Thomas L. Green & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1969

175 N.L.R.B. 402 (N.L.R.B. 1969)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas L. Green & Company, Inc. and Charles W.
Lawson , An Individual . Case 25-CA-3192
April 17, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On January 27, 1969, Trial Examiner James F.
Foley issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel and the Respondent
filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs,
and the entire record in this case, and hereby adopts
the findings, conclusions,' and recommendations of
the Trial Examiner, as modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Thomas L.
Green & Company, Inc., Indianapolis, Indiana, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
Relations Board (herein called the Board) under Section
10(b) of the National Labor Relations Act, as amended
(herein called the Act), 61 Stat. 136, 76 Stat. 579, against
Thomas L. Green & Company, Inc. (herein called
Respondent), by a complaint issued October 23, 1968, and
amended November 15, 1968, and an answer filed by
Respondent on October' 31, 1968, and answer to
amendment to 'complaint filed November 18, 1968. The
complaint as amended, is premised on a charge filed by
Charles W. Lawson, an individual, on July 22, 1968.
It is alleged in the complaint as amended that
Respondent threatened employees on June 11 and July 1,
1968, that it would lay off, terminate or discharge them
for engaging in union activities, in violation of Section
8(a)(1) of the Act,` and on or about July 12, 1968,
discharged Charles W. Lawson, the Charging Party, for
engaging in union activities, in violation of Section 8(a)(1)
and •(3) of the Act. Respondent in its answer to the
complaint and its answer to the amendment to the
complaint denied the illegal conduct alleged against it.
A hearing on the amended complaint and answer was
held before me on December 3, 1968. The parties were
afforded an opportunity to present evidence, make oral
argument and file briefs. Briefs were filed by General
Counsel and Respondent after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, an Indiana corporation with its principal
office and place of business at Indianapolis, Indiana, is
engaged in the manufacture, sale, distribution, and
erection of bakery plant equipment and related equipment
and materials During the year 1968, Respondent
purchased materials and goods with a value in excess of
$50,000 which were shipped from sources outside the
State of Indiana, to its plant in Indianapolis, Indiana, and
during the same year sold at the plant in Indianapolis
equipment and products with a value in excess of $50,000,
which were shipped from the plant to destinations in
States other than Indiana. Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and assumption of jurisdiction will effectuate the
purposes of the Act.
'Without adopting the Trial Examiner 's conclusion that the Respondent
knew that Lawson had made contract proposals at the July 8, 1968,
meeting , it is clear , however , that under all the circumstances the
Respondent was aware of Lawson ' s active participation in the union
meeting held some 25 yards from shop superintendent Totty's office.
We find it unnecessary to pass upon the General Counsel' s exception to
the Trial Examiner ' s conclusion that Vice President Hubbard's remark
relative to "getting nd" of the employees who were dissatisfied with a
strict application of the contractual provisions relative to holiday pay was
not violative of Section 8(a)(I) of the Act Such finding , if made, would be
cumulative in nature and would not affect the scope of our Order and
Remedy herein
TRIAL EXAMINER'S DECISION
Statement of the Case
JAMES F. FOLEY, Trial Examiner : This case,
25-CA-3192, was brought before the National Labor
11. THE LABOR ORGANIZATIONS INVOLVED
Bakery Machinery Workers, Inc. (herein called Union),
is a labor organization within the meaning of Section 2(5)
of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Issue
Charging Party Charles W. Lawson was discharged on
July 12, 1968. General Counsel contends Lawson was
discharged because he engaged in union activities.
Respondent contends he was discharged because there was
no need for his services.
175 NLRB No. 70
THOMAS L. GREEN & CO. 403
B. The Evidence in Support of Complaint
In January 1968, Lawson became a member of the
Union's Negotiating and Grievance Committees ' On June
10, 1968, Lawson talked to David Totty, Respondent's
shop superintendent, about the amount of the paycheck
received by employee Charles Cross for the week
following the week in which Memorial Day occurred.
Bobby Mullins, president of the Union, had informed
Totty that Lawson was a member of the Negotiating and
Grievance Committee Lawson told Totty that Cross did
not understand why he received only straight time for the
8 hours he worked on Saturday in the week following the
week in which Memorial Day occurred.2 Totty said there
was a notice on the bulletin board about it, and asked him
if he had seen it. Totty asked Lawson if he was Cross'
lawyer. Lawson testified that he had seen the notice, but
did not know that the Union had asked for the long
Memorial Day weekend. Totty also said that he had a
meeting to attend, but would get a satisfactory answer to
his question.
At approximately 10:30 the following morning, there
was a meeting in Totty's office attended by Lawson,
Cross, Union President Bobby Mullins, Totty, Purchasing
Agent Dale Hilton, and Executive Vice President Francis
Hubbard Lawson asked Hilton how he figured the time
for Saturday. Hilton explained to Cross and Lawson why
the 8 hours worked on the Saturday was straight time.
Totty or Hilton asked Lawson and Cross if they
understood the notice on the bulletin board, and why they
had not questioned it before if they did not understand it.
Totty again asked Lawson if he was Cross' lawyer.
Hubbard interrupted the explanation being given by
Hilton by stating that thereafter there would be no more
foolishness, that employees would work 8 hours before the
holiday and 8 hours afterwards, strictly in accordance with
the Contract, and if employees were not satisfied to get
rid of them. Totty said Mullins was a party to the
agreement posted on the bulletin board about working the
makeup time on the Saturday Mullins denied he was.
Lawson asked Cross if he was satisfied. Cross replied that
he did not wish to cause any trouble, and to forget the
whole thing. Lawson apologized to Totty, Hilton and
Hubbard for taking up their time. The meeting was on
Respondent's time. About 45 minutes later Totty came to
Lawson's work station , and talked to him. He asked
Lawson if Cross was satisfied, and Lawson replied that he
The Union was certified as bargaining representative of Respondent's
production and maintenance workers in April 1953 The last
collective -bargaining contract the Union had with Respondent (herein
called the Contract) was effective from September 14, 1966, to September
13, 1968 After the latter date, Respondent's production and maintenance
employees had another collective -bargaining representative
At the request of the Union, to Respondent , and by its agreement with
Respondent , the employees worked only Monday, Tuesday and Wednesday
of the week that included Memorial Day, Thursday, May 30, 1968 They
were credited with a 32-hour week including 8 hours for Memorial Day
The contract provides that an employee must work 8 hours the day before
a holiday and 8 hours the day after a holiday in order to be paid for the
holiday The Union and Respondent agreed that the 8 hours not worked
on Friday of this week would be made up in the following week They
made it up on Saturday of the following week This gave them 48 hours
for that week The employees were paid for 32 hours for the week
including Memorial Day and for 48 hours for the week following They
received only straight time for the Saturday work The Contract provides
for time-and-a-half for Saturday work They were not paid for
time-and-a-half because they merely made up time for which they normally
received straight time, in order to have a long Memorial Day weekend
running from Wednesday evening until the following Monday morning
knew no more than Totty did as he had returned directly
to his work bench after the meeting. Totty said that Cross
would have to stop causing trouble or he would have to
take disciplinary measures against him He also said that
somebody was putting crazy ideas into Mullins' head
about his status as the Union's president, and about the
relationship between the Union and Respondent, and if he
found out who it was he would fire him and Mullins.
Lawson did not say anything.
Union President Mullins testified that in the first 3
months of 1968, when he and Totty were discussing
contract negotiations, which Mullins testified were coming
up, Totty said he hated to have Lawson on the
Negotiating Committee as he liked to argue about the
Union and seemed to know a lot about it, and that Totty
also said to him during this time that the Union should
not elect the newer employees on its committees because if
they should be laid off the Union would lack
representation. Both Lawson and Hickey, another union
representative, were relatively new employees.'
Mullins also testified that when Cross quit on July 1,
1968, he had a conversation with Totty, and during the
conversation he said to Totty that he heard Cross quit and
Totty said he had, and following this reference to Cross'
quitting and some conversation in regard to Cross'
questioning of the pay he received for the Saturday
make-up time, Totty said that maybe things would get
back to normal if they could get rid of one more
troublemaker. As will be seen infra, Totty denied that on
July 1, 1968, he threatened employees with discharge for
engaging in union activities. However, he did not deny
making the statement to Mullins about getting rid of
another troublemaker.
The Union had a meeting on July 6, 1968, at the layout
table in the plant. This table was located 25 yards from
Totty's office between the assembly floor and the machine
shop. Union meetings were customarily held at this
location. It was decided by those present that the Contract
would not be renewed as it was, but that a new contract
or a revision of the Contract would have to be negotiated
On July 7, 1968, Lawson and his wife prepared a written
notice of intention to terminate the contract Lawson gave
it to Union President Mullins on July 8, 1968, and he
signed it on that date. One copy was given to Respondent,
one was kept by the Union, and one was posted on the
bulletin board. A union meeting was held on July 8, 1968,
at 12.15 noon at the layout table. Lawson had prepared a
list of items or subjects that should be discussed in
preparing a contract proposal and he read the items or
subjects on the list after the meeting was opened by
Mullins. There followed a discussion among the 15
employees present dealing mostly with wages.
On July 10, 1968, Shop Superintendent Totty handed a
letter to Mullins in a sealed envelope. On the same day a
copy was handed to Lawson in a sealed envelope. The
letter, dated July 10, 1968, was addressed to Mullins as
president of the Union , and signed by Totty as Shop
Superintendent of Respondent. In the letter, reference is
made to Article 7, Section 9, of the Contract, and then it
carries the statement that in accordance with that
provision the letter is notice to Mullins and the members
of the Union's executive committee that Lawson was to be
'I credit the testimony of Mullins set out in this paragraph and in the
following paragraph. I reach this ruling after the evaluation of this
testimony in the context of the record as a whole, including the demeanor
testimony of Lawson, Mullins and Totty The evidentiary findings set out
in this decision have been made after the same evaluation
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off effective 5 p.m., July 12, 1968.' The remainder of
the letter is comprised of the following:
It is with deep regret that we make this announcement
to you because this man has done fine work and has
reflected great credit upon himself and this company.
Unfortunately, there is no work available in his area of
employment nor is it anticipated that there will be work
available for some time.
Thomas L. Green & Company, Inc., will be pleased to
give this man a fine reference in the event he should
request this for other employment.
Totty said to Lawson, when he handed him the letter,
that he would be glad to explain anything in the letter that
was not clear. When Mullins read the letter he went to
Totty's office and asked him why Lawson was being laid
off as Raymond Jarrell was lowest on the seniority list.
Totty replied that Lawson was classified as an
assemblyman and Jarrell was classified as an
assemblyman and a welder.
Around noon of July 10, 1968, Totty called Lawson
into his office He asked Lawson if he understood the
letter, and Lawson replied that he did. Totty said he was
being laid off because Respondent was short on
production orders, and there was an employee by the
name of Raymond Jarrell, a welder with less seniority
than he had, but he was not an assembly man Totty
referred to the conversations he had had with Mullins that
morning, and told him what he had told Mullins about
Jarrell and his classification Mullins, who came into
Totty's office to either leave some blueprints or pick them
up, overheard Totty telling Lawson what he had told him
earlier about Jarrell's classification and his retention,
although he had less seniority than Lawson Lawson has
not been recalled or reinstated, or offered reinstatement.
About 2 weeks after Lawson's discharge on July 12,
1968, Jarrell who, was working as an assembly man, had
a conversation with Tracy Stanton, his supervisor in the
Assembly Department, and Lawson's supervisor prior to
his discharge. He said to Stanton that he thought Lawson
"got a dirty deal being that he had more time and
seniority than I did." Stanton answered that his
classification was different than Lawson's, that he was
hired as an assembler welder and Lawson was primarily a
bench man, and he was more valuable to Respondent at
that time Jarrell replied that as far as he knew he was
hired as an assemblyman, and Lawson's discharge really
made him feel bad as he was laid off when he had more
seniority and a big family. The day following the day
Jarrell had the conversation with Stanton, the latter told
him that Totty wished to talk to him about Lawson He
and Stanton went into Totty's office. Totty said to Jarrell
that he was more valuable than Lawson because he could
"assemble and lay out and weld," and Lawson had lost
him money on several assembly jobs. He said that the
money loss on Lawson's assembly jobs was the reason he
was doing bench work. He then said that Lawson was a
good bench man Jarrell told Totty that as far as he knew
he was hired as an assemblyman and not as an assembler
welder '
'Article 7, section 9, provides that when an employee has been employed
6 months the Union shall be notified of his discharge 3 days before the
effective date
'Jarrell began his employment with Respondent on February 21, 1968
Lawson began his employment on July 20, 1967 Lawson was classified as
assemblyman , class A, from the outset of his employment Jarrell applied
for the job of welder when he applied for work on February 18, 1968
Totty told him, after discussing with him the work in the assembly and
On September 20, 1968, Totty called him into his
office. Totty said he wanted to get his correct
classification so he could present it to the Board, and
wanted a classification of his classification. He said that
he had pulled his application, and saw that he had filled in
the word assemblyman in the space provided for the
classification of the job for which he was making
application Totty then said that he had a white card
showing him classified first as assemblyman and second as
welder. He showed Jarrell the card. He then called
Stanton to his office over the public address system, and
asked him what Jarrell's classification was. Stanton
replied that as far as he knew he was hired in as
"assembler welder" Totty then asked Jarrell what he
would say to a "Labor Relations man" who came up to
him and asked him what his classification was when he
was working at the back. Jarrell was working at the back
of the plant at the time doing welding. Jarrell answered
that he would have to tell him he was an assemblyman.
Totty answered that he would be cutting his own throat if
he gave that answer, and also said that he did not know
what such an answer would do to his being able to
continue to work for Respondent Jarrell's reply was that
that was the way it would have to be because he could not
lie about the situation.
Jarrell saw the white card with his classification of
assemblyman and welder written on it for the first time on
September 20, 1968. Nothing was said to him about it
prior to that day. Respondent had one employee by the
name of Clyde West who was classified and employed as
a welder. He resigned on August 20, 1968. Respondent
had another employee by the name of Parker who was
hired as an assemblyman, but was used as a welder as
well as an assemblyman. He resigned on August 13, 1968
Several weeks after West resigned, Jarrell assumed his
welding job Jarrell's original classification remained
unchanged until at least September 30, 1968 At the time
Lawson was discharged the plant was working overtime.
The henchmen in the Assembly Department were working
55 1/2 hours a week. The regular hours a week were 40.
There were in the Assembly Department at the time of the
discharge five class A assemblymen, including Lawson,
and two class B assemblymen, including Jarrell.' Jarrell
did assembly work after Lawson's discharge.
fabricating departments , and of sawing mannite, and telling him
Respondent had two welders and had much money invested in them, that
there was a possibility that he would be working for Tracy Stanton in the
assembly department, and he would start at $2 75 per hour Totty told
Jarrell he would be notified through Dallas Walton , Jarrell 's father-in-law
and an employee of Respondent , on Monday , February 20, 1968 When he
did not hear from Totty on February 20, 1968, he contacted him that
evening Totty told him he could report for work on Tuesday, February 21,
1968 He reported for work on that Tuesday morning, and began work at
that time as an assemblyman , class B, under Stanton The following
Thursday or Friday he filled out the application for employment In the
space for job being applied for, he wrote in the word "assemblyman "
Occasionally Jarrell did welding work , but his regular job was
assemblyman , class B
'Article VII of the contract provides that layoff shall be seniority, and
that seniority shall be a composite of length of service, ability and
efficiency in performing the job, and physical and mental fitness insofar as
it relates to safety and capacity to do the job Article 11 of the contract
provides that an employee remains a probationer until he has been
employed 6 months, and then becomes a regular employee if retained as an
employee Article V11 provides that an employee does not have senionty
rating until he becomes a regular employee , and that Respondent has no
responsibility for continued employment of a probationer . Jarrell was still
a probationer at the time of Lawson 's discharge
THOMAS L. GREEN & CO. 405
C. Respondent's Defense
Shop Superintendent Totty was Respondent's chief
witness. President Lugar merely gave the number of
production and maintenance employees in April and
September 1968, and in April and September 1967 The
following testimony is Totty's except for the employment
figures just described.
Respondent has three departments, Fabrication,
Assembly, and Machine Shop. Lawson started out in the
Assembly Department in putting machinery together
Then he was reduced to henchman. The change was to get
him on something that would make Respondent some
money. When the parts reach the Assembly Department
they are rough cast iron They are worked on at the bench
or sent to the Machine Shop. Then the parts are finally
assembled in the Assembly Department. In 1968, the
orders changed heavily from orders for heavy bakery
machinery to orders for ovens, oven extensions and
coolers, cooling tunnels, cooling conveyers and related
equipment. The change in equipment orders had reduced
the work in, or had taken it out of the Assembly
Department at the time Lawson was laid off. The amount
of final assembly work in that department remained the
same as it was being done on heavy bakery machinery
that had been ordered prior to the change in the orders to
oven equipment. While the phasing out of the other work
of the Assembly Department had been started, this was
not the case with respect to the final assembly work.
Respondent had to find work for Lawson for 2 months
prior to his layoff but kept him on because he had
financial difficulties early in the year due to his wife
having a serious back operation and her being hospitalized
in connection with her injury and recovery from the
operation.' Respondent retained Jarrell instead of Lawson,
although the latter had greater tenure of employment
because Jarrell was a welder as well as an assemblyman.
Respondent preferred men having flexibility in skills such
as a combination of assembly work and welding, and
sheet metal work and running a machine combined with
assembly work or welding or any combination of skills
utilized in -Respondent's operations
At the beginning of the summer, Respondent had
approximately 50 to 55 employees in the shop The other
employees were outside erectors or of some other special
classification and not in the unit of production and
maintenance employees represented by the Union. Lawson
was questioned at the time of his hiring interview to see if
he could do the work of an erector, but was found to lack
the ability for this work. At the time of the hearing,
December 3, 1968, Respondent had 37 or 38 production
and maintenance employees Shortly after Lawson was
laid off the weekly work hours for the benchmen were
reduced from 55 1/2 to 40. In April 1968, Respondent
had 57 production and maintenance employees, and in
September 1968, had 43 of these employees, and in April
1967, had 50, and in September 1967, had 46
Totty denied Lawson was discharged because of union
activity, and testified that the white card he showed to
Jarrell on which was his classification of assemblyman
and welder was made out a few days after he was hired
Totty denied that at any time, particularly June 11, 1968,
'This is Totty' s testimony He also testified that Lawson could have
worked the 55 1/2 hours per week the henchmen were working if he
wanted to do so, but he did not work these hours He admitted on
cross-examination that Lawson did not work the overtime in the past,
because of his wife' s illness
and July 1, 1968, he warned employees he would
discharge any one of them who engaged in activities on
behalf of the Union . He testified he had no knowledge of
threats of discharge to employees by Respondent for
engaging in union activity.
On redirect examination Totty testified that final
assembly work in the Assembly Department requires the
ability to read blueprints as large as a wall of the hearing
room, but admitted that Lawson stated when he began
employment that he had worked at the Adams Company
for 12 years and was adept at reading blueprints He
again testified that Lawson was much better at bench
work Totty also admitted he had not recalled Lawson but
testified he would do so when he needed his ability. Totty
testified that since Lawson ' s layoff he had hired a worker
to drive nails, and another as a helper in the shipping
room , and that these jobs were not offered to Lawson. He
said that the pay for these jobs was considerably less than
what Lawson had received.
D. General Counsel's Rebuttal Evidence
General Counsel's documentary evidence furnished by
Respondent shows that Respondent's unit employees as a
whole worked extensive overtime after Lawson's discharge
until and including the week for which they were paid on
September 24, 1968. It shows that the assemblymen
worked 80.4 hours in the week for which they were paid
on July 16, 1968, and 68.5 hours in the week for which
they were paid on July 9, 1968,' and worked overtime in
the other weeks ranging from 71 hours down to 30 hours.
This evidence also shows that Lawson worked overtime in
the last 4 weeks prior to his discharge.
There is no evidence that prior to Lawson's discharge
Totty or any other official of Respondent discussed with
Mullins or other union representatives a decrease in orders
that could cause a layoff Nor was there any discussion
prior to Lawson's discharge about the need from a
business or economic standpoint to make a reduction in
the number of employees when it had to be made in terms
of I employee only in a number of 52 employees who
were employed at the time of the layoff
ANALYSIS AND FINDINGS AND CONCLUSIONS OF FACT
AND LAW
On the foregoing evidence I conclude and find that
Respondent threatened employees with discharge for
engaging in union activity on June II and July 1, 1968, in
violation of Section 8(a)(1) of the Act The threat was
made on July 11, 1968, when Totty approached Lawson
after the meeting in his office, and in the course of a
conversation with him said that someone was putting
crazy ideas in Mullins' head about his- status as the
Union's president and about the relationship between the
Union and Respondent, and if he found out who it was he
would fire both of them. These words on their face clearly
bear the threat that employees seeking through their union
activities to improve their positions as employees would be
discharged. Such a threat cuts across the rights
guaranteed to employees in Section 7 of the Act and is
proscribed by Section 8(a)(1) of the Act.
I do not find the statement by Respondent's Vice
President Hubbard at the meeting in Totty's office on
June 10, that thereafter employees would work 8 hours
'The paychecks reached Respondent from the bank on Tuesday for the
week ending the pnor Friday
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
before and 8 hours after the holiday strictly in accordance
with the Contract, and if employees were not satisfied to
get rid of them. The matter being discussed on
Respondent's time by Totty, Executive Vice President
Hubbard and Purchasing Agent Hilton for Respondent,
and Union President Mullins, Grievance Committeman
Lawson and employee Cross for the Union and Cross,
was a frivolous one and should have been disposed of by
the Union.
Mullins, as president of the Union, requested that the
employees be given the opportunity for a long weekend
starting with Memorial Day, which fell on Thursday by
not having to work the Friday after Memorial Day. The
Contract provides that an employee must work 8 hours
before a holiday and 8 hours after a holiday in order to be
entitled to pay for the holiday. Totty granted Mullins'
request with the understanding that the 8 hours not
worked on Friday, May 31, would be made up on
Saturday, June 8. The employees worked Saturday, June
8 and were paid straight time as they worked only the 8
hours regular time they did not work on Friday, \4ay 31,
and for which they were entitled only to pay for regular
time. Cross felt he should have been credited with
overtime for the work on Saturday on the theory that all
work on Saturday was overtime, even though it was
make-up time for the time in the regular work week.
Under the Contract, employees received time-and-a-half
for overtime on Saturday.
By the granting of the Union's request the employees
were given the benefit of the long weekend but not for
overtime for 8 hours of regular time. This was obvious,
and should have been explained to Cross by the Union
representatives instead of taking up the time of
management at management's expense. Hubbard gave
vent to his exasperation by saying that thereafter there
would be compliance with the Contract, to which the
employees were a party through the Union, and those not
satisfied would be fired. Those not satisfied with their own
agreement would be troublemakers and properly subject
to discipline His exasperation was at the
unreasonableness of Cross and the union representatives in
invoking the grievance procedure. There is no evidence the
Respondent had objected to its being invoked for a proper
purpose If the grievance procedure could be invoked for
any frivolous purpose at the expense of management, the
Respondent would suffer economically not only to its
detriment but to the detriment of the employees as well.
Hubbard's exasperation is understandable. After all,
representatives of management are human beings of the
same mold as employees and representatives of employees,
and are entitled to the same understanding employees
demand and receive under the Act.
The threat was made by Totty on July 1, 1968, when he
said in the conversation he had with Lawson about the
resignation of employee Cross that maybe things would
get back to normal if they were able to get rid of one
more troublemaker. Totty was obviously referring to an
employee who was actively engaged in improving the
conditions of the employees through his union activity,
and obviously was stating that Respondent favored the
termination of this employee. Totty threatened employees
with discharge who engaged in union activity
I conclude and find that Respondent discriminatorily
discharged Lawson on July 10, 1968, effective July 12,
1968, in violation of Section 8(a)(3) and (1) of the Act,
because he engaged in union activity. General Counsel's
evidence shows a prima facie case of a discriminatory
discharge, and Respondent's evidence of business or
economic justification fails to rebut the evidence
The prima facie evidence of discriminatory discharge
are Totty's statements to Mullins in the first 3 months of
1968 about Lawson and his positive and active interest on
behalf of the Union, both as a rank-and-file union
member and as a member of the Negotiating Committee,
in which he disclosed irritation at this interest and activity
of Lawson; the threat Totty made to Lawson on June 11,
1968, that Respondent would discharge the employee who
was influencing Mullins with respect to his status as
president of the Union, and the status of the Union, as
collective-bargaining representative, in its relationship
with Respondent; the threat Totty made to Mullins on
July 1, 1968, of discharge of the employee who was a
troublemaker because he was engaged in union activity,
and Lawson 's union activity on July 6, and July 8, 1968,
followed by the discharge on July 12, effective July 12,
1968.
The union meeting held about 25 yards from Totty's
office, and the union meeting of July 8 held at the same
location were obviously known to Totty. Respondent had
given the Union permission to hold meetings at this
location at times when there were breaks in work activity.
Respondent would know that these employees' meetings
were union meetings or union activity after Respondent
was notified by the Union after the meeting on July 6,
that the employees present had voted to terminate the
Contract Respondent, in any event, would know this
under the small plant rule.' Under the small plant rule,
Respondent would also know that Lawson read a list of
matters at the July 8 meeting that he felt should be
considered for inclusion in the Union's
collective-bargaining proposal I do not find that
Respondent had knowledge under the small plant rule that
the matters read by Lawson were not included in the
Contract I do not believe the small plant rule goes that
far. There is no evidence that Totty heard the matters
being read by Lawson or was informed of what they were
by someone who heard them. I do Find, however, that
from Lawson's active union activity since January 1968,
and the Union's notice of intention to terminate the
Contract to negotiate a new one, Respondent concluded
by July 10, 1968, that Lawson was not wasting his time
and the employees' time by reading what was in the
Contract to be terminated, but was reading something new
that would benefit the employees and impose an
additional burden on Respondent.
The notice of discharge on July 10, to Mullins and
Lawson following closely on Lawson' s union activity on
July 6 and 8, and against the background of Respondent's
displeasure in the months prior to the July activity at
Lawson's union activity spells out a prima facie case of a
discriminatory discharge of Lawson on July 10, 1968.
Respondent defends on the ground that at the time
Lawson was discharged there was no need for his services
There was a change in 1968 in the type of orders
Respondent had been receiving, which were largely orders
for heavy bakery machinery to orders largely for oven
equipment, and this change took out of the Assembly
Department work which Lawson handled. There was
finally assembly work on the heavy bakery equipment
ordered before the change, but Lawson did not do this
assembly work. He did only benchwork. The change in
the type of order required a reduction in force at the time
'Kamp Togs, Inc. 148 NLRB 196, Angwell Curtain Company. Inc v
N L R B. 192 F 2d 899, 903 (C.A 7); N L R B v. Malone Knitting
Company. 385 F 2d 880 (C A I), enfg 152 NLRB 643, 644, 647
THOMAS L. GREEN & CO.
of Lawson's discharge of one employee, and the employee
selected was Lawson. Respondent admitted that Lawson
had longer tenure as an assemblyman than Jarrell had, as
he was first employed in July 1967, while Jarrell was first
employed in February 1968, but claimed that Jarrell had a
better seniority rating because he was employed as an
assemblyman and a welder, and had these two
classifications from the time he began employment.
Respondent had to find work for Lawson for about 2
months before he was discharged, and Lawson was given
the opportunity to work the average workweek of 55 1/2
hours per week that the plant was working but Lawson
did not work overtime. Respondent admitted that
Lawson's failure to work more hours than he did was due
in part to a serious back injury his wife had which
required hospitalization and surgery. It claimed that
overtime ceased shortly after Lawson's discharge.
There is evidence that rebuts Respondent's evidence.
Jarrell was not hired in February 1968, as a welder
although he applied for such a job, but was hired as an
assemblyman, class B. He was occasionally asked to do
welding work. Totty told Jarrell, when he applied for the
job of welder, that he had two welders in whom he had
invested considerable money. The welders, West and
Parker, resigned on August 20, 1968, and August 13,
1968, respectively, but Jarrell was not assigned to West's
welding job until weeks after West resigned. Although
Totty testified that Jarrell had a better seniority rating
than Lawson at the time of Lawson's discharge, the
evidence shows that at that time Jarrell was still a
probationary employee, and did not have a seniority
rating, and would not receive one until he became a
regular employee on August 21, 1968. Respondent had no
responsibility for his continued employment until he
became a regular employee. Lawson had a seniority
rating, and in his classification as assemblyman, was
considered to be a very able employee.
Respondent's employees numbered 50 in April 1967,
and 43 in September 1967, and numbered 57 in April
1968, and 46 in September 1968. More employees were
needed in 1968 than in 1967. Respondent's evidence that
there was need for a reduction in force in the Assembly
Department at the time Lawson was discharged is merely
the conclusionary statement of Totty that this was so. It
lacks probative testimony or written evidence showing why
it was so. Totty's credibility is not dependable in view of
his efforts to persuade Jarrell to tell any representative
from the Board investigating the charge filed by Lawson
that he was hired as a welder as well as an assemblyman,
contrary to Jarrell's belief that he was hired only as an
assemblyman, and his telling Jarrell that his failure to tell
the Board representative that he was so hired might well
end his employment by Respondent. There is no probative
evidence, such as business or economic reasons, to show
that the reduction should be one employee only, but if so,
that the employee should be Lawson instead of some other
employee or employees, aside from Jarrell, in the
Assembly Department. Tenure of employment is only one
of three factors that determine a seniority rating for
regular employees for use in an economic layoff of
employees. The evidence shows that contrary to Totty's
testimony, overtime did not end shortly after Lawson's
discharge but continued, plantwide, until the end of
September 1968, that the assemblymen worked substantial
overtime during that period, and that Lawson, himself,
worked overtime during the 4 weeks prior to his
discharge.
407
I do not credit Respondent's defense. In view of its
many weaknesses, disclosed when viewed with rebuttal
evidence, including Totty's efforts to force Jarrell to give a
statement to Board representatives about his classification
contrary to Jarrell's belief, and with the evidence of
Lawson' s union activity from January 1968, until his
discharge, Respondent's dislike of this conduct of Lawson,
and the timing of Lawson's discharge in relation to
Lawson' s union activity, particularly that connected with
the Union's preparation on July 6, 7 and 8, 1968, for the
negotiation of a new collective-bargaining contract, I find
the defense is pretextual. I further find, and conclude that
the motive for Lawson's layoff on July 10, 1968, effective
July 12, 1968, was Lawson' s union activity, and that the
layoff was a discriminatory discharge. The discharge
discriminates against Lawson because of his union
activity, and discourages membership in the Union, in
violation of Section 8(a)(3) and (1) 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 the operations of
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 commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act. The
affirmative action will include the immediate offer of
reinstatement to Lawson to his former or substantially
equivalent employment, without prejudice to his seniority
and other rights and privileges, and making him whole for
any loss of pay suffered by reason of the discrimination
against him , as provided in F. W. Woolworth, Co., 90
NLRB 289, with interest at 6 percent per annum as
provided in Isis Plumbing & Heating Co., 138 NLRB
716.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. 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. Respondent interfered with, coerced, and restrained
its employees with respect to their rights to engage in
union activity, in violation of Section 8(a)(1) of the Act,
by threatening employees Lawson and Mullins, and other
employees, with discharge if they engaged in union
"Kamp Togs, Inc. 148 NLRB 196, N L R B v D'Armigene, Inc, 353
F 2d 406, 409-411 (C A 2), enfg 148 NLRB 2, N L R B v. Tru-Line
Metal Products Company, 324 F 2d 614, 616 (C A. 6), cert denied 377
U S 906, enfg 183 138 964, N L R B v. WTVJ, Inc. 268 F 2d 346,
347-348 (C A 5), enfg 120 NLRB 1180, N L R B v Condenser Corp,
128 F 2d 67, 75 (C A 3), enfg as modified 22 NLRB 347, N L R B v
Radcliff, et al, 211 F 2d 309, 314 (C A 4), cert denied 348 U.S 833,
enfg as modified 101 NLRB 167, and N L R B v. Schill Products, Inc,
340 F 2d 568, 573 (C A 5), enfg 140 NLRB 1164 and 144 NLRB 69
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activities.
4 Respondent discriminatorily discharged employee
Lawson because he engaged in union activity, and thereby
discouraged membership in the Union, in violation of
Sections 8(a)(3) and (1) of the Act.
5 The aforementioned unfair labor practices are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that Thomas L. Green & Company, Inc., its
officers, agents, successors, and assigns, shall:
1 Cease and desist from:
(a) Interfering with, coercing, or restraining employees
in the exercise of their rights guaranteed them by Section
7 of the National Labor Relations Act, as amended, by
threatening them with discharge if they engage in union
activity.
(b) Discouraging membership in Bakery Machinery
Workers, Inc., or any other labor organization, by
discharging employees because they engage in union
activity, or otherwise discriminating against them in
regard to the hire or tenure of their employment or any
term or condition of employment, because they engage in
union activity.
(c) By like or related conduct, interfenng with, coercing
or restraining employees in the exercise of their rights to
self-organization, to join or assist the Union, 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 protection, as
guaranteed in Section 7 o` the Act
2 Take the following affirmative action which I find
will effectuate the purposes of the Act:
(a) Offer employee Charles W. Lawson immediate
reinstatement to his former or substantially equivalent
employment, without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of
earnings he may have suffered by reason of the
discrimination against him , with interest at 6 percent per
annum , in the manner set forth in the section entitled
"The Remedy."
(b) Notify the above-named employee if presently
serving in the Armed Forces of the United States, of his
right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military
and Service Act of 1948, as amended, after discharge
from the Armed Forces.
(c) 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, and all other
records relevant and material to Respondent's compliance
with the provisions of this Order.
(d) Post in conspicuous places at its plant in
Indianapolis , Indiana, including all places where notices to
employees are customarily posted, copies of the attached
notice marked "Appendix "" Copies of said notice, on
forms provided by the Regional Director for Region 25 of
the National Labor Relations Board, shall, after being
duly signed by an authorized representative of the
Respondent, be posted by it immediately upon receipt
thereof, and maintained by it for 60 consecutive days
thereafter, in such conspicuous places. Reasonable steps
shall be taken by the Respondent to insure that the copies
of said notice are not altered, defaced, or covered by any
other matenal.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of the receipt by the
Respondent of this Trial Examiner's Decision and
Recommended Order, what steps the Respondent has
taken to comply therewith."2
IT IS FURTHER RECOMMENDED that unless on or before
20 days from the date of the receipt of this Trial
Examiner's Decision and Recommended Order the
Respondent notifies the Regional Director, in writing, that
it will comply with the foregoing Recommendations, the
National Labor Relations Board issue an order requiring
the Respondent to take the action aforesaid.
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
Recommended Order of a Trial Examiner" in the notice in the further
event that the Board ' s Order be enforced by a decree of the United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"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 therewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended we hereby notify our
emplo ees that:
WE WILL NOT interfere with, coerce, or restrain
employees in their exercise of their rights guaranteed
them by Section 7 of the National Labor Relations
Act, as amended, by threatening employees with
discharge for engaging in union activity.
WE WILL NOT discourage membership in Bakery
Machinery Workers, Inc , or any other labor
organization, by discharging employees because they
engage in union activity, or otherwise discriminate
against employees in regard to the hire and tenure of
their employment or any term or condition of
employment, because they engage in union activity.
WE WILL NOT engage in like or related conduct that
interferes with, coerces, or restrains employees in the
exercise of their rights to self-organization, to join or
assist the Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid
or protection.
WE WILL offer immediate reinstatement to Charles
W. Lawson to his former or substantially equivalent
employment, without prejudice to his seniority and
other rights and privileges, and make him whole for
any loss of earnings he may have suffered by reason of
the discrimination against him, with interest at 6
percent per annum.
THOMAS L. GREEN & CO 409
All our employees are free to become, or refrain from right to full reinstatement upon application in accordance
becoming, members of Bakery Machinery Workers, Inc., with the Selective Service Act and Universal Military
or any other labor organization. Training and Service Act of 1948, as amended, after
discharge from the Armed Forces.
THOMAS L GREEN & This notice must remain posted for 60 consecutive days
COMPANY, INC from the date of posting, and must not be altered,
(Employer) defaced , or covered by any other material.
Dated By If employees have any question concerning this notice
(Representative) (Title) or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 614 ISTA
Note: We will notify Charles W. Lawson, if presently Center 150 West Market Street , Indianapolis , Indiana
serving in the Armed Forces of the United States, of his 46204, Telephone 317-633-8921