State Plating and Finishing Co.

National Labor Relations Board - Board Decisions

Sep 27, 1962

138 N.L.R.B. 1058 (N.L.R.B. 1962)

1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discharging Phyllis Boyle at the request of the Union , the Company has
discriminated in regard to her hire and tenure of employment in violation of
Section8 ( a)(3) and (1) oftheAct.
4. By causing the Company to discriminate in regard to the hire and tenure of
employment of Boyle in violation of Section 8(a)(3) of the Act, the Union has
violated Section 8(b)(2) and (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
State Plating and Finishing Company and International Union,
United Automobile , Aircraft, and Agricultural Implement
Workers of America (UAW), AFL-CIO. Case No. 7-CA-3444.
September 27, 1962
DECISION AND ORDER
On April 24, 1962, Trial Examiner William J. Brown issued his
Intermediate Report in the above-entitled case, finding that the Re-
spondent 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 attached Intermedi-
ate Report. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the modifications noted herein 2
THE REMEDY
Having found that Respondent has engaged in certain unfair labor
practices, we shall order it to cease and desist therefrom and take cer-
tain affirmative action to effectuate the policies of the Act, as recom-
mended by the Trial Examiner, with the following modification.
Members Fanning and Brown, for reasons set forth heretofore,'
find merit in the exceptions of the General Counsel to the failure of
' As the record , including the exceptions and briefs , adequately present the issues and
positions of the parties , the request for oral argument by the Respondent is denied.
9 As we agree with the Trial Examiner that Jenkins is not a supervisor within the
meaning of the Act, we do not pass upon the Trial Examiner 's refusal to permit the
General Counsel to reinstate and amend section 8 ( b) of the complaint.
e Ises Piumbieg & Heating Co, 138 NLRB 710
138 NLRB No. 121.
STATE PLATING AND FINISHING COMPANY 1059
the Trial Examiner to include the payment of interest in the back-
pay obligations of the Respondent herein. Accordingly, The Remedy
section of the Intermediate Report is amended by providing that the
backpay obligations of the Respondent shall include the payment of
interest at the rate of 6 percent to be computed in the manner set forth
in the Isis case.4
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, State Plating and
Finishing Company, Grand Rapids, Michigan, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership of any of its employees in Interna-
tional Union, United Automobile, Aircraft, and Agricultural Imple-
ment Workers of America, (UAW) AFL-CIO, or in any other labor
organization, by discharging any employee, or in any other manner
discriminating against any employee in regard to hire, tenure of em-
ployment, or any term or condition of employment, except as author-
ized in Section 8 (a) (3) of the Act.
(b) Interfering with, restraining, or coercing employees in any
other manner, in connection with the exercise of the right to self-
organization, to form labor organizations, to join or assist Interna-
tional Union, United Automobile, Aircraft, and Agricultural Imple-
ment Workers of America, (UAW) AFL-CIO, or any other organiza-
tion, to bargain collectively through representatives of their own free
choice and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section
8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Genevieve Vanderiest, Beatrice Tolhurst, Oneida Emery,
Rose Workman, and Jean Chorman immediate and full reinstatement
to their former or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and make them whole
in the manner set forth in the section above entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
'For reasons set forth in his dissent in Isis Plumbing & Heating Co ., supra, Member
Rodgers dissents from the majority' s decision to award interest in this case
662353-63-vol. 138-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and all other records necessary to analyze and compute the amounts
of backpay with interest due under the terms of this Decision and
Order.
(c) Post at its plant in Grand Rapids, Michigan, copies of the
notice attached hereto marked "Appendix." 5 Copies of said notice,
to be furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by Respondent, be posted by it immediately
upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered, defaced, or
covered by other material.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership of any employees in In-
ternational Union, United Automobile, Aircraft, and Agricul-
tural Implement Workers of America, (UAW) AFL-CIO, or in
any other labor organization, by discharging any employee, or
in any other manner discriminating against any employee in
regard to hire, tenure of employment, or any term or condition
of employment, except as authorized in Section 8(a) (3) of the
Act.
WE WILL NOT interfere with, restrain, or coerce employees in
any other manner, in connection with the exercise of the right to
self-organization, to form labor organizations, to join or assist
International Union, United Automobile, Aircraft, and Agri-
cultural Implement Workers of America, (UAW) AFL-CIO, or
any other organization, to bargain collectively through repre-
sentatives of their own free choice, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such ac-
tivities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a9
STATE PLATING AND FINISHING COMPANY 1061
condition of employment, as authorized in Section 8(a) (3) of the
Act.
WE WILL offer Genevieve Vanderiest, Beatrice Tolhurst, Oneida
Emery, Rose Workman, and Jean Chorman immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of pay suffered as
the result of our discrimination against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of any labor organization, except to
the extent that the right may be affected by a lawful agreement re-
quiring membership in a labor organization as a condition of employ-
ment.
STATE PLATING AND FINISIIING COMPANY,
Employer.
Dated-- -------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify any of the above-named employees presently
serving in the Arined Forces of the United States of their right to full
reinstatement upon application in accordance with the Selective Serv-
ice Act 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.
Employees may communicate directly with the Board's Regional
Office, Industrial Building , 232 West Grand River, Detroit , Michigan,
Telephone Number, Woodward 2-3830, if they have any question con-
cerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Pursuant to a charge filed November 13, 1961, by the above- indicated Charging
Party, hereinafter sometimes called the Union, the General Counsel of the National
Labor Relations Board , by the Regional Director for the Seventh Region, on
December 29, 1961, issued the complaint herein pursuant to Section 10(b) of the
National Labor Relations Act, as amended , hereinafter sometimes called the Act.
It alleged, in addition to jurisdictional matter, that the above -indicated Respondent
engaged in ( 1) unfair labor practices within the purview of Section 8(a)(1) of
the Act by threats of shutdown or discharge in reprisal for employee activities pro-
tected under Section 7 of the Act, and (2) unfair labor practices within the scope
of Section 8(a)(3) of the Act by the discharge of five named employees on
September 11 and 12, 1961. Respondent's answer admits the allegations as to
jurisdiction, denies the commission of the unfair labor practices alleged , and affirma-
tively alleges that the discharges in question were, in fact , effected for cause, without
discrimination and without knowledge of any union activity in its plant.
The hearing herein was held before Trial Examiner William J. Brown at Grand
Rapids, Michigan , on February 20, 21, and 22, 1962. The parties were represented
as above indicated and afforded full opportunity to present evidence and argument
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the issues. Briefs filed by Respondent and the General Counsel have been
considered.
At the conclusion of the General Counsel's case-in-chief, the General Counsel
and the Respondent agreed that there was no evidence to substantiate the allegations
of paragraph numbered 8(b) of the complaint relating to alleged threats of discharge
by Supervisor Larson and I granted the General Counsel's motion to delete those
allegations of the complaint. Section numbered 8(a) of the complaint alleged that
on or about September 1 Respondent by a supervisor, Fannie Ruth Jenkins, threat-
ened employees with plant shutdown if they became or remained members of the
Union or gave support to it. Precedent paragraphs of the complaint established
that Union therein has reference to the Charging Party, International Union, United
Automobile, Aircraft, and Agricultural Implement Workers of America, (UAW)
AFL-CIO. That section numbered 8(a) had reference to threats related to UAW
membership or support is made abundantly clear by its contrast with 8(b) of the
complaint which alleged threats for discharge if employees engaged in "union or
other concerted activities "
I granted the Respondent's motion to dismiss section numbered 8(a) on the
grounds that, even assuming the supervisory status of Jenkins, there was no indica-
tion of action by her in the nature of threats for membership in or support to
the UAW.'
In his brief, the General Counsel has urged me to reconsider my denial of his
motion to reinstate section numbered 8(b) of the complaint substituting the name of
Jenkins in the place of Larson as the alleged supervisor through whom the unfair
practice therein referred to was committed. I adhere to my formal ruling because
(1) on reappraisal of the evidence I am convinced that it was correct, (2) it would
be a matter of procedural unfairness to Respondent to reverse this ruling and make
a finding adverse to Respondent without reopening the record, (3) as hereinafter
delineated, I find Jenkins not to be a supervisor within the purview of the Act, and
(4) finally, in view of the findings hereinafter made, there would be little, if any,
practical result in the relief granted the General Counsel.
Upon the entire record in this matter, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
It appears from the allegations and admissions of the complaint and answer that
Respondent is a corporation organized under the laws of the State of Michigan with
its principal office, plant, and place of business at 820 Cottage Grove, SE., Grand
Rapids, Michigan, where it is engaged in the plating and finishing of hardware and
related, products. During the year ending January 31, 1961, Respondent shipped
products valued in excess of $120,000 from its Grand Rapids plant directly to States
other than the State of Michigan and is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act. Assertion of the Board's jurisdiction is
warranted.
II. THE LABOR ORGANIZATION INVOLVED
In accordance with a stipulation of the parties entered into at the hearing, I find
that the Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and summary of events
Respondent was organized some 4 years prior to the events referred to here-
inafter. Roman Tryce and Frank King are its founders and equal stockholders.
It commenced actual production work November 1, 1957, and, with an employee
complement ranging between 40 and 70 over the years, it has engaged in the plating
of metal parts on individual order from its customers. King is president of Re-
spondent and primarily concerned with the technical aspects of production; Tryce,
secretary-treasurer, appears to be the one primarily concerned with customer con-
tacts including the quotation of prices, personnel, and the management aspects of
production. Ronald Westenbroek was Respondent's superintendent and, subject only
to Tryce and King's managerial direction, in charge of Respondent's manufacturing
operations.
1 The evidence Indicates that while there was talk about "a union" coming in to the
plant, the Union, i e, the UAW, was at no material time mentioned by name in the plant.
STATE PLATING AND FINISHING COMPANY 1063
Respondent's plant is relatively small, 40 by 120 feet. Material to be plated
or otherwise finished for the customer is upon receipt initially placed through a
degreasing operation then sent to the racking department where the parts are cleaned
and attached firmly to racks on which they remain throughout the course they take
through several tanks in the process of plating and finishing. There are five racking
tables in the racking department with two girls ordinarily assigned to each table.
Each of Respondent's several production departments has an employee known as
a "lead man" or "lead girl" who, by virtue of his or her greater experience and/or
ability, is charged with the responsibility of expediting the flow of production.
These lead people received an hourly rate of pay substantially higher than that given
other employees in their department 2 and they appear to be allowed considerable
freedom of action in moving within their departments without any particular indi-
vidual production task. The status of lead personnel is disputed in this proceeding.
The issue becomes meaningful with respect to the status of Fannie Ruth Jenkins,
leader in the racking department, and John Lobbezoo, leader in the paintroom.
While, as pointed out above, I have dismissed allegations of interference, restraint,
and coercion allegedly committed by Respondent through the agency of Jenkins, her
status is material on the issue of Respondent's knowledge of union or concerted
activities.
Organization of employees commenced about September 1, 1961, and signatures
of employees interested therein were obtained in the plant about September 11. Two
employees who distributed the signature papers and three who signed them were
discharged. About this time Respondent was engaged in appraising its work force
to eliminate poor workers.
B. The status of lead personnel
Evidence pertinent to the status of lead people is found mainly in the testimony of
Roman Tryce which is credited on this subject. Tryce explained that the function
of lead people is to see that the work of their respective departments is performed,
with the correlative authority to assign the employees to particular tasks and to
instruct them in the performance of their tasks. It does appear, however, that lead
personnel have no authority to either effectuate or effectively recommend changes
in employee status. They are expected to report to Westenbroek or Tryce cases of
employee insufficiency and ordinarily will be told by Tryce or Westenbroek to
counsel and correct the employee with any decisive action apparently reserved to
Tryce. Tryce testified that if a lead person reported that an employee was totally
incapable he would not rely on that recommendation, but would check the employee
out and ascertain the facts for himself. He categorically denied that lead personnel
had the authority to effect transfers (other than temporary assignments within the
department), to suspend, lay off, recall, promote, increase pay, discharge, or adjust
grievances. It clearly appears that employees present grievances directly to Tryce,
either with or without first presenting the situation to the leadman. Although lead
personnel are compensated at a premium hourly rate they are required to punch
the timeclock and have the same employee benefits as the other production workers
Evidence tending to indicate a supervisory status on the part of lead personnel
consists mainly of a concession in the pretrial statement of Superintendent Westen-
broek to the effect that Lobbezoo had authority to discharge employees. This, how-
ever, was explained by Westenbroek as limited to unusual circumstances and in
such situations as that as reflected by testimony indicating that lead girl Zawicki
effectively discharged an employee who committed an assault on her at a time when
there were no managerial personnel in the plant.
It does appear that on some occasions when the plant operates a night shift it
does so with only a lead person on hand. But Westenbroek, Tryce, and King are
available at all times and it is expected that any problems calling for the exercise
of authority of a supervisory nature will be presented over the telephone before
action is taken. It also appears that Jenkins has on one or two occasions recom-
mended employees for hiring and that these employees have subsequently been
hired; however, this is not sufficient to establish authority to make effective recom-
mendations in this regard.
The preponderance of the evidence does not indicate that lead personnel are
supervisors within the meaning of Section 2(11) of the Act; in fact that weight
of the evidence indicates that they are no more than their name indicates, rank-
and-file employees whose seniority and skill entitles them -to a higher rate of pay
The lead girl in racking, Jenkins, thus receives $1 65 per hour whereas the starting
employee rate is $1 20 and top rate is $1 35
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in return for which they "lead" by instruction and suggestion, rather than by
authority on behalf of management to affect the work status or tasks of employees
or make effective recommendations. See Lindsay Newspapers, Inc., 130 NLRB
680, Schott Metal Products Company, 129 NLRB 1233.
C. Union organization and the discharges
Sometime about September 1, 1961, employees commenced discussions as to the
desirability of having a union at State Plating. Genevieve Vanderiest, a racker,
appears to have been the leader in this and the matter was discussed freely at break
time and during the lunch periods. Soon thereafter Vanderiest had some conversa-
tion concerning union representation with Owen Bieber, a union representative, and
on the evening of Friday, September 8, while Vanderiest was bowling with employees
Rose Workman, an inspector, and Exie Girard, it was agreed between Vanderiest
and Workman that they would find the names of employees in their respective de-
partments who were interested in union representation sufficiently to sign their
names to slips indicating their interest.3
On the following Monday, September 11, Vanderiest and Workman carried
through on these plans. Vanderiest and two employees, Beatrice Tolhurst and
Oneida Emery, who signed her slip, where discharged September 11. Workman and
another employee, Jean Chorman,4 who signed Vanderiest's slip on the 11th, were
discharged September 12. The true reason for these discharges constitutes the issue
in this proceeding.
During the luncheon period on September 11 Workman asked Vanderiest whether
she had yet circulated her slip of paper to obtain the names of persons interested in
a union for the plant. Thereafter, on returning to her work station, Vanderiest
obtained a slip of plain white paper 5 by 8 inches (of the type used by the rackers
in keeping account of the number of racks completed) and commenced circularizing
the girls to get the names of those interested in bringing a union into the plant.
She obtained the signatures of employees Mills, Tolhurst, Chorman, and Emery.
Fannie Ruth Jenkins, the lead girl in the racking department, observed the cir-
cularization of the paper as appears from the preponderance of the credible testi-
mony. According to the testimony of Vanderiest which I credit in this regard,
Mills, the daughter of Jenkins, asked her mother if she had seen it, and Jenkins
said that she had. Tolhurst also testified that Jenkins was present while the paper
was being circularized. There had been previous frank exchanges of views on
union organization between the employees, including Vanderiest, with Jenkins and
there would be no reason for attempts to suppress the circularization of the slip and
shield it from Jenkins' eyes. Alice Mills testified that she does not remember sign-
ing the paper (acknowledging, however, her signature thereon) and asserts that
when she signed the paper she was not advised as to what it was She also testified
that on September 11 she had no conversation with her mother about a union.
I do not credit Mills whose demeanor and testimony struck me as unreliable.
Shortly after securing the four signatures on the slip of paper Vanderiest was told
by Westenbroek to go into King's office King told her on her arrival that her
work was poor, there was too much talking going on, she was discharged, and he
would escort her to the door. A short time thereafter Tryce talked to Tolhurst
and Emery near their work stations and told the pair that they talked too much and
were slowing down production and that he would have to let them go as of that
time.
Tryce and King testified they had a regular practice of monthly review of their
profit-and-loss statements and each month went over the operating figures taken
from their own books of account by their bookkeeper and showing monthly (and
accumulated) detailed breakdowns of costs and sales. These figures were reviewed
on the morning of September 11 sometime between 9 and 9:30. Both Tryce and
King testified that the reports of costs in relation to sales showed excessive labor
cost in relation to sales and profits and they decided to houseclean Tryce, ac-
cording to his testimony, upon arriving at the decision that a housecleaning was in
order, started a time study on the rackers selecting Tolhurst and Emery for a rela-
tively accurate time study as to the time spent in racking. At the same time he
s It appears that on the night of September 8, Vanderlest mentioned Bieber and the
Union by name to her companions. She did not thereafter, so far as appears from the
evidence, mention either by name in the plant.
4 Jean Chorman's name is variously spelled throughout the pleadings, evidence, and
briefs. Her signature on General Counsel's Exhibit No. 4 appears to indicate that the
correct spelling of her name is that used herein
STATE PLATING AND FINISHING COMPANY 1065
was observing Vanderiest without an accurate time study. According to Tryce's
testimony his time study showed that Tolhurst and Emery consumed 1 hour and 15
minutes in racking Motorola panels whereas the normal time, he testified, was 25
minutes. Vanderiest had been, according to the testimony of Tryce and King, an
employee with a difficult attitude and one who spent a substantial amount of time
in talking to others and in the ladies' room.5
On September 12 about noontime , Vanderiest, Tolhurst, and Emery returned to
the plant pursuant to instructions from Bieber to obtain the slips of paper circulated
the preceding day.6 As the employees came out of the plant on their noon lunch
period Vanderiest hailed Jenkins and asked her to go back to the plant and ask
Workman to come to the group in the car. Jenkins complied with the request and
shortly thereafter Workman and Chorman came out to the car. As the five sat in
the car Westenbroek, on instructions from King, ordered them to remove it from
company property.?
After lunch Workman was sent by her leadman, Lobbezoo, into the racking de-
partment. Shortly thereafter Westenbroek told her at the timeclock as she was
punching out that she was being discharged and she knew what the reason was-
namely that he work was below par. Also on September 12 as Chorman was punch-
ing out at 3:30 Tryce called her aside and said that she had been tried out in several
departments but proved incapable and they would have to let her go.
Tryce testified that on the morning of Tuesday the 12th he did a time study on
Chorman and found her work speed unsatisfactory. According to the testimony
of Tryce he received reports on the afternoon of September 12 concerning defective
parts passed through inspection which had not been taken care of. He determined
at that time to discharge Workman but was busy in connection with the discharge
of Chorman and with the handling of a customer complaint so he delegated the dis-
charge of Workman to Westenbroek.8
D. Analysis and conclusions
Tryce, King, and Westenbroek deny knowledge of any union activity on the part
of employees at material times and similarly deny knowledge of the circularization
of the slips of paper by Vanderiest and Workman. Jenkins too denies knowledge
of the circularization of the union slip of paper in the racking department on Sep-
tember 11 and similarly denies stating to her daughter, Mills, that if she signed the
slip they would all be fired. I credit, however, the testimony of Vanderiest and
Tolhurst to the effect that Jenkins was present and had plain knowledge of the cir-
cularization of the union slip.
As pointed out above I find that Jenkins is not a supervisory employee and as a
consequence I find that her knowledge in this regard is not per se imputable to
Respondent. In view of the uncontradicted evidence to the effect that shortly after
the circularization of the slip she was present in the front office of Respondent how-
ever, her knowledge which I find to be a fact, is a chain in the link of evidence
establishing a means by which Tryce and King could, as I find in fact they did,
become aware of the circularization of the union slip.
A key witness on the issue of Respondent's knowledge of the concerted activities
and the motivation for the discharges is Thomas Dabakey. Dabakey, an employee
in the spraying department until November 1961, testified that sometime about 1:30
or 2 o'clock on September 11, Westenbroek sent him into King's office. There,
King took him aside into the conference room and inquired as to what he knew
5 There is testimony adduced by the General Counsel to indicate that the five employees
selected for discharge were satisfactory and had never been warned to improve or suffer
discharge. There is countervailing testimony from Respondent that its officials had fre-
quent occasion to criticize and warn the five. I find the truth to be somewhere between
the two extremes and that the employees had occasionally been admonished but had not
been given ultimatums
9 Workman had circularized her department and unlike Vanderiest had signed the slip.
Her slip, Respondent 's Exhibit No. 2, contains three names in addition to her own. One
of these three, Norder , was discharged on September 11 or 12, but she is not involved
in the instant case . It appears that Vanderlest had given her slip to Workman before
going to King 's office.
The evidence indicates the car was partly on the public street and partly on Respond-
ent's driveway . It also indicates that Westenbroek on this occasion acted civilly while
Vanderiest acted vulgarly.
9 King, however , asserted that the decision to discharge Workman had been reached
before noon of September 12.
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about a union and about the paper being signed. King said further that he would
discharge those involved and that Dabakey was due for a raise in pay and if he
heard anything further about the union activity to let King know about it. Follow-
ing this meeting Dabakey asked Westenbroek if King could get away with the dis-
charges for trying to get the union in. The following day, according to Dabakey's
testimony, he asked Westenbroek in the morning if King had found any more union
people and Westenbroek said that they had found one more, namely Workman,
and that she would be discharged at the close of business that day.
Respondent has assailed Dabakey's credibility pointing out that he misrepresented
his age at the time of his initial employment and that, according to the testimony
of Westenbroek, his reputation in the community for truth and veracity is not good.
Notwithstanding these attacks I find him credible in his testimony before me, and
I do not credit Westenbroek's denial of the conversation on September 11 and 12.
Workman, for her part, testified that as she returned to work following the incident
in the parking lot, her leadman, Lobbezoo, told her to watch her step because King
was boiling and further that King knew that she was one of those trying to get
the Union in.
Respondent contends that the General Counsel's evidence fails to indicate a dis-
criminatory motive for the discharges of the five employees and further asserts
that, to dispel any possible inference of improper motivation its evidence establishes
justifiable cause for each discharge. There is evidence, uncontradicted, that Tryce
and King received monthly reports from their bookkeeper giving detailed opera-
tions for the preceding month. The reports are regularly received sometime be-
tween the 8th and 12th of the month following the calendar month for which the
figures are assembled. When the figures show the need for changes in operating
methods King and Tryce have in the past resorted to a "house cleaning" of per-
sonnel. The evidence establishes that pursuant to such a housecleaning program
there were approximately 14 employees discharged in July and 3 in August 1961.
Respondent also points out that Norder and Sutlorp were discharged in September
1961 pursuant to the housecleaning and that three of the employees, (Mills, Casarez,
and Read) who signed the slips on September 11 and 12 were not discharged.
The testimony of Tryce and King to the conditions indicating the desirability of
a reappraisal of operations is uncontradicted and indeed supported by the documen-
tary evidence. There is, however, no support in the documentary evidence estab-
lishing a convincing reason why the racking department was selected as the basis to
commence housecleaning or why Vanderiest, Tolhurst, and Emery were picked
within that department .9
Tending to indicate a discriminatory motive, at least in part, in the discharges
is the language used by King in discharging Vanderiest to the effect that he would
"escort her to the door" and the conduct of Tryce in discharging Tolhurst and
Emery when he turned and walked away when asked when he had decided they
were inadequate. I also attach some significance to the fact that the employees
were discharged in advance of the usual payday, the first three being discharged
summarily in the middle of their workday. Such summary treatment would ordi-
narily be handed out only for recent and flagrant misconduct as distinguished from
long-standing deficiency.
Another key to the case in my judgment is found in the testimony of Workman
and Lobbezoo both of whom impressed me by their demeanor as generally credible.
When the testimony of these two is accurately analyzed it can be seen that Workman
attributed to Lobbezoo the statement that King, who was present throughout the
hearing, knew that she was one of those active for a union and was mad at it. Lob-
bezoo, who impressed me as credible, did not deny the September 12 conversation
attributed to him. It appears that while Lobbezoo may not have seen the piece of
paper being circulated by Workman he knew that organizational, concerted activities
were afoot and as stated above I find that he told Workman that King too knew
of the concerted activities and was displeased at them.
The case has been difficult to appraise, particularly because of the skill and
advocacy of Respondent's presentation I am convinced, however, that Dabakey
and Workman were truthful in attesting to Respondent's knowledge and motivation
and I find and conclude that the discharges were effected in reprisal for the cir-
cularization and signing of the slips of paper on September 11 and 12. Although
there was no knowledge of the Union (i.e., the UAW), there was knowledge of
concerted activities on behalf of a union Thus the discharges violated Section
8(a)(3) and (1) of the Act
9 Rackers keep count of loads racked on slips ( Respondent's Exhibit No. 9), which are
turned in daily to the lead girl.
MORRIS, SEWALL & CO., INC. 1067
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth in section 1, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
In view of the findings herein that the Respondent has engaged in unfair labor
practices defined in Section 8(a)(3) and (1) of the Act, it will be recommended
that Respondent be required to cease and desist therefrom and take affirmative action
appropriate to effectuate the policies of the Act. I find that it would be appropriate
to effectuate the policies of the Act to require Respondent to offer reinstatement and
backpay to the five employees discriminatorily discharged in September 1961-
Vanderiest, Tolhurst, Emery, Workman, and Chorman-by paying to each of them
sums of money equal to those which each would normally have earned from the
date of discrimination to the date of Respondent's offer of reinstatement or rein-
statement as the case may be, less net earnings during the intervening period. The
backpay provided herein shall be computed in accordance with the formula set
forth in F. W. Woolworth Company, 90 NLRB 289.10
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to tenure of employment with respect to Genevieve
Vanderiest, Beatrice Tolhurst, Oneida Emery, Rose Workman, and Jean Chorman,
thereby discouraging participation in concerted activities and on behalf of a labor
organization and engagement in the rights of employees as defined in Section 7 of
the Act, Respondent has engaged in and is engaging in an unfair labor practice within
the meaning of Section 8(a) (3) and (1) of the Act.
4 The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
10 The General Counsel has requested that interest be added to the payments There
do not appear to be circumstances here warranting the grant of his request See Sifers
Candy Company, 92 NLRB 1220.
Morris, Sewall & Co., Inc. and Retail Clerks Union Local No.
455, AFL-CIO, Retail Clerks International Association, AFL-
CIO. Case No. 93-CA-1308. September 07, 1962
DECISION AND ORDER
On April 13, 1962, Trial Examiner A. Bruce Hunt issued his Inter-
mediate 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 attached Interme-
diate Report. He also found that the Respondent had not engaged
in other unfair labor practices and recommended dismissal of the
complaint as to them. Thereafter, the Respondent filed exceptions
to the Intermediate Report and a supporting brief.
138 NLRB No. 418.