Sheffer Corp.

National Labor Relations Board - Board Decisions

Apr 20, 1966

158 N.L.R.B. 148 (N.L.R.B. 1966)

148 DECISIONS OE NATIONAL LABOR RELATIONS BOARD
4. Employees classified as operating engineers, currently repre-
sented by Local 375, International Union of Operating Engineers,
AFL-CIO, are entitled to the work of: (a) operating heavy equip-
ment at the McQueen Booster Pump Station; and (b) operating heavy
equipment within the Butte concentrator department.
5. Employees classified as miners, currently represented by Butte
Miners Local 1, International Union of Mine, Mill, and Smelter Work-
ers, Independent, are entitled to the work of operating the shuttle
belts above the coarse ore bins at Butte, Montana.
6. Employees classified as electricians, currently represented by the
International Brotherhood of Electrical Workers, AFL-CIO, are
entitled to the work of: (a) driving electrical trucks serving elec-
tricians in the Butte concentrator department; and (b) performing
routine maintenance tasks incidental to assigned repair work in the
Ramsey Pumping Station.
7. No employee group is entitled exclusively to perform the work of
operating overhead cranes in the concentrator building. Instead,
craftsmen are entitled to perform these disputed tasks when they are
merely incidental to assigned repair work. Similarly, machinists are
not precluded from working with their steelworker helpers in per-
forming rigging work which involves the use of overhead cranes.
8. United Steelworkers of America, AFL-CIO, is not entitled by
means proscribed by Section 8(b) (4) (D) of the Act, to force or
require the Employer to assign the above work to employees who are
represented by United Steelworkers of America, AFL-CIO.
9. Within 10 days from the date of this Decision and Determination
above, United Steelworkers of America, AFL-CIO, shall notify the
Regional Director for Region 19, in writing, whether it will refrain
from forcing or requiring the Employer, by means proscribed by
Section 8 (b) (4) (D) of the Act, to assign the work in dispute to steel-
workers rather than ironworkers, machinists, electricians, teamsters,
operating engineers, and miners.
Sheffer Corporation and District Lodge No. 34 of the Interna-
tional Association of Machinists , AFL-CIO. Case No. 9-CA-
3602. April 20,1966.
DECISION AND ORDER
On Decwxnber 10, 1965, Trial Examiner Thomas A. Ricci issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
158 NLRB NO. 27.
SHEFFER CORPORATION 149
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds than no prejudicial error was committed.'
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in the case, including the
exceptions and briefs, and hereby adopts the Trial Examiner's find-
ings, conclusions, and recommendations?
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Add the following at the end of paragraph 1(b) of the Recom-
mended Order, and at the end of the third paragraph of the notice :
[", except to the extent that such right may be affected by an agree-
ment conforming to the provisions of Section 8 (a) (3) of the National
Labor Relations Act, as amended, requiring membership in a labor
organization as a condition of employment."
[2. Add the following as paragraph 2(b), the present paragraph
2(b) and those subsequent thereto being consecutively relettered :
P (b) Notify any of the above-named employees presently serving
in the Armed Forces of the United States of their right to full rein-
statement 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."]
i We find without merit the Respondent 's allegations of bias and prejudice on the part
of the Trial Examiner, at the hearing and in his Decision , because he resolved important
factual conflicts arising in this proceeding in favor of the General Counsel and his wit-
nesses. The Supreme Court has stated that even "total rejection of an opposed view
cannot of itself impugn the integrity or competence of a trier of facts." N .L.R.B. v.
Pittsburgh S.S. Company, 337 U.S. 656 . Moreover, we have fully considered the entire
record and the Trial Examiner 's Decision and have independently reviewed the Trial
Examiner 's credibility findings. We perceive no evidence of bias or prejudice on the
Trial Examiner 's part, nor do we find any basis for disturbing his credibility findings.
See Peter Kiewit Sons ' Co., 136 NLRB 119, footnote 1.
9 The Respondent excepted to the Trial Examiner ' s statement that, in consequence of
the facts proved by the General Counsel in support of the essential 8(a)(3) allegation
of the complaint , the burden then fell on the Respondent to prove that its discharge of
the discriminatees herein was for economic reasons . We agree with the Respondent
that the ultimate burden of proving the allegations of the complaint at all times remained
with the General Counsel . However, we find that the statement was merely inadvertent,
and that the Trial Examiner thereby simply intended to indicate that the Respondent
had the burden of going forward with the evidence in support of its position ; not that
the ultimate burden of proof had shifted to the Respondent . Moreover , we are satisfied
that the General Counsel has proved by a preponderance of the evidence the violations
found herein ; therefore , we shall overrule Respondent 's exception.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing in the above-entitled proceeding was held before Trial Examiner Thomas
'A. Ricci on October 11 and 12, 1965, at Cincinnati, Ohio, on complaint of the Gen-
eral Counsel against Sheffer Corporation, herein called the Respondent or the Com-
pany. The principal issue is whether the Respondent violated Section 8(a) (3) of the
statute in the discharge of a number of employees on May 7, 1965. A brief was filed
after the close of the hearing by the Respondent.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Sheffer Corporation, an Ohio corporation, is engaged in the manufacture of hydrau-
lic cylinder units and operates a plant at Lockland, Ohio. During the past 12 months,
a representative period, it sold and shipped products valued in excess of $50,000
from this one plant in interstate commerce directly to points outside the State of
Ohio. I find that the Respondent is engaged in commerce within the meaning of
the Act and that it will effectuate the policies of the Act to exercise jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
- District Lodge No. 34 of the International Association of Machinists , AFL-CIO,
herein called the Union , is a labor organization within the meaning of Section 2(5)
of the Act.
HI. THE UNFAIR LABOR PRACTICES
A. The principal issue of the case
Late in April 1965 there developed among the night-shift, or second-shift, employ-
ees of the Respondent a move toward joining the Union and bargaining collectively.
The Company was advised of the fact by a letter from the Union dated April 21.
On the 29th Harvey Sheffer president of the Company, distributed a personal letter
to each employee explaining his opposition to having any union in the plant. By
May 4 or 5 about 30 employees had signed union authorization cards; most of these
worked during the night shift. On May 7, after the night shift had started work, the
Respondent discharged all of the 27 rank-and-file employees present without a word
of advance notice. The complaint characterizes this mass layoff as a retaliation
against the • men because of the union activity centered in that group, a deliberate
discrimination in employment intended to discourage self-organizational activities
among all employees of the Respondent, and therefore a violation of Section 8(a)(3)
of the Act.
The Respondent denies any illegal motive in the mass layoff and affirmatively
asserts that the decision to discontinue the night shift rested entirely on economic
considerations, that the lesser productivity efficiency of the night shift compared to
that of the day shift demanded the drastic action taken. The sole issue of the case
therefore is whether a preponderance of the substantial evidence on the record as a
whole supports the complaint charge of illegal motivation in the one action taken
on May 7.
B. The union activity and the Respondent's knowledge
Edward Klieman, a night-shift turret lathe operator, called Matthew Carr, Grand
Lodge representative and union organizer, on April 20 to say the employees were
interested in self-organization; the next day Carr visited Klieman at home, told him
of organizational methods, and gave him union literature and about 100 authoriza-
tion cards for distribution among the employees. That same day Carr wrote to the
Company to advise that union activities had started among its employees and that
Klieman would be active toward that end. Klieman then distributed the cards among
several other night-shift workmen, the men discussing the matter in groups at a
nearby restaurant and during their lunch hour in the plant in the middle of the night
shift. A number of men accepted cards for solicitation of signatures among their
fellow workmen. The Union held a meeting on May 1, with about 30 employees
present; again literature was distributed by several employees in part in the shop
itself and in part on a general parking lot some distance from the building. On
SHEFFER CORPORATION 151
May 3 the Union wrote a second letter to the Company, this time setting out the
names of five additional employees who were active in the campaign-Charles Otto-
way, John Brefeld, William Ruehl, Robert Riddle, and Jerry Goff.
On April 29, President Harvey Sheffer distributed his letter to every employee,
saying, among other things, that "it has come to our attention that certain outsiders
are trying to get Sheffer employees to join a labor union. This means that those
strangers want to take you over. We firmly believe that this would not be in your
best interests .... We are confident that you will benefit more by retaining what
we have created together than by the payment of initiation fees, dues, fines and
assessments to strangers, and the strikes and the violence which always seem to
follow."
A number of night-shift employees testified that they themselves signed authoriza-
tion cards and distributed others to their fellow workers; Goff, Brefeld, Riddle, Ruehl,
and Ottoway are among those who signed. The men discussed the progress of their
campaign in the plant during their lunch hour within hearing of supervisors in late
April and during the week ending Friday, May 7. According to Ottoway, Night Shift
Supervisor Robert Hovencamp and Personnel Director Billy Stanley were standing
idle one evening within hearing distance during the lunch hour while the men dis-
cussed how many signatures had been obtained.' Ottoway said there were about
31 percent, mostly from the night shift, and that the day shift had produced very
few signatures. Klieman expressed the view it would be better to seek to obtain
51 percent before attempting to proceed to an election. Riddle also recalled Hoven-
camp and Stanley idling in the vicinity at night when he told the other men, as they
were discussing the progress of their campaign, that he believed 40 percent had
signed. Employee Ruehl gave like testimony.
Ottoway also testified that one evening, about the end of April, the personnel
manager saw union literature lying on his toolbox and picked it up, saying to Otto-
way "Excuse me, Chuck, I see some trash on top of your toolbox I have got to get
rid of." According to Ottoway, 15 minutes later Stanley passed by with the papers
still in his hands. Adams, another night-shift man, testified that during this period
Stanley once asked him: "Do you know what is going on? .... What do you think
about it?" A few days later, still according to Adams, Stanley approached his
machine, and as the two were talking about the Union, said, "You know how that
Harvey feels about the Union .... You know what will happen with the Union."
There is also testimony of Ottoway that toward the last of April Stanley called
him to the office to talk about vacation schedules and then produced a copy of an
JAM contract covering a Westinghouse plant in Elroy, Ohio. The personnel man-
ager showed the employee how in that contract the rate for the job Ottoway was
performing was lower, and added, "Do you think this is any good? Do you think
this will help you out?" Stanley called Ottoway to the office again about May 2 or 3
and "discussed what good he thought the Union would do for the shop." Stanley
went on to say, "We are building our new plant ... everything is going all right .. .
I don't think it will gain anything. Why are you backing this up personally." Riddle
also testified that Stanley called him to the office and said, "I see here that you are
not entitled to a vacation." The employee agreed he was not, and the personnel
manager then asked did Riddle have any problems. Riddle said he had none but
Stanley continued to insist "there had been rumors around about somebody having
some gripes in the shop." Finally Stanley showed Riddle the JAM contract and
compared its rates with the Respondent's and closed with asking the man how he felt.
Stanley denied that he spoke of the Union with any employee, or that he ever
referred to the IAM contract when speaking to any of them. He said he called
employees into the office only to discuss vacation schedules with them, a practice
he always had at this time of the year. He testified it was Klieman who called him
to the machine at the end of April, pointed to a copy of the JAM contract the
employee had on his toolbox, and asked did the personnel manager have one. Stanley
said he could not recall how the subject of the contract arose in the conversation.
On the basis of Stanley's demeanor on the witness stand, of the totality of his tes-
timony, and particularly of the inherent implausibility of his story as to certain other
events, discussed below, I do not credit him. He admitted he did have a copy of the
i I find that lovencamp was a supervisor within the meaning of the Act. Fie testified
that he "supervised production " on the night shift, which normally had 25 to 30 em-
ployees ; that he had authority to recommend hiring and discharge , and that he had
done so ; that he transferred the men from one machine to another as need required ;
that he was salaried , as distinguished from the hourly rate of all other men on the shift ;
and that normally he was alone in charge of the men throughout the shift.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Westinghouse IAM contract in his possession at the time; he also said he saw the
employees talking in groups "many times" and heard what they were saying, but that
he never heard them speak of the Union. After denying he reminded Adams of
how Harvey Sheffer felt about the Union, Stanley said flatly he did not know how
the president "would feel about it." Later in his testimony, however, Stanley admitted
that the Union's letter of April 21-informing the Company of the incipient union
campaign-had come to him, that he brought it to the president's attention, and that
he discussed the subject with him. In view of his status as personnel director, and
the Company's April 29 letter to all employees urging them to reject the Union,
Stanley's bland disclaimer of any knowledge respecting the Respondent's attitude
greatly impairs his credibility as a witness. Moreover, Reinhart, general foreman,
said he heard of the union activities "when I seen it in the shop going on .... I seen
the guys talking among themselves. I mean they were talking all over the shop."
I credit the employees and find that the personnel manager, as well as other super-
visors, were aware of the talk by the employees concerning the success of the cam-
paign among the night-shift workmen, and that Stanley probed into their union
activities and attempted to dissuade them by resort to the Union's contract with
another employer.
C. The layoffs
Sometime during the week of May 3 to 7 the Respondent decided to discontinue
the entire second shift, and, as the personnel manager testified, all 27 employees
there were "discharged." No advance notice was given any of the workmen. Hoven-
camp, the shift foreman, first learned of the decision at 4:30 p.m. on Friday. Rein-
hart, general foreman and responsible for overall production throughout the plant,
was first told about it at 7:30 that morning. When the men arrived on schedule at
5:30 p.m., all started regularly at their machines. They were then called, one at
a time, into Stanley's office and told to go home. Each proceeded from the office
to gather his belongings and leave the plant; all were paid in full for the entire shift
hours, although none performed further work. It took Stanley until about 8 p.m.
to complete what he called discharge interviews with each of the shift employees.
Stanley said that during the day on the 7th he decided on nine individuals, among
the night-shift complement, to retain for assignment to the day shift. When speak-
ing to each of them on Friday evening, however, he did not tell them that they were
not losing their jobs, but only that each should come to the plant the next morning
. that I would have something that I could talk to them about, a possibility of
a job on days." These nine came in the next day, each was offered daytime work,
and all but one accepted. Riddle, one of the night men, did not report for work
Friday because he was not well and called the plant to so report. On the telephone
Stanley told him, "It's to your best interest if you come in." Riddle explained again
he could not because his eyes bothered him, and Stanley then said, "Well, if you
could possibly get in tomorrow, I mean you should come in tomorrow." Riddle said
he would try but still was unable to come to the plant the next day. About 12:30
p.m. Stanley called him at home to say he was discharged. This was the first Riddle
learned of his layoff.
D. Asserted economic explanation of the discharges
The timing of the discharges, the clear knowledge by the Respondent that the focal
point of organizational activities was in the night shift, the admitted opposition by
the Respondent's president to any union activities at all, the sudden, unannounced
decision coupled with the completely unorthodox method for implementing the lay-
offs, and the failure of the personnel manager to include a single one of the employ-
ees specifically named in the Union's May 3 letter as activists in its behalf-these are
facts which point convincingly to an inference of illegal motivation in the extraordi-
nary change in the Company's operations, a mass layoff for which there was no
precedent throughout the Company's history. To offset the compelling inference of
antiunion purpose arising from these facts, the Respondent offered testimony intended
to prove that its sole intent was to improve the Company's economic position. Two
management representatives were called to prove this point.
Reinhart was general foreman for 51 years; his duties are to keep tab on produc-
tion efficiency throughout the plant on both shifts. He testified that there had been
a "constant difference, between 15 and 16 percent, between the day shift and the
night shift in efficiency"; he also admitted that this differential had existed "over a
number of years." Reinhart also said the night-shift men were no less experienced
or less trained than the day-shift employees, that both groups were of the "same type."
SHEFFER CORPORATION 153
Gordon Cease, assistant to the president, started his testimony with the statement
that in November 1964, in consequence of a monthly inventory, the Company "dis-
covered an $80,000 shortage," that this was "quite a blow" to him, and that the
president then told him to "involve" himself. Still in this preliminary stage of his
story, he also said this was really "a paper shortage." In his resultant inquiry,
according to Cease, he soon discovered that "the cost of the materials from our
suppliers" had increased; he also said "we had been concerned all year about the
rising cost of direct labor." Cease then testified that it was this time that he learned
of the 15 percent differential in production efficiency between the two shifts. ` . .
about the same time that we were involved in the investigating of the materials as
such, we received the annual summary sheet which is a productivity report put out
by the Production Department which indicated that for year 1964 there was a 15%
difference in the productivity rates of the day and night shift."
Cease then explained that by application of a productivity ratio formula which
the Company had used "historically," he concluded that abolishment of the night
shift would solve the problem that had arisen. The decision to lay off all of these
men was his alone, and he reached it on May 3, he said. In his discoursive recital
he also said that the 15-percent adverse differential casting suspicion upon the night
shift really came to his attention in January. ". . . in this discussion we more or less
developed a conclusion that the night shift was an extremely unprofitable affair, we
would be better without it, because it was costing us money." He said that no deci-
sion was reached at that time. "Well, there was more or less a-no definite conclu-
sions were reached at this time , but from that time forward there was more or less
a series of running discussions, `how are we coming?' `what can we do?' etc."
In final support of this affirmative defense of economic justification the Respondent
placed into evidence certain numerical totals from its records reflecting monthly
values set against overall inventory, monthly sales in dollars, and direct labor costs,
all for the 4 months preceding the layoff and for the next 5 months starting with May
1965. Cease then explained his "historical" productivity ratio formula as consisting
of combining the total sales for any one month with the increase- or decrease, as
the case might be-in the value of the inventory, and then dividing this resultant
amount into the direct labor costs for the same period. The percentage number then
reached is what he calls the ratio of labor to production. The figures show that for
the 9 months starting January 1965 this fraction becomes, successively, 11.3, 16.0,
12.8, 11.2, 12.3, 9.7, 11.4 and 10.0.
Analysis, Credibility Resolution, and Conclusion
The burden which fell on the Respondent, in consequence of the facts proved by
the General Counsel in support of the essential allegation of the complaint, was to
prove that the reason why it discharged all of these employees when it did so-on
May 7-was to remedy an economic disadvantage of the moment. The summary
and the selective totals extracted from the Company's general records fall short of
persuasive proof that the changed method of operation at that time in fact was
because of any change for the worse in the operation of the night shift. And Cease's
oral testimony, given in generally vague, elusive, and inconsistent terms, coupled
with other pertinent facts also appearing in the record, rather than establishing that
at that particular time the night shift was giving cause for special concern, virtually
proves instead that matters had not changed at all on that shift, and that whatever
its condition it had always been thus and always perfectly acceptable within the
framework of the Respondent's business operations.
Personnel Manager Stanley said that when he hires people-and he does all the
hiring-it is always pursuant to orders from the production manager. While Cease
and Henthron-the production manager-were, according to Cease, as early as
January effectively concluding that inefficiency on the night shift was the cause for
the alarming shortage, Stanley was hiring additional employees to place there. And
one of the arguments he was using to recruit desired personnel was the fact that the
Company had never to his knowledge laid off employees, coupled with his assurance
of long and continued employment. Adams returned to the Company in January
1965 after a 3-month absence working elsewhere. Both Reinhart and Stanley told
him at that time he "knew what to expect with Sheffer, that they didn't have any
layoffs and hadn't had any layoffs in ten years ...." Floyd Lang asked for a job
in November 1964 but did not like to work nights; the Company offered his asking
price of $2.25 per hour, but he still did not like night work. In April 1965, 3 weeks
before the layoff here in question, the Company called Lang back to the office, hoping
be would now accept. This time Stanley offered him 15 cents per hour above the
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$2.25 and 50 hours of work weekly , with the assurance ". . . he had been there for
9 years himself and there had never been no layoffs, and , in other words , he told me
the job looked-the work looked good in the future." With this Lang came to work
on the night shift , only to be discharged the next month.
Jerry Goff started to work on March 17; he was sent by an employment agency
which the Respondent had asked to refer applicants . Goff's fee to the agency for
this referral was $192.64 . He disliked having to pay such a sum and asked Stanley,
during the hiring interview , could he avoid paying it by lying to the agency and then
coming to work clandestinely , so to speak. Stanley would have none of this; accord-
ing to Goff, however , Stanley assured him also that there had never been layoffs here.
Stanley denied having given assurances of continued employment to any employee.
If he is to be believed he told each of these employees , as well as every other employee
he ever hired , at the moment of hire , precisely what the Company's ground rules
were for putting layoffs into effect and also the refinements of recall rights for all
laid-off employees . Some time after the mass layoff the Respondent had occasion
to hire a number of employees ; at the hearing Stanley explained his failure to recall
some of the night men released in May, despite, in some instances , a certain degree
of seniority . He said that the Company has a "policy " that an employee with less
than 3 months' tenure has only 1 month's recall rights, and that those who work
longer enjoy recall rights for 3 months after layoffs . He added it is also a rule of
the Company that laid-off employees are required to keep the Company advised once
a month of their continued availability.
Nothing in writing to this effect was ever given the employees ; Stanley said he had
the "policy" in his file but produced nothing. I cannot believe that at the very
moment when applicants who were desirable to the Company expressed reluctance
to accept employment Stanley would go out of his way to speak of layoffs to them;
his testimony clashes with the normal pattern of human behavior . Any remaining
doubt on whether the employees correctly quoted him as promising them long
employment is dispelled by Stanley 's final admission, at the hearing, that despite the
careful chats he had with every employee on the evening of May 7, when the "policy,"
if it ever existed , had its moment of truth, he said not a word to any of them about
recall rights or any duty to keep the Company advised of their availability for work.
Conceivably , although very difficult to believe, the Company may have kept the
personnel manager in the dark during the months from January to May while it was
planning to abolish the night shift , and even told him to add more operators. The
fact that the officers knew as much about the operations of the night shift months
before May, or even longer, as they did later , however, cannot possibly be ignored
in evaluating the sincerity of Cease 's general and conclusionary testimony. The only
definitive statement appearing in his entire story is that the production efficiency of
the second shift was 15 or 16 percent below that of the day shift . All else that was
intended to point a finger at economic weakness there consisted of words variously
restating the decision and conclusion to do something about that group . But the
production manager candidly admitted that this fact has always been true and known
to all. Cease himself at one point admitted he had received "weekly reports regard-
ing the production of the first shift as compared with the second shift ... from their
inception . . . in April of .1963," and that they consistently reflected the 15 -percent
lower productivity.
It is clear therefore that the production process rate or efficiency of the night shift
as distinguished from the day group did not change at the time of these events, indeed
that it had been constant for a very long time. The so-called 15-percent differential
is the only concrete fact about the night shift of which any of the Respondent's wit-
nesses spoke . But with this condition unchanged , and the "formula" for analysis
of the books being the same as it had "historically" been, it follows that the Respond-
ent was always aware of whatever it now claims to have "discovered " in November
1964 or January 1965 . Absent any indication of why discontinuance of the night
shift should have affected "percentage" figure which Cease reaches by comparing
some of the Company's total reports with others, the question arises whether there
is reason to believe the change was at all related to such computation results. The
substance of the Respondent 's argument is that because this percentage number for
certain months following the layoff appears lower than those of the 4 immediately
preceding months, it follows both that the change of shifts was the cause and that
the Respondent knew this would be the effect . Post hoc, ergo propter hoc.
But so far as this record shows any number of other factors could as well have
contributed to the slightly lower figure shown for three of the months-June, July, and
SHEFFER CORPORATION 155
September. There is no showing that the constant and substantial increase in the
inventory values set out in the exhibit reflect only increased production efficiency.
Such things as rising costs of materials, of which Cease also spoke, or even of direct
inclusion of purchased stock, have not been excluded as a possible explanation for
at least some of the increased inventory values. Moreover, May has a 12.3 percent
equivalent, and this is greater than January and April; the August figure is 11.4 per-
cent, compared with 11.3 percent for January. Nor is there any comparison with
the related figures for the prior year, or years, which would make possible appraisal
of any normal, seasonal changes in the business. In these circumstances there can
be no affirmative finding that the reduced percentages shown for June, July, and
September were in any way related to the Respondent's action in discontinuing the
night shift in May. In short, the Respondent has not supported with probative evi-
dence its assertion that the action was taken because of, and to remedy, an economic
adverse condition. .I find instead, on the total record, that the condition and per-
formance of the night shift did not undergo any substantial change during the sig-
nificant period preceding the layoffs.
Klieman and Ottoway, two of the six employees named in the Union's letter of
May 3 to the Company, left their jobs voluntarily on May 5 and 6, respectively. The
other four-Brefeld, Ruehl, Riddle, and Goff-were effectively discharged and never
recalled. The fact that although the personnel manager selected nine employees for
retention he kept none of these four, and that later, when rehiring, he recalled none
of them, is cumulative indication of an intent to discourage union activities in -the
entire decision to discontinue the shift. Stanley, who did the choosing, explained
all of this as nothing more than mechanical application of a longstanding company
policy, resting fundamentally on the principle of seniority. Like other of his testi-
mony, this explanation, taken in its entirety, is unpersuasive.
To start with, Stanley's statement that he applied a company policy in making the
selection is not true if only because he also said he knew of no previous layoffs in
the history of the Company. Whatever he did that day he did for-the first time.
He also said he applied' a separate seniority group to each shift and, within the shift;
separate seniority "by department," presumably within job classifications. This
second assertion is effectively weakened by the fact that despite the formality of his
interviews Friday evening, when he said he actually "discharged" everyone of the
employees, and the further artificial pretense of offering them "employment" the next
day, all eight of the men who continued with the Company retained the full seniority
they had accumulated on the night shift. What this means, in substance, is that he
really did not distinguish between the two shifts so far as tenure with the Company
was concerned; what he did was decide arbitrarily who to keep and who to release,
disregarding single shift seniority when he wished and advancing it as justification
when the individual situation fits.
In fact, mathematical analysis of the seniority of all of the Company's employees
at work during the critical week in May shows that Stanley's selection effectively fol-
lowed plantwide seniority, in direct contradiction of his oral testimony. There were
97 men on the payroll; in terms of years-a round figure-their average seniority was
2.47 years. The average seniority of the nine whom Stanley chose to "recall" on
Saturday-even including Adams, hired in January 1965, and Leach, the porter, who
came in March 1965-was 3.1 years. Of the "total group, 25 had worked less than
1 year; 9 of these were on the night shift. As Stanley in fact favored those holding
plantwide seniority although working on the night shift, and even conceded their
retention of that favored position thereafter, his contention that none of the nine
junior men on the night shift was entitled to be judged together with the junior men
on the day shift loses all persuasion.
Moreover, there is evidence by company representatives respecting the worth of
the night men as individual employees which tends to make the personnel manager's
first-time use of separate shift seniority-in those cases where he did apply it-seem
illogical. The supervisor admitted that the night men were no less experienced or
trained than the day men; that both groups were of the "same type." But if this was
so, and if in truth it was the nightshift as such that occasioned the change in schedule,
there was no real reason for Stanley to release Cooper, a turret lathe operator, while
retaining Browne, of the day shift, who had less seniority, or G. Waters, a drill press-
man, while retaining Yuach, hired after him, or Beasley, a tool crib attendant, also
senior to a day man.
As he continued with his testimony Stanley injected another element of distinc-
tion; he called some of the men trainees, as distinguished from regular machine oper-
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ators. But the periodic increases which new employees received, while being called
trainees, were automatic, and therefore it does not appear that such status necessarily
meant lesser competence. At one or two points Stanley also justified individual
selection as guided by his personal opinion of a man's "skill."
In sum, I do not credit the personnel manager's testimony and his assertion that
his failure to retain any of the employees known to be active union proponents was
in fact based on time-honored and purely economic considerations. And, on the
total record , I can place no credence on the testimony of Cease, the assistant to the
president , that he decided to discontinue the night shift because it was unprofitable
and that his knowledge of the union activities of the moment had nothing to do with
his action . I conclude , on the basis of the foregoing considerations , and on the
record in its entirety , including such minor matters as are relevant to the main issue
but not of sufficiently substantive materiality to warrant minute recital in this report,
that the Respondent discontinued its night shift on May 7, 1965, for the purpose of
discouraging the prounion activities of its employees. The charge was filed on behalf
of four of the men who lost their jobs that days in consequence , and only those four
are named in the complaint. Accordingly I find that by discharging Robert R. Riddle,
William Ruehl, John R. Brefeld, and Jerry Goff the Respondent violated Section
8(a) (3) and ( 1) of the Act, as alleged in the complaint.
IV. THE EPFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set out in section 111, above , occurring in connec-
tion with the operations of the Respondent set out 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
Having found that the Respondent has committed certain unfair labor practices,
I shall recommend that it be ordered to cease and desist from such conduct and to
take certain affirmative action designed to dissipate its effect . Riddle , Ruehl, Brefeld,
and Goff were still in discharge status at the time of the hearing; the Respondent
must therefore be ordered to reinstate them to their former or equivalent positions,
and to make them whole for any loss of earnings they may have suffered because
of the illegal discrimination against them in their employment. Backpay shall be
computed in accordance with the formulas and methods prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, and the assessment of interest shall be
computed in the manner prescribed by the Board in Isis Plumbing & Heating Co.,
138 NLRB 716. In view of the nature of the unfair labor practices committed, the
commission of similar and other unfair labor practices reasonably may be antici-
pated. I shall therefore recommend that the Respondent be ordered to cease and
desist from in any manner infringing upon the rights guaranteed to its employees by
Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discharging Robert R. Riddle, William Ruehl, John R. Brefeld, and Jerry
Goff on May 7, 1965, the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record in the case, I recommend that the Respondent, Sheffer Corporation,
Lockland, Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against employees because of their
exercise of the right to self-organization or to join labor organizations.
SHEFFER CORPORATION 157
(b) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist District Lodge No. 34 of the International Association of Machinists, AFL-
CIO, or any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activity for the purposes of col-
lective bargaining or other usual aid or protection, as guaranteed in Section 7 of the
Act, or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer Robert R. Riddle, William Ruehl, John R. Brefeld, and Jerry Goff
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges previously enjoyed,
and make them whole for any loss of pay they may have suffered by reason of the
discrimination against them in the manner set out under the section of this Decision
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payments, timecards,
personnel records and reports, all other records necessary to analyze the amount of
backpay due under the terms of this Recommended Order.
(c) Post at its place of business at Lockland, Ohio, copies of the attached notice
marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Direc-
tor for Region 9, shall, after being duly signed by the Respondent's representative,
be posted by Respondent immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(d) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of receipt of this Decision, what steps the Respondent has taken to comply
herewith .3
21f 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. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a Decree
of the United States Court of Appeals, Enforcing an Order" for the words "a Decision
and Order."
8 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 9, in writing, within 10 days of the
date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership by any of our employees in District
Lodge No. 34 of the International Association of Machinists, AFL-CIO, or in
any other labor organization, by discharging or otherwise discriminating against
employees in regard to their hire or tenure of employment or any other term
or condition of employment.
WE WILL offer Robert R. Riddle, William Ruehl, John R. Brefeld, and Jerry
Goff immediate and full reinstatement to their former or substantially equiva-
lent position, without prejudice to their seniority or other rights and privileges
previously enjoyed, and WE WILL make them whole for any loss of pay they
may have suffered as a result of the discrimination against them, in the manner
described in the Trial Examiner's Decision.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form, join, or
assist any labor organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activity.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees aie free to become or remain , or to refrain from becoming or
remaining , members of any labor organization.
SHEFFER CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(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 applica-
cation in accordance with the Selective Service Act and the Universal Military Train-
ing 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 pro-
visions, they may communicate directly with the Board 's Regional Office, Federal
Office Building , Room 2023, 550 Main Street , Cincinnati , Ohio, Telephone No.
684-3627.
Kem Distributing Company and Truck Drivers & Helpers Local
Union No. 728. Case No. 10-CA-6195. April 20,1966
DECISION AND ORDER
On December 15, 1965 , Trial Examiner William F. Scharnikow
issued his Decision in the above -entitled proceeding , finding that the
Respondent has engaged in and is engaging in certain unfair labor
practices alleged in the complaint and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner 's Decision. Thereafter , the Respond-
ent filed exceptions to the Trial Examiner 's Decision and a supporting
brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 brief, and the entire record in
this case , and hereby adopts the findings, conclusions , and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The complaint alleges, but the answer of the Respondent , Kern Distributing Com-
pany, denies , that on or about July 14, 1965, the Respondent committed unfair labor
practices affecting commerce within the meaning of Sections 8(a)(1) and (3) and
2(6) and (7) of the National Labor Relations Act, as amended , 29 U.S .C., secs. 151,
et seq., herein called the Act, by discharging , and thereafter failing and refusing to
158 NLRB No. 16.