Welsh Sporting Goods Corp.

National Labor Relations Board - Board Decisions

Mar 30, 1970

181 N.L.R.B. 848 (N.L.R.B. 1970)

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Welsh Sporting Goods Corp . and Iowa & Vicinity
Conference Board , International Molders & Allied
Workers' Union , AFL-CIO. Case 18-CA-2723
March 30, 1970
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 5, 1969, Trial Examiner Joseph I.
Nachman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the 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 briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, except as modified herein
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Welsh Sporting
Goods Corp., Iowa Falls, Iowa, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
as modified below.
1. Delete paragraph 1(e) of the Trial Examiner's
Recommended Order and renumber the remaining
'Contrary to the Trial Examiner , we do not find that the Respondent
violated Section 8(a)(I) of the Act, when, by letter dated December 25,
1968, the Respondent announced and paid a cash Christmas bonus, and at
the same time , announced that for the coming year a I week paid vacation
would be allowed company employees with I year's service The cash
bonus of $50 represented a modification of the Company's past policy of
giving turkeys and hams Both the bonus and paid vacation benefits had
been discussed in the summer of 1968 in advance of any union activity As
noted by the Trial Examiner , when the aforementioned announcement of
benefits was made, the Union's organizational activity among the
employees had substantially subsided , if it had not entirely ceased
Accordingly, we find that Respondent 's conduct did not violate Section
8(a)(1) of the Act , as it was not established that such announcement or
implementation of benefits was intended to interfere with the employees'
Section 7 rights
paragraphs accordingly.
2. Delete from the notice the last full paragraph
referring to the granting of a bonus and vacation
benefits.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I . NACHMAN, Trial Examiner This proceeding,
with the General Counsel and Respondent represented by
counsel, was tried before me at Iowa Falls, Iowa, on July
15, 16, and 17, 1969, on a complaint ' pursuant to Section
10(b) of the National Labor Relations Act, as amended
(herein the Act ), and the answer thereto filed by Welsh
Sporting Goods Corp . (herein Respondent or Company),
which admitted certain allegations of the complaint, but
denied the commission of any unfair labor practices. Two
principal issues were litigated , namely: ( 1) Whether in the
course of an organizational campaign among the
Company's employees , by Iowa & Vicinity Conference
Board , International Molders & Allied Workers ' Union,
AFL-CIO (herein the Union ), the Company interfered
with , restrained and coerced its employees in the exercise
of rights guaranteed by Section 7 of the Act; and (2)
whether a layoff of 5 employees on October 21,2 and the
subsequent failure to recall them , was discriminatorily
motivated , or resulted solely . from economic
considerations . For reasons hereafter stated I find and
conclude that the Company did interfere with , restrain
and coerce its employees in the exercise of their Section 7
rights, that the layoff was discriminatorily motivated and
hence violative of Section 8(a)(3) and ( 1) of the Act, and
that the customary remedial order should issue
At the trial all parties were afforded full opportunity to
introduce relevant evidence , to examine and cross -examine
witnesses , to argue orally on the record , and to submit
briefs Oral argument was waived The General Counsel
and Respondent , respectively , submitted briefs, which have
been duly considered.
Upon the entire record in the case, ' including my
observation of the demeanor of the witnesses, I make the
following:
FINDINGS OF FACTS
I THE ALLEGED UNFAIR LABOR PRACTICES
A. Interference , Restraint , and Coercion
I Background
Prior to 1964, the plant here involved was operated by
Boyt & Co., and many of Respondent's employees had
worked for that employer. During 1964, after the
bankruptcy of Boyt, Respondent was organized, acquired
the assets of Boyt, and has since operated the plant for its
own purposes. The officials of the Company who devote
their full time to its business, are, Holden Welsh, vice
president and general manager, Charles' Barhite, who
' Issued May 26, 1969, on a charge filed and served January 23, 1969
This and all dates hereafter referred to are 1968, unless otherwise
stated
'No issue of commerce or labor organization is presented The complaint
alleges and the answer admits facts which establish these jurisdictional
elements I find those facts to be as pleaded
'Leslie T Welsh , who resides at Barrington, Illinois, is president of the
Company, but does not participate in its day-to-day operations
181 NLRB No. 136
WELSH SPORTING GOODS CORP. 849
serves as comptroller; and Robert Crosser, who is plant
superintendent The Company manufactures sporting
goods, animal equipment and harness from leather, plastic
and canvas In the fall of 1968, Respondent's plant
operations were divided into three departments, ( 1) gun
case, (2) bags and blankets; and (3) leather 5 Each
department has a floor lady, the floor lady in the gun case
department being Alice Haskell. As the facts hereafter set
forth will deal with certain conduct on the part of Haskell,
her supervisory status which is in issue, will first be
resolved.
Of the 8 employees from the gun case department who
testified in this proceeding, most of them referred to
Haskell as their supervisor, and several testified that
Haskell assigned them their work and was the one who
was active in seeing that they properly performed their
assigned duties. Haskell did not testify 6 Company Vice
President Welsh, in testifying to the operations of the
Company, while admitting that the other two departments
had supervisors, referred to Haskell as the "floor lady" in
the gun case department, but conceded that one of her
major duties, on an overall basis, was to shift employees
within the department from one task to another, so as to
make the best of their time and thus keep production
moving Welsh also admitted that when in January 1969,
one of the employees laid off in October 1968, telephoned
him to inquire if there might be work for her, Welsh
admittedly discussed the matter with Haskell, and upon
the information obtained from her, concluded that the
person involved did not have the qualifications the
Company then sought Plant Superintendent Crosser
admitted that on at least two occasions when he deemed it
necessary that certain employees be told that they were
not properly performing their duties, he did not do so
himself, but directed Haskell to speak to the employees on
that subject
Upon the foregoing evidence which clearly shows that
Respondent had conferred upon Haskell the authority to
responsibly direct the employees in the gun case
department in the performance of their duties, I find and
conclude that she was a supervisor within the meaning of
Section 2(11) of the Act. Moreover, even assuming that
Respondent had not expressly conferred such authority
upon Haskell, the evidence plainly shows that Respondent
placed her in a position from which the employees could
reasonably infer, as they did, that Haskell spoke on behalf
of management. For this reason also, Respondent would
be responsible for Haskell's conduct International
Association of Machinists, v. N L.R B , 311 U.S. 72, 80;
N L R B v Mississippi Products, Inc, 213 F.2d 670,
672-673, Smith's Transfer Corporation, 162 NLRB 143,
157; Birmingham Fabricating Company, 140 NLRB 640.
2. The organizational campaign
Sometime in August, Union Organizer Willey made his
first trip to Iowa Falls for the purpose of organizing
Respondent's employees His initial contacts were made in
the homes of employees, but sometime in October he
arranged for a meeting of all employees to be held after
'In January 1969, a luggage department was established, but it has no
significance to any material issue in the case
'Haskell was called as a witness by Respondent , but when an objection
was sustained to a question put to her dealing with another area of the
case, no further questions were asked
work on Friday, October 18, at the Knights of Pythias
Hall. The meeting so held was attended by 14 employees
Nine of the 14, including 2 of the 5 alleged discriminatees,'
as well as Alice Haskell whom I have found to be a
supervisor," were from the gun case department, the
largest department in the plant' There is no evidence that
after October 18, the Union engaged in further
organizational activity among Respondent's employees'"
Company Vice President Welsh admitted that by
October 7, he had become aware of the organizational
activity among the employees Although Plant Manager
Crosser intitially claimed that he didn't know of the
employees' interest in the Union until he heard Union
Agent Willey testify at the hearing, he later admitted that
before October he heard rumors to that effect some 4 or 5
times, and such rumors concerned specific employees.
Finally Karolyn Jones, one of the alleged discriminatees,
who planned to be at the union meeting but was prevented
from doing so by the necessity of visiting a dentist,
credibly testified that she signed a union card in the plant
on the morning of October 21; that during the lunch
period, while talking with fellow employee Eva Pundt, in
the presence of Supervisor Haskell, she was asked by
Pundt what she (Jones) thought of the Union; that she
replied that she believed in the Union and for that reason
had signed a card; and that Haskell then stated that she
didn't think the Union was a good idea because the
Company was young and couldn't afford to pay high
wages "
The evidence also shows that approximately the last
week in September, while the union campaign was in
progress, but according to the evidence before Welsh
became aware of that fact, a group of employees from the
gun case department who had previously engaged in a
showdown to protest low wages, and not for the purpose
of stretching out the work, conferred with Welsh': In the
course of this discussion, employees Pundt and Knott
asked Welsh if a layoff, as had been usual in the past
during the fall of the year, was in contemplation. Welsh
replied, "I should say not, why do you ask that?""
'The two alleged disenminatees were Kathy Jass and Kay Tclzmann
Karolyn Jones testified that she intended to attend the meeting, but late in
the afternoon developed a toothache which required that she go to the
dentist However, the following Monday as hereafter set forth, Jones told
Supervisor Haskell that she had signed a union card Vivian Johnson
testified that she was never told of the proposed meeting Mabel Crosser
testified that she knew of the meeting, but elected not to attend Of the 5
employees who were not from the gun case department , 2 were from the
leather department , one from shipping, and one was an inspector
'The complaint does not allege , nor does the General Counsel argue that
Haskell 's attendance at the meeting constitute surveillance thereof
Accordingly, I make no findings in that regard
'A stipulation of the parties shows that the gun case department had 14
employees , leather department 9 employees, and blankets department 5
employees The number in each department includes one supervisor
"The reason Willey gave for that fact was that on October 21,
Respondent laid off the 5 employees, which so frightened the employees
that they would not respond to further organizational activity
"As stated, Haskell did not testify and Jones ' testimony is
uncontradicted
"Those attending were Vernice Johnson , Eva Pundt , Dorothy
Putthamer , Frances Abbas, Gladys Knott and Norma Krueger, the latter
being the principal spokesman for the group The purpose of the meeting
was to ask for an upward revision in the wage rates of employees with the
longest tenure who, they claimed, were paid $I 60 an hour, the same rate
paid beginners
"This finding is based on the credited testimony of Norma K,ueger, who
impressed me as a forthright witness Eva Pundt, Vernice Johnson, and
Dorothy Putthamer were not called as witnesses Frances Abbas, though
called by the General Counsel as a rebuttal witness, was not interrogated
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 Specific allegations of interference, restraint, and
coercion
(a) As heretofore found, Welsh became aware of the
organizational activity among the employees by October
7. On that day, or the following Monday, October 14,'
Welsh called a number of employees to his office Present
at this meeting, in addition to Welsh, were Comptroller
Barhite, Plant Superintendent Crosser, Cutter Ahelberg,
Floor Ladies Haskell and Elliott, employees Chaplin,
Abbas and Ester Holdsworth. Abbas testified that Chaplin
was assistant to Floor Lady Elliott, and that she was
assistant to Floor Lady Haskell. No testimony was
offered as to the degree or frequency that she or Chaplin
assisted their respective supervisors, or the extent to which
they so assisted.15 At this meeting Welsh asked those
assembled whether any of them had been contacted by the
Union. After Ahelberg, Abbas and Holdsworth admitted
that they had been so contacted, Welsh asked what they
had been told by Union agent, what they thought as to the
number of employees that might be sufficiently interested
in the Union to sign a card. Finally, in response to a
question about wages, Welsh stated that if the Union's
demands were greater than Respondent could afford, it
would be forced to close its doors.'
(b) On Thursday prior to Thanksgiving employee
Francis Johdall Comptroller Barhite and office clerical
employee Walker, went bowling and later that evening
were in a local bar seated in a booth close to the front
door. In a few moments Welsh came to the booth in
which Johdall and party were seated, and addressing his
remarks to Johdall, told her that she was "a smart little
[obscenity] . . that needed [her] wings clipped"; that she
and employee Kathy Jass were responsible for starting the
Union, that Johdall was fired, and that Barhite and
Walker were also fired for associating with her; that she
had been transferred from her former job" because she
had gone to the Union meeting on October 18, which she
should not have attended; and that if the Union did get in,
he would close the plant's Johdall testified that on the
occasion in,question Welsh was obviously intoxicated She
also testified that on the day after the aforementioned
incident she, Walker and Barhite met to decide what to do
about Welsh's statement that they were fired; that it was
concluded to ignore the statement and to return to work
as though it had not been made; that they returned to the
plant the next workday, made no mention of the incident,
and that nothing happened
on this point Gladys Knott , also a rebuttal witness, testified that she put
the question to Welsh, but was not asked about Welsh's reply Welsh
admitted that he was asked whether there would be a layoff, but denied
that he made the statement attributed to him by Krueger According to
Welsh , he stated that there would be a layoff, but did not think it would
affect the older employees As indicated, I credit Krueger
"A more precise date cannot be fixed from the evidence , Employee
Abbas, who testified concerning this incident, stated that it occurred on a
Monday, and before the layoff on Monday , October 21
"Abbas also testified that Holdsworth was "in charge of the women on
the second floor," that being in the leather department As Welsh testified
that one Cooper was the supervisor in the leather department , I find that
her testimony was in error in that regard
"These findings are based on the credited testimony of Abbas. Welsh,
though called as a witness did not deny that he made the statements so
attributed to him
"Johdall had worked in the shipping department , but on October 21,
when the five employees were laid off, was transferred to the leather
department The complaint does not allege, nor does the General Counsel
request a finding that Johdall 's transfer was discriminatory
"Based on the credited testimony of Johdall Although Welsh, Barhite
(c) Kathy Jass was one of the 5 employees laid off on
October 21. The following evening, Jass was working at a
local bar, substituting for her husband who was bartender
at the establishment " 9 The uncontradicted testimony is
that during the evening of October 22, Welsh entered The
bar in an obviously intoxicated condition, approached Jass
and pointing a finger at her said, "Listen, don't you ever
cross me up." Jass asked what he meant, and Welsh
replied, "We were watching you after work Friday night",
that being the night of the union meeting Jass then asked,
"Is that the reason I got laid off," and Welsh responded,
"Not necessarily." Jass then accused Welsh of paying
employee Ester Holdsworth to attend the union meeting,
to which Welsh replied, "I didn't pay her " Jass then
stated "You sent her, didn't you," to which Welsh made
no reply. In the course of further discussion, which lasted
altogether about half an hour, Welsh called Jass an
"instigator," warned her not to "ever cross me up" and
told her that if she would come to the plant the following
day he would tell her why she was laid off The following
day, Jass and her husband went to the plant, and when
Jass raised the question as to the reason for her layoff,
Welsh disclaimed any recollection of having told her to
come to see him.20
(d) Under date of December 25, Respondent sent a
letter to each employee, together with a check for $50.21
The letter stated that the check was a Christmas bonus for
1968, that earnings in prior years had not been sufficient
to justify payment of a. bonus, but that their "efforts this
year deserve a share of the rewards," and'that hard work
had made the bonus possible. The letter also stated that
beginning with 1969, all employees who had been on the
payroll for one full year, would be entitled to one week of
vacation with pay 22 Welsh admitted that prior to this
letter no employee received a paid vacation, and that
while in prior years employees received a turkey or a ham
at Christmas, no cash bonus was paid. Welsh further
testified without contradiction, that during the summer of
1968, he discussed with his brother, the Company's
president, the matter of instituting a plan for a Christmas
bonus and a paid vacation. According to Welsh, it was
then decided that if at year end earnings proved sufficient,
a Christmas bonus would be paid, and a plan instituted
for a paid vacation No further testimony on this incident
was introduced
4 The October 21 layoff
It is undisputed that with the close of business on
Monday, October 21, that being the first day of the then
cur'ent pay period, Respondent laid off 5 employees from
the gun case department,29 none of whom had been
and Walker testified as witnesses for Respondent , neither was asked about
this incident
"Jars had been doing this for some months
"Based on the credited and uncontradicted testimony of Jass Welsh
gave no testimony concerning this incident
"Welsh stated that all employees received the same amount, but
supervisors may have gotten more Who got a larger amount is not
disclosed by the record
"The letter, in addition to wishing the employees a Merry Christmas,
and "another good year in 1969," also stated , "While our profits are still
small, we are most pleased to grant the bonus and vacation It proves that
in this country , the name of the game is still hard work "
"The five so laid off were Kathleen Jass , Karolyn Jones, Mabel Crosser,
Vivian Johnson , and Kay Tolzmann A sixth employee, Gaynille Knott,
was laid off on October 18, but the General Counsel makes no contention
that her layoff, or the subsequent failure to recall her, was discriminatory
WELSH SPORTING GOODS CORP. 851
recalled at the time of the hearing. Each employee was
notified of the layoff separately at a conference in Welsh's
office attended only by Welsh, Plant Superintendent
Crosser and the employee. Although the 5 employees
differed somewhat in their version of what was said on
that occasion, they all agreed that Welsh was the one who
spoke, that he stated that the layoff was due to lack of
work, and that while he could not say how long they
would be off, they would be called back when work was
again available. All except Mabel Crosser (her testimony
being silent on that subject), testified that Welsh told them
that their work was satisfactory, or that Respondent had
no complaint against them on that ground. Welsh
admitted that when he made this layoff he knew of the
union meeting on October 18, and that 2 of the 5
employees laid off (Jass and Tolzmann) had attended that
meeting. The evidence also shows, as heretofore found,
that on the morning of October 21, Karolyn Jones had
stated in the presence of Supervisor Haskell, that she
thought the Union was a good thing and had signed a
union card.
Respondent denies that the Union played any part in
the decision to reduce force, and asserts that such decision
was made solely because of over production and reduced
sales in the gun case department. To support this
contention Respondent relies on three exhibits which deal
with production and sales in the gun case department
during 1968. Exhibit R4 gives the inventory figures at the
beginning and end of that year. Exhibit R3 gives the
production and sales for each of the months during-1968,
and the totals for that year Exhibit R2, is a record of
production in the gun case department maintained by
Cutter Ahelberg . Because Exhibit R2 is somewhat
complicated, a detailed explanation thereof is necessary.
The red figure in the lefthand column is a model number,
and the red figures across the top of the page represent
the length, graduated by inches, of each model. Again in
the lefthand column there appears 1967 and across the
page from it, under each length, a figure which represents
the number of units sold of that model and size during
1967. The legend "Inv" refers to the number of units of
each model and length on hand as of January 1, 1968.
The legend "1968" refers to the number of units produced
of each model and length during that year through
September 30. The legends "O," "N," and "D" refer to
October, November, and December 1968 and for each
model and length there is an entry for the number of units
produced in each of the final 3 months of the year Thus,
as Ahelberg testified, if one took the total inventory at the
beginning of 1968, added the total production during
1968, as shown by his production record, one would have
the total number of units available for sale during that
year. It would also follow that if from the total units
available for sale, ascertained as above noted, there ► s
subtracted the total units sold during the year, the result
should be the number of units in inventory at the end of
the year. _
Critical examination of Exhibits R2, R3 and R4,
reveals a number of inconsistences. To begin with, if we
add the inventory at the beginning of 1968 and the
production for that year, and subtract therefrom the 1968
sales, both as shown by Exhibit R3, there should be 5340
units left at the end of the year (316027760-25580 equals
5340), rather than 4437 shown by Exhibit R4 Also the
1968 production figures according to Exhibit R2, do not
agree with the production figures shown in Exhibit R3.
Thus adding the 1968 production figures through
September 30, shown on Exhibit R2, the total is 18408,
whereas on Exhibit R3, the production *through September
30, is 22466.24 Again, the production figures for the
months of October, November and December on Exhibit
R2 do not agree with the production for those months
shown on Exhibit R3. Thus adding the figures on Exhibit
R2, production for the months of October, November and
December was 1980, 889 and 1080, respectively, as against
2814, 1319 and 1161 for those months, respectively on
Exhibit R3. Adding the production in the final 3 months
to the production in the first 9 months, as shown on
Exhibit R2, total' production for the year, according to
that Exhibit is 22345 units (1840819808891080) in contrast
to total production of 27760, according to Exhibit R3.25 It
is also significant that while Welsh claimed the slowdown
in orders resulted in over production and necessitated the
layoff of October 21, total sales for the gun case
department during 1967, was 18160 units, as shown by
Exhibit R2, such sales in 1968 amounted to 25580' units,
as shown by Exhibit R3, an increase of over 40 percent
for 1968.
B. Contentions and Conclusions
1. Interference, restraint, and coercion'
Upon consideration of the entire record, I find and
conclude that Respondent interfered with, restrained and
coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act, in the following
particulars
1. Welsh's interrogation of certain employees at the
meeting in his office on October 7 or 14, which was the
day or the week after he learned of the Union's
organizational campaign, as to whether they had been
contacted by a union representative, and what their views
were as to the probable employee interest in the Union
Certainly, the Union had made no demands upon
Respondent at that point which would justify such
interrogation, nor was any assurance given that there
would be no reprisal against any employee for her Union
activity. Struksnes Construction Co , Inc., 165 NLRB No.
102; NLR.B. v. Berggren & Sons, Inc.,'406 F.2d 239
(C.A. 8), cert. denied 396 U.S. 823. The contention that
those present were supervisors and therefore that no
employees were involved, is without merit. Although
Haskell, whom I have found to be a supervisor, and
Robert Crosser whose supervisory status was conceded,
were both present, a number of other employees were
present whose supervisory status Respondent had the
burden of proving to sustain its defense that the
interrogation was directed only to supervisory employees
It introduced no evidence to establish that fact.
2. Welsh's admission to Jass at the bar on October 22,
that he had engaged in surveillance of the Union's
October 18 meeting, and his implicit admission that he
had sent an employee to that meeting for the obvious
purpose of obtaining information as to what transpired
"This figure is obtained by subtracting from 27760, the total 1968
production according to Exh R3, the production shown on Exh R3 for
October, November , and December which totals 5294 (27760-5294 equals
22466)
"No testimony was offered to explain why production in August,
September and October was nearly 50 percent over the highest production
for any of the 7 preceding months, and this without any significant
increase in work force Such testimony apparently existed , for cutter
Ahelberg testified that he kept a record of cuttings such as Exh R2, for
each month
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
there. Welsh neither denied that he made the statements,
nor that he had engaged in such surveillance. The Board
has consistently held that surveillance, or conduct giving
the impression thereof, constitutes the interference,
restraint and coercion proscribed by Section 8(a)(1) of the
Act. Premier Worsted Mills, 85 NLRB 985; Roskam
Baking Company, 142 NLRB 1173-74. The conclusion
thus reached would be true even if it be assumed that
what Welsh admitted did not in fact occur.
3. Welsh's statements to employees Johdall and Walker"
in November 1968, that Johdall was fired because she
and Jass had started the Union; that Walker was fired for
associating with Johdall, that Johdall had been transferred
from the shipping department because she had attended
the Union meeting on October 18; and if the Union got in
he would close the plant. That such conduct violates
Section 8(a)(1) of the Act, requires no citation of
authority, nor does the fact, as Respondent concedes, that
Welsh was under the influence of intoxicants in any way
negate the unlawful character of his remarks, for the
employees could justifiably assume that under the
influence and with his guard down, Welsh was telling
them what they might reasonably expect.
4. The December 25 payment of a bonus to the
employees, and the concurrent announcement of the
establishment of a paid vacation plan It is true that when
the aforementioned announcement was made the Union's
organizational activity among the employees had
substantially subsided, if it had not entirely ceased, but
there is no evidence to indicate that Welsh was aware of
that fact, or if he was so aware; that he had any basis for
believing that such activity would not resume in the near
future. On the entire record I am convinced, and therefore
find and conclude, that the bonus was paid and the
'vacation plan announced to dissuade employees from
continuing with or resuming their organizational activity,
and hence was violative of Section 8(a)(1) of the Act. As
the Supreme Court said in N L R B v. Exchange Parts
Company, 375 U.S. 405, 409;
. The danger inherent in well-timed increases in
benefits is the suggestion of a fist inside the velvet
glove Employees are not likely to miss the inference
that the source of benefits now conferred is also the
source from which future benefits must flow and which
may dry up if it is not obligated.
2 The October 21 layoff
Upon the entire record I am convinced, and accordingly
find and conclude that the layoff of the five employees on
October 21, was discriminatorily motivated, and that
Respondent has failed to prove by a preponderance of the
evidence that such layoff was necessitated by economic
considerations My conclusion in this regard is based on
the following factors.
1. Welsh admitted that on or about October 7, he
learned of the Union's efforts to organize the employees
On that date, or one week later, he interrogated certain
employees as to whether they had been contacted by the
Union, and the probable strength of the Union in the
plant.
2. Welsh admittedly engaged in surveillance of the
Union meeting of Friday, October 18, for the obvious
purpose of learning the identity of the employees who
"in view of Barhite 's position as comptroller, I assume that he was a
management representative not protected by Section 8(axi)
were sufficiently interested to attend such a meeting.
3 Of the 14 employees who attended the Union
meeting on October 18, nine were from the gun case
department, including Supervisor Haskell In addition,
employee Karolyn Jones who worked in the gun case
department, but who did not attend the Union meeting,
told Supervisor Haskell during the morning of October
21, that she was for the Union and had signed a card
4 When the employees left work on October 18, which
was payday for the workweek ending that day, there was
no suggestion from Respondent that work was slow, or
that a layoff was contemplated. In fact, only about 3
weeks before, in a meeting with employees, in reply to a
question, Welsh denied that a layoff might be expected,
and asked the employees "where did [you] get that idea9"
And all this at a time when, according to Welsh, orders
were down, production was up, and a layoff eminent.
5. On October 21, the first day of the new workweek,
and the first workday after the Union meeting, and
without prior warning, 5 employees from the gun case
department, where the greatest organizational activity
among employees was evident, were laid off Two of the
five (Tolzmann and Jass) had not only attended the Union
meeting on October 18, but Welsh admitted he knew of
their union activity, and a third (Karolyn Jones) had told
Haskell that morning of her interest in the Union. Welsh's
testimony that the layoff was postponed from Friday,
October 18 to Monday, October 21, in the hope that
sufficient orders would come in over the weekend, strains
credulity, and I reject it.
6. Welsh's animosity toward Jass was plainly
demonstrated not only by his characterization of her as
one of the "instigators" of the Union, but also by his
other statements to her in the bar during the evening of
October 22.
7 Although the October 21 layoff affected only those
employees with the least seniority in the gun case
department, the employee roster shows that in order to
reach Jass and follow seniority, it was necessary to lay off
the remaining four The fact that Vivian Johnson and
Mabel Crosser did not, so far as the record shows, engage
in any union activity does not negate the fact that their
layoff was equally discriminatory. As the Board said in
Arnoldware, Inc, 129 NLRB 228, 229,
Discrimination in regard to hire or tenure of
employment of a group of employees, including
nonunion employees of the group or union members not
known by the employer to be union members, tends to
discourage union membership and activities no less than
discrimination against known union members alone All
victims of discrimination are in such cases entitled to
the same relief under the Act as are known union
members
8. As heretofore set forth, the records introduced by
Respondent to carry its burden of proving economic
necessity for the layoff, do not stand up under scrutiny,
and falls short of demonstrating - a burden which
Respondent must bear - that a layoff in October, or at
any other time in 1968, was a matter of economic
necessity.
9. Respondent's contention that the 5 laid off
employees involved were unsatisfactory, likewise fails to
stand up under scrutiny in view of my findings that Welsh
told these employees at the time of the layoff, that he had
no complaint against their work, and the tt stimony to the
same effect by their fellow employees who, in some
instances had the opportunity to see and evaluate their
WELSH SPORTING GOODS CORP.
work performance
The totality of the foregoing factors presents a case
where five of nine employees in a department where
organizational activity was the heaviest, and whose work
performance Respondent admitted was satisfactory, are
laid off without prior notice or warning, in the midst of a
workweek, hard upon discovery of the Union's
organizational activity and after engaging in surveillance
of a union meeting These factors - previously
satisfactory employees, sudden layoff without prior
warning hard upon discovery of organizational activity,
and in the midst of the workweek - are the classic
indicia of a discriminatory motive And where there is
added the fact, as I have found in the instant case, that
the stated reasons in defense of the layoffs do not stand
up under scrutiny, it is appropriate to infer, as I do, that
such reasons were not the real motive for the layoffs, but
that the true reason was one which Respondent denies and
seeks to conceal, namely, to thwart the organizational
activity of its employees As stated by the Court of
Appeals for the Ninth Circuit in Shattuck Denn Mining
Corp v N L R.B , 360 F.2d 1018, 1020, in language fully
applicable here-
If he [the trier of fact] finds that the stated reason
for a discharge is false, he certainly can infer that there
is another motive. More than that, he can infer that the
motive is one that the employer desires to conceal - an
unlawful motive - at least where, as in this case, the
surrounding facts tend to reinforce that inference
Accordingly, upon consideration of the entire record in
the case, I find and conclude that the layoff of the five
employees on October 21, was discriminatorily motivated,
and had the natural tendency and effect of discouraging
membership in the Union, and hence was violative of
Section 8(a)(3) and (1) of the Act."
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act, and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By the conduct set forth in section IBI hereof,
Respondent interfered with, restrained and coerced its
employees in the exercise of rights guaranteed by Section
7 of the Act, and thereby engaged in, and is engaging in
unfair labor practices proscribed by Section 8(a)(1) of the
Act.
4. By discriminatorily laying off, Kathy Jass, Karolyn
Jones, Mabel Crosser, Vivian Johnson and Kay Tolzmann
on October 21, Respondent discriminated against them in
regard to their hire and tenure of employment, thereby
discouraging membership in the Union, and thus engaged
in and is engaging in unfair labor practices proscribed by
Section 8(a)(3) and (1) of the Act
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
"in view of the conclusion thus reached , which calls for reinstatement
with back pay from October 21, 1 find it unnecessary to consider whether,
as the General Counsel contends , that Respondent ' s subsequent failure to
recall the employees involved, independently violated Section 8(a)(3) and
(1) of the Act
THE REMEDY
853
Having found that Respondent engaged in certain
unfair labor practices , I shall recommend that it be
required to cease and desist therefrom , and take certain
affirmative action found necessary and designed to
effectuate the policies of the Act
Having found that Respondent interfered with,
restrained and coerced its employees in the exercise of
rights guaranteed to them by Section 7 of the Act, it will
be recommended that it be required to cease and desist
therefrom.
Having found that Respondent discriminatorily laid off
5 employees , I shall recommend that it be required to
offer each of them immediate , full and unconditional
reinstatement to their respective former or substantially
equivalent jobs, without prejudice to their seniority or
other rights, privileges or working conditions , and make
each of them whole for any loss of earnings suffered by
reason of the discrimination against them , by paying to
each of them a sum of money equal to the wages she
would have earned from the date of the discrimination to
the date of reinstatement , including any Christmas bonus
paid other employees , less net earnings during such
period , in accordance with the Board 's formula set forth
in F W Woolworth Company, 90 NLRB 289, with
interest thereon at the rate of 6 percent per annum, as
provided in Isis Plumbing & Heating Co , 138 NLRB
716. To assist in procuring compliance with this provision,
it will be recommended that Respondent be required to
preserve and make available to agents of the Board, all
payroll and other records necessary or useful in obtaining
compliance with the Board's order, or in computing the
amount of backpay due
Because of the character of the unfair labor practices
found , which go to the very heart of the Act, I shall
recommend that Respondent be required to cease and
desist from in any manner interfering with , restraining or
coercing employees in the exercise of rights guaranteed by
Section 7 of the Act. N. L R B v. Entwistle Mfg Co, 120
F.2d 532 (C.A. 4); California Lingerie , Inc., 129 NLRB
912, 915
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entireirecord in the case, and
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that the National
Labor Relations Board order Welsh Sporting Goods
Corp., its officers, agents, successors and assigns to:
1. Cease and desist from:
(a) Interrogating employees as to their activities in
support of a union
(b) Engaging in surveillance of the union activities of
employees, or in any conduct from which employees may
reasonably infer that their union activities are under such
surveillance.
(c) Threatening plant closure if employees select union
representation.
(d) Threatening employees with discharge or other
discipline if they assist a union or select union
representation.
(e) Announcing improvements in the wages, hours, or
terms or conditions of employment of employees for the
purpose of influencing their organizational activities,
provided, however, that nothing herein shall be construed
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as requiring it to withdraw, change or abandon any of the
terms and conditions of employment currently enjoyed by
such employees.
(f) Discouraging membership in Iowa & Vicinity
Conference Board, International Molders & Allied
Workers' Union, AFL-CIO, or any other labor
organization of its employees, by discriminatorily
discharging, laying off, or in any other manner
discriminating against any employee in regard to his hire,
tenure or other term or condition of employment
(g) In any other manner interfering with, restraining or
coercing employees in the exercise of their right to
self-organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities.
2 Take the following affirmative action found
necessary and designed to effectuate the policies of the
Act:
(a) Offer Kathy Jass, Karolyn Jones, Mabel Crosser,
Vivian Johnson, and Kay Tolzmann immediate, full and
unconditional reinstatement to their respective former or
substantially equivalent positions, without prejudice to
their seniority or other rights, privileges, or working
conditions, and make each whole for any loss of earnings
suffered in the manner stated in the section hereof entitled
"The Remedy," and notify each of them if presently
serving in the Armed Forces of the United States of her
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.
(b) Preserve and, upon request, make available to
authorized agents of the National Labor Relations Board,
for examination and copying, all payroll records, social
security payment records, timecards, personnel records
and reports, and all other records necessary or useful in
determining compliance with this order, or in computing
the amount of backpay due
(c) Post at its plant in Iowa Falls, Iowa, copies of the
attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 18 (Minneapolis, Minnesota), after being signed
by its authorized representative, shall be posted by it
immediately upon receipt thereof and be maintained by it
for sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by it
to insure that said notices are not altered, defaced or
covered by any other material.
(d) Notify said Regional Director, in writing, within 20
"In the event no exceptions are riled as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
"In the event that 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 have been
taken to comply herewith "
days from the receipt of this Decision, what steps have
been taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an agency of the United States Government
After a full trial in which both sides had the
opportunity to present their evidence , the National Labor
Relations Board has found that we, Welsh Sporting
Goods Corp., violated the National Labor Relations Act,
and ordered us to post this notice
The Act gives all employees these rights
To organize themselves
To form, join or help unions
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things.
WE WILL NOT do anything to interfere with you in
the exercise of these rights . All of our employees are
free to become or remain a member of Iowa & Vicinity
Conference Board , International Molders & Allied
Workers' Union , AFL-CIO, or any other union, or not
to become or remain a member of any union.
WE WILL NOT threaten to close our plant because
you select a union to represent you.
WE WILL NOT spy on your union meetings or any
other union activities, or make you think we are spying
on you.
WE WILL NOT fire or threaten to fire you , or lay you
off, or treat you differently in any way if you join or
assist Iowa & Vicinity Conference Board , International
Molders' & Allied Workers' Union , AFL-CIO, or any
other union.
WE WILL NOT promise or grant our employees a
bonus, vacation benefits , or other improvements in their
wages, hours, or terms and conditions of employment,
for the purpose of influencing them not to assist or
support a union . We fully understand that nothing the
order issued by the National Labor Relations Board
requires us to withdraw , change or abandon any term
or condition of employment that you now enjoy.
As it has been found that we violated the law when we
laid off Kathy Jass, Karolyn Jones, Mabel Crosser , Vivian
Johnson and Sharon Tolzmann,
WE WILL
offer each of them their job back , with full seniority,
and we will make up the pay each of them lost , together
with 6 percent interest.
WE WILL notify each of the said employees who may
be serving in the Armed Forces of the United States of
their 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.
Dated By
WELSH SPORTING GOODS
CORP.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
WELSH SPORTING GOODS CORP. 855
This notice must remain posted for 60 consecutive days with its provisions, may be directed to the Board's Office,
from the date of posting and must not be altered, defaced, 316 Federal Building, 110 South Fourth, Minneapolis,
or covered by any other material Minnesota 55401, Telephone 612-725-261 I
Any questions concerning this Notice or compliance