Wellco Chemical Co.

National Labor Relations Board - Board Decisions

Mar 3, 1969

174 N.L.R.B. 943 (N.L.R.B. 1969)

WELLCO CHEMICAL CO.
Wellco Chemical Company and International
Brotherhood of Boilermakers , Iron Shipbuilders,
Blacksmiths , Forgers, and Helpers , AFL-CIO.
Case 13-CA-8295
March 3, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 19, 1968, Trial Examiner James V.
Constantine 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 made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and
the entire record in this case, and adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner.'
'Respondent excepts to the credibility findings of the Trial Examiner
We do not overrule a Trial Examiner's resolutions as to credibility anless a
clear preponderance of all the relevant evidence convinces us that the Trial
Examiner ' s resolutions were incorrect Since no such conclusion is
warranted in this case , we will not overrule any of the Trial Examiner's
credibility resolutions , but adopt them and his findings of fact based on
them Standard Dry Wall Products , Inc, 91 NLRB 544, enfd 188 F 2d
362 (C A 3)
We note particularly that the selection of union leader Ellis over Cobb
for discharge , when business was slow and the layoff of a welder became
necessary about April 26, 1968, was contrary to Ellis' seniority over Cobb
In addition to Ellis' 10-year welding experience as compared to Cobb's 7
years, Ellis was admittedly a much more versatile employee capable of
doing any other job in the equipment department , and unlike Cobb had
even served for a period of time as foreman of the department. In
recognition of his ability, Ellis was given two pay raises and was the
highest paid employee in the department Significantly , when President
Wellman asked Ellis on April 4, shortly before the layoff, whether he was
still for the Union and Ellis answered that he was, Wellman replied that
Ellis was qualified for the work , but that he (Wellman ) would now "fight
(Ellis) tooth and nail all the way." And when Supervisor Neumann later
told Ellis he was selected to be laid off, Neumann added, "You and I both
know that this isn't fair, but I have my orders " Since Wellman's talk
with Ellis on April 4, Ellis was absent 4 1/2 days. But the absence was
with permission and does not support Respondent ' s alleged cause for Ellis'
selection for layoff On the basis of the facts disclosed by the record,
including Wellman's union animus specifically directed at Ellis, we agree
with the Trial Examiner ' s conclusion that the Respondent 's asserted
reasons for laying off Ellis rather than Cobb were pretexts , and that Ellis
was laid off because of his union activity.
'Respondent's exceptions are not specifically directed against any of the
Trial Examiner ' s 8(a)(i) findings nor does its brief deal with them
ORDER
943
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, Wellco Chemical Company,
Chicago, Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES V. CONSTANTINE, Trial Examiner: This is an
unfair labor practice case litigated under Section 10(b) of
the National Labor Relations Act, herein called the Act.
29 U.S.C. 160(b). It is based on a charge and an amended
charge filed by International Brotherhood of
Boilermakers. The original charge was filed on February
27, 1968, and the amended charge was filed on May 13,
1968. Thereafter the General Counsel of the National
Labor Relations Board, through the Director for Region
13 (Chicago, Illinois), issued against Respondent, Wellco
Chemical Company, a complaint, an amended complaint,
and a second amended complaint on May 7 (erroneously
mentioned as May 5, in G. C. Exh 1 (s)), May 31 (by the
Acting Regional Director), and July 30, 1968, respectively.
In substance the complaint as amended alleges that
Respondent has violated Section 8(a)(1) and (3), and that
such conduct affects commerce within the meaning of
Section 2(6) and (7), of the Act. Respondent has answered
admitting some facts but denying it committed any unfair
labor practices.
Pursuant to due notice this case came on to be heard,
and was tried, before me on July 31 and August 1, 1968,
at Chicago, Illinois. All parties were represented at and
participated in the hearing, and had full opportunity to
adduce evidence, examine and cross-examine witnesses,
file briefs, and offer oral argument. Briefs have been
received from the General Counsel and Respondent.
Respondent's motion to dismiss was denied at the hearing.
This case presents the issues of whether Respondent (1)
Promised employees benefits in order to undermine the
Boilermakers union; (2) Coercively interrogated employees
concerning their union sympathies; (3) Threatened
employees with reprisals if they selected the Boilermakers
as their collective-bargaining agent; (4) Solicited
employees to repudiate the Boilermakers as their union;
(5) Created the impression of surveillance of protected
activities of employees; and (6) Illegally terminated
employee Billie Ellis because of his union activities.
Upon the entire record in this case, and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
1. AS TO JURISDICTION
Respondent, an Illinois corporation, is engaged at
Maywood, Illinois, in manufacturing cleaners and
chemical cleaning equipment. During the year preceding
July 30, 1968, when the second amended complaint was
issued, it shipped goods valued in excess of $50,000
directly to points located outside the State of Illinois. I
find that Respondent is engaged in commerce within the
174 NLRB No. 132
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meaning of Section 2 (6) and (7) of the Act, and that it
will effectuate the purposes of the Act to assert
jurisdiction over Respondent in this proceeding.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron
Shipbuilders , Blacksmiths , Forgers, and Helpers,
AFL-CIO, herein called Boilermakers or the Union, is a
labor organization within the meaning of Section 2(5) of
the Act
III GENERAL COUNSEL'S EVIDENCE RELATING TO THE
UNFAIR LABOR PRACTICES
A. Interference, Restraint , and Coercion
About February 15, 1968, Respondent's president,
Glenn Wellman, called a meeting of its employees He did
so at the request of employee Foss, who stated that the
employees had several grievances Employee Foss testified
that, when he asked Wellman to call the meeting, he,
Foss, mentioned to Wellman that employees were trying
to get the Union in the plant, and that the employees were
asking for showers and ventilating fans About a month
before this Respondent had moved into a building situated
at 1960 North Wilmot, Chicago, but the employees
became "discontented" at this new location. Employees at
this meeting expressed their individual complaints. All
complained that they were not being paid enough and also
demanded "some safety requirements " Employees Foss
and Williams testified that Wellman at the meeting of
February 15, observed that some employees were trying to
bring in the Union, and asked those assembled whether
they needed it. Foss received a wage increase shortly
thereafter from $2 70 to $2 80 an hour In fact, all
employees received a raise The "safety requirements"
grievances involved a lack of (1) ventilating fans, (2)
showers, (3) a first aid kit, and (4) new boots In addition
the employees wanted "more defined job classifications "
Meetings of employees by Wellco had also been held
before the advent of the Union
Wellman replied that he would look into these
demands. Foss wanted to represent employees in the
equipment manufacturing department, while employees in
the chemical department desired to elect someone else to
represent them on these issues
According to employee Billie Ellis, Wellman at the
February 15 meeting of employees opened by saying, "I
suppose you men have heard that a union is trying to get
into the shop9 1, for one, do not want a union in here ... -
If the Union comes in here, I'd have to go broke " Then
Wellman asked the men to voice their complaints. In
other respects, Ellis corroborates Wellman's account of
what was said at this meeting
Wellman testified that he did not know that a union
was organizing the employees until a few days after the
meeting when he returned from a business trip On his
return Wellman was informed by Equipment Plant
Superintendent Keith Neumann that union representatives
had called upon Neumann They called 2 or 3 days after
February 14
Another meeting with employees was held on February
19. Wellman told them he was granting the requests made
by them at the February 15 meeting At this February 19
meeting, equipment department employees were presented
with a copy of the new reclassifications of their jobs. (See
G. C. Exh. 2 ) Billie Ellis received an increase of 15 cents
an hour under the new classification to which he was
assigned, thus receiving a raise from $3 50 to $3 65 an
hour He also testified that at this February 19 meeting,
Wellman asked the employees why they needed a union
About March 1, 1968,' Respondent gave wage increases
to nearly all its production and maintenance employees,
including Billie Ellis This was pursuant to a
reclassification of jobs adopted to meet one of the
grievances aired at the February 15 meeting During
March Respondent also supplied employees with boxes of
new tools; installed showers, a ventilating fan, and a first
aid kit, gave those employees needing them new protective
work boots or shoes, and reclassified jobs (See G C
Exh. 2 for such reclassification )
About February 21 President Wellman told his
secretary to "write a letter or have Keith Neumann write
the letter, and have the fellows sign it " This, according to
Wellman, was to constitute "an answer to a letter we had
just received from the Union," asking for recognition
Such a letter was prepared, and Wellman, Supervisor
Zick, and eight employees signed it. (See G C Exh 3 )
Employees Billie Ellis and James Cobb signed at the
request of Zick It is addressed to the Union In relevant
part it acknowledges receipt of the Union's request for
recognition and states that "the undersigned personnel,
which is the majority, have voted down the opportunity
presented to them by you to be their bargaining
representative "
About April 4 President Wellman called to his office
employees Billie Ellis and Charles Hale Also present was
Supervisor Neumann Wellman said to the employees
"I've heard there was some statements made at the Board
downtown and I want to know if you and Chuck [Hale]
are still for the Union or against it " Ellis had previously
given a statement to the N L R B. at its Chicago Regional
Office After some more talk Wellman said that if a union
got in all past favors he had granted, including personal
loans, would stop, and he intended to fight the union
efforts of Ellis "tooth and nail all the way."
Supervisor Zick on February 21 told Ellis that since
some employees had criminal records, Wellman could
keep out the Union by requiring employees to be bonded,
but they would be unable to obtain bonds "because of
their records "
B. The Termination of Billie Ellis
1 The testimony of President Wellman
According to President Wellman, who testified for the
General Counsel, Billie Ellis, a welder, was laid off about
April 26, "because the work had slowed down in the plant
and he was one of many employees who were laid off at
that time " However, the others were identified only as
Mercardo, a clerk, and Miss O'Hara, an office employee,
while Ellis was a production employee
When it became necessary about April 26 to lay off a
welder, a decision had to be made whether it would be
Ellis or James Cobb. Ellis was selected for termination
"for three specific reasons. No I, James Cobb was a
much, much better welder than Billie Ellis, No 2, James
was more dependable . . in his attendance ; No 3, it
was a matter of economics Mr Cobb earned less money
than Mr Ellis " However, on February 19, new
classifications were announced. Ellis was placed in the
All dates mentioned hereafter refer to 1968 except where otherwise
specifically noted
WELLCO CHEMICAL CO.
highest, entitled "Class A - Advanced Equipment
Technician " But Cobb was given a rating below that of
Ellis, I e , "Class B - Equipment Technician "
About June 19 Respondent's plant was consumed by
fire Operations were resumed about a week later in a
building located in Maywood, Illinois But all employees
on the payroll on June 19 were retained and none was laid
off Some of those retained "are working at another
company" while still remaining on Wellco's payroll Since
the fire Wellco has hired a welder and some "summer
help, high school boys."
About 3 weeks after the fire Wellman sent a letter to
all employees (See G C Exh 4 ) Wellman testified that
the statements therein are true Among other things, said
letter recites that "within 24 hours after the fire occurred,
Wellco was back in business . orders were being taken
. and . shipped . [Significant production is then
described]. To accomplish this enormous task, Wellco
people worked 16 consecutive days, averaging in excess of
12 hours a day. An enormous lob still lies ahead .11
2 The version of Billie Ellis
Ellis was originally hired by Wellco in 1966. His duties
then required him to "build the machines entirely, because
there was no one else but" Ellis in his department Thus,
he welded, wired, painted, aligned motors and pumps, and
crated and prepared the machines for shipment. He also
later served as foreman of the equipment department
when employees were hired and worked therein.
Although he left Wellco in July 1967, Ellis was rehired
about 2 weeks later He was then laid off for failing to
show up one Saturday morning when it was his
responsibility to open the plant Upon being rehired, he
was night foreman for a while, but soon he worked days
as a welder, assembler, and fitter His day rate was $3.50
an hour, which represented a raise of 25 cents an hour. He
also retained his prior seniority when he was rehired Thus
he preserved seniority for purposes of layoff and vacation
On February 19, when the new classifications were
announced, Ellis was placed in the highest grade, i.e ,
"Class A - Advanced Equipment Technician."
About February 12, Ellis interested several employees
in a union. Then he met with Roy Freeman of Local 1277
of the Boilermakers, who gave him some authorization or
membership application cards Ellis distributed several of
these cards to employees at the plant on or about
February 14. He signed one himself on February 14 (See
G C Exh 5 ) Ellis also invited employees to attend a
union meeting on the evening of February 14 Many
employees did attend, so did Ellis.
Although Cobb and Ellis both welded, Ellis was the
higher paid of the two because he was placed in Class A
Cobb was rated Class B (See G C. Exh. 2 for a
description of these and other classifications.) Cobb did
welding mostly. But Ellis was capable of doing every job
in the equipment department.
About April 26 Supervisor Neumann called Ellis to his
office and informed Ellis that he was being laid off
because of lack of work Then Neumann added, "You and
I both know that this isn't fair, but there's nothing I can
do I have my orders " Yet there was enough work, as
Ellis evaluated it, for four employees to keep working for
3 1/2 to 4 weeks
As to his absenteeism, Ellis claims he stayed out a total
of 14 days, 4 1/2 of them in April, in his last 6 months of
employment He was never warned about this; but he was
945
once reprimanded by Neumann for this. On the other
hand, Cobb was absent a lot more during the same period;
and, in fact, Cobb was fired for excessive absenteeism in
the last year Cobb was rehired shortly after his discharge.
Since his layoff Ellis has kept in touch with Respondent
about being recalled to work, but he has not been
reemployed by Wellco Nevertheless, a new man was hired
in this period. Supervisor Zick justified this to Ellis, who
complained to Zick about it, on the ground that this new
employee was taken on at lower wages than those paid to
Ellis At the time of his layoff Ellis was the highest paid
employee
On cross-examination Ellis testified that regarding his
work on a drum washer, and on another job also, the
customer complained about the welding
IV. RESPONDENT'S EVIDENCE
Employee Foss testified as follows James Cobb was a
welder at the time Billie Ellis was rehired as a welder.
However, Cobb did more welding than Ellis, for the latter
also performed other work Foss ground seams which both
Cobb and Ellis welded However, Cobb's welds were
smoother and Ellis, unlike Cobb, so welded tanks and a
gas coil heater that he caused leaks therein As a result
Foreman Zick assigned Cobb to seal these leaks. Cobb
succeeded in doing so
According to Foss, Ellis on the average did not work
about a day and a half in each week for the 6 months
prior to his layoff in April On the other hand, Cobb's
attendance record in December 1967, was "pretty bad," as
he was absent 6 or 7 days in that month. Cobb also took
off many times in October and November 1967 But since
January 1968, Cobb has done "pretty good" in coming to
work During this latter period, "Ellis took off more
time" than Cobb
Keith Neumann is Wellco's equipment department
manager I find he is a supervisor under Section 2(11) of
the Act His testimony follows. Among others, Ellis and
Cobb worked under him When Ellis was rehired, he not
only performed welding but also "other categories" such
as pipefitting and "general jobs around the shop."
However, Cobb was a welder. Thus Cobb welded 90
percent of the time, whereas Ellis did this type of work 50
percent of the time The welding of Ellis developed leaks
in the tanks and heater systems on which he worked In
addition Ellis "had difficulty" in welding gas tube coils.
On one occasion Cobb had to redo some welding which
Ellis did on a gas heater or coil In Neumann's opinion
Cobb is a better welder than Ellis.
About March or April a large decline in orders
occurred By April "there was only enough equipment for
one welder." After Neumann conferred with President
Wellman and Equipment Foreman Zick, it was concluded
that only one welder was needed and, since Cobb was a
better welder, it was decided to retain him as a welder
Nevertheless, when the new classifications were adopted
(see G C. Exh 2), Neumann recommended that Ellis be
placed in the highest rating, namely, "Class A -
Advanced Equipment Technician," and that Cobb be
classified in a lower grade, i e , "Class B - Equipment
Technician " And at the time of his layoff Billie Ellis was
the highest paid employee working under Neumann's
supervision, receiving $3 65 an hour At that time Cobb
was compensated at the rate of $3 an hour
However, Neumann recommended Ellis for the highest
rate for two reasons one, out of friendship, and two,
because Ellis "could do a few other things than welding "
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Neumann's opinion James Cobb "would have been put
in Class A in a very short time" as he was "coming
along" as a pipefitter and "as far as electrical and other
things" were involved.
James Zick, foreman of machine production, whom I
find to be a supervisor under Section 2(11) of the Act,
also testified for Wellco His testimony follows Zick
exercised "supervisory capacity" over both Billie Ellis and
James Cobb Zick evaluated as "fair" the welding of Ellis
and Cobb's as "good " From November 1967 to April
1968, the time Ellis took off totals 3 or 4 weeks, "more or
less," whereas Cobb in that same interval was absent for 7
or 8 days. Nevertheless at no time was Ellis warned about
his absences, whereas Cobb was so warned In fact Cobb
was discharged in December 1967, for his poor attendance
record, although he was later rehired On redirect, Zick
testified that Supervisor Neumann warned Ellis about the
latter's absences.
Further, Zick testified that he preferred to lay off Ellis
when work became slack because "it was the condition of
the welding . the quality of the work" of Ellis
However, as the result of a leading question, Zick added
that he also considered the attendance record of Ellis in
arriving at his decision
Finally, Zick testified that he was asked by Supervisor
Neumann to bring General Counsel's Exhibit 3 into the
shop, have the men read it, and ask them to sign, but to
compel no one to subscribe. Thereupon Zick did ask the
men to sign, informing them they were free to refrain
therefrom, and they did subscribe Thereafter Zick
returned it to President Wellman's secretary at
Neumann's direction
James Cobb, a welder, testified that in April 1968,
there was less welding to be done than in December 1967
During this period Cobb once was "asked to go over
something for a leak at the bottom of a coil that [Ellis]
couldn't get " Cobb fixed this leak (However, Ellis
testified that he once redid some of Cobb's work ) Cobb
also testified that he was on the job more often than Ellis
from November 1967 to April 1968, and that he
considered himself a better welder than Ellis. This latter
opinion was based on Cobb's observation of some of the
welding performed by Ellis. Cobb further testified that
Ellis performed "other jobs he did better than 1, and I
didn't know how to do some" jobs which Ellis did at
Wellco (However, Ellis testified that he was a better
welder than Cobb )
As narrated above, President Glenn Wellman was put
on as a witness for the General Counsel He was also
called by Respondent. In addition to his evidence for the
General Counsel, Wellman gave the following testimony
for Respondent. In November 1967, Wellco employed 33
to 35 employees, in January 1968, but 27 or 28, and in
March 1968, only 20 to 22. Since December 1967, four
employees in the equipment department were terminated
prior to April 1968 At the time Ellis was laid off in April
1968, Lydia O'Hare, an office employee, and Charles
Eddy, in the sales department, were laid off
"Improvements" to the Wilmot Avenue plant began to
be made in February 1968, 2 months after Wellco moved
into it in December 1967. That plant was a "totally
vacant building" when Wellco first occupied it
Wellman explained Class A and Class B ratings set
forth in General Counsel's Exhibit 2. Class B applies to a
person with a particular or specific skill who is unable to
"do too much other than that one particular task or
skill." On the other hand, Class A describes a person who
"has gained sufficient experience and knowledge of our
equipment where he is more rounded in terms of
experience rather than as a specific task."
Ellis was fired in the summer of 1967 for failing to
open the plant on a Saturday when it was his
responsibility to do so He was rehired about 2 months
later on three conditions (1) he would be more
dependable in his attendance, (2) he would be more
conscientious on his job, and (3) he would go back as a
welder rather than as a foreman Ellis accepted these
conditions.
However, since he was rehired Ellis missed I to 2 days
a week from work, for a total of 20 to 21 days prior to
his termination Both Wellman and Neumann warned
Ellis about this And Ellis did not do good welding, so
that a drum washer he worked on had to be returned by
the purchaser However, due to a shortage of help no
complaint was made to Ellis concerning this incident.
In the fall of 1967 business was good, so that five to six
units were on the floor at one time and back orders for 10
or 12 more were "on hand." By January 1968, three were
on the floor and back ordeis accounted for three or four
more. But by April 1968, only one unit was on the floor
and none on back orders (Ellis testified there were two
units on the floor at this time.) Thus there was not enough
work for two we,.iers in April Hence it became necessary
to lay off Cobb or Ellis After consulting with Supervisors
Neumann and Zick it was decided to retain Cobb and to
release Ellis "based on attendance and quality of his
work " Included in "attendance" was an absence of 4
days recently taken by Ellis to attend his uncle's funeral,
and "was like the straw that broke the camel's back."
Respondent's Exhibit I shows that Cobb was not absent
from work in November 1967 However, he testified that
he was off more than 2 or 3 days and that he was
discharged for too many absences
About June 1968, the Wilmot Street plant completely
burned Hence there was no work for welders after that
The old plant on Armitage Street had showers and an
exhaust system And employees there were supplied with
safety boots
V CONCLUDING FINDINGS AND DISCUSSION
A As to the Termination of Billie Ellis
It is my opinion, and I find, that Billie Ellis was
selected to be laid off on about April 26 because of his
union activity, and that the reasons given by Respondent
to justify said selection are a pretext to make or disguise
the true reason. Cf Starlite Manufacturing Company, 172
NLRB No 2 These ultimate findings are based on the
entire record and the following subsidiary findings, which
I hereby find as facts
1. Ellis was prominent in the union movement at the
plant Of course, this does not shield or immunize him
from a proper layoff. Metals Engineering Co . 148 NLRB
88, 90. Mitchell Transport, Inc , 152 NLRB 122, 123, 358
F 2d 281 (C A. 7) Further, being prominent in union
activity in itself means nothing, but it may be considered
in ascertaining the true cause for a layoff "Obviously, the
discharge of a leading union advocate is a most effective
method of undermining a union " NLRB v
Longhorn Transfer Service, 346 F 2d 1003, 1006 (C.A 5)
2 Respondent had knowledge of the union activity of
Ellis. I do not credit Respondent's contrary evidence.
Indeed Respondent's own witness, Foss, testified - and I
credit him on this aspect of his testimony - that he told
President Wellman about the union activity as early as
WELLCO CHEMICAL CO. 947
February 14, 1968, and Wellman himself testified that he
had knowledge of union activity on February 21, when he
signed General Counsel's Exhibit 3. Further, I credit Ellis
that about April 4 Wellman, among other things, asked
Ellis and Hale if they were still for the Union. In any
event I find that Respondent operated a small plant and
that I may inter knowledge of the union activity of Ellis
by reason of the small size of the plant Angwell Curtain
Company, Inc v N L.R.B, 192 F.2d 899, 903 (C.A 7)
It is pertinent at this point to observe that "Direct
evidence of a purpose to discriminate is rarely obtained,
especially as employers acquire some sophistication about
the rights of their employees under the Act, but such
purpose may be established by circumstantial evidence "
Corrie Corporation v N L R B, 375 F.2d 149, 152 (C.A
4). Therefore it is not unusual for an employer to point to
an employee's real or doubtful shortcomings as the reason
for a discriminatory layoff
3. Respondent entertained union hostility, and also
committed violations of Section 8(a)(1) of the Act, as
hereinafter found. Nevertheless, antiunion animus, without
more, is not sufficient to establish that a termination of
employment is unlawful. N.L R B. v Howard Quarries,
362 F 2d 236 (C.A. 8) But it is a factor which may be
evaluated in ascertaining the real reason for an employee's
termination N.L R B v Georgia Rug Mill, 308 F 2d 89,
91 (C A 5)
4 Timing cannot be ignored. Arkansas-Louisiana Gas
Company, 142 NLRB 1083, 1085-86 It is significant that
the layoff of Ellis coincided with the Union's
organizational campaign Texas Industries, Inc , 156
NLRB 423, 425; N L R B v Mira-Pak, Inc, 354 F 2d
525, 527 (C.A 5)
5 I find that Ellis was not put on notice that his
absences or his defective work prejudiced his continued
employment. Respondent's contrary evidence is not
credited Failure to warn, under the circumstances, may
not be ignored Talon, Inc , 170 NLRB No. 42, fn I Not
only did Respondent fail to warn Ellis but it gave him a
raise in pay a couple of months before his layoff,
classified him in the highest category, and made him the
highest paid nonsupervisory employee in the plant.
Employees in disfavor are not so honored.
6. Further, I find that Ellis was able to perform tasks
which Cobb in some instances could not do at all and in
other cases could not do as well as Ellis. Indeed, Cobb
himself so testified Thus it would be reasonable to infer
- and I do - that the employee capable of performing
the greater variety of work assignments would be retained
in the event one of two employees must be laid off. I do
not mean to intimate that I am deciding who is the better
welder, as this is a managerial prerogative which may not
be overturned by the Board. N L R.B. v. Ogle Protection
Service, 375 F 2d 497, 505 (C A 6), cert denied 389 U S
843, Thurston Motor Lines, Inc , 149 NLRB 1368, 1369
But I cannot overlook the fact that Ellis was laid off when
he could perform more different kinds of jobs than Cobb.
Merely because lawful cause exists, i.e , absenteeism
and poor work, will not justify a layoff if the motivating,
dominant, or substantial reason behind the dismissal is a
discriminatory one. N L R.B v Symons Mfg Co., 328
F 2d 835, 837 (C A 7); Angwell Curtain Company, Inc v.
N L R.B , 192 F 2d 899, 902 (CA. 7), N L R.B. v.
Lexington Chair Co., 361 F 2d 283, 295 (C A. 6);
N.L.R B. v. Whitin Machine Works, 204 F 2d 883, 885
(C.A. 1). I find that business was slow and that layoff of a
welder became necessary But I find that union activity
was a substantial reason for selecting Ellis to be laid off,
and that his shortcomings "alone would not have led to
such" selection N L R B v Park Edge Sheridan Meats,
341 F 2d 725, 728 (C A 2) In this connection, the
following recent cases warrant such conclusion Rawac
Plating Company, 172 NLRB No. 180, Carlisle Paper
Box Company v N L R B, 398 F 2d (C.A 3).
7 Although of minor import, I also find that President
Wellman gave more reasons for the layoff of Ellis when
Wellman testified for Respondent than when he testified
for the General Counsel, and, also, no reason was given
by Respondent to Ellis as to why Cobb, rather than Ellis,
was retained This latter has been held to constitute some
indicia "that the layoff was discriminatory." N L R B v
Griggs Equipment, Inc , 307 F 2d 275, 278 (C A 5). See
N.L R B v. Melrose Processing Co , 351 F 2d 693, 699
(C A. 8), N L.R B v Plant City Steel Corp , 331 F 2d
511, 515 (CA 5) Cf Rawac Plating Company, 172
NLRB No 180
B As to-Interference, Restraint, and Coercion
1. Promises of benefit
About February 15 President Wellman called a meeting
of employees at the request of employee Foss While I
find that Wellman had at times in the past held such
assemblies , I find that this one would not have been held
at this time but for the request of Foss And I further find
that Foss told Wellman that he, Foss , wanted such a
meeting because employees were trying to get a union in
the plant, that they were clamoring for showers and
ventilating fans, and that Wellman should have an
opportunity to rebut the Union ' s demands
I do not credit Wellman that he had no knowledge of
union activity at this time, i e , on about February 15
This is because I credit Foss , a witness for Respondent,
that he informed Wellman of the Union's organizing
attempts when he, Foss , invited Wellman to hold a
meeting for employees on February 15 In addition I rely
upon the Board ' s small plant doctrine whereby Wellman's
knowledge of union activity may be inferred because
Respondent operated a small plant Angwell Curtain
Company , Inc v NL RB., 182 F 2d 899 , 903 (C.A 7)
Admittedly Wellman announced at this February 15
meeting that Respondent would install ventilating fans and
showers, provide a first aid kit, furnish new tools, and
issue new safety boots. Also Wellman promised a
reclassification of jobs. These promises were soon fulfilled
The reclassifications resulted in wage increases to nearly
all production and maintenance employees The question
is whether such promises and their effectuation violate the
Act
Ordinarily an employer may grant increased wages and
other benefits to his employees , even during a union
campaign, provided such conduct is not prompted by
antiunion motives Borden Cabinet Corporation, 148
NLRB 996, 1002, 1003 1 find that Respondent had been
contemplating such increases in benefits and the
institution of job reclassifications , but that the plans
therefor had not become formalized , definite, or
crystallized on February 15. Further , I find that the
announcements of such benefits and the adoption of the
job reclassifications were accelerated in order to defeat the
union movement , and that they would not otherwise have
been instituted so soon Hence I find that their
promulgation and adoption was motivated by an attempt
to counteract the Union ' s campaign, and that , under the
circumstances, they transgress Section 8 (a)(1) of the Act.
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N L.R.B v Newman -Green , Inc, 401 F 2d l (C A 7);
Trey Packing , Inc, 172 NLRB No. 42 Thus I find that
their timing to coincide with the union campaign was
designed to thwart that campaign and, therefore, they
constitute unfair labor practices Cf Bata Shoe Company,
Inc, 116 NLRB 1239
2. The alleged repudiation of the Union
About February 21 President Wellman admittedly
instructed his secretary to write a letter or to have
Supervisor Keith Neumann write it, and to have the
employees sign it. This document was soon typed See
General Counsel's Exhibit 3. And admittedly employees
were asked to sign it, although no pressure or threats were
used to induce them to subscribe. I find that this letter
was initiated, inspired, and prepared by Respondent, that
it in effect amounts to a repudiation of the Union, and
that employees signed only when requested to do so.
Under the circumstances, I find that this violates Section
8(a)(I) of the Act, and that it is no defense that employees
voluntarily signed it Cf Phil-Modes, Inc , 159 NLRB
944, 961
Further, I find that said General Counsel's Exhibit 3 is
more than a request addressed to employees not to accept
a union A request as such is protected free speech under
Section 8(c) of the Act. But I find more than a request
because the employer here did more than ask employees
to renounce the Union. Thus I find that by asking
employees to sign General Counsel's Exhibit 3 the
employer at least conducted a poll of employee sentiment
towards the Union without conforming to the safeguards
established by the Board in Struksnes Construction Co
Inc, 165 NLRB No 102.
3 Other acts alleged to violate the Act
At the February 15 meeting Wellman told those there
assembled that some employees were trying to bring in the
Union and inquired whether they needed it Wellman's
contrary testimony is not credited especially since
Respondent's witness, Foss, whom I credit, testified to the
foregoing statement, and Foss is confirmed by employee
Billie Ellis While this statement and inquiry may reveal
union animus, it does not violate Section 8(a)(1) of the
Act, and I so find
At this meeting Wellman also expressed opposition to a
union in the shop and predicted that "if the Union comes
in here, I'd have to go broke " Wellman's contrary
testimony is not credited I find nothing coercive about
this utterance At most it constitutes a prediction that
Respondent will be unable to pay union wages and at the
same time remain in business.
About April 4 President Wellman told employees Ellis
and Hale that he heard that some employees made
statements to the Board This gives the impression that
protected activities are under surveillance and, therefore,
is coercive under Section 8(a)(1) of the Act Wellman also
asked Ellis and Hale whether they were still for the
Union This is coercive interrogation, and I so find
Continuing, Wellman added he would abolish past favors,
such as personal loans, if the Union got into the plant I
find this is a threat of reprisals prohibited by Section
8(a)(1) of the Act Also, Wellman stated he would fight
the Union "tooth and nail all the way " I find this is
protected as an expression of opinion To denounce unions
or to express a dislike for or opposition to them does not
violate Section 8(a)(1) of the Act N. L R B v Threads,
Inc., 308 F 2d I, 8 (C A 4) Respondent's evidence
inconsistent with the above findings of violations is not
credited
Finally, about February 21 Supervisor Zick told
employee Ellis that those employees with criminal records
would be asked to supply surety bonds and, since their
records would prevent their obtaining the same,
Respondent could thus keep out the Union Respondent's
evidence not consonant with this finding is not credited I
find that this is a threat of reprisal which is coercive
within the contemplation of Section 8(a)(1) of the Act
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section V,
above, occurring in connection with its operations
described in section 1, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
Vii. THE REMEDY
As Respondent has been found to have engaged in
certain unfair labor practices, I shall recommend that it
cease and desist therefrom and that it take specific
affirmative action, as set forth below, designed to
effectuate the policies of the Act
In view of the finding that Respondent discriminated
against Billie Ellis in laying him off it will be
recommended that it be ordered to offer him immediate
and full reinstatement to his former position or one
substantially equivalent thereto, without prejudice to his
seniority and other rights and privileges It will further be
recommended that Ellis be made whole for any loss of
earnings suffered by reason of the discrimination against
him In making Ellis whole Respondent shall pay to him a
sum of money equal to that which he would have earned
as wages from the date of his layoff to the date of
reinstatement or a proper offer of reinstatement, as the
case may be, less his net earnings during such period
Such backpay, if any, is to be computed on a quarterly
basis in the manner established by F W Woolworth
Company, 90 NLRB 289, with interest thereon at 6
percent calculated by the formula set forth in Isis
Plumbing & Heating Co , 138 NLRB 716 It will also be
recommended that Respondent preserve and make
available to the Board or its agents, upon reasonable
request, all pertinent records and data necessary to aid in
analyzing and determining whatever backpay may be due.
The conduct of Respondent in my opinion does not
portray a general hostility to the Act It follows, and I
find, that an Order is appropriate which is limited to
enjoining the conduct found to be unfair labor practices
and similar or like acts Since the remedy adopted should
be commensurate with the violations found, relief broader
in scope is not warranted. Nothing herein shall be
construed to require Respondent to abolish or abrogate
any benefits heretofore granted to employees
Upon the basis of the foregoing findings of fact and the
entire record in this case, I make the following
WELLCO CHEMICAL CO. 949
CONCLUSIONS OF LAW
I The Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. Respondent is an employer within the meaning of
Section 2(2), and is engaged in commerce as defined in
Section 2(6) and (7), of the Act
3 By laying off Billie Ellis in a manner which
discriminates in regard to his tenure of employment,
thereby discouraging membership in a labor organization,
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act
4 By engaging in the conduct found in section V,B,
supra, to violate the Act, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act
5. The foregoing unfair labor practices affect commerce
within the purview of Section 2(6) and (7) of the Act.
6 Respondent has not committed any other unfair
labor practices alleged in the complaint
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the Board issue an Order requiring that
Respondent, its officers, agents, successors, and assigns,
shall.
1. Cease and desist from
(a) Discouraging membership in the Union, or any
other labor organization, by laying off employees or
otherwise discriminating in any manner in respect to their
tenure of employment or any term or condition of
employment.
(b) Promising or granting benefits to employees, or
reclassifying jobs, for the purpose of discouraging interest
or membership in the Union or any other labor
organization
(c) Coercively interrogating and polling employees
regarding their union sympathies and membership
(d) Requesting employees to repudiate the Union or
any other labor organization.
(e) Giving employees the impression that their protected
activities are under surveillance.
(f) Threatening to discor,tmue personal favors to
employees if they select the Union as their
collective-bargaining representative
(g) Threatening employees having criminal records to
obtain surety bonds if the Union becomes their
collective-bargaining agent
(h) In any like or similar manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment as authorized in Section 8(a)(3)
of the Act.
2 Take the following affirmative action designed to
effectuate the policies of the Act-
(a) Offer Billie Ellis immediate and full reinstatement
to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of
pay he may have suffered, with interest at the rate of 6
percent, by reason of Respondent's discrimination against
him, as provided in the section above entitled "The
Remedy "
(b) Notify Billie Ellis, if presently serving in the Armed
Forces of the United States, of his right to reinstatement
upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act,
as amended, after discharge from the Armed Forces.
(c) Preserve and, upon reasonable request, make
available to the Board or its agents, for examination and
copying, all payroll records and reports and all other
records necessary to ascertain the amount of backpay due
under the terms of this Recommended Order
(d) Post at its plant at Maywood, Illinois, copies of the
attached notice marked "Appendix "2 Copies of said
notice, to be furnished by the Regional Director for
Region 13, after being signed by a duly authorized
representative of Respondent, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily displayed Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 13, in
writing, within 20 days from the receipt of this Decision,
what steps Respondent has taken to comply herewith '
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges unfair labor practices not
found herein
'In the event 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 this Recommended Order is 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 Respondent
has taken to comply herewith "
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 make promises of benefits , or grant
benefits , in order to discourage interest or membership
in International Brotherhood of Boilermakers, Iron
Shipbuilders , Blacksmiths , Forgers, and Helpers,
AFL-CIO
WE WILL NOT coercively ask employees questions
about, or poll our employees as to, their union
sympathies or union membership
WE WILL NOT talk to employees about their activity
in visiting National Labor Relations Board offices to
make statements
WE WILL NOT threaten employees with reprisals if
they select the above Boilermakers union as their
collective - bargaining representative
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten employees to obtain surety
bonds in order to prevent said Boilermakers union from
becoming their collective-bargaining representative.
WE WILL NOT discourage membership in said
Boilermakers union, or any other labor organization, by
laying off any of our employees or in any other manner
discriminating against them in regard to tenure of
employment or any term or condition of employment
WE WILL NOT In any like or similar manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed to them to belong or not to belong
to a union, and to engage or not to engage in protected
activity, except to the extent that a valid
collective-bargaining contract may require you to join a
union
WE WILL offer Billie Ellis immediate and full
reinstatement to his former job or one- substantially
equal to it, and will pay him backpay for any loss of
pay he may have suffered as a result of his layoff by us
We will add 6 percent interest to any backpay due him
All our employees are free to become, remain, or refuse
to become or remain, members of said Boilermakers
union, or any other labor organization
Dated By
WELLCO CHEMICAL
COMPANY
(Employer)
(Representative ) (Title)
Note - We will 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 Training and Service Act, as amended
after discharge from the Armed Forces
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 S Dearborn
Street, Chicago , Illinois 60604 , Telephone 353-7572