The Forston Co.

National Labor Relations Board - Board Decisions

Oct 29, 1962

139 N.L.R.B. 561 (N.L.R.B. 1962)

THE FORSTON CO. 561
Claude E. Forston , d/b/a The Forston Co. and Robert M. Stahl,.
Clarence Wilshire, Sr., Don Edward Pemberton, Theodore
Avalos. Cases Nos. 23-CA-1389, 23-CA-1389-2, 23-CA-1389-3,
and 23-CA-1400. October 29,1962
DECISION AND ORDER
On August 21, 1962, Trial Examiner Samuel Ross 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 he cease and desist therefrom and-
take certain affirmative action, as set forth in the attached Intermediate
Report. He also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint, and
recommended dismissal of such allegations. Thereafter, the General
Counsel filed exceptions to the Intermediate Report and a supporting-
brief, and the Respondent filed a brief in support of the Intermediate
Report.
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 [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made-
at the hearing and finds that no prejudicial error was committed. The-
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the excep-
tions and briefs, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial'
Examiner.'
1 Appendix A, attached to the intermediate Report, is hereby modified by adding the
following immediately below the signature :
NOTE -We will notify any of the above -named employees presently serving in
the Aimed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the-
Armed Forces
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges of unfair labor practices filed by Robert M. Stahl on March 5,
1962, by Clarence Wilshire, Sr., on March 13, 1962, by Don Edward Pemberton
on March 19, 1962, and by Theodore Avalos on March 23, 1962, all amended on
April 9, 1962, the General Counsel of the National Labor Relations Board issued'
139 NLRB No 42.
.562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a consolidated complaint dated April 10, 1962, alleging that Claude E. Forston,
d/b/a The Forston Co. (herein called the Respondent), had engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8(a) (1) and (3) of
the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein
,called the Act. In substance the complaint alleges that during the pendency of
a petition filed with the Board by Local No 54, Sheet Metal Workers International
Association, AFL-CIO (herein called the Union), for certification as the exclusive
bargaining representative of Respondent's employees, the Respondent interrogated
employees concerning their union activities, threatened to close down its plant be-
fore it would recognize a union, threatened employees with loss of employment if
the Union received a majority of the votes at the Board election, and discharged
and/or laid off the four Charging Parties because of their membership in or activi-
ties on behalf of the Union. The Respondent filed an answer denying the sub-
stantive allegations of the complaint and the commission of unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross in
Houston, Texas, on May 22 and 23, 1962. All parties were represented at the
hearing by counsel and were afforded full opportunity to be heard, to introduce
evidence, to examine and cross-examine witnesses, to present oral argument, and to
submit briefs. On June 15, 1962, briefs were filed by the Respondent and the Gen-
eral Counsel, which I have carefully considered.
Upon the entire record in the case, and from my observation of the witnesses and
-their demeanor, I make the following:
FINDINGS OF FACTS
1. COMMERCE
The Respondent, a sole proprietorship whose principal office and place of business
is located at Houston, Texas, is engaged in the manufacture, fabrication, and sale
of air-conditioning units for residential, commercial, and automotive use. During
the 12 months preceding the issuance of the complaint, a representative period, the
Respondent sold and shipped air-conditioning units valued in excess of $50,000
from its plant in Texas to points and places outside the State of Texas. On the
foregoing admitted facts, I find and conclude that the Respondent is engaged in
interstate commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local No. 54, Sheet Metal Workers International Association, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint, and coercion
1. The advent of the Union
About the middle of February 1962, after discussion among Respondent's em-
ployees regarding the advisability of representation by a union, employee Robert M.
Stahl contacted Louis Krzesienski, an assistant business agent of the Union, and
arranged for the latter to meet with the employees. On February 19 or 20,1 all
10 of Respondent's employees, and Louis Lang, the sole employee of J-F Sales
Company, an affiliated enterprise,2 met after work with Krzesienski at the 7-11
Store "right next door" to the Respondent's premises. At this meeting, all but
Lang signed union authorization cards. Thereafter, on February 21, the Union filed
a petition with the Board for certification as the exclusive bargaining representative
of Respondent's employees.3 The parties hereto stipulated that a copy of the said
petition was received by the Respondent, Claude E. Forston, or his wife, Thelma C.
Forston,4 on February 23.
1 This and all dates hereinafter refer to 19G2 unless otherwise specifically noted.
2 The precise relationship between Respondent and J-F Sales Company will be de-
scribed and considered hereinafter
3 Case No. 23-RC-1868
4 Mrs Forston assists her husband Claude in the management of the business on a
full -time basis . She hires and supervises employees , manages the office, and participates
with her husband In decisions to discharge and lay off employees.
THE FORSTON CO. 563
2. Interrogation
According to the credited testimony of Clarence Wilshire, Sr., also known as
"Shorty," on the day following the union meeting, Raymond Forston, the brother of
Respondent Claude Forston, asked Wilshire whether he knew anything about the
union meeting, Wilshire replied that he did not, and Forston said that those who
attended would be fired. Later that same week, Raymond Forston admittedly
similarly interrogated employees Robert M. Stahl, Alvin Emshoff, Don Edward
Pemberton, Theodore Avalos, and other employees, regarding whether they had
attended or knew who had attended the union meeting. All of the named employees
denied knowledge of or attendance at the meeting .5 Forston also asked Emshoff
and Pemberton whether they knew "Shorty" Wilshire's son, and asked Pemberton
whether Wilshire's boy had asked him to sign any papers for the Unions Raymond
Forston admitted that he had engaged in interrogation of Respondent's employees,
and that he "might have" so questioned "all of them." Forston further admitted
that he was aware that his brother Claude "was prohibited by the law from [so]
inquiring," but testified that he did not regard the proscription as applicable to him-
self because he was neither an employee of, nor owned any interest in, the business
of Respondent. Forston also denied that he was requested by his brother to engage
in such interrogation, and, although, for reasons hereinafter explicated, I do not
regard his testimony as reliable,7 there is no evidence to the contrary in the record.
3. Raymond Forston's coercive speech
On the following Monday, February 26, while Respondent's employees were at
lunch in the plant, Raymond Forston called them all together and delivered a talk
to them about the Union. Forston told the assembled employees that his brother
was not "at liberty" to talk to them on the subject of the Union, but that since he
had no financial interest in "The Forston Company," there was no reason why he
could not do so. He further told the employees that he knew that they had attended
a union meeting,8 that they were "organizing to join the Union," that he did not
"care for unions in small businesses like this," that anyone who had dealings with
the Union was a Communist, that there would never be a union in the plant, and
that before they would let the Union come in, they would padlock the doors .9 At
the hearing herein, Raymond Forston denied that his brother, the Respondent, either
requested him to make the talk or even knew about it before he gave it. He ad-
mitted, however, that his brother learned of the talk a day or two later, and that
the latter never disavowed it or told the employees that it was made without his
sanction or authority.
4. Additional coercion
On March 12, upon the execution by Respondent of a consent-election agreement
in the Board proceeding based upon the Union's petition for certification, the
Regional Director scheduled the election for Wednesday, March 21. During the
period immediately preceding the date of the election, Respondent's orders on hand
for air-conditioners were concededly very low. On March 15, employee Emshoff,
who was working on his last order, asked Raymond Forston whether he would be
laid off when he finished working on it.is According to Emshoff's uncontradicted
5 The record does not disclose what information, if any, was imparted to Forston as
a result of his interrogation of the other employees.
6 The significance of this latter interrogation is that Wilshire's son, a former em-
ployee of Respondent, had visited the plant in December 1981, accompanied by a man
who identified himself to Respondent as "a union representative," and had attempted,
unsuccessfully, to speak with Respondent.
7 See, e g, footnotes 11, 12, and 17, infi a
s It is, therefore, quite apparent that Forston had not been deceived by the employees'
previous denial of attendance at the union meeting.
U The foregoing findings are based on the composite testimony of employees Stahl, Wil-
shire, Emshoff, Pemberton, and Avalos, and on the testimony and admissions of Raymond
Forston to the extent that I credit him. The quoted portions above are from Forston's
testimony In respect to the threat to close the plant, Forston testified that he said,
"If the situation were in my lap, . before I would have a union I would put a padlock
on the place " I credit the employees' version of the threat.
10 The Saturday before, Clarence Wilshire, Sr., had been laid off, allegedly for lack of
work.
672010-63-vol . 139-37
564 DECISIONS OF NATIONAL LABOR RELATION, S BOARD
testimony, Forston replied that he did not know whether Emshoff would be laid off,
that in the past "they had tried to look out after the boys," but "they would know
more about it Wednesday [the day of the election]." The complaint alleges that the
foregoing statement constituted a threat that continuation of employment was
dependent upon the Union's defeat in the election.
5. Concluding findings in respect to interference, restraint, and coercion
Respondent's answer denies that Raymond Forston is an agent of Respondent
within the meaning of the Act. The record in respect to Raymond Forston's status
in Respondent's plant is as follows:
Raymond Forston has no financial interest in, and is not on the payroll of, the
Respondent. He is, however, an equal partner with his brother, the Respondent
herein, in an enterprise located at Respondent's premises, known as the J-F Sales
Company, which sells Respondent's products exclusively." There is no physical
separation of the portion of Respondent's premises used by J-F Sales from the balance
of Respondent's plant. Raymond Forston occupies one of the four private offices
in Respondent's office section. Both companies use the same telephone number.12
J-F Sales' books and records are maintained in Respondent's office by Respondent's
bookkeeper. Both Raymond Forston and Louis Lang, the employee of J-F Sales,
frequently perform work for Respondent in the latter's plant, for which Respondent
pays no compensation. Raymond Forston interviews applicants for employment by
Respondent, and his recommendations regarding their hiring are generally followed.
According to the uncontradicted testimony of Robert M. Stahl, Raymond Forston
effected Stahl's transfer from Respondent's sheet metal department to the assembly
department. Wilshire, Senior, was reemployed by Respondent after an earlier lay-
off, by requesting such reemployment from Raymond Forston. Pemberton credibly
testified that he was hired to work for Respondent by Raymond Forston, that the
latter accompanied him into the plant and showed him where he was to work and
with whom.13 Alvin Emshoff was interviewed for his job with Respondent by
Raymond Forston, was told by the latter that he had a job, what his compensation
would be, and what work he would do. In addition, a number of Respondent's
employees testified that Raymond Forston instructed them in respect to the manner
in which their work was to be done, and told them what to do.
In the light of the close integration of the business of Respondent with that of J-F
Sales, and the regular exercise by Raymond Forston, with Respondent's knowledge
and consent, of supervisory functions in both the hiring, transfer, direction of, and
assignment of work to Respondent's employees, the conclusion is inescapable that Re-
spondent clothed his brother Raymond with supervisory authority,14 and that, there-
fore, the latter was, at the times material herein, an agent of Respondent within
the meaning of the Act, for whose conduct and statments the Respondent must bear
legal responsibility.15
In view of my conclusion above, it follows, a fortiori, that Respondent is respon-
sible for Raymond Forston's interrogation, speech, and other antiunion statements
to employees. Accordingly, there remains for consideration whether such conduct
constituted interference, restraint, or coercion within the meaning of Section 8 (a) (1)
of the Act.
Raymond Forston testified that his interrogation of the employees to ascertain
the identity of those who attended the union meeting was motivated solely by
curiosity. In the light of the systematic nature of the interrogation, the admission
that it was directed to all the employees, the fact that except as to Wilshire, Senior,
11 Contrary to the testimony of Raymond Forston that J-F Sales sells products of other
companies, J-F's books and records disclose no purchases from anyone other than the
Respondent
12 Raymond Forston denied that J-F Sales has the same telephone number as The
Forston Company. However, contrary to his testimony, the letterheads of the two com-
panies (General Counsel's Exhibits Nos. 5 and 6) disclose that they have one telephone
number in common.
11 Pemberton was assigned by Raymond Forston to work with Louis Lang, doing more
or less the same kind of production work for Respondent as Lang, although Lang allegedly
was a warehouse employee, not of Respondent, but of J-F Sales.
14 In this connection, it will be recalled, as noted above, that it was to Raymond Forston
that employee Emshoff addressed his inquiry on March 15 , as to whether he would be
laid off for lack of work.
16 Cf. International Association of Machinists , Tool and Die Makers Lodge No. 35
(Serrick Corp.) v. NL.R.B., 311 U.S . 72, 79-81 ; Taylor Manufacturing Company, Incor-
porated, 83 NLRB 142, 156-157.
THE FORSTON CO. 565
the interrogation was engaged in on the day Respondent received the Union's petition
for certification,16 and that Shorty's [Wilshire's] boy is the instigator of this [the
Union's advent]," 17 I am persuaded that the interrogation was engaged in, not
out of curiosity, but for the purpose of ascertaining the identity of the employee
or employees responsible for the advent of the Union in the plant. In any event,
the Respondent does not contend that the purpose of the interrogation was, either
to extend recognition to the Union if it represented a majority of the employees, or
for any other lawful purpose.18 Moreover, in the case of Wilshire, Senior, the
interrogation was accompanied by the threat that those who attended the union meet-
ing would be fired. In addition, after the interrogation, the Respondent engaged
in further threats and unfair labor practices as hereinafter found. Under all the
circumstances, I find that Raymond Forston's interrogation of employees, inter-
fered with, restrained, and coerced employees in the exercise of their rights guar-
anteed by the Act, and thereby Respondent engaged in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.19
Similarly, it is quite evident that the coercive statements of Raymond Forston on
February 26, that there would never bea union in the plant, and that before they
would let the Union come in they would padlock the place, constituted a threat of
loss of employment if a majority of the employees designated the Union as their
representative. Accordingly, I conclude that thereby Respondent further inter-
fered with, restrained, and coerced employees in violation of Section 8(a)(1) of
the Act.20
Finally, in the context of his prior antiunion statements and threats, Raymond
Forston's statement to employee Emshoff, that the question of whether Emshoff
would be laid off for lack of work or not would have to wait until Wednesday, the
date of the election, constituted an implicit threat that his continued employment
depended on the Union receiving less than a majority of the votes in the forthcoming
election. I therefore conclude that Respondent thereby further restrained and
coerced employees in violation of Section 8(a)(1) of the Act. 21
B. The discriminatory discharge and/or layoff of employees
1. Robert M. Stahl
Stahl was hired by Respondent on January 3 and was first assigned to work in
the sheet metal department. After 4 weeks of admittedly satisfactory work, he
was transferred to the assembly department where his duties consisted principally
of installing coils into air-conditioners. As reported above, about February 15,
Stahl enlisted the interest of the Union in representing Respondent's employees, and
arranged for the union meeting at which all of Respondent's employees signed union
authorization cards. On February 23, the Respondent received the Union's petition
for certification as the employees' representative. On the following day, according
to Mrs. Forston, she and Respondent discussed whether they should discharge Stahl
for unsatisfactory work habits. During the week following the filing of the petition,
Stahl's supervisor, Superintendent LaVerne Green, criticized Stahl regarding the
insufficient volume of work he had performed that morning, and told Stahl that if
he did not want to work he should punch the clock and go home.22 The following
Saturday Stahl was given his final paycheck by Mrs. Forston and told that his
services were no longer needed.
The Respondent's answer denies knowledge of Stahl's union interest or activity,
and asserts that he was discharged for cause. On the issue of knowledge, both
Superintendent Green and Mrs. Forston denied that they either knew or suspected
that Stahl was in any way responsible for the advent of the Union in the plant 23
Indeed, Mrs. Forston also denied that she had even heard about a union meeting
10 Wilshire may have been mistaken in regard to the date when he was interrogated.
17 Forston at first denied, but later reluctantly admitted , that he said the foregoing to
Green
11 Cf. Blue Flash Bxpress, Inc, 109 NLRB 591.
10Firedoor Corporation of America , 127 NLRB 1123 , enfd. 291 F 2d 328 ( CA. 2),
cert denied 368 U.S. 921
20 Cf. Lee-Rowan Manufacturing Company, 129 NLRB 980, 981
21 Cf Stockbridge Vegetable Producers , Inc., 131 NLRB 1395-1396
22 Stahl admitted that he had performed very little work that morning , but testified in
explanation that he was waiting for unfinished parts on which other employees were
working Stahl's explanation was corroborated by his fellow employee, Theodore Avalos.
23 The Respondent , Claude Forston , was not called to testify.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Respondent's employees until the hearing in this proceeding 24 However, con-
trary to this testimony, Green's affidavit, executed before a Board agent, stated
the following: 25
Mr. Raymond [Forston] and I both (although we can't prove it) are pretty
well convinced that Robert Stahl and Shorty [Wilshire] both were instigators
of the Union. Mr. [Claude] and Mrs. Forston both agreed that Shorty
and Stahl were behind the Union getting in.26
In attempted explanation of the apparent conflict between the affidavit and his
testimony, Green testified that he was confused by the word "petition" in the affi-
davit, and thought it referred to Stahl's unfair labor practice charge. Green's
attempted explanation is patently implausable, and I do not credit it, since the subject
matter of the entire paragraph concerns who was "the instigator" of the Union's
petition, and not who was responsible for Stahl's filing of an unfair labor practice
charge. Moreover, as found above, it was the receipt of the Union's petition for
certification which triggered Respondent's coercive interrogation of employees to
ascertain the identity of the employee or employees responsible for the advent of
the Union in the plant. Accordingly, I conclude that notwithstanding Green's
denial,27 his affidavit constitutes an admission that he knew or suspected that Stahl
was responsible for the Union's advent prior to Stahl's discharge.
The record herein also discloses that Respondent's plant is quite small, that
Respondent employs only a few employees, that Green learned of the Union's meet-
ing and advised Raymond Forston thereof on the day after it took place, and that
Forston engaged in extensive interrogation of employees regarding the Union's
meeting. Under all these circumstances, it is fairly inferrable that Respondent also
acquired knowledge that Stahl was interested and/or active in the union movement,
and I so find. In any event, since Stahl was discharged by Green, and Green's
knowledge of Stahl's responsibility for the Union's advent is admitted by his affidavit,
I conclude that Respondent is chargeable with Green's knowledge.
Respondent contends that Stahl was discharged because he allegedly lost interest
in his work, and despite repeated reprimands, wandered about the plant talking to
other employees. The only direct testimony to support this contention of Respond-
ent was that given by Superintendent Green 28 Green testified that Stahl's work "was
fair the first few weeks he worked there," but thereafter, "he began to get a little
bit rough on his work," "he burned up some material, and he wouldn't stay on the
job all of the time. He would be around talking to other men, and I [Green] had
to get him back several times to his place of work. I put up with that two or three
weeks before I let him go." Green further testified that Stahl's alleged propensity
for wandering about the plant was "the main" reason 29 for his dissatisfaction with
Stahl, and that he reprimanded Stahl therefor on six or seven occasions. When
pressed for details regarding the times when and the incidents for which he adminis-
tered the alleged reprimands, Green first professed lack of memory, but then pro-
ceeded to give precise details of several occasions when Stahl was not at his place
of work and was ordered by him to return. Green admitted that notwithstanding
the frequency of Stahl's wanderings, he never warned Stahl that he would be fired
if he persisted in this practice.
241n the light of her brother-in-law's interrogation of employees regarding the union
meeting, I regard this denial incredible.
25 General Counsel's Exhibit No. 1.
28 Although the verb used in the affidavit, "are pretty well convinced," is in the present
tense, and thus, at first blush appears to refer to the date of the affidavit, after Stahl's
discharge, in the context of the first sentence of the paragraph which refers to the period
"after the [Union's] petition was filed," I conclude that Green was referring to beliefs
he entertained prior to Stahl's dismissal
27 For additional reasons more fully set forth hereinafter, I regard Green's testimony as
generally not worthy of credance
2s As noted above, Respondent, Claude Forston, was not called as a witness. No expla-
nation was offered for the failure to do so Mrs. Forston testified that on several occa-
sions, her husband mentioned Stahl's alleged lack of interest in his work, but since this
testimony is obviously heresay, I do not place any reliance thereon. Mrs. Forston also
testified that she personally observed Stahl "away from his position" on a few occasions,
but in the absence of any testimony that Stahl was either loitering, loafing, or not sup-
posed to be where she saw him on those occasions, I regard her testimony in this respect
as inconclusive
29 Green gave no details about any material alledgedly "burned up" by Stahl.
THE FORSTON CO. 567
Contrary to Green's testimony Stahl denied that he had received any reprimands
other than the one, a few days before his discharge, when Green admonished him for
low production. I was favorably impressed with Stahl's candor and demeanor, and
credit his testimony in this respect. Conversely, I find it implausible and difficult
to believe that if, as Green testified, he had frequently and repeatedly reprimanded
Stahl for not staying at his place of work, that the latter, a relatively new employee,
would ignore the admonitions and reiterate the same offense. It similarly seems
inconceivable that if Stahl had offended in this respect so many times in so short a
period, that Green would not have warned Stahl that he risked discharge. I find
Green's testimony in respect to Stahl's alleged shortcomings especially difficult to
believe, in view of the admitted record that after his first 4 weeks of employment,
Stahl was complimented for his good work by Mrs. Forston and promised a raise
if he kept it up. On the entire record, I conclude that I can place no credence in
Green's testimony regarding Stahl's alleged unsatisfactory behavior.30
Significantly, Stahl was not told at the time he was discharged that his work or
work habits were unsatisfactory, but merely that his services were no longer needed.
Admittedly, he was a satisfactory employee until approximately the time that the
union activities of Respondent's employees commenced 31 In the light of Respond-
ent's overt opposition to the Union, manifested by the threat to close the plant if
the Union came in and the intensive interrogation of employees to ascertain who was
responsible for the Union's interest in the plant, the belief of Superintendent Green
that Stahl was one of "the instigators," and my disbelief in Green's testimony re-
garding Stahl's unsatisfactory work habits, I am persuaded and find that the assertion
of Stahl's alleged unsatisfactory work habits as the motive for his dismissal is a mere
pretext of the Respondent to lend legality to the discharge of the employee it
regarded as one of the two "instigators" of the Union, and that the true motivation
for Stahl's discharge was Respondent's hostility to the Union. Accordingly, I con-
clude that Respondent thereby discriminated against Stahl in regard to tenure of
employment, because of his activities on behalf of the Union, and discouraged
membership in the Union, in violation of Section 8(a)(3) and (1) of the Act.
2. Clarence Wilshire, Sr.
Wilshire was hired by the Respondent about November 1, 1958. He worked for
Respondent continuously thereafter, doing principally welding work, until the spring
of 1961 when he was laid off for lack of work. During the 2 or 3 months that he
was on layoff, Wilshire worked as a welder in a shop "next door" to the Respondent's
premises. As found above, Wilshire applied to Raymond Forston for reemployment
by Respondent and was rehired about June 21. He was again assigned to do weld-
ing work. In addition to welding, he also assembled bottoms, condensers, coils,
and crated air-conditioners. On February 19 or 20, Wilshire attended the union
meeting and signed an authorization card for the Union. As noted above, Wilshire
was one of the two employees who was regarded by Respondent as responsible for
the advent of the Union in Respondent's plant. On March 10, the week after Stahl,
the other "instigator" of the Union, was discriminatively fired, Wilshire was told by
Mrs Forston that he was laid off, and he was given a pink slip on which the follow-
ing was stated:
At this time, we do not have work for you due to reduction in orders we are
receiving which governs our production and warehouse work. T. F.
Since March 10, Wilshire has not been offered reemployment, although two other
employees, subsequently laid off by Respondent for lack of work,32 have received
such offers.
ii Additional reasons which appear in the record for not crediting Green's testimony
include: (1) Green's testimony that Stahl's work was only "fair" during his first 4 weeks
of employment, is obviously less than frank in the light of Mrs Forston's admission that
she promised Stahl a raise if he kept up his good work , (2) Green first testified that he
gave Stahl his final paycheck out in the plant, but later contradicted this testimony and
admitted that Mrs. n'orston had given the check to Stahl in the office; (a) the precise
details turnished by Green regarding the reprimands he allegedly administered to Stahl,
after first professing lack of memory in respect to such details, impels me to doubt the
veracity of the details : and (4) Green's denials, that he either knew or told Raymond
Forston about the union meeting, were contradicted by Forston's testimony that Green
was the source from whom he learned about it
41 According to Green, the first time he admonished Stahl for not being at his place
of work was 21/ weeks before his discharge
32 Don Edward Pemberton and Theodore AN aloe
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel concedes that at the time of Wilshire 's termination, there
existed economic justification for a layoff of employees , but he contends, neverthe-
less, that although the form used by Respondent suggests that Wilshire was tempo-
rarily laid off, in fact he was discriminatorily and permanently discharged because
of Respondent 's belief that he was an "instigator " of the Union in Respondent's
plant . For the reasons hereinafter stated , I find ment in the General Counsel's
aforestated contention.
On cross-examination , Mrs. Forston was asked and admitted that reemployment
had been offered to Pemberton and Avalos , but not to Wilshire. She then was asked
whether she intended to offer employment to Wilshire , and replied , "Not at this
time." When asked whether she would offer Wilshire employment at any time, she
evaded a direct answer, and testified, "Well, I would not say we would never offer
him employment . He has been in and out a number of times during a period of
years." She was then asked whether during the investigation of Wilshire 's unfair
labor practice charge, she had made the statement that she would not take Wilshire
back under any circumstances. Again she evaded a direct answer, and testified, "Not
in exactly those words ." Finally, after again attempting to evade a direct answer,
she reluctantly admitted that in her affidavit to the Board 's agent she stated, "Also
Shorty [Wilshire] will not be recalled as his work has always been on a borderline." 33
Mrs. Forston then testified , in attempted explanation , that this statement in her affi-
davit had reference only to recalling employees "within the next two or three weeks."
In the context of the entire statement , especially the sentence immediately preceding
the reference to Wilshire , that Stahl would not ever be recalled , and the use of the
word "also" which associates Wilshire's future employment prospects with that of
Stahl, I regard Mrs . Forston 's attempted explanation as patently implausible, and
I do not credit it. In the light of all the foregoing , I conclude that it is quite evi-
dent that when Wilshire was allegedly laid off, Respondent 's intention was not to
recall him at any time, and that the layoff was in fact a permanent discharge.
As noted above , Mrs. Forston 's affidavit and testimony assigned as the reason
that Wilshire would not be employed, that "his work has always been on a border-
line." Presumably , this was a reference to some deficiency in the quality of Wil-
shire's work. However, the record is silent in respect to the nature of the alleged
deficiency. On the issue of the motivation for Wilshire's discharge, the following
facts stand out significantly:
(1) With the exception of a 3-month layoff for lack of work, Wilshire worked for
Respondent for 31/2 years doing primarily welding work; (2) after his layoff an
the spring of 1961, he was again reemployed for the same work; (3) the record
does not disclose that any alleged deficiency in Wilshire 's work was ever called to
his attention; (4) on February 16, just 1 month before his discharge, and before
the advent of the Union in Respondent 's plant, Wilshire was given a raise of 5 cents
per hour; 34 (5) Respondent concealed from Wilshire the permanence of his ter-
mination , and did not tell him that his termination was based on his so-called
"borderline" work; (6) all of the other laid-off employees have since been offered
reemployment; and (7) since Wilshire's termination, welding and other work has
been available at Respondent 's plant 35
In the light of the foregoing, and especially the long tenure of Wilshire on the
same job, the absence of any complaints regarding his work, and the raise given to
him shortly before his discharge, I am persuaded and conclude that the assertion
that Wilshire's termination was based on his "borderline" work is a further pre-
textual device of the Respondent to conceal the real motivation for his discharge.
On the record herein , the real reason for Wilshire 's termination is readily perceived.
As found above, after the Union's petition was filed, Respondent regarded Wilshire
as one of the two employees who were the "instigators" of the Union. Thereafter,
Respondent engaged in coercive interrogation and threats to close the plant to dis-
courage adherence of the employees to the Union. Moreover , as found above,
the Respondent also discriminatorily discharged Stahl , the other employee who was
regarded as an "instigator " of the Union . For all of the foregoing reasons, I am
persuaded and find that Respondent discharged Wilshire in order to eliminate from
The entire statement in this respect reads as follows
Pemberton is on recall status and will be recalled if work picks up On the other
hand, Robert Stahl will not be recalled in that he was discharged because his work
during the short time he was here was definitely unsatisfactory. Also Shorty will
not be recalled as his work has always been on a borderline
i4 General Counsel's Exhibit No. 8(b).
Most of such work has been performed by Raymond Forston.
THE FORSTON CO. 569
its plant, the other employee who was regarded as responsible for the advent of the
Union in the plant. Accordingly, I conclude that thereby Respondent discriminated
against Wilshire in regard to the tenure of his employment because of his activities
on behalf of the Union, and discouraged membership in the Union, in violation of
Section 8 (a) (3) and (1) of the Act.
3. Don Edward Pemberton and Theadore Avalos
On March 12, after Wilshire's termination, Respondent executed a consent-election
agreement in the Union's representation proceeding, and the Regional Director
scheduled the election for March 21. On March 17, the Respondent laid off two
employees, Don Edward Pemberton and Theadore Avalos, because of lack of work.
The notices advising Pemberton and Avalos of their layoff contained a statement
advising these employees that their "layoff in no way affects your privilege to vote
3/21; in case you happen not to be working that day." On April 17, Respondent
offered reemployment to Pemberton but he declined the offer. On or about May 7,
Respondent similarly offered reemployment to Avalos, but he likewise elected not to
return.
As noted above, the General Counsel concedes that at the time of the layoff of
Pemberton and Avalos, Respondent had no orders on hand and that economic
justification for the layoff existed. He contends nevertheless, that the layoff of
Avalos and Pemberton was discriminatorily motivated "to further dissipate the
proposed bargaining unit." 36 In respect to knowledge of Pemberton's union interest
and activity, the General Counsel relies on testimony in the record that during the
week after Stahl's discharge, Pemberton and Stahl, while seated and talking to-
gether in Stahl's automobile parked near Respondent's premises, were observed by
Raymond Forston as the latter drove away from the plant, and that he then drove
back to the plant a few minutes later and again observed Pemberton and Stahl
together.37 In respect to Respondent's like knowledge of Avalos' union interest,
the General Counsel relies on the fact that he worked alongside of Stahl before
the latter was discriminatorily discharged, and that the Respondent's business is
"a small operation."
Although I believe that on the entire record herein, including the smallness of
Respondent's plant, there can be little doubt about Respondent's knowledge of the
union interest of Pemberton and Avalos, I nevertheless conclude that the General
Counsel has failed to establish discriminatory motivation for their layoff. Thus,
the record shows that in prior years, when no union was attempting to secure
representative status, Respondent laid off employees for lack of work.38 More-
over, the advice to Pemberton and Avalos that they were privileged to vote, not-
withstanding their layoff status, and the subsequent offer of reemployment to both
of these employees, negates the General Counsel's assertion that Respondent, by
their layoff, was seeking "to dissipate the bargaining unit." Unlike Stahl and Wil-
shire, who were regarded by Respondent as "the instigators" of the Union, Pember-
ton and Avalos were not in any respect different in respect to their union interest and
activities than all of the other employees who attended the union meeting and signed
authorization cards but were nevertheless retained in Respondent's employ.39 In
the light of all the foregoing, and the absence of any evidence that but for their
union interest Pemberton and Avalos would not have been laid off, I conclude that
the General Counsel has failed to sustain the burden of proving by a preponderance
of the evidence that their layoff was discriminatorily motivated. Accordingly, I
shall recommend that the complaint in this respect be dismissed
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
ae General Counsel's brief, p 7
ar There is no allegation in the complaint that this conduct constituted unlawful
surveillance
Wilshire was laid off in 1961 for this reason
au The small size of Respondent's plant as well as the interrogation of employees pre-
viously described, suggest that Respondent also had knowledge of the Union interest of all
the employees.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that he cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discharged and discriminatorily refused to re-
instate Robert M. Stahl and Clarence Wilshire, Sr., I will recommend that the
Respondent be ordered to offer them immediate and full reinstatement to their
former or substantially equivalent positions , 'without prejudice to their seniority and
other rights and privileges, and make them whole for any loss of earnings they may
have suffered because of the discrimination against them , by the payment to each
of them of a sum of money equal to the amount he normally would have earned as
wages from the date of the discrimination against him to the date of the offer of
reinstatement, less his net earnings during said period, with backpay computed on a
quarterly basis in the manner established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289, 291-294.
I shall also recommend that the Respondent make available to the Board, upon
request, payroll and all other records necessary to facilitate the determination of the
amounts due under this recommended remedy.
In view of the nature and extent of the unfair labor practices committed. and
because discriminatory discharges go to the very heart of the Act,40 the commission
of other unfair labor practices reasonably may be anticipated. I shall therefore
recommend that the Respondent be ordered to cease and desist from "in any other
manner" infringing upon rights guaranteed to employees by Section 7 of the Act,
in addition to those rights found to have been violated herein.
In view of the absence of sufficient evidence that Respondent's layoff of Don
Edward Pemberton and Theadore Avalos was motivated by antiunion considerations,
I shall recommend the dismissal of those allegations of the complaint which charge
that Respondent engaged in unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act, by the layoff of these two employees.
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. Local No. 54, Sheet Metal Workers International Association, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discouraging membership in a labor organization through discrimination in
employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engag-
ing in unfair labor practices affecting commerce within the meaning of Section
8(a) (3) and (1) and Section 2(6) and (7) of the Act.
3 The General Counsel has failed to establish by a preponderance of the evidence
in the record, that the Respondent's layoff of Don Edward Pemberton and Theadore
Avalos was motivated by antiunion considerations
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I recommend that the Respondent, Claude E. Forston,
d/b/a The Forston Co., his agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf of Local No. 54, Sheet
Metal Workers International Association, AFL-CIO, or any other labor organiza-
tion of his employees, by discharging or refusing to reinstate any employee, or in
any other manner discriminating in regard to hire or tenure of employment or any
term or condition of employment.
(b) Interrogating employees concerning union affiliation, attendance at union
meetings , activities , or desires in a manner constituting interference , restraint, or
coercion in violation of Section 8(a) (1).
(c) Threatening employees with shutting down the plant or with other economic
sanctions to discourage union affiliation or adherence.
(d) In any other manner interfering with , restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join or
assist Local No. 54, Sheet Metal Workers International Association, AFL-CIO, or
any other labor organization, to bargain collectively through representatives of their
40 N L R R. v Entw stle Mfg Co , 120 F 2d 532 , 536 (C A 4)
THE FORSTON CO. 571
own choosing , and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from engaging in such
activities.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Offer to Robert M. Stahl and Clarence Wilshire, Sr., immediate and full re-
instatement to their former or substantially equivalent positions , without prejudice to
their seniority or other rights and privileges, and make them whole for any loss of
earnings they may have suffered as a result of the discrimination against them, as
provided in "The Remedy" section of the Intermediate Report.
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records , as set forth in "The
Remedy" section of the Intermediate Report.
(c) Post at his plant at Houston, Texas, copies of the attached notice marked
"Appendix A." 41 Copies of said notice, to be furnished by the Regional Director
for the Twenty-third Region, shall, after being duly signed by the Respondent, be
posted by the Respondent immediately upon receipt thereof, and be maintained
by him for a period of 60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily posted . Reasonable steps
shall be taken by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Twenty-third Region, in writing, within
20 days from the date of the receipt of this Intermediate Report and Recommended
Order, what steps he has taken to comply herewith.42
I further recommend the dismissal of the complaint insofar as it alleges that
by the layoff of Don Edward Pemberton and Theadore Avalos, the Respondent
has engaged in unfair labor practices within the meaning of Section 8(a) (3) and (1)
of the Act.
43 In the event that this Recommended Order be adopted by the Board, the words "A
Decision and Order" shall be substituted for the words "The Recommendations of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order
42 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read • "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the Labor Management Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of Local
No. 54, Sheet Metal Workers International Association, AFL-CIO, or any
other labor organization, by discharging or refusing to reinstate any of our
employees or in any other manner discriminating against our employees in
regard to their hire or tenure of employment or any term or condition of
employment.
WE WILL NOT coercively or unlawfully interrogate our employees regarding
their union membership, activities, or desires.
WE WILL NOT threaten our employees with shutting down our plant or with
other economic sanctions to discourage their union affiliation or adherence.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist Local No. 54, Sheet Metal Workers International
Association, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any or all such activities
WE WILL offer to Robert M. Stahl and Clarence Wilshire, Sr., immediate
and full reinstatement to their former or substantially equivalent positions, with-
out prejudice to any seniority or other rights and privileges previously enjoyed,
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and make them whole for any loss of pay suffered as a result of the discrimina-
tion against them.
All our employees are free to become or remain or to refrain from becoming or
remaining members of Local No . 54, Sheet Metal Workers International Associa-
tion, AFL-CIO, or any other labor organization.
CLAUDE E. FORSTON, D/B/A THE FORSrON CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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, 6617
Federal Office Building , 515 Rusk Avenue, Houston 2 , Texas , Telephone Number,
Capitol 8-0611 , Extension 271, if they have any questions concerning this notice
or compliance with its provisions.
The Diversey Corporation and Local 478, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America. Case No. 22-CA-1225. October 29, 1962
DECISION AND ORDER
On August 7, 1962, Samuel M. Singer issued his Intermediate
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 Intermediate Report.
Thereafter, the Respondent filed exceptions to the Intermediate Re-
port and a supporting brief.
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 Leedom, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions 1 and brief, and the entire record in
this proceeding, and hereby adopts the findings, conclusions,' and
recommendations of the Trial Examiner.
1 The Respondent's offer of proof asserted merely the conclusion that Carmine Armenti
was a supervisor and contained no allegations of specific facts which, if true, would
establish that the Regional Director was arbitrary and capricious in rejecting the Re-
spondent's contention that the Union's showing of interest in the representation case was
tainted. The burden of alleging such facts is on the party seeking to attack the action
of the Regional Director. Sumner Sand & Gravel Company , 128 NLRB 1368, 1371-1372,
enfd , 293 F. 2d 754 (C.A. 9).
1 We do not adopt that portion of footnote 10 of the Intermediate Report referring to
Section 102 .67 of the Board's Rules and Regulations , Series 8, as amended, inasmuch as
that section has no application where a consent -election agreement pursuant to Section
102.62 ( a) of the said rules is involved.
139 NLRB No. 45.