Star-Brite Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 3, 1960

127 N.L.R.B. 1008 (N.L.R.B. 1960)

1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Local 815, International Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, Independent , is a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminating in regard to the hire, tenure, terms, and conditions of employ-
ment of Louis A. Ferland to encourage or discourage membership in a labor
organization, the Company has engaged in unfair labor practices within the meaning
of Section 8(a) (3) and (1) of the Act.
4. By causing the Company to discriminate against Ferland in violation of Section
8(a)(3) of the Act, Local 815 has engaged in unfair labor practices within the
meaning of Section 8 (b) (2) of the Act.
5. By restraining and coercing Louis A. Ferland in the exercise of rights guaran-
teed by Section 7 of the Act, Local 815 has engaged in unfair labor practices within
the meaning of Section 8(b) (1) (AO) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Star-Brite Industries , Inc. and Aluminum Workers Interna-
tional Union , AFL-CIO. Case No. 9-CA-1454. June 3, 1960
DECISION AND ORDER
On June 12, 1959, Trial Examiner Eugene F. Frey issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has considered the Intermediate Report, the exceptions
and brief, and the entire record in the case. We find merit in the ex-
ceptions and accordingly adopt the findings and conclusions of the
Trial Examiner only insofar as they are consistent with our decision
herein.
The essential facts are as follows :
On January 2, 1958, the Respondent began operation of its alu-
minum furniture manufacturing plant in Benton, Kentucky. During
the following month, the Union started an organizing campaign
among the Respondent's employees. Active in this campaign on be-
half of the Union were employees Joe Pat Hill and James Thompson.
Shortly after the campaign began, a number of employees told the
Respondent's plant manager, Archie Guess, of visits to their homes
by union organizers, and these employees asked Guess if these visits
had been caused by the Respondent. In order to explain the Re-
spondent's position, Guess held group employee meetings in his office.
He informed each group, in substance, that the Respondent had not
sent the union organizers to them, that he had nothing to say either
for or against the Union, and that the employees could join the Union
127 NLRB No. 131.
STAR-BRITE INDUSTRIES, INC. 1009
or not as they wished without their jobs being affected. Guess also
spoke of the Respondent's economic position, the reasons for locating
the plant in Benton, and how the continued operation of the plant
could be adversely affected if the Respondent were compelled by the
Union to pay higher wages with the result that the plant operated at
a loss.
Near the end of February, Guess called employee Hill into his office
and told Hill he had heard that he was "working for the Union, pass-
ing out cards" on company time. Hill denied that he had done so.
Guess stated that he had heard rumors to this effect, and that if they
were true Hill should stop because if he ever passed out cards on
company time he would be fired. Guess asked Hill if he was going
around with union organizers telling employees that if they did not
join the Union, and the Union got in, they would lose their job. Hill
denied this, too. Guess told him that no one would be fired whether
they signed cards or not.
Later in February, as Hill was punching out his timecard at quitting
time, Benton's chief of police approached Hill and said to him in
the presence of Guess and the vice president of a local bank : "Why
don't you run up to this union organizer and ];clock the hell out of
him? I have tried to run him out of town, and I can't. That is what
he deserves, he is going to run the plant out of town." Neither Guess
nor the bank vice president said anything, but both laughed.
James Thompson, the alleged discriminatee, was employed by the
Respondent in January shortly after the plant opened. Thompson
had been hired as a maintenance trainee to learn a job combining
production and maintenance work. Although his production record
was good and his attitude satisfactory at the outset, his maintenance
work was only average. During March the quality of his maintenance
work began to decline sharply, his breakage of parts became abnor-
mally high, and his attitude became one of complete indifference.
Despite repeated warnings from his superiors, his work did not im-
prove and this matter was reported to Guess. About April 18, Re-
spondent's home office, located in another city, requested an immediate
review of the plant's maintenance situation, and made certain recom-
mendations, including the release of maintenance men who could not
be used plantwide.
On April 28, Guess called in Foreman Prentice Thompson, s, brother
of James, and told him that he had heard that James was working
for the Union and distributing union cards on company time. Guess
stated that he did not know if the reports were true or false, but he
asked Prentice to talk to James and tell him that if James was dis-
tributing cards on company time he should stop it. Otherwise, Guess
said, James should quit his job, or he would be fired. When Prentice
560940-61-vol. 12 7-6 5
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said he did not believe his brother was distributing cards, Guess told
him to forget the whole matter and not to bother calling James.
Prentice called his brother anyway, and James went over to Guess'
home. James told Guess that he had heard rumors that people were
saying that he was passing out union cards. Guess said that he too had
heard the rumors, that he did not know if they were true or false, but
that if James was passing out cards on company time he should either
stop it, or quit his job because Guess did not want to discharge him.
On May 1, Thompson's foreman told Guess that because of
Thompson's attitude he could not put up with Thompson any longer,
that Thompson would not listen to him, and that Thompson was
breaking too many drills . Both the foreman and Guess concluded
that Thompson would never become a good maintenance man. On
this same day, Guess met with Otto Hanslick , a master mechanic and
maintenance troubleshooter from the home office. Their purpose was
to implement the home office letter of April 18. They decided to
release two maintenance men, one of whom was Thompson . The fol-
lowing day, May 2, Guess told Thompson to pick up his checks.
When Thompson asked why, Guess replied, "I have my reason, you
know why." Guess then walked off. The separation notice subse-
quently prepared for company files listed the reason for the discharge
as "unsatisfactory performance as maintenance man," and "undesir-
able attitude."
On the basis of the foregoing, the Trial Examiner found that Guess'
remarks to Hill constituted the promulgation of an oral rule prohib-
iting union solicitation on company time, and that by promulgating
and enforcing this rule the Respondent violated Section 8(a) (1) of
the Act. The Trial Examiner found that Guess' interrogations of
Hill and Thompson were also violative of Section 8(a) (1) in that
they occurred in context with the promulgation and application of the
no-solicitation rule. As to the chief of police incident, the Trial
Examiner found that by Guess' failure to disavow the chief's remarks,
the Respondent further violated Section 8(a) (1). Respecting the
discharge of James Thompson, the Trial Examiner found that the
Respondent's real motive therefor was Thompson's union activity,
and that by this discharge the Respondent violated Section 8(a) (3).
We disagree with these findings.
1. The no-solicitation rule: As recently stated by the Board in
Walton Manufacturing Company, 126 NLRB 697, employer rules
prohibiting union solicitation by employees during working time are
presumptively valid as to their promulgation and their enforcement.
However, as also stated in Walton, these presumptions may be over-
come by evidence establishing a "discriminatory purpose" in the
adoption of the rule, or by evidence establishing an "unfair" applica-
tion of the rule. Such evidence , we find, is not present in this case.
STAR-BRITE INDUSTRIES, INC. 1011
In finding the adoption of the rule bad, the Trial Examiner stressed
the fact that the rule prohibited only union solicitation and was an-
nounced during the union campaign to an employee actively working
for the Union, and that no showing was made by the Respondent that
the rule was necessary "to maintain plant production and efficiency."
In our view, these factors do not warrant a finding of a "discriminatory
purpose." Since the criterion as stated in Walton gives presumptive
validity to no-solicitation rules like that at issue here, it is not con-
trolling that the prohibition of the Respondent's rule may have been
limited to union solicitation and not have embraced other types of
solicitation as well. With respect to the timing of and the circum-
stances under which the rule was announced , we are unable to conclude
that because the Respondent may not have formulated the rule prior
to, but did so at the time of, the advent of the Union, that this alone
necessarily evidences a "discriminatory purpose. " It would be an
anomaly to recognize that an employer may lawfully adopt such a
rule, yet to hold that he may not do so when the occasion for its use
arises. As to the absence of proof of the Respondent 's actual need for
its rule, we think it clear that as the law views such rules presumptively
valid, it was not incumbent upon the Respondent to justify the rule by
independent evidence. Obviously, the imposition of a requirement
of justification would render the presumption meaningless. Finally,
regarding the lawfulness of the actual enforcement of the rule, there
is no evidence in the record tending to establish that the rule was
"unfairly" applied. Thus, for example, there was no showing that
the enforcement of the rule was an "unreasonable impediment" to the
Union's organizational efforts. See Walton' Manufacturing Comnpany,
supra, footnote 4.
For the foregoing reasons, we hold that the Respondent did not
violate the Act in promulgating and enforcing a no-solicitation
rule.'
2. The interrogations: As we have found, contrary to the Trial
Examiner , that the Respondent did not violate the Act in promulgat-
ing and enforcing the no-solicitation rule, there is no basis for holding
that Guess ' questioning of and warnings to either Hill or Thompson,
in connection therewith, were violative of the Act. Although it may
be, as the Trial Examiner found, that neither Hill nor Thompson had
actually been engaged in union solicitation during working time, and
that Hill had actually not threatened other employees , the record
establishes that Guess had in fact heard rumors of such conduct on
Hill's and Thompson's part. In these circumstances, and particularly
in view of our finding with respect to the no-solicitation rule and in
1 See Carolina Mirror Corporation, 123 NLRB 1712, Continental Aviation and Engineer-
ing Corporation , Toledo Division , 125 NLRB 624, and Threads Incorporated, 124
NLRB 968.
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the absence of any other unfair labor practice findings herein, we find
that the Respondent by Guess' conduct here did not violate the Act.'
3. The chief of police incident: The Trial Examiner found that
the Respondent violated the Act here apparently on the theory that
Guess was under a duty to disavow the chief of police's antiunion
remarks. We note that there is no evidence in the record that the
Respondent had invited this police official to the plant to attack the
Union, or that the Respondent had prompted or inspired his remarks.
Moreover, we find nothing in the chief's remarks which could have
given employee Hill reason to believe that the chief spoke with the
authorization of the Respondent. In short, the record is barren of
any evidence that the chief of police in any sense was an agent of the
Respondent 3 In these circumstances, there was no legal duty resting
with Guess to disavow the chief's remarks. Accordingly, an 8(a) (1)
finding cannot be predicated upon his failure to do so.
4. The discharge of Thompson: The Trial Examiner found that
James Thompson was discharged because of his union activity. We
disagree. In the first place, we do not believe that the whole of the
Respondent's conduct here reveals such strong union hostility as to
make the Respondent's motive for discharging Thompson suspect. In
finding that union animus existed, the Trial Examiner predicated the
finding upon Guess' February speeches to the employees, Guess' failure
to disavow the police chief's remarks, and Guess' "illegal" attempts
to "curtail" the union activities of Hill and Thompson. Respecting
the February speeches, while Guess did speak of what might result
if the Respondent were compelled by the Union to pay higher wages,
those speeches, as the Trial Examiner found, did not exceed the
permissive limits of Section 8(c) of the Act. Moreover, during those
speeches Guess also told the employees that they could do as they
liked about joining the Union, pointing out that their jobs would not
be affected in either event.' As to the chief of police incident and the
so-called curtailment (i.e., the promulgation and enforcement of the
no-solicitation rule), we have found, contrary to the Trial Examiner,
nothing improper in the Respondent's conduct.
Secondly, we find that the record adequately supports the Respond-
ent's contention that Thompson was discharged because of his "un-
satisfactory performance as a maintenance man" and his "undesirable
attitude." Thus, the record shows that Thompson was deficient in
his work, that his breakage of drills was excessive, that he ignored
repeated warnings from his superiors, and that he developed an atti-
tude of complete indifference to his work and superiors. It is also
' East Texas Steel Castings Company, 108 NLRB 1078 , 1080; Hadley Manufacturing
Corpo7ation, 108 NLRB 1641, 1647.
3 Livingston Shirt Corporation, et al., 107 NLRB 400, 404 . Cf. Babcock d Wilcox
Company, 108 NLRB 1622, 1623.
4 See Punch and Judy Togs, Inc. of California , 85 NLRB 499, 500-501.
STAR-BRITE INDUSTRIES, INC. 1013
to be noted that on May 1, the day preceding the discharge, Guess (1)
was told by Thompson's foreman that he could no longer put up with
Thompson, and (2) met with Hanslick to carry out the home office
recommendation to release maintenance men. These factors demon-
strate not only the legitimacy of the reasons advanced by the Re-
spondent but that those reasons in fact motivated Thompson's
discharge.
For the foregoing reasons, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBERS BEAN and FANNING took no part in the consideration of
the above Decision and Order.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The issues in this case are whether (1) Respondent Star-Brite Industries, Inc.,
interrogated employees regarding their union activities and threatened them with
discharge and other reprisals for such activities, to discourage membership in
Aluminum Workers International Union, AFL-CIO, herein called the Union, in
violation of Section 8(a)(1) of the National Labor Relations Act, as amended, 61
Stat. 136, herein called the Act, and (2) discharged and refused to reinstate James
Thompson for cause, or because of his membership in and activities on behalf of the
Union in violation of Section 8(a)(3) of the Act. The issues arise on a complaint
issued October 31, 1958, by the General Counsel of the National Labor Relations
Board, and Respondent's answer hereto, denying the commission of any unfair labor
practices. A hearing on the issues was held before me at Benton, Kentucky, on
January 6 and 7, 1959, in which all parties were represented by counsel, and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues, and to present oral argument and file
briefs. Respondent's motion at the close of the testimony to dismiss the complaint
on the merits was taken under advisement, and is now disposed of by the findings
• and conclusions in this report. All parties waived oral argument, but General
Counsel and Respondent filed briefs with the Trial Examiner.
Upon the entire record in the case, and from my observation of the witnesses on
the stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Kentucky corporation, with its principal office and place of
business located in Benton, Kentucky, where it is engaged in the manufacture of
aluminum furniture. In the 9 months preceding the issuance of the complaint
herein, Respondent manufactured and sold aluminum furniture valued in excess of
$100,000, which was shipped from its plant in Benton, Kentucky, directly to points
outside the State. I find that Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the
Act which admits to membership employees of Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent began operation of its Benton plant on January 2, 1958. In February
the Union began an organizing campaign at the plant during which employee James
Thompson received union authorization cards from the Union and, with at least
one other employee, Joe Pat Hill, solicited employees to sign them. Their activities
occurred outside the plant during nonworking hours.
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The February speeches of Guess
Shortly after the campaign began, employees told Archie R. Guess, the Benton
plant manager, that union organizers had visited them at their homes in the evening
with other employees, and asked Guess if Respondent had caused these visits.
Guess told several employees individually that Respondent had not done so, and
then decided to talk to the employees about it collectively to save many explanations.
In the latter part of February, he called groups of employees to his office. He told
each group in substance that he had heard of the union organizing campaign in prog-
ress, and that it was the work of union organizers to visit employees during such cam-
paign, so that the employees could expect to receive such visits. He explained that
Respondent did not send the union men to them, that he had nothing to say for or
against the Union, and that employees could do as they liked about joining or not
joining the Union, that it was entirely their own decision, that they did not have
to sign up with the Union in order to keep their jobs, and if they did sign up, they
would still keep their jobs.
Guess also referred to and explained portions of a form letter dated February 4,
1958, and signed by him, which had been given to the employees on February 7,
1958. He explained to them that the plant was a new one, opened in January, that
Respondent was a small company with much competition, and had incurred much
expense in moving its operations to Benton from St. Louis, Missouri, and that
Respondent could not be compared with large concerns like General Motors Cor-
poration and others in Calvert City,' and could not afford to pay the wages paid
in those plants. He also said that Respondent had paid much higher wages in
St. Louis, and indicated that was one reason why Respondent left St. Louis and came
to Benton. He said that Respondent could not afford to pay the union scale of
wages at Benton, that in order to operate the Benton plant, it had to operate at a
profit, but that if the Union came into the Benton plant and Respondent had to pay
higher wages, and it did not make money, Respondent would have to close down the
plant and leave town. He said "we do not want that to happen," and that he liked the
people in Benton and would like to stay there. Guess also said that if the plant
made more money later, it would pay better wages, that it was "our plan" to set
,a "policy for the people in order that they might have wage increases as soon as we
could prepare it," that "we would prepare something that would be beneficial to all
employees." In some of these meetings, employees asked questions, others said
they did not want the plant to leave. In one meeting an employee spoke against the
Union, but Guess told him it was not the purpose of the meeting to criticize or
discuss the Union pro or con, that that question had to be decided entirely by the
employees?
It is significant that much of Guess' speeches paralleled and enlarged upon.
statements he had made to employees in his letter of February 4, 1958. The com-
plaint does not allege, nor does General Counsel contend, that the letter in any
way violated the Act. Hence, considered in their totality, and in the light of that
letter, I conclude that his speeches to the employees contained essentially (1) an
explanation of the economic problems attendant upon the opening of a new plant,
particularly its inability to pay high wages at the outset, and (2) an opinion as to
the possible but unfortunate impact of a union organization upon the new plant, in
the form of payment of a higher union wage, which unions traditionally seek to
i A town a few miles north of Benton.
21 base these findings upon credited testimony of Guess which is corroborated by his
letter of February 4, 1958, and credible testimony of Bernie W. Brown, Edward G. McClure,
Opal Wood, Genevieve Stab], Lucille Bradley, and admissions of James Thompson and
his brother Prentice Thompson. Contrary testimony of the Thompsons, their sister,
Norma Jaue Wyatt, and Joe Pat Bill, an employee discharged for cause, on this subject,
on which General Counsel relies, is not credited. Each of the four could recall only such
fragments of Guess' speeches as imported clear threats of discharge for union activity,
when considered out of context. However, the recollections of James and Prentice
Thompson, whose self-interest and prejudice against Respondent is clear, indicates that
Guess' prophecy of a shutdown was directly tied to payment of a higher or union scale
of wages. All four couched their recollection of Guess' remaiks in terms of a corcpulsoly,
not a voluntary, shutdown in the event of union organization of the plant As Guess had
made it clear in his letter and speeches that Respondent did not want to leave Benton,
the only compulsion for a shutdown disclosed by the record is the possibility that Re-
spondent might not be able to make a profit if the Union entered the plant and forced
Respondent to pay the higher union scale In these aspects, the testimony of the
Thompsons, Wyatt, and Hill tend to support, rather than conflict with, the testimony
of Guess.
STAR-BRITE INDUSTRIES, INC. 1015
compel an employer to pay, and which might hinder profitable operations, and
thus compel Respondent to move its operations elsewhere rather than operate at a
loss. While such remarks indicated Respondent's dislike of union organization of
the plant, I conclude that they amount to no more than a legitimate expression of
views and opinions within the meaning of Section 8(c) of the Act, and fall short
of a clear threat, either direct or by reasonable implication, of shutdown of the
plant and loss of employment if the Union organized it. I also conclude that
Guess' vague promises of future wage adjustments after the plant began to make
money did not operate to make the speeches illegal, for the complaint does not
allege that such promises constituted an unfair labor practice, nor does General
Counsel indicate how such utterance in the light of the innocuous February 4 letter
could reasonably be construed to convert his other remarks into coercive threats.
I conclude that Guess' speeches to employees as found above did not constitute a
violation of the Act .3
B. Interrogation of Joe Pat Hill
On an unidentified date in the latter part of February 1958, Guess called employee
Joe Pat Hill into his office, and told him he (Guess) had heard that Hill was "working
for the Union, passing out cards on company time." Hill denied emphatically that
he had done so.4 Guess replied that he had had reports to that effect, but "they
are only rumors," and then said if Hill was doing that, he should stop at once, and
that if Hill ever did pass out cards on company time, he would fire Hill. "on the
spot," that distribution of union cards on company time would not be permitted.
Guess also asked Hill if he was going around evenings with union organizers telling
the employees that if "they" had a certain percentage of the employees, and if the
employees did not sign cards, they would be terminated if the Union got in. Hill
denied that he said this, and also said that he would choose his friends any time he
pleased. Guess told him that the employees definitely would not be fired, whether or
not they signed union cards .5 Guess' question about Hill's activities and his state-
ments about Hill's rumored solicitation on company time, expressed in a fashion
which called for, and elicited, an answer, was interrogation about an employee's
union activity. Whether it was illegal or not depends on whether, under all the
circumstances, it reasonably tended to interfere with employees' rights guaranteed
by the Act. Blue Flash Express, Inc., 109 NLRB 591, 593. Guess testified, and
Respondent contends, that he questioned Hill about card distribution solely to find
out if he was using company time for it, and to prevent such use in the future. This
was a legitimate purpose, for it is well settled that an employer has a right to insist
that employees devote working time to work, and to impose and enforce reasonable
rules and discipline to prevent abuse of that right.6 Under the rule of Blue Flash
Express, Inc., supra., interrogation of employees to uncover and prevent such misuse
of company time appears to be lawful. However, imposition or enforcement of an
otherwise valid no-solicitation rule may be illegal if imposed for a discriminatory
purpose or enforced in a discriminatory manner 7 Guess admitted, and I find, that
prior to his talk with Hill, Respondent had never posted or circulated to employees
any written rule prohibiting any solicitations or distribution of literature by em-
ployees on company time; at most Guess required them to procure his prior oral
permission for such activities, which he had never refused. Thus, Respondent has
always allowed employees to make personal solicitations on company time. Guess'
remarks to Hill constituted Respondent's first refusal of such permission, and the
promulgation of an oral rule prohibiting such activity, with warning of instant
discharge for violation thereof. There is no proof that Guess' action was in fact
caused by complaints or indications that Hill's conduct was affecting his own work
or that of other employees, or otherwise interfering with production. The record
also shows that Guess' earlier antiunion speeches to groups of employees were made
on company time. Since the rule was announced during the union campaign to one
of the two employees actively working for the Union, and in terms was directed
only against union activity, while not prohibiting other solicitations, on company
3 See Mrs Dora S Lanthtier and Ledger W. Lanthier, Co-partners, d/b/a Lanthier
Machine Works, 116 NLRB 1029, 1034, 1036
41-11]l testified, and I find, as found above, FIi11 solicited employees only outside the
plant, during nonworking hours
c These findings are based on credited and mutually corroborative testimony of Hill
and Guess
0 Peyton Packing Company, Inc . 49 'NLRB 828, 843 • Atlas Root Manufacturing Co.,
Inc., 116 NLRB 565; N L.I? B. v. United Steelworkers, etc (Nutone, Inc.), 357 U.S. 537.
7 Cullman Electric Cooperative, 99 NLRB 753, 754, 763, 764.
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time, and in the absence of proof that Hill's conduct in fact adversely affected pro-
duction, I must conclude that Respondent promulgated and enforced the rule in
order to impede employees' union activity protected by the Act, rather than to
maintain plant production and efficiency. While the complaint does not specifically
allege that Respondent violated the Act by this conduct, it is well settled that
announcement and enforcement of a plant rule in this fashion amounts to interference
with employees' rights within the prohibition of Section 8(a)(1) of the Act. See
Time-O-Matic, Inc., 121 NLRB 179, and compare Bludworth Construction Company,
Inc., 123 NLRB 385, and Pacemaker Corporation, 120 NLRB 987. It follows that
Guess' interrogation of Hill which led to promulgation and enforcement of the
rule, was likewise for an illegal purpose and violated Section 8(a)(1) of the Act.
See Commercial Controls Corporation, 118 NLRB 1344, 1346, 1352, 1353 and
Blue Flash Express, Inc., supra. Guess' questioning of Hill at the same time about
his remarks to employees during solicitation of them also violated the Act. Here,
Guess was apparently trying to verify reports of inaccurate statements by Hill to
employees about security of their jobs if the Union organized the plant, and to correct
such ideas in Hill's mind. Guess' explanation that signing or nonsigning of union
cards would have no effect on employees' jobs was consistent with his earlier written
and oral statements to employees, which were privileged under Section 8(c) of the
Act. He did not threaten Hill directly or indirectly with reprisal for his part in
circulating such propaganda. Hence, if this interrogation stood alone, I would be
inclined to the view that it not only had a legitimate purpose (cf. Hadley Manufac-
turing Corporation, 108 NLRB 1641, 1647) but was at most an isolated instance
of interrogation which was not so clearly coercive as to warrant remedial action.
However, as it occurred in the context of other illegal interrogation leading to an
illegal order upon Hill to abandon his union activity, I am compelled to conclude
that it was also coercive. New England Upholstering Co., Inc., 121 NLRB 234.
This conclusion is strengthened by similar and other coercive conduct toward James
Thompson which will be discussed shortly.
Hill also testified that on an unidentified date in February or March,8 while he
was punching his timecard out at quitting time one afternoon, Charles R. Carrot,
chief of police of Benton, said to Hill in the presence of Guess and Floyd Roberts,
vice president of a local bank, "Why don't you run up to this union organizer and
knock the hell out of him? I have tried to run him out of town, and I can't. That
is what he deserves, he is going to run the plant out of town." Guess and Roberts
both laughed when Carrot said this, but neither made any comments 9
General Counsel argues that Carrot's remarks amounted to a "threat" by Carrot
to employees "that their activities on behalf of the Union would cause the Respond-
ent's plant to be closed," as set forth in paragraph 5(c) of the complaint, and that
Guess "adopted it" by "making a joke out of it," and by not disavowing the sug-
gestion or advising Hill specifically that he did not have to follow the suggestion
while working for Respondent. Carrot's statement that the union organizer was
"going to run the plant out of town," was on its face merely a prophecy of possible
economic consequences of union organization of the plant of the same type that
Guess had already lawfully given the employees with supporting reasons, as found
above. Hence, while this statement falls within the wording of the complaint
quoted above, it does not violate the Act. However, his whole statement amounts
to a suggestion by a top police official that Hill use violence upon the organizer to
get him out of town, in order to prevent unionization of the plant and its probable
shutdown thereafter. I consider the whole tenor of the statement coercive and
reasonably calculated to discourage union activity. In the light of Respondent's
8 Hill worked at the plant from about February 1 to the latter part of March
8I find these facts on clear and credited testimony of Hill. Carrol denied the state-
ments attributed to him, and normally I would be loath to believe that a law enforcement
official would make remarks inciting any citizen to violence However, Carrot admitted
having a discussion with Hill at the plant in the presence of Guess and Roberts on one
occasion. He is vague about the circumstances of his presence there or the nature of the
discussions- lie recalls only that he was there to investigate complaints of drinking and
the possibility of a bootlegging operation, yet he did not relate anything of his alleged
investigation or its results ; all he could recall about his talk with Hill were some vague
remarks about playing softball. Neither Guess nor Roberts denied that they were present
during the discussion, but neither stated affirmatively what was said, or the reasons for
the discussion, so that in this important aspect they do not support Carrol's version At
most, Guess denied flatly that he heard the remarks related by Hill, and Roberts in sub-
stance testified that he did not remember them. Hence I do not credit the vague, rather
conflicting and unconvincing denials of Carrol, Guess, and Roberts.
STAR-BRITE INDUSTRIES, INC. 1017
antiunion bias disclosed in Guess' speeches to employees and his illegal order to
Hill to cease union activities on company time, I think it was incumbent on Respond-
ent specifically to disavow or disassociate itself in the employees ' minds from any
suggestions by a top law enforcement official that the employees go so far as to
breach the peace to get rid of the union organizer , and avoid a possible plant shut-
down. Hence , although Guess' laughter at Carrol's remarks might in some circum-
stances draw the sting of coercion from it , under all the circumstances here I must
conclude that Respondent in effect adopted the remark by not clearly and spe-
cifically disavowing it, or by not repeating Guess' earlier legitimate explanations
of the possible economic consequence of organization of the plant . Hence, I con-
clude that Carrol 's suggestions in these circumstances amounted to a potent and
coercive suggestion by Respondent that the plant would close and employees
would lose their jobs if they did not take drastic, violent and clearly illegal steps
to get rid of their organizer and cease their union activities . I find that Respondent
thereby further violated Section 8(a) (1) of the Act.10
C. The discharge of James Thompson
Sometime during April , Guess received reports from employees that James Thomp-
son was working for the Union and distributing union cards in the plant on company
time. On April 28, 1958 , Guess called Second-Shift Foreman Prentice Thompson,
brother of James, to the office, told him about these reports, and said that he did
not know if they were true or false , but asked Prentice to talk to his brother about
it and tell him that, if James was distributing cards on company time , he should
stop it, otherwise he should quit his job or Guess would have to discharge him,
and in such event Guess would prefer that he quit . Prentice replied that he did not
believe his brother would do a thing like that. Guess then said that , since Prentice
did not believe the rumor , Guess would just forget about it , and that Prentice need not
call James about it that night , as it was not that important . Otto Hanslick, plant
maintenance consultant , ir was present during the conversation , and remarked that
he would "hate it" if James was discharged , that "Jimmy is a damn good worker
and I would hate to lose him." Prentice called James on the telephone at his home
that evening, reported what Guess had said, and asked James if he had worked for
the Union on company time. 'James denied it emphatically , and said that he would
go and see Guess about it. Later that evening James visited Guess' home , and told
Guess he had heard people were starting rumors about him ( James ) passing out
union cards . Guess replied he had heard the rumors , and had talked to Prentice
about them , and he did not know if they were true or false , but he told James if
he was doing that on company time, he should stop it or quit "right now," as Guess
did not want to discharge him. James asked if he was "fired now " or if Guess wanted
him to come to work in the morning. Guess said he was not discharged, that
"we do not have a practice of firing people on rumors ," and that he should report
for work in the morning . 12 The record shows that James Thompson was the only
other employee , besides Hill, who was actively soliciting for the Union , and since
Guess' interrogation of him, and warning of discipline for future distribution of
union cards , followed the same pattern and was obviously for the same purpose as
his remarks to Hill found above , I conclude and find that Guess' remarks to Thomp-
son were another instance of illegal interrogation in aid of the discriminatory impo-
sition and application of a no-solicitation rule, in violation of Section 8(a)(1) of
the Act.
James Thompson was hired on or about January 17 , 1958, to train as a plant
maintenance man. While training , he was taught how to operate three automatic
bending machines on the day shift, and to maintain them during production.13 He
10 Cf Colonial Shirt Corporation, 96 NLRB 711, 714
11 Hanslick ' s exact status in the plant will be discussed later.
12 These findings are based on credited and mutually corroborative testimony of Guess,
Prentice Thompson , and James Thompson Testimony of any of these witnesses in conflict
therewith is not credited.
13 Under Respondent 's program of training maintenance men, a trainee first learned to
operate automatic machines , such as the benders, and during such operation learned also
how to maintain and repair them After satisfactory completion of that training, he was
taken off production and placed on straight maintenance work During the training period,
Thompson and other trainees worked with and under the direction of Edward G McClure
who was Respondent ' s only experienced maintenance employee in the early months, and
who trained all maintenance personnel and directed them in their work after training,
until lie was made general plant foreman later in 1958.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remained at this work until his discharge on May 2, 1958 . About 9:30 or 10 a.m.
of that day , Guess came to Thompson while he was working at his machines, and
told Thompson to come to the office and pick up both his paychecks at noon.
Thompson asked him, why , and Guess replied "I have my reason , you know why."
Guess then walked back to his office . Thompson came to the office shortly after
and said "If I am being fired at noon , I want my checks now." Guess then had his
checks prepared and gave them to him , and he left the plant at once. The same
day Guess prepared a "separation notice" for company files which stated that
Thompson was discharged for "unsatisfactory performance as maintenance man,"
and "undesirable attitude." Thompson did not get a copy of this notice when dis-
charged, or later. He has never been recalled or offered reinstatement. 14
The above facts show that in April Guess had good reason to believe, if not
actual knowledge , that James Thompson was working for the Union . Respond-
ent's antiunion bias is apparent from Guess ' speeches to employees , his silence in
the face of Carrol's antiunion suggestions to Hill, and his illegal attempts to curtail
the union activities of both Hill and Thompson . These circumstances , plus the
sudden discharge of Thompson 4 days after Guess' illegal curtailment of his union
activity , and the failure to give him any reason for his discharge at the time or
later, establish a prima facie case of discriminatory discharge which required Re-
spondent to adduce proof sufficient to rebut it.
Guess testified , and Respondent 's main defense is , that Thompson was discharged
for the two reasons stated in the separation notice. To prove his unsatisfactory
performance as maintenance man, Respondent relies on testimony of Day Shift
Foreman Everett Hood , and maintenance men McClure and Bernie W. Brown.
Hood observed Thompson 's performance throughout his employment , McClure
observed it almost daily , and Brown frequently . According to admissions of Guess
and Hood, he was considered an "average" worker, with a satisfactory attitude
toward his work, until he began to break an excessive amount of drills in his
machines. Hood , McClure, and Brown all testified that his breakage was excessive.
Hood at first claimed it averaged 25 to 30 drills per week, and at times reached
a peak of 11 to 14 a day ; on cross-examination and confrontation with his affidavit
given to a Board agent, he reduced this to an average of 10 to 15 a week, but recalled
one day when it rose as high as 14. He admitted the present breakage of drills
runs about eight per week for each operator . Brown could recall only one occasion
on day shift when he had to cut down 11 drills for use in the benders, and gave
most of them to Thompson to use on his machines , but at the end of the shift all
of them were used up. However, Brown also said that Thompson did his main-
tenance work "fair " McClure, chief maintenance man,15 said that during April
Thompson broke as many as 8 to 10 drills a day, which McClure found lying at
the machine , and had to grind them down in the machine shop, following which
either he, Brown, or Thompson installed them in the machines. He also claims
Thompson ran and repaired his benders in an inefficient manner, but does not go
into detail . Brown , who also trained under McClure and graduated in April to
straight maintenance work on day shift in April, testified that proper maintenance
of benders required constant oiling of the drills while the machine is running, and
that Thompson allowed his drills to run dry , so that they overheated and' broke
often . Thompson himself admitted he broke a "few drills," but denied that it
over rose as high as eight per day. His brother , Prentice , also admitted James broke
five or six drills during the week James worked for him in February , but he con-
sidered this normal breakage which did not hinder production on second shift, nor
did it require Prentice to assist his brother "too much" on maintenance of the
machines . Making due allowance for the tendency of the Thompson brothers to
is These findings are based on credible and mutually corroborative testimony of James
Thompson and Guess I deem it unnecessary to resolve a conflict in testimony of Thompson
and Guess as to whether Guess mentioned Thompson ' s union activity as the reason for
discharge in their talk at the machines , since General Counsel , while referring in his brief
to Thompson ' s testimony that Guess stated this as the reason, apparently relies on the
fact , admitted by Guess, that Thompson was never given the reason for his discharge, nor
received a copy of the " Separation Notice."
>s The record shows that McClure , though an hourly paid employee like production
employees , trained maintenance men both by handling maintenance with them and show-
ing them how it was done , and by directing them in their work Guess relied on his
judgment in the training program , and also consulted with him and relied on his recom-
mendations in the hiring of at least one maintenance man, and in handling maintenance in
the plant. McClure also directed maintenance men in their work after their training.
I find that McClure was a supervisor within the meaning of Section 2 ( 11) of the Act.
STAR-BRITE INDUSTRIES, INC. 1019
"play down" the amount of breakage , the opposite tendency of Respondent's wit-
nesses, and the lack of specific records on the amount of breakage , I conclude and
find from a synthesis of all the testimony on this point that, while James Thompson's
breakage was not unusual during the early stages of his training , it increased
substantially , and on occasion became unusually high, during the last month of his
employment . As drills cost between $3.50 and $4 each , excessive breakage was
undoubtedly a matter of constant concern to management as an item of cost of
production.
Respondent also adduced testimony tending to thow that, as his breakage in-
creased, Thompson 's attitude toward his supervisors and maintenance of his machine
changed. Guess and Hood testified that at the outset he had a satisfactory attitude
toward his work, but Hood also testified that, starting in March, he warned Thompson
several times about the excessive breakage , advising him that he did not install the
drills properly , and suggesting the proper way to do it ; on such warnings , Thompson
would turn away and paid no attention to the advice , but handled his machines as
before, and his breakage did not lessen. Brown testified that: Shortly before
Thompson 's discharge , he noticed that Thompson failed to oil his drills while running,
which caused them to break often from overheating . He cautioned Thompson
several times to oil the drills more frequently , but Thompson would reply "What
difference does it make? It does not cost you anything ." 16 McClure testified that
when he criticized Thompson about excessive breakage , the latter "took it good,"
never appeared indifferent to his warnings , but on one occasion , after Hood talked
to Thompson , he heard Thompson tell the foreman that if he did not like the way
he was doing it, to do it himself, that he "didn't give a damn. " I find from this
credible and mutually corroborative testimony that Thompson became indifferent
and careless about the maintenance of his machines during the last month or so of
his employment , and disregarded warnings and advice from his production foreman
and maintenance personnel about the care and maintenance of his machines.17
When Hood was unable to persuade Thompson by warnings and advice to improve
his care of his machines and reduce drill breakage , he made a report to Guess about
the middle of April about the excessive breakage , telling him Thompson 's attitude
of indifference was such that Hood could not do anything with him. Guess said he
would take care of the problem . Hood made similar reports to Guess in the latter
part of April , the last one about May 1, when he told Guess he could not put up with
Thompson any longer . Both men concluded that Thompson would never become
a good maintenance man. On or about April 18, 1959, Guess received a letter
from John E. Dulaney, vice president of Ashby Metal Forming Company, of St.
Louis, Missouri , is subject "Maintenance at Benton plant," which requested Guess
16 Although Brown was only a maintenance man, he made the suggestion to Thompson in
compliance with orders from McClure that maintenance men should caution the operators
to be careful in the operation of their machines.
As against the preponderance of credible testimony noted above , I do not credit
general denials by Thompson of any warnings or criticisms about his attitude or his
breakage of drills. The cogency of the proof supporting these findings is not lessened by
uncontradicted testimony of Prentice Thompson that the amount of drill breakage de-
pended in part on the type of material being drilled , and in part on the running condition
of the machine There is no substantial proof that James Thompson had to work at any
time during his employment with hard metal which might cause drills to break fre-
quently , or that his benders were ever in poor running condition through causes beyond
his control As the running condition of his machines obviously depended to a great
extent upon his own maintenance of them, it is inferable that any excessive drill
breakage which could be charged to poor running condition was largely due to his own
failure to maintain his machines properly.
is Dulaney was at the time vice president of Ashbv Metal Forming Company (formerly
Ashby Metal Manufacturing Company ) Kenneth Ashby, president of that corporation, is
the father of John R. Ashby , president of Respondent , who also lives in St Louis, Missouri.
While not an officer of Respondent , Dulaney has been acting as "supervisor" of the
Benton plant for John R . Ashby, visiting the Benton plant every month or so Prior to
December 1957 and January 1958, the St. Louis corporation had been in the aluminum
furniture business in that city , but in those months it moved all its operations to the
Penton plant where Respondent has since carried then on Befoic the move, Guess had
been production supervisor for Ashby Metal Forming Company in St. Louis, and has the
same duties for Respondent at Benton . During the setting up and early operation of the
Benton plant, Respondent made free use of services of Dulaney , and other employees of
the St. Louis corporation I find that Respondent is in effect a business successor or affili-
ate, if not the legal offspring, of the St. Louis corporation.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to "review your maintenance situation" with a view to reducing overtime hours and
pay of McClure, the sole overall maintenance man at the plant, and suggesting that
Guess confer with Otto Hanslick 19 and then "release some of the maintenance men
which are not useful plantwide." The letter suggested that, after this evaluation,
"it will then be necessary to hire a man of McClure's type," and concluded with a
request to implement the program at once and "rush me all details of your decision."
Guess had a meeting with Hanslick at Benton on the whole problem on or about
May 1, 1958, when they decided to release the least valuable maintenance man and
hire a man with more overall experience. From Hood's complaints about Thomp-
son's inefficient maintenance on his benders, Guess had concluded that he would
never learn maintenance and it would be useless to train him for an overall main-
tenance job. On this basis Guess and Hanslick decided to release Thompson, which
was done on May 2. At the same time, Guess terminated Leo Palmer, another
maintenance man. Thompson was replaced by Robert Orange, who had been
hired as a maintenance man on April 30, 1958. Orange has since handled overall
maintenance on day shift. After observing his performance for about 30 days,
Guess concluded that maintenance in that department had improved, with a decrease
in drill breakage. On June 10, 1958, Guess sent a report on the maintenance situa-
tion to Dulaney, in which he described and evaluated the work of all maintenance
personnel. He concluded that Orange was the best overall maintenance man to
assist McClure, and recommended a raise for him. He also recommended a raise for
Floyd Culp, second-shift maintenance man who had successfully completed the
training program. In conclusion, he stated his opinion that the maintenance force
"is 100 percent better than we have had in the past," and added, "As you know we
have been forced to terminate some men who were good men in other fields to build
this force to what it is today." Before he forwarded the report, Guess discussed it
with Hood, Prentice Thompson, and McClure, all of whom read it, agreed with the
conclusion stated in it, and signed it.20
The above facts in their sequence, standing alone , afford substantial support for
Respondent's defense. The validity of its claim is weakened, however, by other
facts -and circumstances.
1. While excessive, costly drill breakage would undoubtedly be a matter of
concern to any employer, warranting prompt corrective action , credible testimony
of McClure and Brown indicates that here broken drills were cut down and salvaged
as a matter of course by maintenance men for reuse in the benders. In the absence
of exact figures from Respondent showing how many drills were broken by Thomp-
son, and how many of these had to be totally replaced, it is inferable that the total
loss to Respondent was substantially less than the initial cost of the drills would
indicate. In addition, though Thompson's excessive breakage began sometime after
February, and Guess apparently became convinced in April that Thompson would
not become a good maintenance man, Respondent took no drastic action against
him until May 1 (the conference with Hanslick), and May 2 (the discharge), despite
Guess' earlier knowledge of his deficiencies and Dulaney's mid-April order promptly
to eliminate the poorest men in the maintenance department. These facts militate
against a finding that Respondent considered drill breakage a serious matter in itself,
and warrant the inference that Thompson's breakage or attitude did not assume real
importance to Guess until after he learned of Thompson's union activity and took
direct discriminatory action to curtail it as found above.
2. Guess testified that the decision to discharge Thompson was entirely his own,
that he never consulted Hanslick, his chief counselor and guide on maintenance
problems, nor McClure, his maintenance supervisor, about Thompson's work before
the discharge. As Guess admittedly relied on the judgment and advice of both in
setting up and running his maintenance program, and on McClure in particular in
running the maintenance training program, it is incredible that he would not consult
McClure, at least, before terminating a trainee under his supervision. His unex-
19 Otto Hanslick was master mechanic and maintenance "trouble-shooter" of the St. Louis
corporation, who spent about 90 percent of his time at Benton in the first 6 months after
that plant opened, assisting Guess and McClure in setting up equipment and getting the
plant into operation, and evolving a maintenance program and training maintenance per-
sonnel In those phases of the operation, Guess and McClure ielied heavily on his advice
and guidance, and since the plant achieved routine operation, he has been "on call" to
assist Guess on maintenance problems. However, he has never been on the payroll of
Respondent, or assigned specific duties at Benton, as an employee of Respondent
23 These findings are based on credited and mutually corroborative testimony of Guess,
Hood, McClure, and documentary evidence.
STAR-BRITE INDUSTRIES, INC. 1021
plained failure to do so warrants the inference that Thompson's poor progress on
maintenance was not an impelling motive for his discharge. I do not credit Guess'
claim that he did not consult Hanslick, in the face of Dulaney's order to confer
with Hanslick about the whole maintenance program, and Guess' admission that they
held the conference about May 1 and decided to release the "least valuable main-
tenance man." Guess' attempt in testimony to shun any discussion with these aids
about Thompson achieves more significance, however, in the light of other testimony
about Thompson's production work, and management's appraisal of it.
3. Day Foreman Hood admitted that, aside from Thompson's poor performance
and attitude on maintenance "nothing else was unsatisfactory." Second shift
Foreman Prentice Thompson testified credibly that when James worked for him
on the second shift for a week in February, his production was "as good as any
employee." I also find from credible testimony of both foremen and James Thompson
that: During February, Prentice several times requested Hood to exchange bender
operators, so that James could work on second shift with Prentice, and Hood on one
occasion refused, telling Prentice that lie (Hood) "had a good man on the machines"
and "did not need him," meaning the second shift operator. When Prentice repeated
the request about April 1, Hood again refused, saying that Prentice had a good man
on his shift, and that, "I need James on my shift, he is a good man, and I can't
let him go." I also find from credible testimony of Wyatt and Hill that: On one
occasion during Wyatt's employment at the plant,21 McClure told her James was not
going to help him on maintenance, because "they won't let him because he is too
good on the benders." On one occasion in February, Hill asked Hanslick if James
was going on maintenance work, and Hanslick replied that he did not think so, that
James was a good worker, the best man in the plant on the benders, and Respondent
had no one to replace him on those machines. On another occasion in the same
month, while Hill was helping McClure service a machine, Hill asked McClure why
James was not helping McClure on this work. McClure replied that James was a
good worker, that "they" could not spare him from the bending machines. On
several occasions in February or March, when Hill was installing new belts on
polishing machines himself, he asked McClure why James was not doing it, saying he
thought James was going on maintenance work; McClure replied "he was supposed
to, but we can't spare him, he is the only man who can run the benders and pull
maintenance on them at the same time." 22 It is clear from these facts that as
early as February management regarded James Thompson as a good production
man, and there is nothing in the record to indicate that this appraisal changed in
March or April, even in the face of his deficiencies in maintenance work. This con-
clusion is strengthened by Guess' admission that he did not hire or use other workers
to run the benders on day shift between January and the time of Thompson's
discharge.
I am convinced that Thompson's satisfactory production record is the significant
fact of which Guess was trying to disclaim all knowledge by his alleged failure to
talk to Hanslick about Thompson. It is apparent that, if he had admitted such
discussion, he would have known Hanslick's good opinion of James as a production
man, which knowledge could reasonably be expected to have dictated to Guess, as
a production supervisor, the retention of Thompson on production. The same con-
clusion must be drawn from Guess' admitted failure to consult Hood prior to the
discharge, and Hood's admission that his first knowledge of it came when he found
ai Wyatt worked there from the first week In February to July 1, 1958, when the plant
shut down.
211 do not credit testimony of McClure denying the statements attributed to him by
Wyatt and Hill, in the light of the admissions of Guess and Hood as to the acceptability
of James Thompson's production. For reasons noted above, I consider McClure a super-
visor whose remarks about Thompson's performance are binding on Respondent. Safeway
Stores, Incorporated, 111 NLRB 908, 975, footnote 8. Hanslick was never produced by
Respondent to deny the statements attributed to him, and while he was not a paid em-
ployee of Respondent, I consider that his extensive work with Guess and McClure in
setting up the plant and installing the maintenance program, and the extent to which
those supervisory officials relied on his advice in that work, placed him in a position so
close to management as to lead employees to believe that on matters relating to plant
operation he was speaking for management. See Trim fit of California, Inc, 101 NLRB
706, 708, 709. Hence, Respondent's failure to produce him to testify about James
Thompson, or to deny the complimentary remarks about James attributed to him, war-
rants the inference that he could not truthfully deny those remarks, or support Respond-
ent's contrary claims about Thompson 's work.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the benders without an operator that morning, and was forced to run them himself.
Considering Guess' contradictory testimony on this point, I am convinced that he was
well aware, at least from his May 1 talk with Hanslick, of Thompson's satisfactory
production performance, and this conclusion is confirmed by Guess' admission in
his report to Dulaney that "we have been forced to terminate some men who were
good men in other fields to build this force to what it is today." This could only
mean James Thompson and Leo Palmer; the record is otherwise silent as to the
work record of the latter.
4. While Respondent had good cause to take Thompson off maintenance work
because of his unsatisfactory progress in that line. and the orders from Dulaney to
achieve economy in that program, Respondent offers no credible explanation why
it was "forced" completely to terminate Thompson, a good man on production.
Lacking testimony from Respondent on the point, it is inferable that Respondent had
to replace him with another worker, yet Respondent offers no explanation for its
failure to retain him on production, instead of replacing him with a less experienced
or new man. That course would also serve the objective of economy, for Thompson
would have been entitled to receive only $1 per hour as a bender operator, as against
$1.25 an hour as a maintenance trainee. From the maintenance point of view, his
retention would have been feasible, for by May 2 Brown had become the regular
overall day-shift maintenance man, so that Thompson could presumably have been
used entirely for production. If Hood's inability to "do anything with" Thompson
because of his general uncooperative attitude is considered a major factor in the
discharge, Respondent offers no reason why it did not attempt to solve that problem,
and the personality clash involved, without losing Thompson's services, by trans-
ferring him to second shift under brother Prentice, who had been asking for him
since February. The unexplained failure to retain an employee who was still valuable
in production not only throws substantial doubt on the reason for termination
offered but also supports the conclusion that the real motive was the only other
factor apparent in the record, i.e., his union activity.23
5. Another circumstance pointing to this conclusion is Respondent's reliance upon
testimony of Guess indicating that he had received reports that James Thompson
had told the second-shift bender operator, Bobby Edwards, that he was "silly" for
doing that work on second shift for less than Thompson was earning. Respondent
points to this as further evidence of an "improper" attitude toward his employer
which "did not lend harmony to employer-employee relations." Although the
remark was ill-founded, because Thompson's higher pay was due in part to his
additional duties as a maintenance trainee, I consider it nothing more than a per-
missible expression of opinion about another worker's pay which, so far as the
record shows, did not in fact make Edwards or other employees- discontented, or
give rise to complaints or grievances about pay, or otherwise cause trouble in the
plant. Hence, I consider Thompson's remark as an isolated, trivial matter which
Respondent has brought forward in a palpable attempt to magnify and give sub-
stance to the vague charge of "undesirable attitude." and otherwise bolster its defense.
6. Finally, the failure of Respondent to give Thompson at any time the reasons
for discharge which it now offers is highlighted as evidence of a discriminatory
discharge by Respondent's attempt to explain it away through Guess' testimony that
Thompson came to the office on May 2 sooner than requested, so that Guess had
no chance to explain the reasons for discharge to him, as he says he intended to do.
But this explanation falls in the face of Guess' admission that, when he received his
final checks, Thompson stated that he had not worked for the Union before but
would do so "now," and that Guess replied "That's your prerogative." If Thompson
was there long enough for this exchange of remarks, I am satisfied that Guess could
certainly have persuaded him to remain a bit longer to hear Guess state the alleged
reasons for termination in simple terms and deny that union activities had anything
to do with his release. Guess' failure to do this impels the inference either that he
While the Board may not second-guess an employer on the way he runs his business
and the employer can discharge an employee for good cause, had cnnse, or none at all
(NL R 13 v. T. A McGahey, Sr, et at, d/b/a Columbus Marble Torte, 233 F 2d 406,
412, 413 (C A 5), it is also clear that, where an employer offers a 'pecific business reason
for a discharge in rebuttal of prima facie case of discrimination, the Board has the right,
in appraising the validity of the business reason and deciding on the entire record whether
it or an illegal motive caused the discharge, to take into consideration the extent to which
the employer may have departed from accepted business practices in making the discharge,
and the explanation, or lack of it, for such departure Emit A. Myrmo and Arthur
Myrmo. partners d/b/a Geo Myrmo & Sons, 122 NLRB 256; Chemical Plating Company,
121 NLRB 1588; California Textile Mills, 120 NLRB 1245; Sears Roebuck and Company,
123 NLRB 1236.
STAR-BRITE INDUSTRIES, INC. 1 023
could not truthfully make such statements, or that Thompson's past maintenance
work was not in his mind at the time and was not the main factor or the real motive
for the termination.
All of the above facts and circumstances, in their totality, convince me that, while
Thompson failed to meet Respondent's standards as a maintenance man, he was
at the time of discharge still a valuable man on straight production, a fact which
Respondent chose to ignore at the time of discharge, and that, while his past
shortcomings in maintenance work may have played some part in Guess' decision,
Thompson's known union activity was the real, though concealed, motive for his
discharge,24 I therefore am constrained to conclude, on all the pertinent evidence in
the record considered as a whole, that Respondent has failed to adduce evidence
of a bona fide discharge for cause which is sufficient to rebut the prima facie case
made by the General Counsel. I find that Respondent discharged James Thompson
on May 2, 1958, because of his union activity, in order to discourage membership
in and activity on behalf of the Union, and thereby violated Section 8(a)(3) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with Respondent's operations described in section I, have a close, intimate, and
substantial relation to trade, traffic, and commerce in 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 Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
which will effectuate the policies of the Act.
Having found that Respondent has discriminated in regard to the hire and tenure
of James Thompson, I shall recommend that Respondent offer to him immediate
and full reinstatement to his former or a substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and make him whole for
any loss of pay he may have suffered as a result of the discrimination against him
by payment to him of a sum of money equal to that which he would have earned as
wages from the date of such discrimination to the date of a proper offer of rein-
statement, less his net earnings during such period, the backpay to be computed on
a quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289. 1 will also recommend that Respondent preserve and upon
request make all pertinent records available to the Board or its agents.
In view of the nature of the unfair labor practices committed, I shall also
recommend that Respondent cease and desist from infringing in any manner upon
the rights guaranteed in 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 above-named Union is a labor organization within the meaning of
Section 2(5) of the Act.
2. By discharging, and refusing to reinstate, James Thompson because of his
participation in union organizing efforts, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a) (3) of the Act.
3. By said discharge and other conduct found above, Respondent has interfered
with, restrained, and coerced employees in the exercise of rights guaranteed by
Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor
practices within th e meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
24 Discrimination may be found if the employee's union activity was a substantial or
motivating reason for his discharge, even though other nondiscriminatory reasons may
exist Although the discharge of an inefficient or insubordinate union member or organizer
is lawful, it may become discriminatory if other circumstances reasonably indicate that the
union activity weighed more heavily in the decision to fire him than did dissatisfaction
with his performance. N L It B. v. Whstin Machane Works, 204 F. 2d 883, 8'85 (C.A. 1) ;
N L R B. v Jamestown Sterling Corp , 211 F. 2d 725, 726 (C.A. 2).