 NLRB No. 1, where the Board stated, ".. .
such cautious language, or even a refusal to commit
Respondent to specific corrective action, does not cancel
the employees' anticipation of improved conditions if the
employees oppose or vote against the unions."
I find that by interrogating the employees concerning
their umon activities, sympathies, and desires, at the same
time soliciting their complaints for the purpose of
ascertaining what improvements in working conditions
could be granted which would induce the employees not to
seek unionization, Respondent violated Section 8(a)(1) of
the Act. Cf. Reliance Electric Company, etc., supra. ii
6. Fowler testified as follows: when he was interviewed
by Dale Pratt, the supervisor on the office job he had
applied for, to which he was transferred on July 6, Pratt
told him that his application looked good and that he
thought he could handle the job. At the same time he
remarked that Fowler had a bad reference from a prior
employer, which he named. Fowler asked Pratt why he
would get a bad reference from that company, whereupon
Pratt asked him whether he had been engaged in union
activities. Fowler said he had been. Pratt denied Fowler's
testimony. In the circumstances described by Fowler,
Pratt's question referred solely to the prior employment and
had no relevance, direct or indirect, express or implied, to
employment with Respondent. I shall recommend dismissal
of paragraph 10 of the complaint.
7. Rice testified that in the middle of July his foreman,
White, asked him while he was at work what he thought
"about the Union," and whether he knew who was behind
all the union talk; further, that he answered that he liked
the union and would vote for it, and that while he knew
who was behind the union talk, he could not tell White.
White, who had been made foreman on July 1, testified that
Rice once asked him if he had ever belonged to a union and
that he had replied that he had on a previous job, but that
otherwise he never spoke to Rice on that subject. More
specifically, he denied asking Rice if he knew who was
behind all the union talk, and denied that Rice told him he
could not tell him. Rice -was an interested witness and was
not corroborated. I find that the General Counsel has failed
to meet the burden of proving by a preponderance of the
evidence that White interrogated Rice as the latter testified.
I shall recommend dismissal of paragraph 1'1 of the
complaint.
8. Arbogast testified that on two occasions in early
August, that is, about August 5, 6, or 7, his foreman on the
contrary to Pratt's testimony, that on this occasion Fowler did not threaten the transfer took place on July 6 and that on that day Hutchinson was on
to resort to "outside help" if wages were not raised. vacation.
m Fowler fixed the occasion as at the time when he had dust been 11 The complaint does not allege the solicitation of grievances or the
transferred from assembly to the office. Respondent's records show that implied promise of benefits as a separate violation.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
night shift, Turner, asked him if he had heard any union
talk, and that he replied no. On cross-examination he
admitted that this was a lie. Turner denied Arbogast's
testimony. Although Arbogast was an interested witness
and was not corroborated, he testified especially convinc-
ingly, and I have credited his testimony. It is true that
Respondent proved no legitimate purpose for, Turner's
questions . It is also true that interrogation about union
activity has a tendency to cause employees to feel
compelled to he to their superiors 12 and thus demean
themselves . However, those facts , standing alone, are not
sufficient to make interrogation unlawful . The record is
devoid of evidence of coercive conduct by Respondent
sufficiently closely connected or related to the interrogation
to make it unlawful. Cf. Lakes Concrete Industries, Inc., et
al., 172 NLRB No. 94. Nor does the record show Turner's
questions to have been part of a systematic interrogation of
employees, or that he questioned Arbogast during the
sensitive, initial stages of an organizing campaign. Distin-
guish Koch Engineering Company, Inc., 155 NLRB 1272,
1273. In view of the foregoing I shall recommend dismissal
of paragraph 12 of the complaint.
C. Union Activity
On Saturday, August 8, after some weeks of discussion of
unionizing among the employees, a UAW representative
came to Hards' house to speak with him, Arbogast, Pratt,
and Fowler. On August 10 Hards went to the UAW office
in Cleveland, where he joined the organization and took
some designation cards, for other employees. That same
afternoon Fowler, Pratt, and Arbogast came to his house
and signed cards. There is no evidence that any solicitation
took place among other employees on August 10, 11, or 12,
or that Respondent or any of its supervisors learned during
that time of the employees' contact with the UAW.
However, as indicated by findings already made, Respon-
dent was aware that employees were actively considering
unionization.
D. The Layoff
On August 12 Respondent completed a large Govern-
ment contract it had been working on for some time. At or
about 1 o'clock that day Respondent discharged 15
employees in the Ravenna manufacturing department, 9
hourly paid and 6 salaried. The selections were made by
Mitchell, the plant superintendent . Included were six of the
seven employees named in the complaint; the seventh,
Foster, who was the secretary of the corporate development
manager, which was, apparently, part of general adminis-
tration, was on vacation, and was not notified of her
discharge until August 19. Respondent cut employment
back in other departments as follows: in engineering from
13 to 9; in field sales from 13 to 9 ; 13 in sales administration
from 9 to 6; and in administration from 14 to 11. Those
selections were made by Weber, the president, with the
assistance of his secretary and Pierfelice, the controller. A
new department , national accounts , was set up with 2
employees, so that the total number of individuals
discharged was 27. They were paid to September 1.
Respondent stopped a research program on a hydraulic
motor on which it had expended $ 160,000 over 2 years, and
it reduced its advertising budget from $ 130,000 to $54,000.
Foreman Lloyd told' Suzelis and another discharged
employee that the layoff was caused by a cutback in
Government orders; Foreman Dale Pratt told Fowler that
he could not give any real explanation; Foreman White
told William Pratt that he, did, not know the reason; Chief
Inspector Hutchinson told Hards that he had had no choice
in the matter and did not know the reason ; Pierfelice told
Foster that Respondent had placed a plan for recession into
effect. Those employees who asked about recall were
strongly advised to seek other employment.
Following August 12 Respondent continued to keep
employees working overtime and to subcontract work.
During the period January through July 1970 the total
amount of overtime worked in the Ravenna manufacturing
department averaged about 3,000 hours per month; the
average was substantially the same with August included.
For the period September 1970 through April 1971 the
average was 2,069 hours per month; with August 1970
included it was 2,561 hours per month. During the period
January through July 1970 subcontracting totaled approxi-
mately $842,000, for an average of about $120,000 per
month ; with August included the average was about
$118,000 . For the period September 1970 through April
1971 the total was approximately $673,000, for an average
of about $84,000 per month; with August included the
average , was about $86,000. The General Counsel did not
establish to what extent, if any, the subcontracted work
could have , or had customarily, been performed in
Respondent's plant.
Weber testified as follows: In 1969 business had been
good , and he had anticipated that by the time the large
Government order would have run out Respondent would
have obtained new orders which would keep it busy.
However, as completion of the contract approached, new
orders fell off, and old orders were being canceled , in some
cases even after shipment. Respondent came to the
conclusion that it was facing an economic recession and
decided that it would have to reduce expenses accordingly.
In the latter part of July the various department heads other
than manufacturing were instructed to prepare plans for
reducing their personnel; and in early August, Mitchell,
head of the Ravenna manufacturing department, was
instructed to prepare plans for reducing his force by 25
percent. On Monday, August 10, Weber called a meeting of
his staff and told them that his recession plan was to be
placed into effect. He tacked on the wall a chart indicating
the individuals whom Mitchell had selected for layoff from
the manufacturing department and, with respect to the
other departments, the individuals whom Weber, assisted
by his secretary and Pierfelice, had selected for layoff; and
he announced that any person so listed as excess could be
taken on by another department and some one else placed
in the excess category.
12 Cf. Bourne Co. v. N L R B, 332 F.2d 47 (C A 2).
13 Two sales offices were closed down entirely
ROTEK, INC. 457
Weber testified that he deliberately kept the pending
layoff quiet and carried it out swiftly in order to avoid
"personality discussions." He said that the reason he did
not resort to assigning employees painting, cleanup, and
similar work to tide them over as in the past was that this
did not appear to be a temporary slowdown, but a long-
term recession. Respondent's business, he said, was
cyclical, and was sharply affected by economic conditions,
and he testified that even when the time would come that
Respondent got new orders, a long time-as much as 18
months-would be needed between a customer's initial
interest and the actual filling of his order because it
involved a large amount of preliminary work, including the
construction and testing of prototypes.
Concluding findings as to the discriminatory
discharges
The decision to reduce the workforce. While the General
Counsel may have abandoned the contention he does not
urge it in his brief-at the hearing he attempted to establish
that Respondent decided on the reduction in force for
discriminatory, rather than business, reasons. Respondent's
testimony that orders were substantially reduced prior to
the layoff and that it completed a large Government
contract on August 12 was uncontradicted. Weber's
testimony that those facts, together with the economics of
the country and of Respondent's business, caused Respon-
dent to conclude that contraction was called for was
corroborated by the uncontradicted evidence that Respon-
dent also reduced its sales force and other parts of its
organization not affected by any effort at unionization. It is
true that the cutback, accompanied by continuation of
overtime, represented a failure to live up to Weber's
statement or promise on May 25 that Respondent would
cut hours before resorting to layoffs. However, the record
does not show that Weber was aware in May that orders
would fall off so sharply, nor does it show any experience in
Respondent's history comparable with the situation it faced
in August 1970. I find that the General Counsel failed to
prove that Respondent decided to reduce its work force in
order to discourage unionization or other collective
activities.
There remains for consideration the question whether
any of the employees named in the complaint were selected
for layoff for discriminatory reasons. Mitchell, head of the
manufacturing department, where 6 of the 7 alleged
discriminatees worked, testified that he selected the 15
employees discharged in his department on the basis of the
comparative "ability, attitude, cooperation," of all his
employees. However, except as to Hards, discussed below,
neither Mitchell nor any other supervisor testified to any
comparative appraisal of any of the discharged or retained
employees.
Rice, an assembler, was hired not long before July 1,
1970.14 He worked first under Welling, later under White.
the Union, which Pratt replied he would do. Mitchell
Bradfield, an assembler who started about July 16, was
hired at a wage 10 cents per hour higher than Rice's, and
White told Rice that Bradfield was worth it. However,
when Rice complained, he was granted a 10-cent increase,
which brought his rate of pay up to Bradfield's. Rice
engaged in some discussion of unions with White, but he
did not sign a union card prior to his discharge. While there
is no direct testimony about Bradfield's qualifications,
Respondent's action in hiring him at a higher wage than
Rice's is some slight indication that it had made a
judgement at that time that he was a promising employee.
Rice's collective or union activity was not outstanding.
Therefore, even assuming that Mitchell did give a modicum
of consideration to length of employment in making
selections for layoff, Rice's seniority over Bradfield's was
not substantial enough to warrant the conclusion that his
selection was discriminatory. I find that the General
Counsel has failed to adduce sufficient evidence proving
that the discharge of Rice was discriminatory.
Suzelis worked for Respondent approximately 16
months. He was in the shipping department under Foreman
Lloyd, and he received at least one wage increase in 1970.
He engaged in no activity connected with unionization
prior to his discharge other than to tell Lloyd at the meeting
already described that "if we were treated right none of us
wanted the union." The record does not show which
employees, if any, in the shipping department or elsewhere
were less useful or desirable than Suzelis . I find that the
General Counsel has failed to prove that the discharge of
Suzelis was discriminatory.
Foster was employed by Respondent for almost 16
months. She was secretary to Bradley Pritts, manager of
corporate development. Almost from the beginning of her
employment Pritts was aware that Foster's husband was an
active union member at Babcock and Wilcox, and that she
herself generally favored unions. Foster was a satisfactory
employee, having received a merit increase in August.15
The recession plan prepared by Mitchell called for one
Kathy Beach to be transferred to work for Pritts and two
other executives. Except for Weber's testimony to the effect
that he, his secretary, and Pierfelice made the selections on
the basis of relative merit, there is no evidence as to the
relative merit, relative seniority, or any other basis of
comparison as between Foster and Beach or any other
employees. I find that the General Counsel has failed to
prove that the selection of Foster for discharge was
discriminatory.
Hards, Arbogast, William Pratt, and Fowler were the four
employees who met with the UAW representative on
August 8 at Hards' house and signed cards on August 10.16
All were discharged on August 12.
Hards, employed 26 months, was the final inspector and
in July, when Hutchinson was on vacation, he assumed the
chief inspector's duties of finally approving bearings for
shipment, assigning work to other inspectors, and ensuring
that they kept themselves busy. When Hutchinson
14 The General Counsel did not establish the date of his employment, and virtually all employees who were retained received them.
but about July 1 Rice told Welling that he could not comment on working 16 Fowler's card was not produced at the hearing. As already noted,
conditions because he had just been hired. there is no evidence that Respondent learned up to August 12 of the
15 Increases were granted by Respondent only on an individual basis , employees' contact with the UAW.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
returned, he complimented Hards, as well as Elder, another
inspector, for having taken good care of inspection during
his absence. Hutchinson testified that Hards was not
industrious, that he had to keep after him constantly to get
his work done, and that he preferred Elder, who was very
competent and could be relied on to carry out instructions.
Elder had been employed about 1 year,17 and Hards had
helped Hutchinson break him in as an inspector. Fowler's
testimony that Hards complained that he was doing two
men's work tends to show that Hutchinson's idea of due
industriousness was different from Hards'. Whether or not
Hutchinson was reasonable in this respect, Fowler's
testimony affords a degree of support for Hutchinson's
claim that he considered Elder more industrious. This
conclusion is not affected by the fact that Elder declined all
opportunities to work Saturday overtime. There is nothing
in the record which indicates that Hutchinson thought that
he would have refused to work on Saturdays if needed.
Only one inspector was required, and up to August 12
Hards was always glad to be the man. Hards did no
organizing at the plant. As to the gatherings at his house on
August 8 and 10 and the signing of the UAW cards, the
evidence indicates that the union representative and the
four employee participants were the only ones who knew.
Notwithstanding that all four found themselves discharged
2 days after they signed the cards, the record does not
contain a basis for the inference that Respondent learned of
the gatherings or the card signing. I find that the General
Counsel has failed to prove that Hard's discharge was
discriminatory.
Arbogast, employed 1 year, was the inspector on the night
shift. His work was satisfactory and he was complimented
by Mitchell. In July Turner, his foreman, overheard
another employee 18 speak to Arbogast in favor of having a
union; and Arbogast testified that in the course of his work
he, himself, spoke to other employees, unnamed, in favor of
having a union. About a week before his discharge Turner
asked him twice whether he had heard any "union talk"
and he answered that he had not. The General Counsel
contends that Elder, the inspector who was retained, had
less seniority than Arbogast. The record, however, does not
show any substantial difference between the two men in
this respect; as already noted, Elder was also employed
about 1 year. Nor is there evidence in the record that
Arbogast was a better employee than Elder. I find that the
General Counsel has failed to prove by a preponderance of
the evidence that Respondent's discharge of Arbogast was
discriminatory.
William Pratt worked for Respondent almost 4-1/2 years.
He was an assembler and was complimented for his
performance by Mitchell, the plant superintendent, and by
Foremen Lloyd, Williams, Turner, Welling, and White, and
from time to time he was granted merit increases.19 When
discharged Pratt protested to Mitchell that Bradfield, an
17 Hards testified that Elder was hired 14 months after he was
is The other employee, David McElroy, was also discharged on August
12, but he was not named in the complaint
is Pratt's testimony as to the above facts was uncontradicted. In 1968,
while he was in Respondent's employ, the municipal court of the county
imposed on Pratt a sentence of 1 to 6 months. After serving 3 weeks Pratt
assembler hired about July 16, had been retained
notwithstanding Pratt's substantial seniority . Mitchell
replied that he felt that with time Bradfield would make a
better assembler.
Pratt testified that he , as well as Fowler , did "most of the
talking" at the meetings with Welling and Weber . However,
except for Fowler's concession that at the Welling meeting
"William Pratt spoke up" also, the other witnesses testified
only to Fowler's outstanding participation at both meet-
ings. As the General Counsel failed to establish that Pratt
was outstanding in the employees' meetings with Welling
and Weber, or that Respondent knew that Pratt had
engaged in union activity or favored unionization, there is
insufficient evidence to establish that Respondent's dis-
charge of Pratt was violative of the Act.
Fowler, employed 7 months, was an assembler until July
6, when he was made production recorder in the scheduling
department, an office job within the manufacturing
department, which he was awarded pursuant to posting.
The new job was of the same grade as assembler but it was
salaried, the pay was somewhat higher, and it was
considered a promotion .20 Hartline, the head of the
scheduling department , told Fowler that he was doing a
"real good job ," and that it seemed that he would do well.
At the time of the layoff Weber instructed the various
department heads that anyone listed as excess could be
picked up, irrespective of department , and another
employee made excess , and Fowler went on and off the list
several times before he was finally listed as excess. As
Fowler had been promoted on July 6 and had gone "on and
off the list" several times when the layoff list was being
prepared , the inference is warranted that in his 7 months of
employment he had impressed Respondent as a desirable
employee, and I so find . Weber's instruction that employees
listed as excess could be picked up and others substituted
plainly placed Fowler in competition with Bradfield for the
assembler job from which Fowler had recently been
transferred.
Fowler was outstanding among the employees in the
meetings with Weber and Welling, and it was he who said
that the employees would resort to a union for help to raise
wages. It was that statement which brought on Respon-
dent's threat, through Welling, to close the plant and move
to Irondale . Respondent contends that it "had no
knowledge of any specific union organizational activity."
However, Respondent was fully aware that the employees
were considering unionization , which Respondent opposed,
and Mitchell took the step of having at least Foreman
Lloyd call a meeting of his employees to ascertain what
improvements could be instituted to persuade the employ-
ees not to unionize, irrespective of the identity of the
Union.
Even where seniority is not formally or explicitly
recognized as a factor for retention of employees , it does
not comport with ordinary business practice for an
was released on probation, conditioned on his receiving psychiatric care
and treatment. The release was procured with Respondent's active
cooperation, and the psychiatric treatment was paid for in part by
Respondent's insurer and in part directly by Respondent. Notwithstanding
this Pratt bore some resentment against Mitchell who he thought could
have obtained his release earlier.
20 In its brief Respondent refers to the transfer as a promotion.
ROTEK, INC.
employer completely to disregard substantial differences in
length of service when compelled to discharge employees
for business reasons. Since Respondent was hostile to
unionization and even took steps to find out what benefits
to grant which would persuade the employees not to
unionize, and it retained Bradfield, a recent employee, in
preference to Fowler, whose 7 months of employment had
resulted in his being considered a desirable employee but
who had been outstanding in the employees' collective
activity, a prima facie case of discriminatory selection was
established. See N.L.R.B. v. American Casting Service, Inc.,
365 F.2d 168 (C.A. 7), enfg. 151 NLRB 172, 177; N.L.R.B.
v. Deena Products Co., 195 F.2d 330, 335 (C.A. 7), enfg. 93
NLRB 549.
Mitchell's bare, general testimony that he had selected
the 15 employees for discharge on the basis of "ability,
attitude, cooperation," even in conjunction with the fact
that Bradfield had been hired at a rate 10 cents per hour
above that of another recent employee, Rice, was not
sufficient to meet this prima facie case. Nor is it met by the
fact that Respondent promoted Fowler, and that it
seriously considered retaining him notwithstanding the
outspokenness he had displayed to Respondent in advocat-
ing unionization. This is not a case where no employee
would have been discharged but for Respondent's desire to
discourage unionization. A reduction in force was decided
on for business reasons, and the only question at issue is
whether Respondent's selection of the dischargee was based
on the fact that Fowler had been prominent and outspoken
in advocating higher wages for all the employees and
unionization. In view of the absence of testimony
explaining why Respondent considered Bradfield superior
to Fowler, I am persuaded by the evidence on the record as
a whole that Respondent selected Fowler for discharge
because he engaged in concerted activities and advocated
unionization. I am also persuaded that Respondent
discharged him in order to discourage membership in any
labor organization. I find that Respondent thereby violated
Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
I find that the activities of Respondent set forth in section
III, above, occurring in connection with its operations
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 of
commerce.
V. THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary that Respondent be ordered to cease and desist
from the unfair labor practices found and from like or
related invasions of the employees' Section 7 rights, and to
take certain affirmative action.
I recommend that Respondent reinstate Billy Fowler to
21 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
459
his former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and that he be
made whole for any loss of earnings suffered by reason of
the discrimination against him. The amount of backpay
shall be a sum of money equal to the amount that he
normally would have earned as wages from the date of the
discrimination against him to the date of his reinstatement
or -offer of reinstatement, less his net earnings during said
period, such backpay to be computed on a quarterly basis
in the manner established by the Board in F. W. Woolworth
Company, 90 NLRB 289, 291-294; and it shall include
interest at the rate of 6 percent per annum, to be computed
in the manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716. Respondent shall preserve and make available
to the Board and its agents for examination and copying all
payroll, production, subcontracting, and other records
necessary for the computation of backpay.
Upon the basis of the foregoing findings of fact and on
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Rotek, Incorporated, is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. `
2. Respondent is, and at all times material has been, an
employer within the meaning of Section 2(2) of the Act.
3. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America (UAW),
is a labor organization within the meaning of Section 2(5) of
the Act.
4. By discriminatorily discharging Billy Fowler, Res-
pondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (3) of the Act.
5. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7 of
the Act, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
6. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
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: 21
ORDER
Respondent, Rotek, Incorporated, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Laying off, discharging, or otherwise discriminating
against employees with respect to hire or tenure of
employment or terms or conditions of employment,
because they engage in concerted activities or in order to
discourage membership in labor organizations.
(b) Threatening to close its plant or to move its business
to a new location if the employees permit themselves to be
Section 102.48 of the Rules and Regulations, automatically become the
findings, conclusions, decision, and Order of the Board, and all objections
thereto shall be deemed waived for all purposes.
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organized by a union or if they designate a union as their
representative for collective bargaining.
(c) Interrogating employees concerning their union
sympathies or desires in such manner, or under such
circumstances, as to constitute a violation of Section 8(a)(1)
of the Act.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the, following affirmative action which, it is
found, will effectuate the policies of the Act:
(a) Offer Billy Fowler immediate and full reinstatement
to his former job, or if that job no longer exists, to a
substantially equivalent position, without prejudice to his
seniority and other rights and privileges.
(b) Make Billy Fowler whole for any loss of earnings
which he may have suffered as a result of the discrimination
against him with interest at 6 percent, in the manner
described in section V of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all
payroll, production, and subcontracting records, and all
other data necessary to analyze and compute the backpay
required by this order.
(d) Notify Billy Fowler, if presently serving in the Armed
Forces of the United States, of his right to full reinstate-
ment 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.
(e) Post in its office and plant at Ravenna, Ohio, copies of
the attached notice marked "Appendix." 22 Copies of the
notice, on forms provided by the Regional Director for
Region 8, shall, after being signed by a representative of
Respondent, be posted immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken to ensure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify said Regional Director for Region 8, in writing,
within 20 days from the date of the receipt of this Decision,
what steps Respondent has taken to comply herewith.23
It is further recommended that the complaint be
dismissed insofar as it alleges unfair labor practices not
specifically found in this Decision.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL offer Billy Fowler immediate and full
reinstatement to his former job, without prejudice to his
seniority and other rights and privileges. If he is in the
Armed Forces, we will notify him of his right to have his
former job back after discharge from the Armed Forces.
WE WILL pay Billy Fowler for any loss of wages he
suffered as a result of the discrimination which it has
been found we practiced against him.
WE WILL NOT lay off or discharge employees or
discriminate against them in any other manner because
of their concerted activities or in order to discourage
membership in any labor organization.
WE WILL NOT threaten to close our plant or move our
operations to another location if our employees decide
to bargain collectively or allow themselves to be
organized by a union.
WE WILL NOT question you about your union
sympathies or desires under such circumstances or in
such a manner as to constitute coercion.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your right
to self-organization, to form, join, or assist any labor
organization, to bargain collectively through represent-
atives of your own choosing, or to engage in any other
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities, except insofar
as these rights might be affected by a contract with a
labor organization, if validly made in accordance with
the National Labor Relations Act, whereby member-
ship in a labor organization is a condition of
employment on or after the 30th day following the date
of the contract or the beginning of such employment,
whichever is later.
ROTEK , INCORPORATED
(Employer)
Dated By
22 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted pursuant to a Judgment of the United States Court of Appeals
enforcing an Order of the National Labor Relations Board "
23 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be mddifiedto read
"Notify said Regional Director for Region 8, in writing , within' 20 days
from the date of this Order, what steps Respondent has taken to comply
herewith."
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions, may be directed to the Board's'Office, 1695
Federal Office Building, 1240 East Ninth Street, Cleveland,
Ohio 44199, Telephone 216-522-3715.