Whittaker Corp.

National Labor Relations Board - Board Decisions

Dec 1, 1969

179 N.L.R.B. 755 (N.L.R.B. 1969)

WHITTAKER CORPORATION 755
Whittaker Corporation , Advanced Metals
Technology Division and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America , UAW. Case
21-CA-7955
December 1, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
Examiner's Recommended Order, and agree that
paragraphs l(b), 2(d), and the second indented
paragraph of the Appendix are unduly restrictive, as
they indicate that the no-solicitation rule is violative
only because it prohibits concerted activity on
employees' own time in nonworking areas. As stated
in Stoddard-Quirk Manufacturing Company, 138
NLRB 615, a rule prohibiting oral solicitation on
nonworking time in working, as well as nonworking
areas, in the absence of unusual circumstances,
constitutes unlawful conduct. These paragraphs will
be, and hereby are, corrected.
On February 28, 1969, Trial Examiner Irving
Rogosin 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. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision, and Respondent filed
exceptions and a supporting brief. Repsondent also
filed a Motion to Reopen to Take Additional
Testimony with a supporting argument and
supporting affidavits. No one opposed this request.
On April 25, 1969, the Board issued an Order
remanding the case to the Trial Examiner for the
limited purpose of receiving testimony bearing on
certain earlier findings of the Trial Examiner. On
August 11, 1969, the Trial Examiner issued his
attached Supplemental Decision in this proceeding
reversing in part, and reaffirming in part the
findings, conclusions, and recommendations in his
original Decision. There were no exceptions to the
Trial Examiner's Supplemental Decision.
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 Supplemental Decision,
the exceptions, the btiefs, and the entire record in
this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner, as herein modified.
In his Supplemental Decision, the Trial Examiner
reversed his earlier findings of violations of Section
8(a)(3) of the Act. In view of this reversal, and our
adoption of this Supplemental Decision, we feel that
the broad Order fecommended by the Trial
Examiner in footnote 39 of his original Decision and
paragraph 1(c) of the Recommended Order is
inappropriate.
We also find merit in the exceptions of the
General Counsel relating to parts of the Trial
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Whittaker Corporation, Advanced Metals
Technology Division, Gardena, California, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Promulgating, maintaining, or enforcing any
rule or rules prohibiting distribution of union
literature or other materials in nonworking areas
during nonworking time, or soliciting union
membership, or engaging in other protected union
or concerted activities during nonworking time.
(b) Coercively interrogating employees concerning
their union activities or sympathies; creating the
impression of surveillance of their union activities;
threatening employees with discharge for violation
of unlawful no-solicitation rules, and for engaging in
lawful union activities at the plant; or in any like or
related manner interfering with, restraining, or
coercing its employees in the exercise of rights
guaranteed in 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, as
amended.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Rescind and cease maintaining or enforcing
any rule or rules prohibiting distribution of union
literature or other materials in nonworking areas
during nonworking time, or soliciting union
membership during nonworking time.
(b) Post at its plant at Gardena, California, copies
of the attached Notice, marked "Appendix."'
Copies of said notice, on forms provided by the
Regional Director for Region 21, shall, after having
been duly signed by an authorized representative of
the Respondent, be posted by the Respondent
'In the event this Order is enforced by a judgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board "
179 NLRB No. 139
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately upon the receipt thereof, and be
maintained by it for 60 consecutive days thereafter,
in conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for Region 21, in
writing, within 10 days from the date of this Order,
as to what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that all allegations of the
complaint not specifically found to be in violation of
the Act be, and they hereby are, dismissed.
APPENDIX
NOTICE TO EMPLOYEES
Posted by Order of the National Labor Relations
Board an Agency of the United States Government
WE WILL NOT promulgate, maintain, or enforce any
rule or rules prohibiting distribution of union literature
or other materials in nonworking areas during
nonworking time, or solicitation of union membership
during nonworking time.
WE WILL NOT coercively interrogate employees
concerning their activities on behalf of, or their
sympathies toward, International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America, UAW, or any other labor
organization, create the impression of surveillance of
their union activities; threaten employees with discharge
for violation of unlawful no-solicitation rules, and for
engaging in lawful union activities at the plant.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the right of
self-organization, to form, join, or assist the
above-named Union, or any other labor organization,
to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the
purpose of mutual aid or protection, or to refrain from
any and all such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, in conformity with Section 8(a)(3) of the
Act
All our employees are free to become or remain, or
refrain from becoming or remaining, members of the
above-named labor organization or any other labor
organization.
Dated By
WHITTAKER
CORPORATION,
ADVANCED METALS
TECHNOLOGY DIVISION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone
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.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
849 South Broadway, Los Angeles, California 90014,
Telephone 213-688-5200.
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
IRVING ROGOSIN, Trial Examiner: The complaint,
issued April 16, 1968, as amended during the hearing,
alleges that Whittaker Corporation, Advanced Metals
Technology Division,' has engaged in unfair labor
practices by- (I) on or about February 17 and 20, 1968,
through its supervisors, interrogating employees
concerning their union activities and sympathies, creating
the impression of surveillance of the union activities of its
employees; threatening employees with discharge for
engaging in union activities; and maintaining and
enforcing plant rules discriminatorily prohibiting
solicitation and distribution of union materials, and
threatening discharge of employees who violated said
rules; and (2) about February 19, 1968, discharging
William Leinenbach; on about March 13, 1968,
discharging Roy "Red" Toothman; and on about June 25,
1968, constructively discharging Edmund Van Artsdalen,
all because said employees had engaged in union activities
or other protected concerted activities; and (3) by all the
foregoing activities, engaging in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the Act.2
Respondent's answer admits generally the procedural
and jurisdictional allegations of the complaint, the
supervisory status of named employees,' and the existence
of a handbook containing plant rules and regulations
quoted in the complaint, but denies generally, specifically,
or for lack of sufficient information or belief, the
remaining allegations of the complaint, including those
alleging the commission of unfair labor practices.
Hearing was held on June 27, 28, July 2, 3, and 5,
1968, at Los Angeles, California. All parties were
represented by counsel and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, to
introduce evidence relevant and material to the issues, to
argue orally, and to file briefs and proposed findings of
fact and conclusions of law. All parties declined the
opportunity of arguing orally, reserving the right to file
briefs. Pursuant to an extension of time duly granted,
briefs were received from all parties on August 19, 1968.
The name of Respondent as corrected at the hearing
'The original charge was filed on February 21, 1968, and served on
February 23, 1968, the amended charge was filed and served on March 20,
1968 Designations hereinafter are as follows: The General Counsel, unless
otherwise stated, his representative at the hearing, Whittaker Corporation,
Advanced Metals Technology Division, Respondent , the Company, or the
Employer, International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, UAW, the Union or the
Charging Party, the National Labor Relations Act, as amended (61 Stat
136, 73 Stat 519, 29 U S C sec 151, et seq I. the Act, the National Labor
Relations Board, the Board Unless otherwise stated , all dates are in 1968
'In answering this allegation of the complaint , Respondent has corrected
the spelling of names and the job titles of these employees as follows John
Herweg, plant superintendent , Mike Toyias, controller, Frank L. Howk,
quality control manager, Willis Driskill, machine shop leadman, Louis A
Gonfiotti, hot press department leadman . Of these, Respondent admits the
supervisory status of Herweg, Toyias, and Howk At the hearing , however,
and in its brief, Respondent raised no issue as to the status of the others as
supervisors Driskill described his position as tooling superintendent, a
position he has held since the plant was opened , and Gonfiotti, as hot press
foreman, a position he held during the entire II months of his
employment The record sufficiently establishes that both were supervisors
within the meaning of the Act, and it is so found
WHITTAKER CORPORATION 757
No proposed findings of fact or conclusions of law have
been filed by any of the parties
Upon the entire record in the case, his observation of
the attitude and demeanor of the witnesses, and the briefs
of the parties, which have been fully considered, the Trial
Examiner hereby makes the following.
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, Respondent's answer admits,
and it is hereby found that, at all times material herein,
Respondent has been a corporation engaged in the
production of aircraft parts and related tooling for civilian
and military aircraft, as well as ground support equipment
for missiles.
In the conduct of its business operations, Respondent
purchases and receives goods and materials annually at its
Gardena, California, plant valued in excess of $50,000
from places directly outside the State of California
It is further alleged, and admitted, and it is hereby
found that, by virtue of the foregoing, Respondent is now,
and, at all times material herein has been, an employer
within the meaning of Section 2(2), engaged in commerce,
and in a business affecting commerce within the meaning
of Section 2(6) and (7) of the Act, and the jurisdictional
standards of the Board
Ii. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW,
is, and at all times material herein has been, a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1. Whether Respondent has maintained and enforced
plant rules and regulations in its handbook for hourly
rated employees, prohibiting solicitation of union
membership on nonworking time and in nonworking
areas, in violation of Section 8(a)(1) of the Act.
2. Whether Respondent discriminatorily enforced said
rules by threatening employees engaging in such activities
with discharge for alleged violation of said rules, in
violation of Section 8(a)(1) of the Act.
3. Whether Respondent discharged William Leinenbach
on about February 19, 1968, and Roy Toothman on about
March 13, 1968, because of their union membership,
activities, or other protected concerted activities, in
violation of Section 8(a)(3) of the Act.
4. Whether Respondent constructively discharged
Edmund Van Artsdalen on about June 25, 1968, for the
same reasons in violation of said section of the Act
B. Interference, Restraint , and Coercion
I The no-solicitation rules
On the evening of February 15, 1968, William
Leinenbach and Edmund Van Artsdalen, inspectors at the
'By amendment at the hearing , the designation AFL-CIO has been
eliminated from the title of the Union
Gardena plant, went to the union hall where they procured
a supply of authorization cards. Later that evening,
Leinenbach attended boxing matches where his vocal
exuberance caused a temporary loss of voice for several
days
Next morning, after reporting for work, he distributed
about 40 cards to employees in the fabrication and layout
departments in the course of his inspection duties He
admittedly passed these cards out during working time but
without engaging employees in conversation, merely
leaving the cards on their benches, and collecting the
signed cards at the employees' work stations later in the
day In all, he accumulated 30 signed cards. This was the
only occasion on which he engaged in this activity
Next morning, Saturday, February 17, while he was at
work, Leinenbach was summoned by telephone to Howk's
office 5 When he arrived there, he found Herweg, Toyias
and Howk waiting Howk invited Leinenbach to sit down
and, displaying an envelope with a protruding card, asked
him what he knew about it. When Leinenbach made no
reply, Howk continued, "You have been seen passing out
these cards." Leinenbach still did not answer. Howk then
picked up the company rule book and, pointing to a
specific rule, asked him to read it. According to
Leinenbach, Howk indicated that he was concerned only
with that part of the rule prohibiting solicitation, and that
he was not referring to the rest of the rule ° Howk told
Leinenbach that his conduct could constitute cause for
dismissal Unable to speak because he had not yet
regained his voice, Leinenbach wrote on a pad, "I don't
know what you are talking about," and handed it to
Howk. Herweg asked Howk what Leinenbach had said.
Howk explained that Leinenbach had lost his voice and
passed the pad to Herweg. Howk again referred
Leinenbach to the rules, and Herweg broke in to say,
"That is enough, Frank." Toyias made some comment to
the effect that Leinenbach had been "making good
money," but because, Leinenbach testified, he was upset
he missed the rest of Toyias' remarks
By noon, Toothman, Van Artsdalen, and Jack Dunn, a
production employee in the template department, had
been summoned to Howk's office, where they were
interviewed separately in the presence of the same
company representatives.'
As to each of these employees, the company officials
followed substantially the same procedure. Toothman had
received some union authorization cards from Leinenbach
and Van Artsdalen, which he distributed in the immediate
vicinity of his inspection station, and collected after they
were signed He denied engaging in this activity during
working time, testifying that he did so only before work
and during coffee and lunch breaks. When he was called
into the office, Howk also showed him the envelope from
which a card protruded.
'According to Leinenbach, he was still hoarse from shouting at the
boxing matches, and Roy Toothman, who worked with him, took the call
and gave him the message
'The applicable rules, contained in the Handbook For Hourly Rated
Employees, provided for disciplinary action for
22 Soliciting or collecting contributions on Company premises, unless
duly authorized by management
23 Distributing written or printed matter of any description on
Company premises, unless approved by Management
For convenience, these rules will hereinafter be referred to as the
"no-solicitation" rules The term is intended to cover the distribution of
union authorization cards or literature
'Dunn did not testify, and the findings as to him are based on the
mutually corroborative testimony of Toyias and Howk
758 DECISIONS OF NATIONAL LABOR RELATIONS BOAR D
One of the officials - Toothman could not recall which
directed his attention to a legend on the envelope
reading, "Don't be one of the clique," or words to that
effect. Howk asked Toothman what he knew about the
card, and the latter professed ignorance, testifying that he
had never seen the card or the envelope before. Howk
then showed him the rule book, referring specifically to
rules 22 and 23. Toothman freely acknowledged that he
was familiar with the rules, remarking that they were also
posted at the timeclock. Toyias questioned him about why
the employees were disgruntled. Toothman said that he
did not know.
Van Artsdalen was summoned to the office shortly
before noon the same day. After inviting him to sit down,
Howk said that he had a problem he wanted to discuss
with him, then read him the company rules, which he said
were being violated, and warned that if the situation were
not remedied, the Company would have to take corrective
action. As in the case of the others, Howk questioned Van
Artsdalen about the authorization card and envelope, and
the significance of the reference to the "clique." Van
Artsdalen disclaimed any knowledge on the subject Howk
also questioned Van Artsdalen about the nature of
employee grievances. The latter replied that he could not
speak for the others, and that if Howk wanted to find out,
he would have to call them in one at a time. One of the
three management officials -- Van Artsdalen was
uncertain which -- remarked that he could not understand
why anyone would want a union in the plant, and said
that if a union got in, it would present serious problems.
In Respondent's version of these interviews, Howk and
Toyias testified that the day before, as a result of reports
reaching Assistant General Manager Lee Reimer, that
Leinenbach, Toothman, Van Artsdalen and Dunn were
soliciting union membership and distributing authorization
cards on company time, Reimer called a meeting in his
office attended by Howk, Herweg and Toyias.° According
to Toyias, there was no question of discharging these
employees It was, however, decided to discuss the
problem with each of them individually, and to notify
them that working time was for work and that continued
misuse of that time would lead to disciplinary measures.
Howk told each of the employees in turn that it had been
reported that they had been discussing union authorization
cards with employees at the plant, and that the Company
wanted them to "quit doing [it] on company time."
During the discussion of the rules Toyias interrupted to
explain that the rules applied to solicitations for
contributions of any kind, including cases involving
hospitalization or death of employees or members of their
families. Toyias also interposed to assure the employees
who were interviewed that no disciplinary action would be
taken at that time, but warned that, if it happened again,
"possible disciplinary action could be taken, and if it
continued to happen thereafter, then dismissal was
possible." Toyias stressed that the Company was
concerned only that they understand that they were being
paid to work, and that when they talked to employees
during working hours, they are "curtailing" not only their
own production but also that of the employees whom they
engaged in discussion.
Toyias testified that Van Artsdalen denied that he had
been passing out cards, though he admitted that he had
heard rumors of such activity and volunteered, "But you
do have problems out there." Asked what kind of
problems he meant, Van Artsdalen mentioned wages.
'Herweg did not testify Toyias also functioned as personnel manager
Toyias retorted, "Well, wages are always a problem," and
commented that if there were problems of which
management was not aware, there was no way that it
could deal with them. As to Howk's query about what
was meant by the reference to the "clique," Van
Artsdalen replied, according to Toyias, that he did not
know but assumed that it referred to the "old [Basic
Industries, Inc.] employees, the production heat treat
and the Whittier [sic] employees."' Van Artsdalen
rejoined, "Well, I can't speak for other people. I just
know there are problems."
An examination of the rules demonstrates that they are
presumptively invalid in that they prohibit solicitation of
union membership and distribution of union literature
during nonworking time in nonworking areas. "Such a
broad rule is presumed invalid unless the company comes
forward with special circumstances justifying the existence
of such breadth. [Citations omitted .]"" There was no
contention or showing that circumstances here justified the
promulgation, maintenance or enforcement of such broad
no-solicitation rules."
It is, therefore, concluded and found that by
maintaining and enforcing no-solicitation rules which
proscribed solicitation of union membership and
distribution of union literature on employees' own time in
nonworking areas of the plant, Respondent has interfered
with, restrained, and coerced employees in the exercise of
rights guaranteed by Section 7, in violation of Section
8(a)(1) of the Act.
Nor is this finding precluded by the evidence that
during the interviews previously discussed, a management
representative undertook to assure these employees that
they would not be disciplined for alleged violation of the
no-solicitation rules, though they would be subject to
discipline, including possibility of discharge, if they
engaged in such activity in the future. These assurances
did not neutralize the effect of the unlawful rules, which
were not only contained in the company handbook but
were also posted on the company bulletin board. Not only
was there no showing that the remaining employees were
notified of the Company's purported construction of the
rules, but there was also no showing that the Company
undertook to modify or restrict the application of the
rules to working time and working areas in the plant.
Furthermore, it should be noted that, in dealing with the
employees who are alleged to have violated the rules,
Respondent undertook no investigation of the alleged
violations, but relied instead on vague rumors and only
meagre reports that some employees had been distributing
union authorization cards on company time. It will be
recalled that, of the employees who testified regarding the
distribution of cards, only Leinenbach admitted that he
engaged in this activity on working time. The others
'Respondent's counsel explained that the reference was to two
companies , which were acquired by the division involved in this proceeding,
whose employees were transferred in the acquisitions. According to a
recital in the employees' handbook, this division was established in March
I, 1966, when Whittaker Corporation acquired the specialized titanium
forming equipment of Basic Industries, Inc
''Mason & Hanger-Silas Mason Co , Inc v. N L R B , 405 F 2d I (C.A
5) (December 11, 1968) See also Saco-Lowell Shops . A Division of
Maremonl Corporation v N L R 8, 405 F 2d 175 (C.A 4) (November
14, 1968), enfg. per curtam 169 NLRB No. 151. See also Accurate
Products . Inc . 170 NLRB No 173, and cases cited
"Since the rules involved were evidently promulgated more than 6
months prior to the filing and service of the charge, in view of the
limitations of Section 10(b), no filing is made that the promulgation of the
rules constituted an unfair labor practice . Mason & Hanger-Silas Mason
Co , Inc , 167 NLRB No 122, enfd in part supra
WHITTAKER CORPORATION 759
testified categorically that they did so on their own time.
As for Leinenbach, it appears that his activity entailed no
appreciable interference with or interruption of production
either on his part or that of the employees whom he
solicited. Although this may not be determinative of
Respondent's right to prohibit solicitation or distribution
during working time or in working areas, it is,
nevertheless, a factor to be considered in evaluating
Respondent ' s motivation in the maintenance and
enforcement of the rules.
Moreover, substantially undisputed evidence establishes
that the no-solicitation rules were discriminatorily applied
and enforced insofar as they related to the
self-organizational rights of the employees. Thus, various
pools or lotteries, such as baseball, football, and paycheck
pools were freely and openly conducted at the plant on
company time without let or hindrance.' 2 In addition, in
contrast to Toyias' testimony that he explained to the
employees who had been charged with violation of the
rules, that solicitation of any kind, including funds for
employees who were hospitalized or for families of
employees who had deceased, was prohibited, according to
Leinenbach's undenied testimony, he solicited employees
on working time and with the knowledge of supervisors,
for contributions for Christmas gifts for Supervisors
Howk and Robert A. Goodrich.
It thus becomes abundantly apparent that the
no-solicitation rules were discriminatorily applied to
hinder and prevent the employees from asserting their
rights of self-organization , and that in enforcing these
rules against persons who sought to recruit employees as
union members, Respondent was concerned not so much
with interference with or interruption in production, or in
obtaining full value for the wages it paid, as with aborting
the efforts of the employees at self-organization."
2. Further acts of interference , restraint, or coercion
When Van Artsdaleh returned to the hot press
department after his interview; he testified, Foreman
Gonfiotti, in the presence of several employees whose
names he could not recall, jocularly asked him, "Well, are
they going to can you." Van Artsdalen replied, "not yet,"
and volunteered that he had been sent for in connection
with the distribuion of union cards in the shop. According
to Van Artsdalen, Gonfiotti told him that he did not want
to "get involved," that he had "got involved in that once,
and [that] he didn't want to get mixed up in it . [that]
[i]f any of his men signed a union card, that they were
going down the road."
Van Artsdalen worked next day, a Sunday Sometime
that morning, he overheard Tooling Superintendent
Driskill tell Don McNeely, leadman in the welding shop,
"The paycheck pool was conducted only on paydays, and was based on
poker hands using the serial numbers on the checks Leinenbach testified,
without contradiction , that foremen participated in the check pool, and
that Foreman Gordon , in charge of Building 3 at Gardena , won the check
pool five successive times, Toothman testified that he himself conducted
the football pool, utilizing a board 3' square, divided into 100 squares at $5
a chance, which was kept over his bench , and circulated in the plant during
working hours with the knowledge of the supervisors According to
Toothman 's undisputed testimony , all but a few supervisors from the
"front office on down ," participated in this pool Toothman also testified
that on one occasion he engaged in a game of blackjack with a welding
supervisor, whose name he could not recall, on company time, although
gambling on company premises was, like solicitation and distribution,
prohibited and subject to disciplinary action.
"William L . Bonnell Company . Inc. v . N L.R B.. 405 F 2d 593 (C A 5)
January 17, 1969, No 25489
while another employee was in the vicinity, that if
McNeely caught anyone with a "union card in their
pocket, [to] just clock them out."
Regarding the statements attributed to him by Van
Artsdalen, Gonfiotti denied generally making any such
statements . Testifying that he had no authority over Van
Artsdalen, he further denied that he ever discussed the
Union with him, or, for that matter, that he ever
questioned or threatened any employee in regard to the
Union.
As for Driskill, in response to a question by
Respondent's counsel as to whether he recalled making
the statement which Van Artsdalen claimed to have
overheard, he replied that he did not Under
cross-examination, after testifying that he had heard
rumors of union activity in the plant, though he had no
facts to substantiate it, he at first denied any conversation
with McNeely about union activity Later, he admitted
that he had discussed the subject with "a couple of [his]
foremen in building one and two," expressing
curiosity "as to how many people [tooling employees]
might be susceptible to it," (presumably referring to the
Union or union representation), and adding, that he "may
have discussed it one way or the other" with supervisory
personnel.' 4
Driskill also admitted to discussions " out in the shop"
with Plant Superintendent Herweg, his immediate
supervisor, during this period of "bull sessions," in which
they "weighed the pros and cons of unions," and "what it
would do to the [Company] " Both, or at least one of
them, according to Driskill, had worked in plants having
union contracts, and the discussion related basically to an
exchange of opinions as to whether the employees wanted
the Union. Later, Driskill testified, Herweg asked him if
he knew anything about the union activities, and he
replied that although he had heard rumors, he had seen no
evidence of union activities, testifying that he ignored the
myriad rumors circulating in the plant. He denied that he
had been questioned by any management official about his
alleged conversation with Don McNeely, or that they had
mentioned reports that union cards were being circulated
at the plant on company time, though he intimated that
he had heard rumors to that effect. According to him, he
was concerned with what was taking place in Buildings I
and 2, over which he had supervision, and there was no
indication of union activity in those buildings.
The statements attributed by Van Artsdalen to
Gonfiotti, following on the heels of the individual
interviews and interrogation by management, gave every
indication of plausibility and verisimilitude, especially
when contrasted with Gonfiotti's mechanical and blanket
denials. In Driskill's case, his general denials when viewed
in the light of his equivocal and guarded admissions, did
not inspire credence Moreover, Respondent's failure to
produce the McNeelys, or either of them, justifies the
inference that their testimony would not have aided
Respondent's case. Taking all these factors into account,
and on the basis of the appearance and demeanor of the
respective witnesses involved, Gonfiotti's and Driskill's
"At first, Driskill mentioned Llovd McNeely as one of the two foremen
with whom he discussed union activity Later, Driskill testified that there
were two foremen named McNeely, the other being Don, the welding shop
leadman, and that, although he testified that he had several discussions -
"bull sessions" --- about the Union with Lloyd McNeely and Stan Bilach,
probably after Leinenbach 's discharge , he intended his denial to apply to
discussions with Don McNeely Neither of the McNeelys was called to
testify, and there was no showing that they were no longer in Respondent's
employ or otherwise unavailable at the time of the hearing
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testimony regarding these incidents is discredited, and it is
found that both supervisors made the statements imputed
to them by Van Artsdalen substantially in conformity with
his testimony
Next morning, Monday, February 19, Leinenbach was
discharged under circumstances related hereinafter
Early Tuesday morning, February 20, shortly after
reporting for work, Van Artsdalen told Howk that he
wanted to see him about "this union thing," and
complained that he was "getting a little sick and tired" of
hearing threats being made in the shop According to Van
Artsdalen, Howk said. "Well, about this union
Ordinarily, I am for a union a hundred per cent. But right
now, I got to move parts and the union would hurt me "
Howk agreed, however, to meet with Van Artsdalen as
soon as Herweg and Toyias arrived.
At about 8:30 a m , Van Artsdalen was summoned to a
meeting with Howk, Herweg and Toyias Van Artsdalen
repeated his protest about the threats Asked by Howk to
identify the persons making the threats, Van Artsdalen
named Driskill, Gonfiotti and Al Odegard, a handyman at
the plant." Van Artsdalen repeated his conversations with
Driskill and Gonfiotti, and told Howk that Odegard had
threatened to "get these union guys and break their God
damned neck " According to Van Artsdalen, Howk make
a phone call, ostensibly to send for Odegard. Howk did
not, however, attempt to reach Driskill or Gonfiotti while
Van Artsdalen was in the office, and there was no
showing that Howk or any other management
representative made any investigation of Van Artsdalen's
charges against these three men thereafter." During this
meeting, one of the three company representatives Van
Artsdalen could not recall which observed, "1
understand there wasn't too many at the union meeting
last night." Van Artsdalen retorted, "Well, I went to the
union meeting last night, which is my right I am a citizen
of the United States " One of the group countered, "Oh,
yes. We don't care what you do That is your business
Whatever you want to do, nobody is going to hold it
against you "
When Van Artsdalen maintained that he had the right
to solicit union membership by circulating authorization
cards, and to distribute literature at the plant before and
after work and during rest periods, Herweg ventured, "I
don't know how legal that is for you to bring it in the
plant and do it." Van Artsdalen countered, "Well, I
understand this is my right as long as I don't use
company time "
Soon after this meeting, at about noon the same day,
suggestion boxes were installed in the plant for the first
time Van Artsdalen testified that he actually saw
Odegard install one of them "
"There is no allegation or contention that Odegard (whose name appears
as Beauregard in the transcript of the proceedings ), was a supervisory
employee , nor was there any showing that he was held out as an agent of
the Employer or that the employees reasonably regarded him as speaking
for management Accordingly, no findings are based on Odegard ' s alleged
threats
"The fact that Van Artsdalen protested to company officials so soon
after the threats were allegedly made, naming the persons involved, and the
absence of any showing that any investigation was made to ascertain
whether there was any basis for the charges of threats and intimidation by
at least two admitted supervisors , lends further credence to Van
Artsdalen ' s testimony regarding these encounters
"This, of course , does not afford sufficient grounds for attributing to
Respondent the threats uttered by Odegard, though it is evident that they
echoed in more drastic language similar sentiments expressed by Driskill
and Gonfiotti This raises the question of whether , under all the
circumstances , Respondent was under any duty to disavow or repudiate
Under all the circumstances, it is found that by the
remarks of Supervisors Driskill and Gonfiotti to Van
Artsdalen, detailed above; by interrogation by its
supervisors of Van Artsdalen regarding attendance at a
union meeting, thereby creating the impression of
surveillance: and by questioning Van Artsdalen's right to
solicit union membership and distribute union literature at
the plant on nonworking time and in nonworking areas,
Respondent has interfered with, restrained, and coerced
employees, in violation of Section 8(a)(I) The purported
indifference to Van Artsdalen's union activities outside the
plant, including his attendance at union meetings,
expressed by one of the group of company supervisors,
and the tacit assurance that no reprisals would be visited
upon him, are insufficient, in the circumstances of this
case, including the previous and subsequent conduct of
responsible company officials, and Respondent's evident
opposition to the self-organizational efforts of its
employees to neutralize the effects of' its otherwise
unlawful conduct.
C Discrimination in Regard to Hire and Tenure of
Employment
I William J. Leinenbach
Leinenbach was initially hired in February 1966, as an
inspector of aluminum and titanium. He resigned
voluntarily about 3 months later, in May He was rehired
on November 27, 1967, and was discharged on February
19, 1968 At the time he was rehired, he was assigned to
the aluminum section under the supervision of Foreman
Walter Gordon. His immediate superior was Robert A
Goodrich, chief inspector, responsible to Howk, who, in
turn, was answerable to John P Fritsche, vice president.
The aluminum and titanium fabricating departments
are located in Building 3, at opposite ends of the building
Leinenbach and Toothman worked alongside each other at
a floor inspection table located on one side of an aisle
dividing the building in half Across from the floor
inspection area, in final inspection, are the tables of
source inspectors, situated 10 to 20 feet from Leinenbach's
inspection table 18 The grinding tables are situated 5 to 10
feet behind the inspection desk at which Leinenbach and
Toothman worked.
As floor inspector, Leinenbach's duties consisted of
"buying" first articles and finished parts. In buying a first
article, Leinenbach checked the part against the
specifications It' the article did not conform to
specifications but could be reworked, the defect was
designated as a "squawk," noted on a "squawk sheet" for
the leadman's signature, or sent to the foreman to have
the part reworked. In the case of a minor defect, such as a
scratch, the irregularity would be removed without listing
it as a "squawk." Parts which could not be reworked were
identified by an MRB (material review board) tag and
delivered to the MRB table, where the parts would be
reviewed by the engineer and quality control manager, to
determine whether the parts should be reworked or
scrapped
Odegard 's remarks In view of the ultimate findings , and since a finding as
to this incident would not affect the remedy , no reliance is placed on it
"Source inspectors are in the employ of customers of the Company, and
inspect the parts for conformity to the customers ' specifications before
approving them for shipment They are, in effect, the final on-the-site
inspectors Resident inspectors are source inspectors who maintain an
office in the Company' s plant
WHITTAKER CORPORATION
Under routine procedure, after the in-process
inspection, because of limited space facilities, and the size
of the part, the part would be sent with a purchase order
to the Company's outside production facility for further
processing. When the part was returned, it proceeded
through the receiving and inspection departments for
verification that the work required by the specifications
had been certified as performed by the outside processor.
The part would then be sent to the final inspection area
for identification, and, accompanied by the necessary
documentation, finally presented to the source inspector
for acceptance
As stated earlier, Lemenbach was one of the two
principal union protagonists at the plant. His union
activities, and the response they prompted, including the
series of interviews regarding alleged violations of the
invalid no-solicitation rules, have already been detailed.
Letnenbach did not work on Sunday, February 18
Next morning, Toothman, who had worked the day
before, reported to him that the fabrication employees had
been grinding titanium parts with heavy discs Letnenbach
observed this himself, and after consulting the
specification book, confirmed, in his view, that dry
grinding was not permitted on titanium articles. He
showed this to Toothman, and then notified Howk, in the
inspection area directly across from his table, that the
men were dry grinding on titanium, and that he would
refuse to "buy" the parts Letnenbach quoted Howk as
saying, "You will buy anything I tell you to buy." He
replied, "I will not, Frank. You will buy it, but I won't "
Howk thereupon ordered him to get his tool box, and told
him, "You are fired." During this encounter, both men
raised their voices, although, according to Lemenbach, he
was still handicapped by his hoarseness.
In Howk's version, Leinenbach had been assigned to
the aluminum department, not the titanium department,
on the day in question, a fact confirmed by the daily
inspection log maintained by inspectors 19 In any event,
Howk testified, inspectors have no duties or
responsibilities with regard to parts in process, their
inspection being limited to the completed parts when
presented for inspection. When Howk passed Leinenbach's
station, between 10:00 and 10:30 that morning,
Letnenbach, specification book in hand, stopped him and,
pointing to the book, said, "Those parts are being
manufactured illegally, and I am not going to buy those
damn things." Howk compared the part with the
specification, and said, "Bill, forget it Those parts are
being manufactured all right." According to Howk,
Leadman Bernard D Hanks was with Lee Allen, a
Lockheed source inspector, across the aisle in the final
inspection area at the center row of inspection tables.
Leadman Thomas E. White, of the titanium fabrication
department, was across the aisle near the table where the
part on which the grinding was being done, was formed.
Lee Allen, a Lockheed source inspector, was with Hanks.
Howk continued down the aisle to the MRB table, and
had walked a distance of 25 or 30 feet when he became
aware of Leinenbach at the other side of the table
Specification book still in hand, Leinenbach continued, "I
don't care what you say. Those parts are being
manufactured illegally and I am not going to buy the
God-damned things." Howk repeated, "Well, Bill, the
"On the log for February 19, showing Lemenbach 's station as "FLOOR
ALUM," apparently only the first seven or eight items are in Lemenbach's
writing : the remaining items for that day are in the writing of Toothman
or Leadman Hanks, Leinenbach having been discharged earlier that day
761
parts are being manufactured all right. Forget about it."
Letnenbach reiterated what he had said. Howk then asked
Letnenbach what he would do if Howk gave him a direct
order to buy the parts Leinenbach repeated that he still
would not buy them. Thereupon, Howk said, "Fine If
this is the way you feel when the parts are presented for
inspection, call me and I will accept the responsibility for
them." Leinenbach persisted, "You will have to because I
am not going to buy any more of that --" [epithet
deleted], and turned and walked away
Howk testified that he "stood there for a second
half-stunned," and, realizing that all the shop employees
and source inspectors were looking on, became "so
damned embarassed, I dust flipped my cork." According
to Howk, the conversation which had started out in a
normal tone, considering the usual noise in the area,
became a shouting match. Howk went to Leinenbach's
work table, and motioned to him to bring his tool box.
Howk concluded that Letnenbach did not understand him
He walked around Leinenbach's table, repeated his
directions to bring his tool box, and announced that he
was going to discharge him
When Letnenbach told Howk that he wanted to talk
with the source inspector, Howk said that there was no
reason for him to do so Before Howk could say anything
more, Letnenbach walked past him to Allen, and spoke to
him briefly. Howk again ordered Letnenbach to pick up
his tool box and accompany him. Letnenbach removed
some company tools from his box, and left them behind.
He picked up his lunch box and the two men proceeded
toward Howk's office. Howk left the building by a side
door leading to the hot press room Just before they
reached Building 1, where Howk's office was located,
Leinenbach told Howk, "Well, I know all about you Basic
Tool people. You are a bunch of big rat finks."
After the men entered Building 1, Howk realized that
Leinenbach was not with him. Howk discovered that
Letnenbach had stopped at the tool inspection area inside
the door of the building, to talk to two Northrop
Company source inspectors. Howk started toward the
area, and when Leinenbach approached him, placed his
hand under the other's arm, as Howk put it, rebuked him,
saying that he had "no business talking to the source
inspectors," and ordered him into his office. Addressing
him with a rude epithet, Letnenbach told Howk, "take
your hands off me or I will deck you." Howk threatened
to call the plant security officers and have him "escorted"
unless he went into his office. The men continued to
Howk's office, and Howk told him to go in and have a
seat Leinenbach declined, saying he would wait in the
hall. Howk ordered him to wait in his office, and said that
he would call the security office, if necessary. Although it
does not appear that Letnenbach resisted, Howk
nevertheless, called a security guard and waited until he
arrived. Howk instructed the guard not to let Letnenbach
talk to any employees until he returned He then went to
the front office to have Leinenbach's termination papers
and paycheck made out Howk later attempted to find out
what Leinenbach had told Allen, the Lockheed source
inspector, and learned that Letnenbach had said he had
been discharged for refusing to pass a defective part.
While denying that he used any obscene language
during the entire encounter with Howk, Letnenbach freely
admitted that he told Howk that the parts were being
illegally manufactured and that he would not buy them
He acknowledged that he had previously worked at Basic
Industries, Inc., but denied that he had referred to Howk
as one of the "bunch of big rat finks." He also denied
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Howk's testimony as to what Leinenbach would do if
Howk gave him a direct order to buy the questioned
parts, including the vulgar epithet Howk claimed
Leinenbach had used in referring to the parts. Regarding
the incident when Howk placed his hand on him on the
way to Howk's office, Leinenbach admitted telling Howk
to take his hands off, but denied that he threatened to
"deck him."
Despite relatively minor conflicts in the testimony, the
record fairly establishes that on the morning of February
19, Leinenbach, a qualified inspector of both aluminum
and titanium parts, was actually assigned to inspection of
aluminum parts . Although his usual duties were those of
in-process inspection , he was an "all around inspector,"
sometimes substituting for inspectors who did not report
for work. Normally, Leadman Hanks, in immediate
charge of the final inspection area, was responsible for
"selling" final parts to the source inspectors. Regular
inspectors had no duties or responsibilities in that regard,
and as a matter of company policy, were directed to "stay
away" from source inspectors. According to Leinenbach,
however, even he at times "sold" parts to source
inspectors. Moreover, Leinenbach denied that inspectors
had no duties or responsibilities regarding parts prior to
their submission for inspection. On the contrary,
according to him, inspectors had authority to instruct
employees engaged in fabrication of parts which inspectors
were later called upon to inspect.
Thus, Leinenbach testified that if, during his tour of the
area, he observed that a part was not being fabricated
according to specifications, he would call this to the
attention of the leadman or foreman, and have it
corrected. If the defective work involved something
critical, he would even speak directly to the employee and
halt the operation on the part. According to Letnenbach,
this was done with the knowledge of foremen and without
reproach. Sometimes fabricating employees consulted him
about their work, including interpretation of blueprints.
This reached the point where it interfered with his own
work, and some 2 weeks before his discharge, Leinenbach
and his partner , Toothman, posted a notice on a bulletin
board at their bench, requesting employees not to ask
them to interpret blueprints or planning papers, but to
contact their leadman or foreman for such information.
Respondent contends that Leinenbach was discharged
because he had, flouted Howk's authority in an insolent,
insubordinate , and argumentative manner, had used
profanity, and embarassed him before source inspectors,
as well as employees. Additionally, Respondent maintains,
Leinenbach deliberately created the incident as a means of
provoking his discharge.
To begin with, Respondent argues that, as Leinenbach
was assigned to aluminum inspection that day, he had no
business interfering in the fabrication of titanium parts.
Inspection of titanium parts that day was Toothman's, not
Leinenbach's, responsibility. Secondly, according to
Respondent, Leinenbach's duties and responsibilities
related only to inspection of completed parts, and the
titanium parts were still in process of manufacture when
he discovered what he conceived to be a prohibited
fabrication procedure. Assuming the correctness of these
contentions , this would not necessarily deprive Leinenbach
of the right, if not the duty, of questioning the manner in
which the titanium parts were being manufactured. On the
contrary, if it had turned out that Leinenbach had been
right in his judgment , that the parts were being "illegally"
fabricated, "' considering the serious consequences of the
installation of defective parts in military or civilian
aircraft, Leinenbach might well have been remiss in failing
to report his observations to his superiors.21
Admittedly, titanium is an "exotic" metal As described
by Leinenbach, after the part leaves the hot press, it is
stress relieved to form its configuration. If the part is
subjected to grinding, which generates heat, thereby
altering the molecular structure of the metal, a mere
scratch could develop into a crack Scratches or other
defects, removed by sandblasting, could escape detection
before final inspection. Since the part is intended for the
tail section of the Lockheed C-4 aircraft, the failure of the
part could cause catastrophic consequences
There is no dispute that the titanium parts under
discussion were being dry ground. It is evident, however,
that in deciding that this procedure did not conform to
specifications, Leinenbach had mistakenly relied on
specifications of Douglas Aircraft Company, another
customer of Respondent, which, according to him,
prohibited dry grinding on titanium parts It was
established at the hearing that the standard process
specifications of Lockheed-Georgia Company, a Division
of Lockheed Aircraft Corporation, the customer actually
involved, permitted grinding of titanium and titanium
alloy parts, provided certain procedure was followed.22
Surprisingly, when Letnenbach reported to Howk that
the parts were being manufactured in violation of
specifications, Howk did not then, or at any time prior to
his discharge, remind him that his duties that day were
confined to inspection of aluminum parts, that he had
relied on the wrong specifications, or, for that matter, that
he had no responsibility for inspection of titanium parts,
in any case, until the part was finished and presented to
him for inspection. According to Howk, it "didn't even
enter my mind" because he often had discussions with
employees about the work without regard to their specific
jobs or whether the problem was within their "little
bailiwick." The reason it did not occur to him, he
testified, was that he and Leinenbach were "emotionally .
upset and in a state of argument." Regarding the
specifications, Howk testified that it was not until later
that day, presumably after Leinenbach's discharge, or the
following day, that he discovered that Leinenbach had
relied on the wrong specifications.
Leinenbach was apparently aware that Lockheed was
the customer for the titanium parts on which the grinding
was being done, but he probably did not realize that the
Lockheed specifications differed in this respect from those
of Douglas Aircraft. He testified that he kept the Douglas
specifications on his desk at all times. The Lockheed
"As used by Leinenbach, the term was obviously intended to mean
contrary to or not in conformity with the applicable specifications
"The part involved was a titanium T-angle, variously estimated at 12 to
15 feet or 18 to 20 feet long, being manufactured for the
Lockheed-Georgia Division of the Lockheed Aircraft Corporation
Leinenbach described the part as a type of longeron, defined in the
dictionary as an aeronautical term, referring to a fore-and-aft framing
member of an airplane fuselage, usually continuous across a number of
points of support -
"The applicable specifications read, in pertinent part
3 15 2 Grinding, except as specified in 3 3 and 3 12 4, [not applicable]
shall not be used for final sizing of material, if grinding is used , it shall
be followed by sufficient acid pickling in accordance with STP57-401 or
machining to remove the ground surface These requirements do not
apply to weldments
According to Howk, after the grinding operation, the part was subjected to
hand-sanding, abrasive blasting and nitric-hydrocloric acid pickling
operation Howk testified that in the 18 months the Company had been
fabricating titanium products for Lockheed, it had never received a
complaint from the customer for defective fabrication of titanium parts
WHITTAKER CORPORATION
specifications, which, according to him, he had never seen
before, were kept in the final inspection area or in the
front office, and it did not occur to him to procure the
Lockheed specifications.23 Leinenbach acknowledged that,
when inspecting a Lockheed part he would ordinarily be
governed by that customer's specifications, but testified
that because of the exotic nature of titanium, which he
understood other aircraft manufacturers, such as Douglas
or McDonnell, had researched, he assumed that
Lockheed's policy regarding the grinding of titanium
would be the same as theirs, and did not consider that the
Lockheed specifications might have differed on this part.
Regarding other aspects of his work performance,
contrary to Respondent's contention, Leinenbach denied
that he ever received complaints about his work or had
discussions with Foreman Gordon, Leadman Hanks,
Leadman Tom White, of the titanium section, or Chief
Inspector Goodrich regarding such complaints. Nor could
Leinenbach recall Gordon telling him to stay out of his
area and keep away from his manufacturing employees.
Leinenbach also denied that Goodrich ever told him that
employees had complained that he was rejecting perfectly
good parts, and that he would have to stop the practice.
The fact, however, is that on the day Leinenbach was
rehired, Gordon had personally commended him, as he
later told Leinenbach, to both Goodrich and Howk as a
good inspector, who had "straightened out his titanium
section up on the hill," thereby rendering Gordon's own
job more secure.
Although considerable attention has been devoted to the
dry grinding controversy, the evidence is relevant only
insofar as it sheds light on Respondent's motivation in
discharging Leinenbach. For, as has repeatedly been held,
the issue in these cases is not whether an employer has
justifiable cause for the discharge, considering that he may
discharge an employee for any reason, with or without
cause, but whether he does so for reasons proscribed by
the Act. Like union animus, the presence or absence of
cause, however,, and interference with the
self-organizational rights of employees, are factors to be
considered in evaluating Respondent's motivation.
Assuming in Respondent's favor that Leinenbach was
assigned to inspection of aluminum parts on the day in
question, the evidence reveals that his qualifications,
experience and responsibilities did not limit him to the
inspection of those parts. He was admittedly qualified to
inspect titanium, a$ well as aluminum parts, and
performed inspection on both, depending on production
requirements. The titanium parts, on which the dry
grinding was being done, could in the ordinary course be
presented to him for inspection, and at that stage it would
have been impossible to detect any evidence that the part
had undergone dry grinding. The serious consequences of
approving a part in which the molecular structure might
have undergone changes affecting the tensile strength of
the part can scarcely be exaggerated. And the fact that
Leinenbach may have relied on the wrong specifications
on the assumption that all Respondent's aircraft
customers followed the same policy on grinding titanium
products, does not render his concern any less valid.
"According to Howk , however, inspectors do not keep specifications on
their desks . Instead , the specifications are maintained at three major
inspection stations in a file or library where they are readily accessible to
inspectors when needed . Howk testified that Leinenbach would have been
obliged to obtain the specifications from the "book rack ," situated about
15 feet down the aisle from his work station, in the final inspection area
763
It is significant, if, as Howk insisted at the hearing, he
had regarded Leinenbach as an intermeddler in making an
issue of the grinding of titanium parts, especially since he
maintained that Leinenbach had been assigned exclusively
to aluminum inspection that day, and that he had no
authority or responsibility regarding the part until it was
presented to him for inspection, that Howk did not tell
him so at once In view of Howk's 21 years' experience in
the industry, the last 6 or 7 in titanium, it is surprising
that it did not occur to him to check the specifications
Leinenbach showed him to ascertain whether they applied
to Lockheed parts. It must be assumed that in his
capacity as quality control manager, he knew who the
customer was for these titanium parts, and even the most
cursory examination of the specifications would have
revealed the discrepancy. Howk's explanation for his
failure to do any of these things, that he was too
emotionally upset, is utterly unconvincing, considering
that at this stage of the encounter, the actual altercation
had not yet begun. Moreover, considering that both men
were aware that Howk could approve the part himself, if
it was rejected by the inspector, and that Howk, in fact,
told Leinenbach that he would "accept the responsibility
for" approving the part, Howk's reaction to Leinenbach's
conduct appeared to be out of all proportion to any
possible provocation. Whether or not Leinenbach resorted
to profanity at any stage of the encounter -- and
assuming that he did even in Howk's version,
Leinenbach's language scarcely went beyond the bounds of
plant argot.24 It is evident that Howk was not so much
offended by Leinenbach's use of profanity as by what
Howk regarded as a flouting of his authority.
The remarks allegedly made by Leinenbach after Howk
notified him that he was discharged, obviously could not
have been a consideration in Howk's decision, that
decision having previously been made, though they could
have reinforced his decision, or possibly affected any right
to reinstatement Respondent makes no contention,
however, that it denied him reinstatement because of his
conduct subsequent to the notification of discharge
Moreover, it is evident that Howk's own action provoked
Leinenbach's response. The fact that Howk, obviously
vexed that Leinenbach had stopped to ilk to the source
inspectors, sought to hasten his departuie, did not justify
the application of force, however slight, and, after
provoking him into retaliation, the threat to summon the
security guard.
While it is found, in view of his responsibility for
inspection of completed titanium, as well as aluminum
parts, that Leinenbach was justified in calling Howk's
attention to the grinding of titanium parts even though he
mistakenly used the wrong specifications, Leinenbach's
persistence in maintaining that the part was being
"illegally manufactured," despite Howk's repeated denials,
may well have seemed officious. It may be assumed that
Leinenbach's conduct, in the presence of employees and
source inspectors, was an embarassing and humiliating
experience for Howk. In short, given the circumstances
which have been detailed, it may be assumed that
Leinenbach had provided Howk with sufficient grounds
for discharge.
"It may be noted, in passing, that in Howk's testimony at the hearing,
he used the work "damned," in referring to his embarassment, without
apparently even being aware of it Such epithets as Howk attributed to
Leinenbach have already become so ingrained in colloquial conversation as
to pass unnoticed in polite, even mixed, circles
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although Leinenbach had been employed for a
relatively short period - 3 months during his initial
employment, and a similar period after he was rehired -
he had been a satisfactory employee and, as previously
noted, had, in fact, been commended by Foreman
Goodman when he was rehired, as a good inspector who
had "straightened out" Goodman's titanium section
Respondent's contention that it had received complaints
against Leinenbach of excessive rejections and discrepancy
reports, and that it notified him to that effect in
December 1967, and the following January and February,
were not documented, although, according to Foreman
Gordon, in charge of fabrication, he was obliged as an
"almost every day occurrence" to have Leadman Hank,
Leinenbach's immeidate supervisor, "sign off" on the
discrepancy reports. He conceded, however, that he had
complimented Leinenbach, both while he was an inspector
at Basic Industries, as well as while he was employed at
Whittaker, characterizing him as a strict inspector.
According to Hanks, who testified that he discussed the
problem with Chief Inspector Goodrich and Howk,
Lemenbach was a conscientious inspector, and his
problem was merely one of judgment. Considering the
grave responsibility in passing for inspection a defective
part in a component intended for assembly in an airplane
fuselage, it is understandable that Leinenbach may have
been guided in his inspection by an excess of caution. On
the other hand, unreasonable and frivolous rejections
could have delayed and hindered production.25
Significantly, however, Respondent took no corrective
action against Leinenbach on account of these alleged
complaints at any time before his discharge, when it took
that action for reasons wholly unrelated to his alleged
shortcomings.26
The question still remains whether the reason for the
discharge advanced by the employer was the actual
reason, or whether, in effecting the discharge, the
employer was motivated, in whole or substantial part, by
purposes proscribed by the Act, namely, to discourage or
encourage membership in a labor organization. To resolve
this conflict , it is, therefore, necessary to consider the
factors previously outlined
The record reveals that almost immediately after
Leinenbach and his fellow employee, Van Artsdalen,
called at the Union's office and obtained authorization
cards, Respondent became aware that these and other
employees were distributing cards and soliciting
membership in the Union. Thus, the very next morning
Assistant General Manager Reimer called a meeting of
the plant superintendent, the company controller (who
also acted as personnel manager), and the quality control
manager, to consider a course of action Soon afterward,
Leinenbach and the other employees prominently
identified with the organizational effort, were summoned
to the office and interviewed separately, questioned about
their activity, referred to unlawful company rules
forbidding solicitation and distribution, which had,
moreover, been discriminatorily applied, and warned
"According to Gordon , if a job is rejected, production of the part is
automatically suspended . There are two types of reports, a discrepancy
report ( indicating that the part can be reworked and used ), and a rejection
report (which signifies that the part must be scrapped)
"Although Respondent does not contend that it relied on this, or the
further ground that he violated company policy in talking to
manufacturing employees and source inspectors , the evidence was
presumably offered to impeach Lemenbach 's testimony that he had never
been unfavorably criticized The evidence was received, without objection,
and may be relevant on the issue of reinstatement
against such further conduct on penalty of discharge.
Although told that the rules were intended to apply only
to union activity on company time, these assurances were
ineffectual in dissipating the inhibitory effects of the rules
themselves. The evidence relating to the no-solicitation
rules, including the discriminatory application of those
rules, and the interrogation of the employees, persuasively
establishes that Respondent was not concerned about the
use of company time, but with suppressing the
self-organizational efforts of its employees.
It will be recalled that the company officials did not
confine themselves to the subject of solicitation on
company time, but questioned the employees regarding the
significance of the word "clique" on an envelope
containing a union card. At least one of the company
officials also questioned one of the employees interviewed
as to the nature of employees' grievances. Another
professed that he failed to understand why anyone would
want a union in the plant, and observed that if a union
were selected, it would present serious problems.
It will also be recalled that when Van Artsdalen
returned to his working area, after asking him whether the
Company was going to "can" him, Gonfiotti stated that if
any of his men signed a union card, they "were going
down the road." Next day, Tooling Superintendent
Driskill told one of his leadmen that if he caught anyone
with a union card to "just clock them out " Furthermore,
Driskill and his immediate superior, Plant Superintendent
Herweg, had frequent discussions in the shop regarding
unions, whether the employees wanted a union, and the
effect a union would have on the Company Herweg also
questioned Driskill as to what he knew about union
activities at the plant.
Weighing all the evidence, and resolving credibility
issues on the basis of the appearance and demeanor of the
witnesses involved; considering the conduct of
Respondent's supervisory and managerial employees in
interrogating rank-and-file employees regarding their
union and concerted activities, the implications of
surveillance, and explicit threats of reprisal, manifesting
an attitude of opposition to the self-organizational efforts
of its employees, taking into account Leinenbach's union
and concerted activities; the timing of his discharge within
3 days after he sought the aid of the Union in organizing
the employees, the failure to take disciplinary action
against him, despite alleged prior complaints, until he
manifested his interest in the Union by recruiting the
employees for membership in the Union, Howk's action in
summarily discharging Lemenbach, without consultation
with either Howk's supervisors or the leadmen
immediately under his supervision, and Howk's bitter and
intemperate outburst and behavior between the time of the
actual discharge and the official termination, it is
concluded and found that Respondent discharged
Leinenbach, in whole or material part, because of his
union activities, and not for the reasons assigned by it,
seizing on those reasons as a pretext for eliminating one
of the principal advocates of unionization of the
employees. The evidence does not warrant the conclusion,
as Respondent argues, that Leinenbach deliberately sought
to provoke Howk into discharging him, by persisting in
what Respondent regards as a flouting of Howk's
authority as a means of rallying support for the union
cause.
It is, therefore, found that by discharging Leinenbach
on February 19, 1968, and thereafter failing and refusing
to reinstate him, thereby discriminating in regard to the
hire and tenure of his employment to discourage
WHITTAKER CORPORATION
membership in a labor organization , Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3), and, interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in
Section 7, in violation of Section 8(a)(1) of the Act
2. Roy E. Toothman
"Red" Toothman was hired initially on February 28,
1967, in material and tooling control. In May of that
year, he became first article floor inspector on both
aluminum and titanium parts, and in February 1968, was
working at the same bench with Leinenbach. Toothman
continued in the Company's employ until March 13, when
he was discharged allegedly for refusing an interplant
transfer. On February 16, Leinenbach gave Toothman
some authorization cards, which he distributed before
work and during rest and lunch periods, collecting the
signed cards outside working hours. His interview with
management officials the following morning has already
been described.
On Monday, February 19, after Leinenbach's discharge,
Toothman and Van Artsdalen considered their future
course of action. According to Van Artsdalen, employees
had reported to him that they had been threated with
discharge, and expressed concern over whether the identity
of the signers of the authorization cards would be
divulged. At first, Van Artsdalen testified, he and
Toothman decided to solicit "openly," but when
Toothman suggested that they might be discharged, it was
decided that they would not solicit further because they
would be of no benefit to the Union outside the plant.
On Monday night , March 11, Toothman was
interviewed by a Board agent of the Regional Office, who
took a statement from him. Toothman was then working
the 7:30 a.m. to 4 p.m. shift. Next morning, he mentioned
to some of the employees, as well as to Leadman Hanks,
his immediate supervisor, that he had given the NLRB a
statement. At 4 p.m., that day, he saw Foreman
Goodrich, who had been working at Respondent's Long
Beach plant, talking to Hanks. Goodrich approached
Toothman and told him that he would -see him in Long
Beach. He drew a map showing him how to get there, and
told him to report at 7 a.m. next morning. Toothman told
Goodrich that he knew that Toothman had been having
trouble with his car for the past 6 or 7 months - and that
he "didn't dare put [his] car on the freeway." Goodrich,
visibly angered, according to Toothman, asked him
whether he was refusing to go. Toothman said that he was
not, calling on Walt Gordon to "witness" the fact, but
insisted that he could not "make it in this car " Toothman
also explained that Stevens, his helper, who had been
hired a week earlier, had already checked out at the end
of his shift, and had left his tools in Toothman's tool box.
Next morning, Toothman reported to the Gardena
plant as usual At about 10 o'clock, Howk sent for him
and asked him whether he had seen Goodrich the night
before, and why Toothman had not reported to Long
Beach. Toothman repeated what he had told Goodrich,
adding that, as starting time at the Long Beach plant was
a half hour earlier, it would have meant his getting up at
4 a.m. No action was taken at that time At quitting time,
Howk approached Toothman at his work bench, and told
him to collect his tools and report to Howk's office.
Toothman separated his tools from the company tools,
and went to Howk's office. When Toothman saw his
termination papers, he asked Howk the reason for his
discharge. Howk told him that he was not "firing" him
765
but "terminating" him for refusing an "in-plant" transfer
Toothman testified that he was living 7 miles from
Gardena, and 16 miles from the Long Beach plant, which
was located at the airport, and that the only feasible way
of getting from his home to Long Beach was via the
freeway. According to Toothman, Goodrich was
well-aware that he had been having trouble with his car
because Goodrich had asked him if he were interested in
buying his car which he was trading Howk, too,
Toothman testified, was aware of his transportation
problem because he had told him of it, and because he
had not been sent out on source inspections away from the
plant.27 Toothman testified that Goodrich also knew about
the condition of his car because Goodrich had driven him
to receive medical aid for a broken toe in Goodrich's car.
Goodrich, however, testified that he drove Toothman
because he was unable to drive due to his injury.
Toothman further testified that due to the condition of his
car, he was often obliged to hitchhike to work or arrange
rides with other employees.
In Respondent's version, on March 12, after a
confercence with Howk, Goodrich, who initially
recommended Toothman's transfer, was directed to notify
Toothman that he was being temporarily transferred to
Long Beach until operations at that plant were
permanently transferred to Gardena. Acting on these
instructions, Goodrich, in the presence of Foreman
Gordon, directed Toothman to report to the Long Beach
plant next morning at 7 a.m.
According to Goodrich, Toothman said that he did not
want to go to Long Beach, and that he did not know
whether he was obliged to do so. Asked what he meant,
Toothman said that an NLRB agent had visited him at
his home the night before, and that he would like to call
him to ascertain whether he was obliged to go to Long
Beach. Goodrich then admittedly asked Toothman, in his
own words, "Who the hell [he was] working for,
[Goodrich] or the NLRB?" When Toothman still insisted
on making the phone call, Goodrich terminated the
discussion, saying that he would see him in Long Beach at
7 the next morning Afterwards, Goodrich informed
Hanks and Howk of his conversation with Toothman.
Howk instructed Goodrich to go to Long Beach, and to
notify him if Toothman did not show up According to
Goodrich, Toothman made no mention of the decrepit
condition of his car
Next morning, March 13, when Toothman failed to
report at Long Beach, Goodrich waited an hour, as he had
been instructed by Howk, in the event Toothman
encountered difficulty finding the Long Beach plant, and
then notified Howk that Toothman had not reported
Howk went to Building 3 at the Gardena plant, and found
Toothman at his regular inspection station In response to
Howk's questioning, Toothman acknowledged that
Goodrich had instructed him the night before to report to
Long Beach, but told Howk that his car was in no
condition to travel the freeway, that he had talked to the
NLRB, and that, in any event, he had been hired to work
at Gardena and that was where he intended to stay. Howk
told him that he should have been at Long Beach, and
"Toothman testified, contrary to Respondent 's assertion , that inspectors
were sometimes sent out on source inspections outside the plant but that he
received no such assignments due to the condition of his car In the
statement to the Board agent , Toothman asserted that he had never told
Howk prior to his proposed transfer that he had been having trouble with
his car He testified , however, that he had referred in conversations with
him to his "oil burner," and told Howk that he used 7 quarts of oil in
driving from his home to the plant
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that -he would look into the matter.
Dubious about what action to take, in view of
Leinenbach's unfair labor practice charge, Howk
conferred with Assistant General Manager Riemer and,
after discussing it with him, Riemer decided, with Howk's
concurrence, to discharge+ Toothman. He was discharged
at the end of his shift, substantially as detailed above.
According to Howk, Toothman accused the Company of
discharging him because of his union activities Howk
denied this, stating that he was being discharged for
insubordination in refusing to accept an interplant
transfer.
Respondent adduced considerable evidence to justify its
decision that an interplant transfer was necessary, and
that Toothman was the logical choice for the transfer.
Briefly, the evidence established that, in late August or
early September 1967, Respondent acquired the plant in
Long Beach, known as Metal Forming Corporation, and
in November of the same year, another plant in Costa
Mesa, California. Both plants were subsequently closed
down, the former, in April or May 1968, the latter in
January of the same year. As contemplated at the time of
the acquisitions, the equipment of both these plants was
moved, and the employees were transferred to
Respondent's facility at Gardena, to consolidate the
operation.
While the Long Beach and Costa Mesa plants were in
operation, manufacturing, as well as inspection personnel,
were transferred from the Gardena plant to the Long
Beach and Costa Mesa plants, and vice versa, on a
temporary basis, depending on production requirements
The duration of these assignments varied from 2 or 3
hours to 2 or 3 days or weeks, sometimes on less than a
day's notice. With regard to inspectors, Howk made the
decisions about transfers . The transfers were treated as
"in-plant" action, and entailed no change in personnel or
payroll records, paychecks being issued from the Gardena
facility. Four inspectors, in addition to Goodrich and
Hanks, were assigned temporarily for various periods of
time to the Long Beach plant, beginning about 2 weeks
after the acquisition . Only one inspector was assigned
from the Gardena plant to the Costa Mesa plant between
the time of the acquisition and the closing in about
January 1968. All were eventually returned to the
Gardena facility.
Late in December 1967, Respondent began transferring
production work from the Long Beach plant to Gardena.
By March 13, the date of Toothman's discharge, 75 to 80
percent of the work at the Long Beach plant had been
transferred to Gardena. While the Long Beach plant
remained in operation , the preliminary stages of the
stretch-forming operation, consisting of forming the
configuration of the sheet metal or extrusion parts, was
performed there; the remaining work, including the
necessary documentation, constituting about 75 percent of
the operation, was performed at Gardena. The type of
inspection remaining at Long Beach consisted, in the
main, of general sheet metal inspection.
Howk maintained that on March 12, Toothman was
the most qualified general sheet metal inspector. The
other available inspectors consisted of process inspectors
and trainees . Of those who had been qualified to perform
general sheet metal inspection , one had been discharged 3
days earlier ; another had voluntarily terminated his
employment on January 15, 1968. Lee Newman, a new
employee, hired at Gardena on January 17, with the
understanding that he would be assigned to Long Beach
until that facility was moved to Gardena, was trained by
Goodrich to perform the necessary inspection work at
Long Beach. When Toothman declined the transfer,
Newman was kept on at Long Beach though, according to
Respondent, Goodrich and Hanks actually handled the
inspection of stretch-formed parts, presumably until the
operation was completely transferred to Gardena
Explaining the decision to send Toothman to Long
Beach instead of retaining Newman, who was already
there, Goodrich, corroborated by Howk, testified that
when the Long Beach plant was acquired by Respondent,
it was lagging in scheduled deliveries of production parts
To relieve this situation, it assigned some of its Gardena
inspectors, including Goodrich, to Long Beach, and hired
Newman as a full-time inspector to work at Long Beach.
By March 12, the bulk of the work at Long Beach had
been transferred to Gardena. The only work remaining at
Long Beach was the stretch-forming operation. Goodrich,
however, decided that it would be more expeditious to
transfer Newman to Gardena and assign Toothman to
Long Beach to inspection of the stretch-formed metal
According to Howk, Newman's training at Long Beach
better qualified him for inspection of parts at Gardena
because of his familiarity with the necessary
documentation, and because of his experience in dealing
with source inspectors On the other hand, Toothman,
according to Howk and Goodrich, was the only inspector
available with the basic sheet metal experience required
for the inspection of stretch-formed metal, the bulk of the
work remaining at Long Beach. In addition to this
experience, however, Toothman had been performing
inspection of fabricated aluminum and titanium parts, and
had obviously performed satisfactorily in this job.
Moreover, the evidence established that it was Leadman
Hanks who actually dealt with the source inspectors in
selling the parts to them. When Toothman refused the
transfer to Long Beach, Newman was retained at Long
Beach, and presumably performed the stretch-forming
inspection, in addition to his other duties, apparently
without adversely affecting the operation, while Goodrich
and Hanks performed some inspection at Long Beach, as
well as at Gardena, due to the shortage of inspectors, in
addition to their usual supervisory duties.
Toothman had been hired initially on February 28,
1967, nearly a year before Newman. He had evidently had
prior sheet metal experience. There is no contention that
he did not perform satisfactorily as an inspector. In fact,
Respondent insists that it selected Toothman for the
transfer because he was the only qualified general sheet
metal inspector at the time. There was no showing as to
Newman's previous experience, but it is obvious that he
required a period of training, which Goodrich provided.
He had worked in this job less than three months as of
March 12. It is, therefore, difficult to understand
Respondent's position, asserted in its brief, that Toothman
would have required "extensive and time-consuming
training" to learn to inspect "the remaining phases of
production on the Long Beach work" after the parts were
sent to Gardena, whereas "Newman was already well
familiar with this inspection work and could consequently
complete the work without any loss of training time."
Assuming, in favor of Respondent, that most of the
inspection remaining at the Long Beach plant involved
general sheet metal inspection, which only Toothman was
qualified to perform, the fact is that Newman did remain
at Long Beach when Toothman refused the assignment,
and presumably carried out the necessary inspection.
Nevertheless, it must be acknowledged that the decision
as to how to utilize its personnel most efficiently
WHITTAKER CORPORATION 767
ordinarily rests with management. Our concern is only to
decide whether in exercising its managerial prerogatives,
the employer has been motivated by a purpose proscribed
by the Act. In making this determination it is, therefore,
relevant to consider whether Respondent's decision was
logical and reasonable under all the circumstances By the
same token, an employee may not ordinarily refuse to
accept an assignment or transfer necessitated by reason of
business expediency or more effective utilization of his
services, if that is the real reason for the change, solely
because he finds it inconvenient or because it may cause
him hardship,
It is evident that Toothman did have a problem of
transportation because of the obsolescence of his car. It is
fairly established that Goodrich, who made the initial
decision to transfer Leinenbach, was aware of the
problem. This, of course, would still not excuse Toothman
from accepting the transfer.
The General Counsel contends, however, that
Toothman did not actually refuse the transfer but, in
effect, merely explained the hardship it would entail,
maintaining that if Goodrich had given him a direct order
to report at Long Beach, he would have complied This is
mere cavil because it fails to explain how Toothman
would have managed his transportation problem in that
event. Moreover, the record leaves no doubt that
Goodrich made it unmistakably clear that he expected
Toothman to report at Long Beach next morning. While
it is true that Goodrich did not warn him of the
consequences of his failure to comply with this direction,
an employer is not required to couple each order with a
threat of discharge to achieve compliance.
It may be assumed that Respondent's decision to
transfer an inspector from the Gardena to the Long Beach
plant was dictated by legitimate business reasons. It is less
clear that Toothman was the logical choice for the
transfer.
It will be recalled that Toothman was one of the three
principal union advocates at the Gardena plant He had
performed satisfactorily as an inspector for at least 10
months, working at the same bench with Leinenbach, who
had been discharged 3 weeks earlier, and was known to
have been involved with him in the organizational efforts.
It was Toothman who first called Leinenbach's attention
to the grinding on titanium parts, which led to the chain
of events culminating in Leinenbach's discharge.
Toothman had furnished a statement to a Board agent the
evening before his discharge, and mentioned it freely at
the plant next morning. Howk testified that in his
discussion with Toothman the morning after he failed to
report at Long Beach, Toothman told him that he had
talked to the NLRB, and had been informed that he was
not obliged to accept the transfer. Goodrich conceded that
he had demanded of Toothman whether he was working
for him or-the NLRB.
Another incident, which should perhaps be mentioned,
occurred about January 16, when Toothman, who had
received his last raise on November 16, 1967, asked Howk
for another raise on the ground that he was entitled to a
wage review after 90 days, as provided, according to him,
in the employees' handbook. Howk became very angry,
and Toothman borrowed a handbook from an employee
and showed it to Howk. Howk asked Toothman whether
that was the company book, and Toothman remarked,
"You of all people should know." Howk pointed out that
although the handbook provided for a review after 90
days, this did not necessarily mean that he was entitled to
a raise. According to Howk, Toothman declared that if he
did not get a raise, he would go to Fritsche (the vice
president). Howk admitted that he warned Toothman not
to go over his head, and if he did he could consider
himself terminated Toothman received his raise.
In February, Howk testified, Toothman again asked for
a raise 28 Howk told him that he had received one 2 or 3
weeks ago. Toothman replied that he was doing
Leinenbach's work, and if he was doing the work of two
men, he expected to receive additional pay Howk pointed
at him and Toothman slapped his hand down, remarking
that Howk "wasn't going to push him around," and that
he "had the NLRB back of him." Howk said that a raise
was out of the question, and walked away
This episode is noteworthy because it suggests that
Toothman apparently incurred Howk's displeasure,
presaging unfavorable treatment when the opportunity
presented itself. The fact that Respondent retained
Toothman in its employ as long as it did is doubtless
attributable to the shortage of inspectors. It may be
assumed that Howk was not unmindful of these
encounters, which occurred less than 2 months before
Toothman's discharge.
One other factor merits discussion. Respondent
adduced evidence through Angelina M. Carone, an
employee in titanium fabrication, whose work station was
across the aisle from Toothman's inspection desk,29 that
toward the close of the shift, the day before Toothman
was scheduled to go to Long Beach, he had a conversation
with her in the titanium department. According to her,
Toothman said that the Company was sending him to
Metal Forming to do inspection until it could move all the
equipment to the Gardena plant. He told her that he did
not want to go there - that he had been hired for the
Gardena plant, and that was where he intended to stay.
Next morning, again toward the end of the shift, she
had another conversation with Toothman at her work
station. He told her that he had refused to go to Metal
Forming because it was too cold; that he did not have to
go there because he had been hired at Gardena and that is
where he was going to stay. More important, however, he
told her that he and Leinenbach had wanted to be
"canned" so that the Union could have them reinstated,
thereby making it possible for the Union to organize the
plant According to Carone, Toothman indicated to her
that he had already been discharged, and went to get his
tool box. Carone told Helen Slack, a fellow employee in
the same department, of her conversation with Toothman.
She did not report this to management until the Monday
before the hearing in this proceeding, when like other
employees at the plant, in preparation for the hearing, she
was questioned by company counsel and asked whether
she knew Toothman.3°
Toothman denied, generally and specifically, Carone's
testimony regarding these alleged conversations. He
further denied that he had ever been a resident of West
Virginia, as Carone testified he had told her, although he
admitted telling her that he had passed through the
"panhandle" of West Virginia in 1945, while railroading
"Toothman denied asking for this raise but, based on the details
furnished by Howk, it is probable that he did
"Caron had been hired initially at the Metal Forming Company at
Long Beach, on November 6, 1967, and was told several days later that
she would be transferred to Gardena plant after Respondent acquired the
Long Beach facility
"After assuring her that she was under no obligation to talk to him, and
explaining the nature of the Board proceeding, counsel told her, in
response to her question, that there was no truth to the rumor that
Leinenbach and Toothman were suing the Company for $150,000.
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between Columbus, Ohio, and Pittsburgh, Pennsylvania.31
It is probable that the truth of what was said in the
conversation between Toothman and Carone lies
somewhere between her bald assertion and Toothman's
outright denial, and that Toothman did, in fact, tell her
that he did not intend to accept the transfer; that he had
been interviewed by a Board agent the night before; that
he would probably be discharged for refusal to accept the
transfer; and that he expected the Union to effect his
reinstatement. It remained but a short step for Carone to
conclude, as she may, indeed, sincerely have believed, that
Toothman had said that he and his fellow employee had,
in effect, defied the Employer to discharge them, so as to
enhance the Union's chances of organizing the plant 'Z
Judging by the appearance and demeanor of the
witnesses involved, it is concluded that Toothman did not
make the statement attributed to him by Carone, to the
effect that he and Leinenbach had sought to provoke their
discharges as a means of lending impetus to the Union's
organizational campaign. Apart from Carone's
uncorroborated testimony on this point, there is no
support for a finding that Toothman or Leinenbach
deliberately sought to instigate their discharges.
On the basic issue of whether Respondent discharged
Toothman for insubordination for refusing to obey an
order transferring him to Long Beach, it is concluded that
even though Respondent may have had a valid
justification for his discharge, the prepondernace of the
reliable, credible, and probative evidence establishes that
the actual reason for his discharge stemmed, in whole or
in material part, from his union activities and
Respondent's opposition to the unionization of its
employees.
In reaching this conclusion, it has not been overlooked
that some of Toothman's denials have been discredited, in
part. This does not, of course, require that his testimony
be rejected in its entirety."
"According to Carone, however, during general conversation among
employees , when she mentioned that she was from West Virginia,
Toothman ventured that he was from the same state, mentioning a small
town near New Martinsburg , the name of which she could not recall On a
later occasion , according to her, Toothman showed her a map, indicating
that he still had relatives living there Carone also testified that Toothman
regaled her with hillbilly songs and stories indigenous to the area Carone's
testimony , that Toothman had said that he hailed from West Virginia, was
partially corroborated by Barbara Jones, of the titanium department, and
Juanita Engalka, a metal finisher Jones testified that she discussed the
subject with Carone for the first time the day she testified, after
Respondent ' s counsel telephoned her, and that Carone refreshed her
recollection about Toothman having said that he came from West Virginia
Although she refused at first to testify , she agreed to do so after Carone
persuaded her It seems probable that when Carone mentioned that she
was from West Virginia , Toothman indicated that he had some ties there
too it does not appear likely that he would have denied coming from that
region if that had been true The evidence was entirely collateral to the
issue of whether , in Carone 's conversation with Toothman, the day before
his discharge , he told her that he and Lemenbach had been trying to
provoke their discharge , and is of no probative value in establishing this
fact. It was elicited at the hearing that at Toothman's behest, she had
signed a union authorization card , and there was no showing that she had
withdrawn or revoked the designation These facts have not been
overlooked in evaluating her testimony.
-' nothing is more difficult than to disentangle the motives of
another's conduct -- motives frequently unknown even to the actor
himself" L Hand , CJ., in N L.R B. v Universal Camera Corp, 190
F 2d 429, 431 (C.A 2). It should also be noted that the General Cousel
sought to impeach Carone's testimony by her timecard showing that on the
day in question she left work at 3 p m , whereas Toothman did not leave
until the end of his shift . Confronted with her timecard , Carone corrected
her testimony , and asserted that this conversation took place before 3
o'clock
Respondent contends, however, that had it been
illegally motivated, it would have had ample grounds for
discharging Toothman sooner, citing the following
occasions: his alleged violation of the no-solicitation rules,
alleged insubordination sometime after Leinenbach's
discharge, when Toothman objected to being assigned
temporarily to inspection in the hot press department, and
reassigned to the titanium department (an incident of
which Howk was admittedly unaware): and finally,
because Toothman had frequently left work before the end
of the regularly scheduled 10-hour shift (as to which it was
shown that Toothman, as well as other employees,
sometimes punched out after 8 hours, production
requirements permitting, without objection by
supervisors) The simple fact is that, except as to the
alleged violation of the no-solicitation rule, Toothman was
never criticized, reprimanded or disciplined for any of
these other alleged infractions, leading to the conclusion
that they were either not as serious as Respondent
contended, or that Respondent was content to tolerate
these derelictions until it became aware of his union
affinity and activities. Respondent does not, of course,
rely on any of these complaints as grounds for the
discharge.
In concluding that Toothman was discharged because
of his union activites, rather than for insubordination in
refusing a transfer, the following factors have been given
preponderant weight: Respondent's opposition to the
unionization of its employees, as manifested by the
interrogation, almost immediately after the organizational
activities commenced, of the most active union proponents
in separate, successive interviews by managerial officials,
ostensibly on the ground of alleged violation of invalid
no-solicitation rules, utilizing the opportunity to question
employees about the reasons for unionization and the
dissatisfaction of the employees; the admitted shortage of
qualified inspectors; the unconvincing reason for selecting
Toothman for the transfer, in light of his disclaimer of
any specialized skill or experience in the inspection of
stretch-formed or extrusion products; the fact that the
inspector, who was already at the Long Beach plant,
continued to perform that function at the same plant after
Toothman's discharge, despite Respondent's contention
that he was less qualified than Toothman; that Toothman
had been satisfactorily performing the job at the Gardena
plant to which it sought to transfer the Long Beach
inspector; the realization that Toothman's transfer
entailed great hardship to him; the fact that, except for a
temporary assignment to the hot press department, which
he had accepted, albeit grumbingly, Toothman had never
refused to accept a transfer before; the fact that he was
one of the three or four most active union advocates at
the Gardena plant, one of whom had been discharged less
than 3 weeks earlier, under circumstances which stemmed
from Toothman's report that fabricating employees had
been grinding titanium parts, the fact that he had openly
announced at the plant that he had been in
communication with the NLRB and made known to his
superior that he intended to consult the Regional Office as
to whether he was required to accept the transfer, that he
had given a statement to a Board agent the night before
the contemplated transfer, and the precipitate decision to
""It is no reason for refusing to accept everything that a witness says
because you do not believe all of it, nothing is more common in all kinds
of judicial decisions than to believe some and not all " L Hand, Chief
Judge, in N L R B v Universal Camera Corporation , 179 F 2d 749, 754
(C A 2) (vacated and remanded 340 U S 474, see 190 F 2d 429).
WHITTAKER CORPORATION 769
transfer him following so closely on this disclosure These
factors impel the conclusion that Respondent selected
Toothman for the transfer to Long Beach, knowing that
he would be unable or unwilling to accept the transfer,
and would thus lay himself open to discharge for
insubordination; and that, despite the fact that Howk
admittedly had authority to discharge employees without
prior consultation with management, in Toothman's case,
he did not do so until after he conferred with the
assistant general manager.
Weighing all the pertinent and relevant factors,
including the appearance and demeanor of the witnesses
on both sides, it is found that the preponderance of the
evidence establishes that Respondent ordered Toothman
transferred from the Gardena to the Long Beach plant, on
March 12, and discharged him the following day for
refusal to accept that transfer, not for reasons of business
necessity, but, in whole or in part, because of his union
activities, thereby discriminating in regard to his hire and
tenure or terms and conditions of employment, to
discourage membership in a labor organization, in
violation of Section 8(a)(3), and interfering with,
restraining and coercing its employees in the exercise of
rights guaranteed in Section 7, thereby violating Section
8(a)(1).
3. Edmund Van Artsdalen
Van Artsdalen was employed as an inspector in the hot
press department at Gardena on February 22, 1967, and
continued in Respondent's employ until the latter part of
February 1968, when he went on sick leave due to a back
condition. He returned to work late in April 1968, and
continued in his job until June 25, 1968, 2 days before this
hearing, when, he testified, he quit voluntarily because, in
his words, "I was getting the cold shoulder treatment
from everybody, and I just got fed up with it."34
With Leinenbach, he was one of the two prime movers
in the organizational campaign Details of his union
activities and the ensuing events in which he was involved,
including his conversations with Gonfiotti and Driskill,
have already been related. He witnessed the encounter
between Leinenbach and Howk, which culminated in the
former's discharge, and the subsequent events while Howk
was escorting Leinenbach to the front office The
following Tuesday, February 20, he reported to Howk
that threats were being made in the shop, and that he was
"getting . . . sick and tired of hearing" them His meeting
with Howk, Toyias and Herweg have been previously
recounted.
In the latter part of April, the day before he returned
to work after his leave of absence, Van Artsdalen brought
Gonfiotti a letter from his physician authorizing him to
return to work. According to Van Artsdalen, when he
greeted his fellow employees he received a chilly reception.
He bought some coffee for himself and Gonfiotti, who
invited him into his office There Gonfiotti told him that
Howk had instructed him to "keep his men away from my
bench, and nothing would get started." Next day, Van
Artsdalen reported for work. In his job as hot press
inspector, Van Artsdalen testified, he regularly came in
contact with the hot press employees who presented to
him for inspection the parts pulled from the hot press. On
these occasions, the employees who were awaiting
inspection of parts discussed with him problems they
14The allegation that Van Artsdalen was constructively discharged was
added by amendment during the hearing
might have encountered in their work.
After he returned from his sick leave, Van Artsdalen
testified, he discerned a change in attitude among these
employees For one thing, they reported to him that they
had been threatened with discharge, and expressed concern
that the identity of those signing authorization cards
might be revealed, thereby jeopardizing their lobs. More
significantly, they refrained from socializing with him, so
that he could not even "buy them a cup of coffee," as he
had in the past, and avoided him. This continued for
several weeks, when, Van Artsdalen conceded, some of the
employees gradually came back, saying, "To hell with
him," referring to Gonfiotti. Gonfiotti intervened again,
and told Van Artsdalen that he would appreciate his help
in keeping the men away from his bench. Van Artsdalen
told him that they did not work for him, and that that
was Gonfiotti's responsibility.31
Van Artsdalen admitted that he had threatened to quit
on two occasions, the first in about May 1967, when he
actually quit for a day, changed his mind, and returned
next day. On the other occasion, in October 1967, when
he threatened to quit, Goodrich persuaded him to stay by
giving him a 10-cent raise
There is, of course, no allegation or contention that
Van Artsdalen was discharged, discriminatorily or
otherwise Whether the circumstances of his union
activities and Respondent's opposition to unionization,
would have been sufficient to support an allegation of
discriminatory discharge, the fact is that he was not
discharged, but resigned voluntarily, albeit because he
claimed to have been ostracized by his fellow employees,
allegedly on orders from their supervisor
Although Van Artsdalen identified some six hot press
employees who shunned him, he mentioned, at first, only
Billy Calhoun and Wendell W Davidson as employees
who told him that Gonfiotti had warned them to stay
away from Van Artsdalen because of his union activities.
Later, under cross-examination, he named four others,
only one of whom, Charles J Agruso, was still in
Respondent's employ, but working on the night shift.36
Gonfiotti denied that he ever discussed the Union with
Van Artsdalen or that he told the employees not to have
anything to do with him because of his union activities.
He further denied that the employees manifested any
change in attitude toward Van Artsdalen, though he
admitted that he told the employees not to congregate in
his work area.
Agruso, a former friend of Van Artsdalen, who had had
a "falling out" with him for personal reasons, testified
that he could not recall telling Van Artsdalen that
Gonfiotti had told him not to associate with him He
further testified that there was no change in the attitude of
"According to Van Artsdalen, it was not uncommon for hot press
employees, who wear protective clothing while operating the presses, and
work near the furnaces, to cool off at his table, which was in the coolest
area in the shop, and "pass the time of day" while presenting parts for
inspection On one such occasion, Dan Yates, a hot press employee, said to
Van Artsdalen, as Gonfiotti was passing through, "I got to get out of here
I am not allowed to hang around here " This statement is too ambiguous,
however, to support a finding that- Gonfiotti had instructed employees to
avoid Van Artsdalen because of his organizational activities
"Respondent's counsel offered to call as witnesses several other hot press
employees, who, he represented, were available at the hearing, but
refrained from doing so because the Trial Examiner ruled that their
testimony would be cumulative It was also stipulated that no adverse
inference was to be drawn from Respondent's failure to call three
employees who were no longer in its employ Of these, Respondent's
counsel represented, two were out of the state, and the last could not be
located
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees toward Van Artsdalen after he returned
from his sick leave. According to Agruso, a mutual dislike
existed between Van Artsdalen and Gonfiotti, an opinion
expressed by other hot press employees, and Van
Artsdalen had told him about 4 weeks before the hearing
that he was "out to get" Gonfiotti by rejecting parts.
Davidson testified that he did not "particularly" like
Van Artsdalen; that he felt that he was unfair in his
inspections; and that Gonfiotti had instructed employees
not to congregate in the hot press inspection area.
According to him, Gonfiotti never discussed the Union
with him or warned him to stay away from Van Artsdalen
because he was a union advocate.
Calhoun, who testified that he was friendly with Van
Artsdalen, could not recall being told not to "hang
around" his desk, though it could have been said. After
first testifying that he might have told Van Artsdalen that
"somebody had told [him] that the shop was getting
stirred up because of the union," Calhoun later disclaimed
any recollection of having said it.
Frank D. Yates, one of the hot press employees, who
testified that he was in favor of the Union, admitted that
he disliked Van Artsdalen and hardly associated with him.
According to Yates, the other employees did not so much
give Van Artsdalen the "cold shoulder" as that they did
not associate with him because they knew what he had
"tried to mess us around a little bit" by rejecting a part
"[i]f he was in a bad mood." He admitted, however, that
Gonfiotti had always told the hot press employees that he
"didn't want us hanging around together because the
bosses come in there and it don't look too good."
It thus emerges from the testimony that Van Artsdalen
was not especially popular with the hot press employees
because some, at least, felt that he rejected parts
unnecessarily (though this did not deter them from joining
him in coffee breaks, if not actually accepting his
hospitality). It is also clear that they had been instructed
by Gonfiotti not to congregate in the inspection area All
denied, however, that this had been related to Van
Artsdalen' s union activity, or that there had been any
change in attitude toward him when he returned from his
leave of absence.
The preponderance of the evidence does not support the
General Counsel's contention that Gonfiotti had warned
the hot press employees not to fraternize with him because
of his union activity. Assuming, however, that the "cold
shoulder" treatment accorded Van Artsdalen was
somehow attributable to Gonfiotti, and that Gonfiotti was
acting out of union animus, this conduct, if proven, might
conceivably amount to interference with the organizational
rights of the employees. It does not follow that such
conduct, standing alone , is sufficient to support a finding
of constructive discharge. However objectionable,
distressing or distasteful Van Artsdalen may have found
his ostracism by the employees, it cannot be said that this
conduct, even if attributable to Respondent, rendered his
job so oppressive, onerous or intolerable as to leave him
no choice but to resign. Although Van Artsdalen may
have sincerely believed that the treatment accorded him by
his fellow employees was attributable to his union
activities and Respondent's opposition to unionization, the
record does not support this conviction." Moreover, this
employee's claim , so belatedly filed, and asserted for the
first time in the midst of the hearing, gives every
indication that the constructive discharge theory was
advanced as an afterthought. Finally, his two previous
threats of resignation are manifestations of a tendency to
quit his employment precipitately with or without cause.
It is, therefore, found that Van Artsdalen's voluntary
resignation was not attributable, in whole or material
part, to Respondent's unlawful conduct, and that
Respondent did not constructively discharge him on June
25, 1968, because of his union activities to discourage
membership in a labor organization, in violation of
Section 8(a)(3) of the Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffice, and commerce
among the several States, and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce
V. THE REMEDY
It has been found that Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, by the conduct previously
detailed. It will, therefore, be recommended that
Respondent be ordered to cease and desist therefrom, and
take certain affirmative action designed to effectuate the
policies of the Act. It has been found that Respondent has
discriminated in regard to the hire and tenure of
employment of employees by discharging, and thereafter
failing and refusing to reinstate William Leinenbach on
February 19, 1968, and Roy E. Toothman on March 13,
1968. It will, therefore, be recommended that Respondent
offer each of them immediate and full reinstatement,"
without loss of seniority or other rights and privileges, to
his former or substantially equivalent position, and make
him whole for any loss of pay he may have sustained by
payment of a sum of money equal to that which he would
have earned from the date of the discrimination against
him to the date of offer of reinstatement, less his net
earnings during such period. Backpay shall be computed
in accordance with the formula prescribed in F W
Woolworth Company, 90 NLRB 289. Interest on said
backpay shall be computed at the rate of six percent per
annum as provided in Isis Plumbing & Heating Co.. 138
NLRB 716."
Upon the basis of the foregoing findings of fact, and
upon the entire record, the Trial Examiner makes the
following:
"See Portage Plastics Co , 163 NLRB No 102
"Leinenbach's behavior toward Supervisor Howk, following notification
of his discharge, has been carefully considered and, in view of the
provocation which prompted it, and because his conduct was a
manifestation of indignation in response to a discriminatory discharge, it is
found that his conduct was not of such an aggravated nature as to warrant
denial of reinstatement Santa Fe Drilling Company, 171 NLRB No 27
"In view of the nature and extent of the unfair labor practices in which
Respondent has been found to have engaged, including the discriminatory
discharges of two employees, it is found that there is likelihood that
Respondent may continue to engage in unfair labor practices in the future
unless Respondent is required to cease and desist from engaging in such
conduct. It is, therefore, recommended that Respondent be ordered to
cease and desist from in any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in the Act
N L.R B v Entwistle Manufacturing Co, 120 F.2d 532 (C A 4), May
Department Stores v N L R B, 326 U.S 376, Bethlehem Steel Co v
NLRB, 120F2d 641 (CADC)
WHITTAKER CORPORATION 771
CONCLUSIONS OF LAW
1. Whittaker Corporation, Advanced Metals
Technology Division, Respondent herein, is, and at all
times material herein has been , an employer engaged in
commerce and in a business affecting commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America, UAW,
the Union herein , is, and at all times material herein has
been, a labor organization within the meaning of Section
2(5) of the Act.
3. By the maintenance, and discriminatory enforcement
of unlawful no-solicitation rules; by coercively
interrogating employees concerning their union activities
and sympathies; creating the impression of surveillance of
their union activities; threatening employees with
discharge for violation of unlawful no-solicitation rules,
and for engaging in lawful union activities at the plant;
and by discriminating in regard to the hire and tenure or
terms and conditions of employment of employees, as
above described, Respondent has interfered with,
restrained and coerced employees in the exercise of rights
guaranteed in Section 7, thereby engaging in unfair labor
practices within the meaning of Section 8(a)(I) of the Act.
4. By discharging, and thereafter failing and refusing to
reinstate, William Leinenbach on February 19, 1968, and
Roy E. Toothman on March 13, 1968, because of their
union adherence, affiliation and activities to discourage
membership in a labor organization, Respondent has
discriminated in regard to the hire and tenure or terms
and conditions of employment of employees, thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(3), and violating Section 8(a)(1) of the Act.
5. Respondent did not constructively discharge Edmund
Van Artsdalen on June 25, 1968; has not thereby
discriminated in regard to his hire and tenure or terms
and conditions of his employment to discourage
membership in a labor organization , in violation of
Section 8(a)(3) of the Act; and, except as previously
found, has not engaged in any unfair labor practices
alleged in the complaint.
6. The aforesaid unfair labor practices, found above,
are unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
SUPPLEMENTAL DECISION OF TRIAL
EXAMINER
IRVING RoGosiN, Trial Examiner: Pursuant to an
Order of the Board , dated April 25, 1969, the record in
this proceeding was reopened , and a further hearing was
held on May 26 and 27, 1969, at Los Angeles, California,
for the purpose of receiving testimony as specified in the
Board's Order.'
'The Order was based upon Respondent ' s unopposed motion, supported
by affidavits, filed on March 24, 1969, with its exceptions and
accompanying brief, to the Decision of Trial Examiner , issued February
28, 1969 . The Order directed that the record be reopened , and a further
hearing be held "for the limited purpose of receiving the testimony" of
Edmund Van Artsdalen, (one of the alleged discriminatees who testified at
the initial hearing as a witness for the General Counsel), and his wife, Mrs
Edmund (Fay) Artsdalen , (who did not testify at that hearing ), "and to
permit any cross -examination of said witnesses " Although the Order,
framed in terms of Respondent 's motion, did not provide for any
opportunity to meet the so-called "newly-found critical testimony" of these
witnesses , it must be assumed that the Board did not intend to foreclose
At the reopened hearing, all parties were represented by
counsel, were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce
evidence relevant and material to the issues raised by the
Board's Order, to argue orally, and file briefs and
proposed findings of fact and conclusions of law All
parties declined the opportunity of arguing orally,
reserving the right to file briefs. Pursuant to an extension
duly granted, all parties filed briefs on or before June 27,
1969. No proposed findings of fact or conclusions of law
have been filed by any of the parties.
Upon the record thus made, his observation of the
attitude and demeanor of the witnesses, the resolution of
issues of credibility, and the briefs of the parties, which
have been fully considered, the Trial Examiner hereby
makes the following-
SUPPLEMENTAL FINDINGS OF FACT
As has been stated, the initial decision of the Trial
Examiner was issued on February 28, 1969. On about
March 6, 1969, the date the decision was served on the
parties, Edmund Van Artsdalenz telephoned counsel for
the General Counsel to inquire whether the case had been
decided. He was informed that the decision had issued and
that the Trial Examiner had sustained the complaint as to
William J. Leinenbach and Roy E. Toothman but had
dismissed the complaint as to Van Artsdalen Van
Artsdalen then called Michael Toyias, the company
comptroller, asked him whether the Company intended to
appeal the case, and told him that he was convinced that
Leinenbach and Toothman had not been fired because of
their union activity - that, as far as he was concerned,
such a claim was "phony," although he believed that the
men had been unjustly discharged Toyias arranged with
the company attorney, Victor F. Yacullo, to interview
Van Artsdalen, and that evening Toyias and the attorney
called on Van Artsdalen at his home. The attorney
interrogated Van Artsdalen and his wife, Fay, and elicited
from both statements to the effect that the discharged
employees had deliberately planned to provoke their
discharges in order to provide impetus to the Union's
organizational campaign.
As the hour was growing late, Toyias and Yacullo left,
but returned next day to resume the interrogation of Van
Artsdalen and his wife. Yacullo wrote out a narrative
account of the information thus obtained, reading the
statements aloud as he wrote. Meanwhile, Yacullo
requested Toyias to send for a notary public, and
Sherwood Y. Yoshimoto, one of Respondent's employees,
arrived at the Van Artsdalen home while Yacullo was
taking the statements. Van Artsdalen read his purported
statement while Yacullo was taking down Mrs. Van
Artsdalen's statement. Although both Van Artsdalens
the General Counsel and the Charging Party from adducing evidence to
contravene the testimony of those two witnesses Consequently, the
General Counsel was permitted , without objection , to call as witnesses
William J Leinenback and Roy E Toothman , who were found to have
been discriminatorily discharged in the principal case, to controvert the
testimony of the witnesses at the reopened hearing Similarly , in order to
aid the Trial Examiner in resolving the crucial issues of credibility,
Respondent was permitted to call several witnesses for purposes of
corroboration No objection to this procedure was raised by any of the
parties
'One of the three alleged discriminatees Van Artsdalen 's case, added by
amendment during the course of the hearing , alleged that he had been
constructively discharged because of his union activity His case was
dismissed in the Trial Examiner ' s Decision
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
affirmed the contents of their statements, they declined to
subscribe to them under oath Van Artsdalen refused
allegedly on the ground that he expected to take a job in
Santa Barbara, which would keep him from his family,
and because he was apprehensive of reprisals against his
family from sources which he did not identify Mrs. Van
Artsdalen, following the lead of her husband, also
declined. Both, however, affirmed the truth of the matters
contained in the statements and asserted that they would
testify accordingly if served with a subpoena
Based on the information elicited at these interviews,
Respondent, through its counsel, filed its motion to reopen
the case to take the testimony of Mr and Mrs. Edmund
Van Artsdalen. Neither of the other parties objected to
the granting of the motion, and on April 25, 1969, the
Board entered its Order reopening the record.
The record establishes that acutal efforts at
unionization began when Letnenbach and Toothman
discussed the subject with Van Artsdalen, during a rest
period at the plant, and told him they "had something
going." Leinenbach, who, as will later appear, had
previously been involved in an attempted organizational
campaign at another plant, told the men that he did not
want his wife to know that he was interested, but gave
Van Artsdalen the Union's telephone number
On Wednesday, February 14, 1968, Leinenbach and
Van Artsdalen went to the union hall for the first time to
pick up some authorization cards. According to
Toothman, he drove with Van Artsdalen to the union hall
the same night, the only time he was ever there, where he
met Leinenbach and other employees. Van Artsdalen and
Leinenbach, however, testified that Toothman did not go
to the union hall on Wednesday night, though Leinenbach,
elsewhere in his testimony, included Toothman as one of
the employees who was there that night The union hall
was closed and no union representatives were there.'
The following night, Thursday, February 15,
Leinenbach parked his car at Van Artsdalen's home, and
drove with Van Artsdalen to the union hall, where they
spoke to union representatives , and obtained some
authorization cards and union literature While they were
at the union hall, Letnenbach encountered Robert Hanke,
who had been discriminatorily discharged earlier while
employed at the Aeronca Manufacturing plant and
introduced him to his fellow-employees.4
'On this occasion , according to Van Artsdalen , Lemenbach remarked, in
connection with the projected organizational campaign, that if they were
"going to get fired , [they should ] get fired for union activity "
'Hanke had been discharged in August , 1965, during an organizational
campaign by the Union at that plant while Letnenbach was employed
there Although denying that he had been active in the organizational
campaign at the Aeronca plant, and maintaining that he had left after the
Union lost the election , he testified as a witness in the unfair labor practice
proceeding involving Hanke's discharge , to certain coercive statements by
supervisors , as well as certain facts relating to the discharge Aeronca
Manufacturing Company , 160 NLRB 426, 434, fn 10 At the request of
both the General Counsel and Respondent , official notice has been taken
of the Board' s decision in that case . The significance of this evidence is
apparent from the testimony of Van Artsdalen and his wile at the reopened
hearing, that Leinenbach told them of his experience in the unionization
effort at Aeronca , and indicated that he intended to follow the same
"pattern" in organizing Respondent ' s plant Admittedly, after his
experience at the Aeronca plant, Lemenbach promised his wife that he
would not become involved in any organizational campaign thereafter
Lemenbach had been employed at Douglas Aircraft Corporation in 1957, a
union plant , and at the Todd shipyard 2 years, where he was a member
and shop steward of a maritime union According to Van Artsdalen,
Letnenbach showed him his shop steward card while they were at the union
hall.
Next day, February 16, Leinenbach, Van Artsdalen and
Toothman distributed authorization cards at the plant. On
Saturday morning, February 17, each of these employees,
as well as other employees not involved here, were
summoned to the office of Frank L. Howk, quality
control manager, were interrogated by company officials
regarding alleged violations of the Company's
no-solicitation rule, and warned that subsequent violations
of the rule could result in disciplinary action and possible
dismissal.
Van Artsdalen testified that 2 or 3 days before
Leinenbach's discharge he could not recall whether it
occurred at home or at the plant during the lunch period
Leinenbach told him, "I can get fired real easy by
simply refusing to buy some parts," that because of
Howk's temper, Howk would "blow up"; that Leinenbach
would "just literally refuse to buy the parts", that Howk
would "get mad and fire him"; and that Leinenbach
could "do it any time of the day I want to, any time he's
at the plant " Leinenbach, according to Van Artsdalen,
also said that "the Union had smart lawyers, and they
would go to bat for you They will file a case before the
Labor Relations Board and get a hearing, and they will
win the hearing and come back to the plant with all the
literature and solicit for the Union, and they (the
Company) can't do anything about it. That's how they
went about it at Aeronca, and they would hold the
election and the Union would get voted in ""
On the day of Leinenbach's discharge, Toothman
approached Van Artsdalen in the hot press area where the
latter worked, and told him, "They are grinding on an
angle over there "' Toothman continued, "Bill
[Lemenbach] is going to refuse to buy them - has refused
to buy them Anyhow, Bill refused to buy them and raised
hell about it, and then went down to get Howk, and Bill is
going to get himself fired," adding, "we ought to see
this." Van Artsdalen followed Toothman to that
department within a few minutes.
Leinenbach was discharged soon afterward that day,
under circumstances described in the initial decision of the
Trial Examiner.'
According to the Van Artsdalens' testimony at the
reopened hearing, Lemenbach had visited them at their
home on several occasions, both before and after his
discharge, on at least one occasion, accompanied by his
wife, Frances At the first visit, which occurred during the
early stages of the organizational campaign, (the date of
which she could not establish), Mrs Van Artsdalen
testified, Leinenbach and her husband were discussing the
campaign, and Letnenbach told Van Artsdalen that he,
Letnenbach, would reject parts and become embroiled in
an argument with Howk, their supervisor, that, because of
Howk's temper, he knew "how to get to him", that he
would provoke Howk so that he would fire him; and that
Letnenbach would then seek reinstatement and backpay
with the Union's intercession.
On one occasion, (Mrs Van Artsdalen could not fix the
date, except to testify that it was before Leinenbach's
discharge), when Mrs. Letnenbach was also present,
'See decision of Trial Examiner, supra
"According to the Lemenbachs , however , at a visit to the Van Artsdalens
on Saturday night , February 17, the only subject discussed was the
interrogation of the men by company officials that morning
'See TXD section C, 1, et seq The official transcript erroneously
attributes this remark to Van Artsdalen It is apparent from the context
that it was Toothman who made the remark to Van Artsdalen The
transcript is hereby corrected accordingly
'Id et seq
WHITTAKER CORPORATION
Leinenbach and Van Artsdalen discussed their plans for
organizing the plant , including distribution of union
literature. In addition, according to Mrs. Van Artsdalen,
Leinenbach visited their home alone , (again, on dates
which he could not recall , but on two or three occasions
before his discharge), and generally brought up the
subject of how he intended to provoke his discharge.
Like his wife, Van Artsdalen was unable to fix the
dates of Leinenbach ' s various visits , except in a general
way with reference to the date of his discharge. Nor,
although he testified that Mrs. Letnenbach was with her
husband on one or more occasions , was he able to testify
whether it was before or after Letnenbach's discharge.
Van Artsdalen did, however, testify that the first time the
Leinenbachs visited them together was 3 or 4 days before
Leinenbach's discharge. According to Van Artsdalen,
when he greeted his guests, Leinenbach called him aside
and admonished him not to discuss the organizational
campaign in his wife 's presence because he had "been in
this trouble before, and she [would] raise cane with
[him]." They then went inside.
While the men were engaged in general conversation,
including a discussion of the recent Frazier-Mathis prize
fight, the women discussed matters of interest to them. At
some stage of the conversation , however, it became
apparent that Mrs. Leinenbach was aware of the
organizational efforts being made at the plant . In view of
Leinenbach's previous remark outside the house, this
struck Van Artsdalen as rather odd Leinenbach remarked
that "they," presumably the other active organizers,
wanted it to appear that he, Leinenbach, was spearheading
the campaign, and that he had no intention of becoming
involved Mrs Leinenbach complained that Leinenbach
had been involved in the union campaign at the Aeronca
plant The discussion turned to the role Van Artsdalen
was to play in the organizational campaign, including
solicitation on behalf of the Union , and the men stressed
that Van Artsdalen was to be the principal protagonist
and that Leinenbach would remain in the background.'
On another occasion, after Leinenbach's discharge, and
before the initial hearing in this proceeding, Mrs. Van
Artsdalen testified, the Leinenbachs were at the Van
Artsdalen home. During general conversation, she
"caught" some of the discussion between Van Artsdalen
and Leinenbach, who were reviewing the events which had
taken place, particularly regarding Leinenbach's rejection
of aircraft parts, Howk's temper, and Toothman's refusal
to accept the transfer. Leinenbach also urged Van
Artsdalen to furnish the Regional Office with a statement.
According to Van Artsdalen, who was attempting to
return to work following his operation, Leinenbach
advised him not to return because he would be the next
person to be discharged.
Shortly after the initial hearing, Mrs Van Artsdalen
testified , the Leinenbachs were again at their home On
this occasion , in a discussion about the hearing and the
testimony of company witnesses, Leinenbach remarked
that "their plan" had been successful in that they had
brought about their discharges, and observed that the
"people at Whittaker were pretty dumb," and "didn't
know what was going on."
The day Leinenbach was discharged (February 19), Van
Artsdalen testified, Roy Toothman called at his
'At one of their visits to the Van Artsdalen' home after his discharge,
while the men were "shooting the breeze," Letnenbach stated that after the
dischargees were reinstated, he thought they would wear union buttons as
large as sunflowers.
773
home. Mrs Van Artsdalen was present. Over coffee, the
men discussed Leinenbach's discharge and the situation in
general, and Van Artsdalen said he would "just as soon
quit [his job] and call the whole thing off." Toothman
urged him not to quit, volunteering that he felt the same
way, but that if they were going to "leave the place, let's
get fired."
Some desultory conversation followed, in which, having
"detected an accent" in Toothman's speech, Mrs. Van
Artsdalen asked him "where he was from," volunteering
that she was from Kentucky Toothman acknowledged
that he was from "West By God Virginia," and observed
that they were practically neighbors.
The men spoke of Leinenbach's discharge and
remarked that the "plan had worked " Toothman told
Van Artsdalen that he thought that the Company intended
to transfer him, Toothman, to the Long Beach plant, and
that he intended to refuse the transfer and use the
dilapidated condition of his car as an excuse for his
refusal.' °
Some time after Toothman's discharge, on March 13,
Toothman telephoned Van Artsdalen's home and asked to
speak to Van Artsdalen Mrs Van Artsdalen told him
that her husband was not at home" According to her,
Toothman told her, "Well, tell him that the plan
worked." When she asked, "What plan?",Toothman told
her that he "finally got to use his car excuse for not
taking the transfer to Long Beach." Mrs. Van Artsdalen
said that she would give her husband the message She
neglected to do so, however, testifying that she forgot
about it.
Shortly before Toothman's discharge, Van Artsdalen
testified, Toothman telephoned him at his home 1 2 In this
conversation, Toothman told him that he had given a
statement to the Regional Office and urged Van Artsdalen
to do likewise. According to Van Artsdalen, Toothman
read him the statement over the phone so that there would
be no discrepancies between their statements
After Toothman was discharged, and before the initial
hearing, Van Artsdalen testified, he had another telephone
conversation with Toothman, though he did not recall
whether Toothman called him or the other way around In
this conversation, Toothman told him that the Company
"See TXD, C, 2, et seq
"In fact, Van Artsdalen was in the hospital for back surgery, from about
February 28 to March 17
"Van Artsdalen fixed the date as "somewhere around the 20th of
March ," by reference to the date of his return from the hospital, about
March 17 It is undisputed , however, that Toothman was discharged on
March 13, so it is obvious that if the conversation actually occurred before
Toothman's discharge , Van Artsdalen would have been in the hospital at
the time If such a conversation actually took place after Van Artsdalen
left the hospital , it would have had to occur after Toothman 's discharge
Both Van Artsdalen and his wife were unable to fix the precise dates when
any of the conversations took place , and it is obvious that Van Artsdalen
was mistaken as to the date of this telephone conversation This was not
the telephone conversation about which Mrs Van Artsdalen testified, while
Van Artsdalen was in the hospital, and of which , he testified, he did not
learn until long afterward It should be noted that the Van Artsdalens were
not always in complete agreement in their testimony Thus , for example,
Van Artsdalen confirmed Leinenbach 's testimony that Van Artsdalen had
told him that his wife and daughter added the words, "Don ' t be one of the
clique," to the union literature mentioned at the initial hearing (see TXD,
supra), which Van Artsdalen placed on automobile windshields at the
plant Mrs Van Artsdalen denied that she or her daughter had anything to
do with the addition of these words to any union literature , and that, in
fact, she never saw these cards While this may cast some doubt on her
credibility, on the broader issues she was in general agreement with her
husband It is found that her credibility has not been impaired by her
disagreement with her husband on this point
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had wanted him to go to Long Beach, that he had refused,
offering as an excuse the condition of his car, and
maintaining that that constituted a valid reason for
refusing the transfer. Toothman then informed Van
Artsdalen that the Company had discharged him.
According to Van Artsdalen, Toothman also said that "he
had done it," without further explanation. Van Artsdalen's
testimony, that he did not understand what Toothman
meant by the remark, is not very convincing, considering
that he testified elsewhere that Toothman's refusal to
accept the transfer was part of the preconceived plan
Toothman also -said he was pleased that things had
worked out the way they had because he had not wanted
to quit. Toothman ventured that it would be pointless for
Van Artsdalen to return to work because he would
"probably end up getting fired also "
During this conversation, Toothman told Van Artsdalen
that he had called the Regional Office to inquire whether
he was obliged to accept the transfer, and that he was told
that unless he had a very good reason, he could not refuse
the transfer.
About March 25, (a date which Van Artsdalen again
fixed by reference to the date of his return from the
hospital and the telecast of the Frazier-Mathis prize fight),
the Leinenbachs again visited the Van Artsdalen home.
On that occasion, according to Van Artsdalen, Leinenbach
expressed concern that Toothman "didn't have much of a
case,. . . that he really was supposed to accept the
transfer " Van Artsdalen agreed, adding that he "couldn't
see what [Tooihman] was going to do if the company
transferred [him] down to Long Beach. That they couldn't
keep [him] down there forever, because they were going to
move up there--up here in a couple of weeks," as Van
Artsdalen claimed he had told Toothman. There was
further discussion regarding Leinenbach's discharge, but
Van Artsdalen could not recall the details.
Of special significance is Van Artsdalen's testimony
regarding an incident which occurred while the initial
hearing was in progress: Van Artsdalen testified that he
was sitting in the hearing room next to Toothman, while
Angela Carone was testifying." When she reached the
point at which Toothman told her that he expected to be
fired, Toothman muttered, "I didn't think that she would
- the little fink - I didn't think she would tell,"
remarking that they were both from the same town, that
he had thought she was "all for the Union, . on the
Union's side." Later, while Van Artsdalen and Toothman
were in the hall outside the hearing room, the men
discussed Carone's testimony, and Toothman grumbled
that she had "copped out on us.""
Several weeks after the close of the first hearing, the
Van Artsdalens called at the Leinenbach home to collect
the Van Artsdalen's witness fee for testifying at the
hearing.' ° According to Van Artsdalen, Leinenbach told
him that their case "looked pretty good for all of us --
that [the Company] couldn't take one or two of them
back without taking us all back, and lust that it looked
real good."
"See TXD, supra.
"The official transcript quotes Van Artsdalen's testimony at this point
as, "I told him that I would testify on the Company's behalf either " The
statement is meaningless unless he intended to say that he would not testify
for the Company.
"Leinenbach had called Mrs Van Artsdalen, while her husband was in
the hospital, to find out how many days he had attended the hearing, and
the amount of his usual hourly rate Leinenbach then procured a check
from the Union to cover Van Artsdalen' s witness fee, and notified Mrs
Van Artsdalen that he had a check for her husband
Other testimony adduced by Respondent at the
reopened hearing related generally to collateral matters.
Newton Church, Jr., a die shop employee at the plant,
testified that he had a conversation with Toothman, in the
die shop, about a week prior to Leinenbach's discharge
before the 9:30 a.m. rest period. Toothman, according to
Church, told him that more than 90 percent of the
employees "on the hill" in the hot press department had
signed up, and asked him to sign a card. Church refused,
and Toothman approached some of the other employees in
the department. In "kidding around" with Toothman,
Church told him he was "looking for trouble." Toothman
rejoined cryptically, "I got thousands in back of me."
During this exchange, Toothman asked Church where
he was from, remarking, "you look like you are an Okie."
Church said that he was from West Virginia. Thereupon
Toothman retorted, "You mean, West by God, Virginia""
The men pursued the subject briefly, and Toothman
observed that he was familiar with the area
Roger D Renfro, who had been employed at various
times in production control, inspection, and quality
control, testified that he knew Leinenbach and Toothman,
and that he had worked with Toothman at various times
while they were both floor inspectors. After the Company
acquired the Metal Forming Company, and before
Leinenbach's discharge, Renfro testified, during a shortage
of inspectors at the Long Beach plant, while employees,
including Chief Inspector Goodrich, were being
transferred from the Company's principal plant to Long
Beach, to assist in closing down the latter plant, he
discussed the situation with Toothman. According to
Renfro, employees returning from the Long Beach plant
had complained about the "filthy" condition of that plant,
and protested that they were not being paid mileage and
other perquisites When it appeared that Toothman might
be transferred to Long Beach, he voiced the same
objections, and told Renfro that he "couldn't go to Long
Beach, that he had been hired at the Whittaker plant, and
intended to stay there, and would quit first, and that if he
was fired or terminated, he would take it to the Board "16
The General Counsel argues that it is unreasonable to
believe that Leinenbach and Toothman deliberately
provoked their discharges knowing the uncertainty of
reinstatement and reimbursement for wages lost. Van
Artsdalen himself testified that he could not conceive of
these men actually setting out to have themselves
discharged. As he testified, " I could not foresee [sic] a
man giving up a $235-a-week lob," and told Leinenbach,
"Your family is going to suffer " Nevertheless, if the Van
Artsdalens are to be believed, Leinenbach, especially, who
conceived the plan, and Toothman, who participated in it,
did precisely that, without any assurance that they would
be successful in any subsequent unfair labor practice
proceeding.
Respondent, however, relies on the evidence of
Leinenbach's experience in the attempted unionization of
the Aeronca plant, and his participation in the unfair
labor practice proceeding, mentioned earlier, to establish
that Leinenbach pursued precisely the identical "pattern"
in attempting to organize Respondent's plant." It may be
"Renfro also testified that 2 or 3 weeks before Leinenbach's discharge,
Van Artsdalen approached him to sign a union authorization card, and
that he declined Van Artsdalen "didn't press" him, and told him that it
did not matter because "there would probably be enough signatures "
Toothman, too, according to Renfro, discussed the Union with him during
this period
"See fn 4, supra Fairness to the Union and its attorneys requires that it
be noted that there was no contention that they were in any way involved
WHITTAKER CORPORATION 775
that Leinenbach was, indeed, utilizing such experience as
he acquired in the Union's' organizational campaign at the
Aeronca plant. It does not follow that he embarked on a
deliberate plant to duplicate that course of action at
Respondent's plant, especially since, despite the fact that
the discriminatee in the Aeronca case was eventually
reinstated with backpay, after a considerable lapse of
time, and the Union was afforded other relief, it lost the
election, as Leinenbach knew when he left that employer.
Notwithstanding what has been said, and despite
inconsistencies in the testimony of the Van Artsdalens, the
preponderance of the evidence at the reopened hearing,
especially when considered in the light of testimony
previously discredited at the initial hearing, but which, it
now appears, is entitled to credence, sufficiently supports
Respondent's contention that Leinenbach, Toothman, and
Van Artsdalen conspired to engage in acts of defiance and
insubordination, for the purpose of provoking their
discharges.
Whether or not the plan would actually have served the
end which these men sought to accomplish is beside the
point. The question is merely whether they actually
embarked upon that course of conduct on the assumption
that it would.
Both Leinenbach and Toothman denied out of hand
that such a plan was ever conceived, let alone discussed in
the presence of the Van Artsdalens, or either of them, or
anyone else. In contrast to their testimony at the initial
hearing, their testimony at the reopened hearing was
equivocal, when not evasive and disingenuous. In the case
of Toothman, his denial of statements imputed to him by
other employees, on collateral matters, having no real
bearing on the issues, except on that of credibility, which
it is highly unlikely they could have acquired from any
other source, did not inspire credence of his testimony on
more crucial matters. In this category are the statements
attributed to him by Mrs. Van Artsdalen concerning their
common geographical background and family origins,
when she first detected the dialect which she associated
with the "hillbilly" country, and in which he bragged, as
he had to Carone and other female employees, at the
original hearing, and to Church, in the reopened hearing,
that he, Toothman, hailed from "West, by God,
Virginia," an expression with too colloquial a flavor to
have been coined by the witnesses.' e
As for Leinenbach, it is undisputed that he had
previously been employed at the Aeronca plant; that he
was familiar with the organizational campaign, which had
been conducted there by the same union; that he had
testified in the unfair labor practice proceeding in that
case, involving the discharge of an employee, allegedly for
profanity and insubordination, but which was found to
have been discriminatorily motivated, in circumstances
suspiciously similar to those here. Leinenbach denied that
the Aeronca case was discussed in any of his visits to the
Van Artsdalens, but admitted that he discussed this with
Van Artsdalen at the plant, and that he had introduced
Hanke, the dischargee in that case, to Van Artsdalen at
the union hall. Mrs. Leinenbach, who was admittedly
opposed to her husband's involvement in further union
activity, testified merely that she could not recall that the
in the so-called plan or that they were even aware that Leinenbach or
Toothman may have conceived and executed such a plan
"While denying that he had ever lived in West Virginia, or that he ever
told this to any of the employees , Toothman testified that his parents had
been born in that State For further explanation on this subject , see the
witness's testimony as set forth in TXD, supra
Aeronca case was discussed in any of her visits to the Van
Artsdalens. According to Van Artsdalen, however, on one
of these visits Mrs. Leinenbach referred to her husband's
previous involvement in the Aeronca organizational
campaign and her objection to his union activity. It is
obvious that Leinenbach discussed the Aeronca
organizational campaign with Van Artsdalen at the plant,
and that the subject was undoubtedly brought up in
conversation at the Van Artsdalens. It is reasonable to
infer that it was mentioned in connection with the
organizational campaign at Respondent's plant, and that
Leinenbach expressly or by implication indicated that he
would draw on his experience in the Aeronca matter to
aid the Union in organizing Respondent's plant.
In view of Van Artsdalen's participation in the
organizational activity at Respondent's plant, and his
complicity, or, at the very least, acquiescence in the
so-called plan to provoke the discharges of Leinenbach
and Toothman, and his willingness to accept the benefit
stemming from a finding of discrimination against them,
by alleging, in the midst of the initial hearing, that he
himself had been constructively discharged, it is natural to
wonder why, if, as he subsequently claimed, that "it was a
put up job" and a "phony deal," he had lent himself to
this fradulent scheme, without questioning the propriety,
not to say, the illegality of the scheme. Instead, Van
Artsdalen testified in their behalf, and, on his own behalf,
that his fellow-employees had "given him the cold
shoulder" and made working conditions so intolerable, all
because of his union activities and sympathies, that he was
forced to resign Then, on learning that a decision had
been rendered in favor of Leinenbach and Toothman, but
against him, he became overcome with moral indignation,
and felt constrained to reveal to his former employer the
nefarious plot in which he pretended he had been an
innocent bystander One can only speculate as to what
Van Artsdalen's position would have been had a finding
been rendered in his favor.
Van Artsdalen's attempts to explain his duplicity
portrayed him either as an incredible dupe or a person
wholly without integrity or scruples. Protesting that he
had no conception of the real issues involved in this
proceeding, he testified that he did not understand that the
question was whether these men had been discharged for
union activity. His testimony that he assumed throughout
the hearing that the only question was whether they had
been discharged unjustly and without cause is unworthy of
credence. As to why he felt the two men had been unjustly
discharged Van Artsdalen testified, in connection with the
plan to "flatly reject everything that came through," that.
. "the majority of it was just junk, I will agree, and that
[Leinenbach] could be discharged by refusing to buy, and
he would absolutely refuse, and they would tell him that
he had to buy it, and we both [Toothman and Van
Artsdalen] agreed on that "
Van Artsdalen had, of course, been one of the three
active union protagonists at the plant. He had met with
the union representatives at the union hall when he
accompanied Leinenbach and procured union literature
and authorization cards He had received instructions
from the union agents regarding procedures to be followed
in the organizational campaign He had actually
distributed literature and solicited employees to sign
authorization cards. He had been interrogated by
management officials in the privacy of the company office
regarding solicitation allegedly during working hours.
According to him, Leinenbach had been chagrinned that
one of them had not been discharged following this
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogation so that it could provide a basis for a charge
of discrimination for union activity. Before the initial
hearing in this matter, he had conferred with the union
representatives and their attorneys, with personnel in the
Regional Office, the attorney for the General Counsel,
and, while the hearing was in progress, and after
consulting with counsel for the General Counsel,
consented to an amendment to the complaint, alleging
that he had been constructively discharged because of his
union activity or sympathy. Yet, he maintains that he had
no notion, at the time he was testifying at the initial
hearing, that the issue being litigated was whether
Leinenbach and Toothman had been discharged for
engaging in union activity."
Van Artsdalen's motivation in denouncing his former
fellow-employees and conspirators can scarcely be
considered without cynicism. Asked at the hearing what
had impelled him to take this action, Van Artsdalen,
admitting his gratitude to his employer for taking him
back after his surgery despite the fact that he was unable
to perform all his former duties, testified that, following
his termination at Respondent's plant, he had been unable
to obtain or had been refused employment at other plants
either for lack of a job or because of his physical
disability. When he saw the Company's help-wanted ad in
the newspaper, he called Toyias to find out whether they
would rehire him or if they were "going to hold [his
previous union activity] against [him] " Specifically, Van
Artsdalen testified that he asked whether he could file an
application for employment with the Company Toyias
replied, "Fine, any time." It was during this conversation,
according to Van Artsdalen, that he brought up the
subject of the decision in this case and inquired whether
the Company intended to appeal.
Contrary to Van Artsdalen's testimony, however,
Toyias testified that the subject of employment was not
mentioned in the same conversation as the one in which
"That Van Artsdalen was not as naive as he pretended is evident from
the following excerpts from his testimony.
A Bill [Leinenbach ] said if we were going to get fired, we might
as well get fired for union activity - not soliciting
Q Was anybody planning to get fired'
A No I was going to approach the Company representatives the next
day Mr Toothman and I -- and tell him that we were representing
the Union -- just bring it out in the open I told him they won't fire us
Later
A. .. They knew that before then, when they approached me with
this Union proposition , and they told me, "Stick around ," you know,
"If we are going to get fired --" And Bill said, "You threatened to quit
several times ," he said , "Stick around , and we will get the Union in this
place."
And it just seemed that is what they [were] driving at - - was trying to
finally get fired for labor Union activity, as far as I was concerned
Elsewhere.
Q And you testified that Mr Leinenbach told you after he and Red
[Toothman ] had been discharged that there was no point in your going
back, because you would be discharged9
A Right.
Q Was that the name of the game9 According to you, was that the
whole purpose? He wanted to be discharged , he wanted Red to be
discharged , and he wanted you to be discharged"
A Right He said , "There is no sense in you going back there
They' re going to fire you when you go back there You are taking your
own "
Q. And yet you took - - your position is because there was no point in
your being fired
A No, I would change that He said you shouldn't go back , he said if
I was going to go back there they would fire me
Q. Why would they fire you"
A Don't ask me Because I was mixed up in this Union activity, is
what he assumed [Emphasis supplied I
Van Artsdalen referred to the "phony" deal; that Van
Artsdalen inquired about the filing of an employment
application in a separate conversation, after Toyias had
called on the Van Artsdalens with the company attorney.
According to Toyias, the discussion about the employment
application occurred the following Monday, March 10,
after the Van Artsdalens had been interviewed.
Toyias testified that when Van Artsdalen broached the
subject of employment, Toyias told him that, as he had
given the Company a statement, he certainly would not be
"blackballed," and that the Company would consider his
application "like anyone else's " He pointed out, however,
that, as the case was still pending, he would have to
ascertain the Company's legal position from its attorney,
and that he would call him back. After conferring with the
attorney, Toyias called Van Artsdalen and asked him
whether the statements contained in the "affidavit" were
true. Van Artsdalen assured him that they were.
Thereupon, Toyras told him that the Company could not
be put in the position of appearing to be "paying for any
testimony, particularly if it were not true, and even if it
were true." To give Van Artsdalen a job under the
circumstances, Toyias told him, might be construed as
payment for his testimony, and they could do nothing for
him. Some 10 days later, Toyias continued, Van Artsdalen
telephoned to ask whether he was being blackballed by the
Company. Toyias denied this, and told Van Artsdalen that
to his knowledge the Company had received no inquiries
about him.
It requires no great stretch of the imagination to divine
what motivated Van Artsdalen to inform on his former
fellow-employees. Nevertheless, this does not compel the
rejection of his testimony that the men had concocted a
scheme to provoke their discharges There are countless
instances of judicial proceedings in which verdicts and
decisions have depended on the testimony of informers or
co-conspirators.
Notwithstanding the foregoing, and inconsistencies and
self-contradictions in Van Artsdalen's testimony at the
reopened hearing, and an understandable reluctance to
rely on the testimony of a recreant, whose motivation for
admitting his duplicity is, to put it mildly, suspect, there is
sufficient corroboration of his testimony in that of his
wife, albeit an obviously interested witness There is also
indirect corroboration in the collateral evidence, in
Leinenbach's case, of his previous participation in the
Aeronca union campaign; and, in Toothman's case, of his
chagrin, expressed to Van Artsdalen during Carone's
testimony at the initial hearing, and outside the hearing
room soon afterward, and in Toothman's statements to
Carone and other employees regarding his family ties in
West Virginia, and more particularly, regarding his
intention to refuse to accept a transfer, to establish that
Leinenbach, Toothman and Van Artsdalen had
deliberately connived to provoke the discharges of two of
them. Such a subversion is an egregious abuse of the
Board's processes and warrants the severest censure.
In conclusion, the evidence sufficiently establishes that
the discriminatees did, in fact, deliberately conspire to
effectuate their discharges in the expectation that they
would ultimately be reinstated, with backpay, and thereby
enhance the Union's prospects for organizing the plant
Clearly, the Trial Examiner, to say nothing of the
Regional Oftice and the union attorneys, was thoroughly
deceived and imposed upon by this devious plot.
Accordingly, although there is little doubt that
Respondent was opposed to the organizational activities of
its employees, justice requires that the findings and
WHITTAKER CORPORATION 777
conclusions in the Decision of the Trial Examiner, that
Respondent discriminately discharged Lemenbach and
Toothman because of their union and other concerted
activities to discourage membership in the Union rather
than for justifiable cause, are hereby reversed, and it is
recommended that those allegations of the complaint be
dismissed.
In all other respects, the findings of fact and
conclusions of law in the Decision, are hereby affirmed
Following service of this Supplemental Decision upon the
parties, the provisions of Section 102 46 of the Board's
Rules and Regulations, Series 8, as amended, shall apply,
as provided in the Board's Order reopening the record