Uneco, Inc.

National Labor Relations Board - Board Decisions

Apr 25, 1969

175 N.L.R.B. 567 (N.L.R.B. 1969)

UNECO, INC.
Uneco , Inc. and Local Lodge 31 , International
Association of Machinists & Aerospace Workers,
AFL-CIO. Case 17-CA-3566
April 25, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On November 26, 1968, Trial Examiner David E.
Davis issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Uneco, Inc., Bellevue,
Nebraska, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
'We note that the Trial Examiner , in evaluating the testimony of the
witness Frey , relied at least in part on a finding that Frey was still
employed by Respondent at the time of the hearing The record discloses
that this was in error, as Frey's testimony itself shows that he left
Respondent 's employ approximately 2 months before the hearing
However, other factors upon which the Trial Examiner relied are
supported by the record, and upon a careful review of the record we
conclude that the Trial Examiner 's resolution of credibility as to Frey is
not shown by a clear preponderance of all the relevant evidence to be
incorrect Accordingly, we shall not disturb his finding in this respect.
Standard Dry Wall Products, Inc, 91 NLRB 544, enfd 188 F 2d 362
(C A. 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DAVID E. DAVIS, Trial Examiner : This case , with all
parties represented , was heard in Omaha, Nebraska, on
567
September 5 and 6, 1968, upon a complaint of the
General Counsel issued by the Regional Director for
Region 17 of the National Labor Relations Board, herein
called the Board. The complaint issued on July 26, 1968,'
pursuant to a charge filed on May 17 by Local Lodge 31,
International Association of Machinists & Aerospace
Workers, AFL-CIO, herein called the Union or Charging
Party. The complaint alleged that Uneco, Inc., herein
called Respondent, engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended, herein called
the Act, by threatening discharge of any employee
attempting to organize the plant, by promising wage
increases and other benefits to employees if they would
refrain from joining or would abandon the Union, and by
discharging and failing to reinstate employee Gertrude
Hutter, Margaret Smelcer, Maxine Elder, and Michael
Payne because they engaged in activity in behalf of the
Union. Issue was joined by Respondent's answer to the
complaint which admitted certain allegations of the
complaint but denied the commission of any unfair labor
practices.
At the hearing before the Trial Examiner all parties
were given full opportunity to be heard, to examine and
cross-examine witnesses, to introduce relevant evidence,
and to argue orally Oral argument was waived. Briefs
have been submitted by Respondent and General Counsel
and they have been carefully considered.
Upon the entire record in the case,' and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE RESPONDENT AND ITS BUSINESS
The complaint alleged, the answer admitted, and I find
that Respondent is a Nebraska corporation with its
principal place of business, herein called the plant, at
Bellevue, Nebraska, where it is engaged in the
manufacture and mechanical assembly of precision metal
parts. During the course and conduct of its business,
Respondent annually sells and ships from its plant directly
to customers outside the State of Nebraska, goods valued
in excess of $50,000 and annually purchases and receives
goods valued in excess of $50,000 at its plant from
suppliers outside the State of Nebraska. It is found that
Respondent is, and at all times herein has been, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and that it would
effectuate the purposes of the Act to assert jurisdiction
herein.
It. THE LABOR ORGANIZATION INVOLVED
The complaint alleged, the answer admitted, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The evidence shows that the plant currently is
principally engaged in the production of an item in urgent
demand by the United States Government . Respondent
All dates herein are for the year 1968 unless otherwise specified.
'The transcript of the proceeding has been noted and corrected
175 NLRB No 95
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
undertook production of this item in October 1967, and
since that time has expanded its facilities and production.
Since February the United States requires 600,000 of
these items per month . Respondent on May 14 discharged
the four alleged discriminatees contending that their
unspecified deficiencies were a contributing factor to the
failure of the department in which they worked' to
achieve the quota required by the U.S. Government '
Lickfelt After a general discussion of the higher wage
rates paid to men in which most of the employees
participated , Ballard explained that the men did much
lifting of heavy boxes containing parts; that it was more
difficult to recruit men; that women could not hope to
receive $2.10 per hour but that he had and would continue
to increase the wage rates of individual women upon
recommendation of a foreman.
B. The Events of May 35
The Debur line on the day shift , consisting of
approximately 15 women and 8 men , works from 7 a.m.
to 3 p.m., with 10-minute coffee breaks at 9 a.m. and 1
p m and a 20-minute lunch period at 11 a.m. There are
approximately ten other women working on various
machines on the same floor and in the immediate vicinity.
The day shift was under the supervision of Stanley
Lickfelt, an admitted supervisor within the meaning of the
Act.
On May 3 about 7 a.m., when the women were
gathered in the dressing room preparing to go to work,
there was a random discussion concerning their pay rates.
It appears that the women were dissatisfied on the Debur
line because the men were receiving a minimum of $2.10
per hour while the women were paid a minimum of $1.60
per hour. It was decided that at the 9 a.m. break they
would speak about this matter to Foreman Lickfelt
Pursuant to this understanding , about ten women gathered
around Lickfelt at 9 a.m. and asked why the men doing
the same work as the women were receiving more money
than the women . Lickfelt said he couldn ' t answer them
and that they would have to go to someone higher up.
Elder inquired who that might be and was informed that it
was Paul Ballard , the plant manager . Elder requested to
see Ballard , and Lickfelt , replying that Ballard was busy
at that time, walked away. The women then decided not
to turn on their machines until Lickfelt told them when
they could see Ballard . Lickfelt, noticing that the
machines were not operating , asked what was holding
things up and Elder, together with another female
employee, replied that they wanted an answer . Lickfelt
then told the women that he would talk to Ballard as soon
as the latter came downstairs . Upon receiving this
assurance , the machines were turned on and the women
went to work after having engaged in a work stoppage of
3 or 4 minutes.
About 9: 30 a.m ., Lickfelt came over to Elder ' s machine
and said if she felt she was being discriminated against,
she could punch out and go home or she could talk to
Ballard . Elder replied she would like to talk to Ballard
and Lickfelt replied he would set up an appointment about
10 a.m. Later , Lickfelt again came to Elder ' s machine and
said , "Shut off your machine and go on , Paul [Ballard] is
waiting for you," adding , "you can take any of these
other women that feel that they are being discriminated
against with you." As one of the women nearby inquired
from Lickfelt what he had said , Lickfelt went down the
line and repeated the above statements to all the other
women . About 20-25 women went to Ballard ' s office and
there met with Ballard , James Lyon , the personnel
director , James Larsen , the assistant plant manager, and
'The Debur line
'An analysis of Resp. Exh 3, the production statistics for the Debut line
furnished by Respondent will be made infra
'The findings under this section are based on a composite of the credited
and undenied testimony of Elder, Smelcer, and Hutter
C. The Events of May 9 and 106
On May 9, about 10 women, including Elder, Smelcer,
and Hutter, met with 2 union representatives, Dean
Kocina and Jack Tilley. They signed union authorization
cards and received a number of blank cards to secure
signatures of other employees of the plant Each of the
women alleged as discriminatees distributed thereafter a
number of cards to other employees, Elder and Smelcer
each had 2 cards returned to them, while Hutter received
back about 40.
On May 10, Michael Payne, an employee working on
the Debur line, had asked someone for additional union
authorization cards to distribute among the male
employees He was told to wait outside after work and he
would be given them. Elder, Smelcer, and Hutter received
this information and waited a little after 3 p.m. in the
parking lot near an automobile owned by employee
Evelyn Ham with whom they customarily rode to and
from work. They saw Payne standing near the front
entrance of the plant about 100 feet away and called to
him. They thought his first name was Johnny and called
to him by that name two or three times until Payne,
pointing to himself, inquired if they were calling him.
Receiving an affirmative reply, he walked toward the
women and they walked toward him. They met about 60
feet from the plant entrance where employee Glenn
Davidson had been standing during the entire time. Payne
told the women his name was Michael not Johnny and
received a number of authorization cards which he placed
in his shirt pocket. The women then returned to Ham's
automobile and left. Payne, as he was required to wait for
his ride until 3:30 p.m., walked back to the plant entrance.
On the way he handed a card to an employee who, Payne
knew, desired a card. When he reached the plant entrance,
Davidson, who had remained there during this time, asked
Payne what the ladies wanted and Payne replied that they
wanted to know about some girl on the second shift.
Davidson then asked, "What have you got in your pocket
there?" Payne replied that they were some postcards for
his wife and displayed the authorization cards.' Davidson
then proceeded back into the plant.
D. The Events of May 14
On Tuesday, May 14, about 10 a.m., Davidson, in the
company of Larsen, came over to Payne while Payne was
working at his machine. Davidson, who was in front of
Larsen, who had a sheet of paper in his hand, asked
Payne his name. Payne replied that his name was Michael
Payne Later, about 2:30 p.m., Payne met Larsen and
asked him why he was asked his name in the morning and
Larsen replied he wanted to know the people in the plant.
`The findings and events described in this section are based on a
composite of the credited and uncontradicted testimony of Payne, Ham,
Elder, Smelcer and Hutter
'I interpret Payne 's statement to mean that the authorization cards had
the appearance of postcards
UNECO, INC.
When Payne punched out that afternoon there was an
envelope in his timecard slot which contained his
termination notice 8
Elder, Hutter, and Smelcer likewise received
termination notices9 in the same manner when they
punched out on the afternoon of May 14.
As soon as Payne realized the import of the
termination notice, he became upset and went to
Personnel Director Lyon's office saying, "Mr. Lyon, what
is the reason about this production requirement, I don't
think that is right, if I didn't meet production
requirements, you better pull out my papers and look at
them, and see that we fill them out every day."' ° Lyon
replied that he did not get rid of him and told Payne to
see Larsen. Payne inquired as to the whereabouts of
Larsen and Lyon told him that Larson was busy and
unavailable at that time. Payne went down to get his
check and met Larsen. Payne asked Larsen why he was
terminated and Larsen said because of production. Payne
told Larsen to pull out his sheets on production. Larsen
thereupon stated that there were too many employees in
the plant. Payne then asked why the plant was continuing
to hire new people. Larsen replied, "Well, we don't need a
reason to get rid of you."
Later, one of Payne's coworkers intervened with
Lickfelt in an attempt to have Payne rehired. Lickfelt
wrote a letter" which was delivered to Payne. Payne
thereafter wrote a letter to Lyon requesting reinstatement 'Z
On cross-examination Payne denied that he was told
that he was a probationary employee when he was hired
or at any time during his employment; that the first time
he learned of a probationary period was when he received
his termination notice; and that he knew nothing of a
company policy concerning exit interviews.
Elder testified" that after Smelcer, Hutter and she
received their termination slips they started to walk to
Ham's car to go home. They then decided that the
termination slips did not give much of a reason for their
discharges and that they would go back and see Lyon.
When they arrived at Lyon's office, they saw Payne
leaving Lyon's office, and one of them asked Lyon for an
explanation of their discharges. Lyon replied, "What it
says on your statement," and added that he had nothing
to do with it, that their names were submitted by their
supervisor They said that their supervisor was Lickfelt
and that he was on vacation, and Lyon replied that Larsen
was their supervisor while Lickfelt was away. After
pressing Lyon for a further explanation, Lyon told them
that they were having a cut in production, that they were
the first to go, and that for any further explanation they
would have to see Larsen. When they expressed a desire
to see Larsen, they were told they could see him one at a
time. Elder agreed to see him and Lyon left the office for
a short period saying he would see if Larsen was
available.' ° Lyon returned and said that Larsen was not
available and that if they wanted to talk to Larsen they
would have to call and make an appointment." The
testimony further showed that none of the women ever
called for an appointment or had ever heard of a company
policy with respect to exit interviews. James Lyon,
'G C Exh 3
'G C Exhs. 2, 4, and 5
"Payne's credited testimony that he fulfilled Lickfelt's requirement of 6
or 7 boxes of parts a day, 500 to a box, and that he fixed machines and
carved parts for women is undenied on the record
"G C Exh 6
"Respondent received this letter but refused to reemploy Payne
569
Respondent's personnel director, testified that he was
employed on March 1 and functioned as a conduit
between the employees and supervision, interpreting
company policies and maintaining personnel records.
Lyon testified that terminations were made by
supervisors subject to review and that a discharged
employee had an opportunity for a final or exit interview;
that a small percentage of employees took advantage of
the opportunity for final interview and that some
employees have been reinstated as a result of an exit
interview; that on May 14, Larsen passed by Lyon's office
and told him that Elder, Smelcer, and Hutter would be
down;16 that Lyon suggested that Larsen go into William
Larson's office; that the ladies, when they saw Lyon,
asked why they were terminated and Lyon replied,
"Because of the decline or the decrease in production."
Lyon then testified that he told the ladies, "Your
supervisor is in Mr. Larson's office and he will see you
one at a time"; that the women refused to go in one at a
time and that he then told them that if they felt the
termination was unjust they had a right to appeal to the
personnel office and that it would be investigated one at a
time. Lyon then added, "They did not take advantage of
this invitation `7
With regard to Payne, Lyon testified that Payne came
into his office, asked why he was terminated, and asserted
that his production compared favorably with other
employees. Lyon told him he would investigate the matter
and said that Payne had the right to appeal and a "fair
hearing."18 The following week, according to Lyon,
Lickfelt informed him that Payne would like to come
back to work. Lyon regarded this as a desire by Payne to
have his case reviewed, and Lyon took the matter up with
Ballard and Larsen. It was decided to have Payne submit
a letter requesting reemployment. After receiving Payne's
letter, it was decided not to reemploy Payne because he
had complained to too many other employees about the
injustice of his termination and because he had a general
discharge from the U.S. Navy. Lyon admitted the nature
of Payne's discharge was disclosed on his employment
application when he was first hired and was known to
Respondent at that time.
On cross-examination, Lyon testified that his records
show that the termination slips of Elder, Smelcer and
Hutter were dated May 13."
Lyon further testified that he assumed supervisors
informed terminated employees about exit interviews20
and that an exit interview was conducted only if an
employee requested one.
"This aspect of Elder's testimony was corroborated in all respects by
Smelcer and Hutter It is fully credited
"Elder testified that at this time she assumed that the Larsen Lyon was
referring to was James Larsen and not William Larson, Respondent's
president.
"At this time Elder testified she understood Lyon to be referring to
President Larson, as she knew that Foreman Larsen was in the plant at the
time.
"The record does not show how Larsen obtained this information
"It does seem that no clearer manifestation of a desire to appeal the
peremptory discharges could be made
"It is puzzling why Lyon didn't consider Payne's protest as an appeal
"It was stipulated that the above-named ladies worked on May 14 and
received their termination slips at the close of the day when they punched
out
"As no supervisor informed the alleged discnmmatees of their discharge,
this assumption has no foundation
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Testimony of Ballard; Larson and Larsen
Paul Ballard, Respondent's plant manager, testified
that about May 1 he knew production was low and met
with the plant's supervisors to have them do something
about it; that he first learned about the Union's
organizational drive about June 1.
William Larson, Respondent's president, testified that
in October 1967 Respondent produced the first of its
principal item. At that time the quota was 10,000.
Thereafter the production quota was as follows.
November 1967 - 200,000; December 1967 - 300,000;
January 1968 - 400,000; and 600,000 per month
thereafter. Larson stated that sometime around May 1
production was fluctuating and that he called Ballard and
two or three other people to try to arrive at the reason
and to correct it as he was under pressure by government
officials who were in need of the particular item. Larson
further testified that he reviewed each of the discharges
with Ballard and Larsen; that Glenn Davidson had been
with the company since it started and was primarily a
production worker in die production, that Davidson was
familiar with all the machines and the overall operations;
that he was used to indoctrinate new employees; that he
was not a supervisor and was paid on an hourly basis; that
he, Larson, knew nothing of the Union's organizational
drive until early in June and that he had no union
animosity.
James Larsen testified that he was no longer an
employee of Respondent but that he had been employed
by it from April 15 to approximately August- 1, that he
was hired as the assistant plant manager and was training
to familiarize himself with the entire plant operation. On
May 7, Larsen was told he would substitute for Lickfelt
as foreman on the first shift, commencing May 11, when
Lickfelt would be on his vacation. Larsen took over as
foreman on Saturday, May 11. Prior to taking over as
foreman, Larsen spent some time with Lickfelt. Lickfelt
told him that some employees were not producing and
that they would have to be terminated. Larsen, knowing
that the production on the Debur department was not
good," went to Ballard about Payne, Smelcer, Hutter
and Elder and was advised by Ballard to release them;
that after the employees were terminated, Larsen made
himself available to visit with them in Larson's office.22
He testified that he overheard part of the conversation
that Lyon had with the three ladies as he was in Larson's
office at that time. The office door was about 15 feet
away and Larsen heard Lyon telling the women that they
could come in and talk to him and that he was in
Larson's office.S3 He did not remember whether he was in
Larson's office when Payne was talking to Lyon but may
have talked to Payne that day. Larsen then testified that
he did not learn of any union activity until some time in
June.
On cross-examination, Larsen testified that Lickfelt had
discussed 15-20 employees with him prior to Lickfelt's
vacation and that Lickfelt had said that if production did
not increase, the four alleged discriminatees might have to
be terminated. Larsen then stated that although 15-20
employees were discussed with Lickfelt, Larsen made up
his own list and selected the four alleged discriminatees
"This is contrary to the figures produced by Respondent.
"As appears , infra, I find otherwise.
"I find that Larsen could not have overheard any part of Lyon's
conversation with the ladies as he was downstairs at the time talking to
Payne
for discharge because, "I did not think after a few days of
observation their production and attitude was in accord
with the company's policies."
Larsen could not remember any specific detail
concerning their attitude, about their production, or
company policy saying, "I can't tell you anything right
now." Larsen did not specifically remember observing any
of the four discriminatees merely saying that if they
worked on May 11, 13 or 14, he observed them. He
denied that he based his discharge on what he observed on
these days20 and stated that he did not know their
individual production records. He then stated that his
discharges were based on the recommendations of Lickfelt25
and his discussion with Ballard. Larsen reluctantly
admitted that it was possible Davidson was with him at
Payne's machine and that possibly Payne was asked his
name but he did not remember the incident nor the date.
He did not remember whether he wrote Payne's name.
In concluding his testimony, Larsen said that he could
not recall any reason to believe that the attitude of the
four alleged discriminatees was not favorable to the
company; that he did not remember the time of the day a
decision was made to discharge them and that he had his
discussion with Ballard some time in the morning of the
day of the discharges; that he did not remember whether
his meeting with Ballard was before or after he had
learned Payne's name.
F. The Discharges- Analysis and Conclusions
The General Counsel has not shown by any direct
evidence that Respondent knew or had reason to believe
that Payne, Elder, Smelcer, and Hutter were engaged in
union activity However, the General Counsel contends
that Respondent's reasons for the discharges are
unsupported by any facts and was therefore a mere
pretext. The General Counsel further contends that the
circumstances require an inference that Davidson
informed Respondent officials of the union involvement of
the four alleged discriminatees and that this was the true
reason for the discharges.
On the other hand, Respondent's counsel strenuously
argues that the evidence shows Respondent's complete
lack of knowledge of any union activity prior to the
discharges and that low production was the only reason
for the discharges.
Under the foregoing circumstances, the issues posed
present many difficulties for a fact finder. Initially, a
decision must be made whether the allegations concerning
the discriminatory nature of the discharges must be
dismissed because of the General Counsel's failure to
prove Respondent's knowledge of union activity by the
alleged discriminatees. In my view, the General Counsel's
failure to adduce affirmative and direct proof of
Respondent's knowledge of union activity by the four
discriminatees is not fatal to his case.
In stating the above view, I am fully aware of Board
and Court decisions holding that to establish a
discriminatory discharge for engaging in union
organization or other protected concerted activity, it must
be shown that the employer knew that the employee was
so engaged. 2b In such cases a supervisor's knowledge of
"Thus contradicting his earlier testimony.
"I do not credit Larsen's testimony concerning any of his alleged
conversations with Lickfelt I view such testimony as uncorroborated
hearsay and an attempt to put words into Lickfelt ' s mouth because
Lickfelt was not present at the hearing to testify to the contrary
"N L R B v Whiten Machine Works, 204 F 2d 883 (C A 1).
UNECO, INC.
employee activities will be imputed to the employer.27
It is also well established that the General Counsel has
the burden of proving this knowledge, and it is not
sufficient that proof be based on suspicion or surmise.20
However, knowledge or motive need not be established by
direct proof where the circumstantial evidence is of such a
character that it can be reasonably accepted as
establishing the fact of knowledge. I find that the
circumstances disclosed by the evidence fully warrant a
conclusion that Respondent knew of the union activity of
the four discriminatees and was motivated by this
knowledge in the precipitate discharges.
Respondent acknowledges that Davidson was an
employee in a special category, although not a supervisor
within the meaning of the Act The evidence shows that
Davidson witnessed the transaction between the three
women and Payne. Davidson likewise questioned Payne
about the cards and apparently concluded correctly the
nature of the transaction. I have no difficulty in
concluding that he informed management supervisors,
Larsen and Ballard, of the events he witnessed and that
they arrived at the obvious interpretation. Accordingly, as
Davidson knew the identity of Elder, Hutter and Smelcer,
there remained only the establishment of Payne's identity
This was accomplished on the morning of May 14 when
Davidson accompanied Larsen to Payne's machine and
asked Payne his name. Larsen's lame explanation for this
incident is not credited. In fact, Larsen' s entire testimony
is replete with contradictions, conclusions, and
fabrications. I cannot and do not credit him. His
demeanor while on the witness stand presents a picture of
a man brazenly testifying to a concocted account by
seeking refuge in failure of memory when asked to give
any specifics. The failure of Respondent to call Davidson
and Lickfelt29 as witnesses leads me to conclude that their
testimony would not have been favorable to Respondent
and indeed would have contradicted Larsen's testimony in
crucial aspects I cannot credit Larsen's attempt to have
me believe that Lickfelt marked Hutter, Elder, Smelcer
and Payne as poor producers. Larsen at first testified that
15-20 names were mentioned by Lickfelt and that Larsen
independently concluded, after a few days of observation,
that the discriminatees' "production and attitude was not
in accord with the company' s policies ." When called to
explain in more explicit terms what he observed in
"production" or "attitude," Larsen was unable to be
definitive in the slightest degree. Nor was Larsen able to
elucidate in any manner the company "policies," to which
he referred. Such vague generalities and conclusions are
hardly acceptable as probative evidence as justification for
discharges. Additionally, Larsen admitted that he knew
nothing about their individual production, a matter upon
which Respondent relied. In fact, it is plain that Larsen
didn't even know Payne' s name until a few hours before
Payne received his termination notice.
Lyon and Larsen attempted to convey the impression
that there was a definitive policy of exit interviews. Lyon
especially attempted to emphasize that he would
investigate all discharges and grant employees a fair
hearing. The evidence shows no such policy." Obviously
the discharged employees were protesting their discharge
when they went to Lyon's office, yet Lyon made no move
"McComb Mfg Co. 95 NLRB 596
"N L R B v Shen- Valley Packers, 211 F 2d 289 (C.A 4).
"Davidson's failure to appear was unexplained . Lickfelt' s presence in
Michigan is hardly an excuse He was still employed by Respondent
571
to conduct any investigation into their production records
and even denied them the right to confront Larsen. I do
not credit Lyon's assertion that the women refused to see
Larsen individually, rather I credit the testimony of the
dischargees that Larsen was unavailable at the time and
that they were told to call and make an appointment
Clearly, the entire interview with Lyon must be considered
as a "runaround." As Payne was leaving Lyon's office
when the women entered, Larsen could not have been in
Larson's office at that time. This is established by Payne's
uncontradicted and credited evidence that he met and
discussed his discharge with Larsen downstairs as soon as
he left Lyon's office and at the very time the women were
in Lyon's office. The numerous fabrications of Lyon and
Larsen merely substantiate the conclusion that
Respondent was desperately attempting to suppress the
fact that it knew of the discriminatees' union activity and
had discharged them for that reason.
I now arrive at Respondent's contention that low
production in the Debur department called for drastic
measures The evidence submitted by Respondent" does
not support this contention.
I conclude on the basis of Respondent's own statistics
that there was no overall failure of production from May
1 to May 10, which would warrant viewing the situation
as critical. Clearly, the drop in production for the week of
May 17 is not chargeable to the deficiencies of the four
discriminatees because they were discharged on May 14.
Accordingly, if the discriminatees' low production was a
factor, the production statistics for prior weeks should
have reflected this fact. Nevertheless, examination of
production figures shows that for the week ending April
26, May 3, and May 10, production was higher than for
any of the prior weeks. Thus, Ballard's testimony that he
called a meeting because of low production on May 1 is
contradicted by the production figures for the weeks
ending April 26 and May 3 showing the highest
production up to the time of the hearing.
William Larson's testimony that he had no union
animus, while credited, is far from controlling with regard
to Respondent's motive for the discharges. Larson may
well have been given erroneous information by Ballard
and Larsen upon which he relied and therefore concurred
in the action of his subordinates. Moreover, the absence of
proof of prior union animus cannot be decisive. Such a
rule would automatically insulate the first unfair labor
practice charged against an employer.32
The absence of warnings to the discriminatees, the lack
of any complaint of their work, the unrefuted testimony
that their work met the standards set by Lickfelt,
Lickfelt's intercession on behalf of Payne, and the failure
to produce the individual production records as well as the
other reasons discussed herein lead me to conclude that
the alleged reasons for a discharge were merely pretexts to
disguise the true reasons.
Although Elder, Smelcer and Hutter were not
particularly prominent in the protest of May 3 which
involved a brief protected and concerted work stoppage,
nevertheless, Ballard, as a result of that incident, was
aware that the women discriminatees had participated in
this incident. Thus, as I have found above, when Ballard
learned of their union activity through Davidson or
through Larsen, he readily acquiesced in the discharges
"There was no published record of this policy or any evidence that it
had been enunciated
"R-2 and R-3
"N L R B v Mrak Coal Co , 322 F.2d 311 (C A. 9).
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
without any substantiation or investigation of the
proffered reasons for the discharges.
Finally, it is rather pointed that Larsen , observing the
dischargees for only one day, May 13," quickly decided
to discharge them on the same day 3° The discharges
following so closely on the events witnessed by Davidson
on May 9 involving the women cannot be brushed off,
under all the circumstances , as a mere coincidence
I find that Payne, Elder , Smelcer and Hutter were
discharged because of their union activity and that
Respondent thereby violated Section 8(a)(3) and (1) of the
Act
G Alleged 8(a)(1) Violations
Duane R. Frey, a toolroom machinist in Respondent's
employ, testified that he had a conversation with Charles
Brock, one of Respondent's production foremen Both
Brock and Frey were employed on the third shift which
operated from 10:30 p m. to 7 a m. Frey testified that he
was sharpening a tool about 1 I or 11:30 p m on May 13
when Brock told him that there was a union organizer in
the plant and as soon as they found out who it was they
would fire him.
Brock denied making the statements attributed to him
by Frey or that he knew of any union activity at
Respondent's plant at any time prior to June 1 Brock
admitted that he knew Frey by his first name and that he
spoke to Frey on occasion; but he did not remember
whether he spoke to Frey on the specific date May 13.
As I regard Frey as a forthright witness, I credit his
version By crediting Frey, I do not imply that I received
an unfavorable impression from Brock. In choosing to
credit Frey over Brock, I have considered that Frey is still
in the employ of Respondent and therefore was exposing
himself to possible reprisal.]" Brock, on the other hand, is
a supervisor of 43-45 employees on the third shift, is a
young man of 21 years of age, and therefore would feel
more impelled to give testimony favorable to Respondent.
Brock's admission that he knew Frey by his first name"
and that he spoke to Frey on occasion established the fact
that there was opportunity for such discussion. As
disclosed heretofore, the termination notices of Elder,
Smelcer and Hutter were prepared on May 13, and it
would appear that Brock, as a supervisor, could have
learned about the union activity from conversations with
other supervisory personnel, such as Ballard or Larsen
Moreover, as Frey's other testimony, described below, is
in essence corroborated, I am persuaded that Frey is
worthy of credit in this regard. Accordingly, I find that
Respondent, by reason of Brock's statements, violated
Section 8(a)(1) of the Act.
Frey further testified that all five toolroom employees
from the three shifts were called to a special meeting at
6:30 p.m. on Friday, June 7. The toolroom foreman,
Vincent Mankowski, called and addressed this meeting.
Mankowski discussed a pending move of the toolroom to
expanded quarters and facilities, the new rules that were
to be followed, insurance, and the "union business." Frey
testified that Mankowski told them that he would
practically guarantee that in another year they would be
making a dollar an hour more without the Union
Mankowski testified that he did call a meeting of all
toolroom employees on June 7, at 6:30 p m and that the
new quarters and company policies were discussed at this
meeting as well as insurance, wages, hours, and vacations.
He distributed an insurance flyer and individual evaluation
sheets in which he had rated the toolroom employees.
Mankowski also testified that there was no "pointed"
discussion of the Union but that he remarked that he had
not heard any arguments for or against the Union, but if
it would help, he would be for it and if it can't help, it
was not needed. When asked directly if he had said that
they could make one dollar per hour more without the
Union, Mankowski replied, "I don't think I said $1.00 I
think I said something to the tune that I think we will all
be making more money in the future." Respondent's
counsel then asked Mankowski the following question
Q. When you said you felt we would be making
more money in the future this statement was not made
in regard to the union, was it?
A. No.
I do not credit Mankowski's last reply to the leading
question propounded by Respondent's counsel. Rather I
credit Mankowski's earlier reply, as quoted above, to the
effect that he didn't think he said they would be making
more than one dollar without the Union but that all of
them would be making more. Mankowski admitted the
Union was brought up when the wage rates were under
discussion and did not unequivocally deny Frey's version
of a virtual guarantee of $1.00 an hour more.
In essence, as I have stated above, Mankowski
corroborated Frey's testimony with the qualification that
no specific amount of money was mentioned by him. I,
therefore, find that Respondent promised further benefits
by way of wage increases without union organization.
Such a statement is violative of the Act I, therefore, find
that Respondent, by Mankowski's promise, violated
Section 8(a)(1) of the Act.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
3. By the discharge on June 14, 1968, of Gertrude
Hutter, Margaret Smelcer, Maxine Elder, and Michael
Payne, and the failure to reinstate these employees since
that date, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
4. By threatening to discharge employees engaged in
union organization and by promising wage increases to
employees to deter them from joining the Union,
Respondent engaged in conduct violative of Section
8(a)(1) of the Act
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
"Although Larsen assumed Lickfelt's duties on Saturday, May 11, the
women did not work on May 11 or May 12 1 do not credit Larsen's
testimony of his observations with Lickfelt poor to May 11
"Lyon testified the women's termination slips were made out on May
13
"Frey also disclosed that he was an active union adherent
"Brock was not Frey 's supervisor
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations as set
forth in section II, above, have a close, intimate, and
UNECO, INC. 573
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 has engaged in, and is
continuing to engage in, certain unfair labor practices, it
will be recommended that it be required to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As it has been found that Gertrude Hutter, Margaret
Smelcer, Maxine Elder and Michael Payne were
discriminatorily terminated on June 14, 1968, it is
recommended that Respondent offer them immediate and
full reinstatement to their former or substantially
equivalent jobs without prejudice to seniority or other
rights and privileges, and make each whole for any loss of
earnings that they may have suffered by reason of
Respondent's discrimination against them, by payment to
the above-named employees of a sum of money equal to
that which normally they would have received as wages
from the date of their discriminatory separation until the
day that Respondent reinstates them, less any net earnings
in the interim period. Backpay is to be computed on a
quarterly basis in the manner established by the Board in
F W Woolworth Company, 90 NLRB 289, with interest
at the rate of 6 percent per annum to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, it is recommended that Respondent, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from.
(a) Discouraging membership in Local Lodge 31,
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization of its
employees or discriminating against them in any like
manner in respect to their hire or tenure of employment,
or condition of employment
(b) Threatening discharge of any of its employees
because of their union activities or promising benefits to
employees to induce them to refrain from joining the
Union.
(c) In any other like or related manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which will
effectuate the policies of the Act:
(a) Offer Gertrude Hutter, Margaret Smelcer, Maxine
Elder, and Michael Payne immediate and full
reinstatement to their former or substantially equivalent
jobs, without prejudice to seniority or other rights and
privileges, and make whole the above-named
discriminatees for any loss of pay suffered by them by
reason of Respondent's discrimination against them from
June 14, 1968, to their date of reinstatement in the
manner set forth in the section herein entitled "Remedy";
and notify each, if presently serving in the Armed Forces
of the United States, of his or her right to full
reinstatement, upon application, in accordance with the
Selective Service Act, as amended, after discharge from
the Armed Forces.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Recommended Order.
(c) Post at its Bellevue, Nebraska, plant copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 17, shall, after being duly signed by the company's
representative, be posted by the company immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by the
company to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of receipt of this
Decision, what steps have been taken to comply herewith. Is
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
employees that.
WE WILL NOT discharge any of our employees or
otherwise discriminate in regard to their hire , tenure of
employment , or any term or condition of employment,
because they have engaged in union or concerted
activities for the purpose of collective bargaining or
other mutual aid or protection.
WE WILL NOT threaten to discharge any of our
employees because they engage in union activities.
WE WILL NOT promise wage increases to our
employees to induce them not to join the Union.
WE WILL reinstate Gertrude Hutter, Margaret
Smelcer, Maxine Elder , and Michael Payne and
reimburse them for the wages they lost as a result of
their discharges.
WE WILL NOT in any like or related manner interfere
with , restrain or coerce employees in the exercise of
their right to engage in, or to refrain from engaging in,
any or all of the activities specified in Section 7 of the
Act.
UNECO, INC
(Employer)
Dated By
(Representative) (Title)
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a 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 is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 17, in writing, within 10 days from the date of this Order, what
steps it has taken to comply herewith "
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days or compliance with its provisions, they may communicate
from the date of posting, and must not be altered, directly with the Board's Regional Office, 610 Federal
defaced, or covered by any other material. Building, 601 E. 12th Street, Kansas City, Missouri,
If employees have any question concerning this notice 64106, Telephone 374-5181.