Xaloy, Inc.

National Labor Relations Board - Board Decisions

Apr 29, 1969

175 N.L.R.B. 693 (N.L.R.B. 1969)

XALOY, INCORPORATED 693
I
Xaloy, Incorporated and Eugene A. Grimm and John
B. Gibson and United Steelworkers of America,
AFL-CIO. Cases 6-CA-4045, 6-CA-4159, and
6-CA-4166
April 29, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On December 23, 1968 , Trial Examiner Thomas
A. Ricci issued his Decision in the above -entitled
cases, finding that the Respondent had engaged in
and was engaging in certain unfair 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 further found that the Respondent had
not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the
complaint be dismissed with respect to these
allegations . Thereafter , the Respondent , the General
Counsel , and United Steelworkers of America,
AFL-CIO filed timely exceptions to the Trial
Examiner ' s Decision , with supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed . The Board has considered the Trial
Examiner ' s Decision , the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings , conclusions, and recommendations of
the Trial Examiner,' with the limited additions and
modifications set forth below.'
The General Counsel and Steelworkers filed
exceptions to the Trial Examiner ' s finding that the
Respondent did not violate Section 8 (a)(3) and (1)
of the Act by selecting for layoff and by
subsequently failing to recall five employees who
were active in an organizing campaign on behalf of
the Teamsters Union . In particular the General
The Respondent 's exceptions relate primarily to certain credibility
findings made by the Trial Examiner . It is the Board's established policy
not to overrule a Trial Examiner's resolutions with respect to credibility
unless, as is not the situation here , the clear preponderance of all the
relevant evidence convinces us that the resolutions were incorrect.
Accordingly , we find no basis in these cases for disturbing the Trial
Examiner ' s credibility findings . Standard Dry Wall Products, 91 NLRB
544, enfd . 188 F.2d 362 (C.A. 3).
We find it unnecessary to decide various contentions of the General
Counsel relating to incidents of alleged 8(a)(1) conduct on which the Trial
Examiner made no findings or conclusions , inasmuch as such additional
findings would be merely cumulative.
Counsel and Steelworkers contend that the Trial
Examiner erred in his findings with respect to the
extent of the union activities of the five alleged
discriminatees and the Respondent's knowledge
thereof. These parties also except to the Trial
Examiner's method of analyzing the attendance
records of the 5 laid-off employees by comparing
them as a group with the records of 95 other
employees who were not selected for layoff.
We agree with the Trial Examiner that the record
contains evidence that the five employees whose
layoffs are complained of were the principal activists
on behalf of the Teamsters Union, and their
activities in this respect were well known to the
Respondent. We likewise agree , however, that the
record as a whole warrants the Trial Examiner's
conclusion that the Respondent did not choose for
layoff and did not fail to recall the five employees
because of their union activities. It is conceded by
the General Counsel and Steelworkers that the
layoff of 41 employees by the Respondent on
January 3, 1968, was necessitated by economic
considerations, and these same economic factors
eventuated in a complete closure of the
Respondent's Uniontown plant approximately 6
months later. Although the 5 alleged discriminatees
were selected for layoff without consideration for
their seniority, 7 additional employees among the
total of 41 laid off were also selected without
consideration for their seniority. As to the
Respondent's method of selection of employees for
the layoff, a comparison of the attendance records
of the five alleged discriminatees, whether viewed on
a group or individual basis, supports the Trial
Examiner's finding that the five employees, as well
as others laid off, were persistent in their
absenteeism, tardiness, and early departure from
work. In summary we find, in agreement with the
Trial Examiner, that the Respondent's selection of
employees Wilbur Daniels, Edward Levis, Fred
Glisan, Robert Dodds, and John Gibson was
dictated by legitimate economic considerations, and
that the General Counsel has not sustained his
burden of proving that the selections for layoff and
subsequent failure to recall the employees were
motivated by discriminatory reasons.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that the
Respondent,. Xaloy, Incorporated, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order, as modified herein: '
Add the following as the third indented paragraph
of the Notice to All Employees:
175 NLRB No. 117
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of the right to self-organization , to form,
join , or assist the United Steelworkers of
America, AFL-CIO, or the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America,
Teamster Local Union No. 491, 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 , and to refrain from any or all
such activities, 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.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Trial Examiner: A hearing in the
above-entitled proceeding was held before the duly
designated Trial Examiner on August 20 and 21, and on
September 19 and 20, 1968, at Uniontown , Pennsylvania,
on separate complaints , the two consolidated for purpose
of hearing . One complaint , Case 6-CA-4055, was issued
on December 21, 1967, based upon a charge filed on
September 21, 1967, by Eugene Grimm . The other
complaint was issued on March 28 , 1968, the rests upon
two charges , Case 6-CA-4159 filed by John Gibson on
February 5, 1968, and Case 6-CA-4166 filed on .February
12, 1968, by United Steelworkers of America, AFL-CIO,
herein . called the Steelworkers . In each instance, the
Respondent or the Company involved , is Xaloy,
Incorporated . The essential issues are whether the
Respondent violated Section 8(a)(3) of the Act in the
discharge of six employees. Briefs were filed after the
close of the hearing by the General Counsel and the
Respondent.
Upon the entire record , and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Xaloy, Incorporated , is a New Jersey corporation with
its principal office in New Brunswick , New Jersey. At the
time of the events giving rise to this proceeding, it was
engaged in the manufacture and sale of fabricated metal
products in two plants located in Uniontown,
Pennsylvania . During the 12-month period immediately
preceding March 28 , 1968, the Respondent shipped goods
and materials valued in excess of $50,000 from its
Uniontown plants directly to points located outside the
Commonwealth of Pennsylvania . I find that the
Respondent was at all material times engaged in
commerce within the meaning of the Act, and that it will
effectuate the policies of the Act to exercise jurisdiction
herein.
II. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Teamster Local
Union No. 491, herein called the Teamsters , and United
Steelworkers of America, AFL-CIO, herein called the
Steelworkers, are labor organizations within the meaning
of Section 2(5) of the Act.
in. THE UNFAIR LABOR PRACTICES
A. A Picture of the Case
In the year 1966 the Respondent moved into
Uniontown, Pennsylvania , and established two plants. A
representation petition by the Steelworkers Union (Case
6-RC-4287) led to a Board -conducted election on January
6, 1967, which that union lost . In July the Teamsters
embarked upon a new organizational campaign , and filed
a second petition on August 4, 1967; this petition was
soon withdrawn because 12 months had not passed since
the last election . A very active organizer for the
Teamsters then was Eugene Grimm. He was discharged
on September 7, and a complaint here alleges that
dismissal was in retaliation for his union activities and
therefore a violation of Section 8(a)(3) of the Act.
As the end of the year approached, a move developed
toward signing up employees in the Steelworkers Union.
The Teamsters again filed for a Board election on January
3, 1968 (Case 6-RC-4604); the Steelworkers intervened in
that case and the Board conducted a second election on
March 13,'1968. Now 91 valid votes were counted: 24
against union representation , 5 in favor of the Teamsters
and 62 in favor of the Steelworkers . There were also 32
challenged ballots, presumably a group of employees who
have been laid off. As the results of the election were
conclusive , the Regional Director certified the
Steelworkers as exclusive bargaining agent.
The complaint alleges that at various times during 1967
and extending into early 1968, a number of coercive
statements , all in violation of Section 8(a)(1) of the Act,
were made by various management representatives said to
have been supervisors within the meaning of the Act. The
remaining critical allegation is that on January 3, when
the Respondent laid off a group of 41 employees, it
deliberately selected for inclusion in the mass layoff 5
persons who had been leaders in the union activities -
either for the Teamsters or for the Steelworkers - with
an unlawful intent to discriminate against them for such
activities . Therefore the discharges , on January 3, of John
Gibson, Robert Dodds , Edward Louis , Frank Glisen, and
Wilbur Daniels are each said to constitute separate
violations of Section 8(a)(3).
In its answer the Respondent denied the commission of
any unfair labor practices . As to Grimm it advances the
affirmative defense that he simply asked to be discharged,
and therefore in effect resigned . As to the five individuals
sent home in January in the general reduction in force, the
Respondent asserts that they were selected , as were 36
others , on the basis of a valued judgment of their relative
desirability as employees , but that in any event , there is
not sufficient probative evidence that they were in fact
chosen for unlawful reasons.
Two questions must therefore be considered with
respect to Grimm : ( 1) did he in fact leave voluntarily, or
was he discharged , and (2) if he was dismissed, was it
because of his union activities? The discrimination said to
XALOY, INCORPORATED
have, occurred in Jegary._p;esents a; different kind of
question. The charge' filed b, by the Steelworkers' Union
accuses the Company of having unlawfully discriminated
against all 41 rank-and-file employees who were sent
home at that time, but the complaint does not repeat this
charge. It singles 5 -out of the-total then chosen for
dismissal and alleges violations of Section 8(a)(3), only as
to them. With the Respondent asserting at the hearing, as
it told the employees at the time of the mass layoff, that
all were released because of economic necessity, and with
the General Counsel .making no contrary contention, it
must be accepted as fact, for purpose of decision here,
that there was economic need for dismissal of 41
employees. The theory of complaint is that the pinpointed
5 were included among the 41 - with malice aforethought,
and not that only 36 had to be released, or that the
Respondent discharged 5 more than was necessary in
order to hurt the, particular 5. Thus, unlike the case of
Grimm, who-was simply,sent packing, appraisal of the
considerations which pertain to the five men starts with
the fact somebody had to be dismissed that day. In such a
posture, the main issues requires a weighing of a number
of related factors which seemingly stand apart from these
individuals. How did the Company treat others who also
favored one or the -other of the Unions, did it retain any,
did it discharge them also, what was the percentage
probabilities that in any mass layoff a certain number of
unioneers would suffer in any event? Had the Respondent
taken pains to retain these five in order to avoid a later
charge of unlawful selection, because, as the General
Counsel claims, it knew they were ringleaders, would it
have been as guilty of violating Section 8(a)(3) for
preferential treatment of union organizers?
B. The Discharge of Eugene Grimm
Grimm started with the Company early in 1966, a
welder who later worked as machine operator and read
blueprints . He was discharged on September 7, 1967, and
the Respondent conceded on the record that neither the
quality nor fie quantity of his work performance had
anything to do with his departure . In July 1967 he became
active as an 'organizer for the Teamsters. Evidence as to
the extent of his activities and the freedom with which he
went about them, as well as of what various
foremen-supervisors said about them from time to time, is
of a certain importance ; what really matters as to Grimm
is that at the time of the discharge it was union talk
between him and a certain supervisor that precipitated the
discharge . I credit his uncontradicted testimony that he
distributed about 25 Teamster cards among the
approximately 50 employees in his plant during working
hours and at lunch, and that a number of cards , which he
supplied to others for distribution , were returned to him
signed . I also credit his_testimony that when he first went
to the Teamster Union hall, where he obtained the cards,
together with another employee - Lovis - he asked for
time off for this purpose of Rudy Havrilla, his foreman,
who granted it. Two days later, Hall, another foreman,
told him Lovis had been called into the office of Duvall,
the plant manager , and reprimanded for "on the job"
solicitation. As the two talked , Grimm said he too had
solicited , and Hall replied he could live without the
Union , why did Grimm need it? Grimm answered because
raises had been denied him and there was no job security.
A consistent contention of the Respondent throughout
this record is that its foreman , which it called leadmen at
the hearing , were not supervisors within the meaning of
695
the Act . On the total evidence , as will appear below, I
find that they were supervisors . Among the evidentiary
facts supporting that conclusion is foreman Havrilla's
participation , as well as that of foreman Van Sickle,
together with the higher officers in the management
conduct which constituted the discharge of Grimm.
Grimm testified that during lunch, on September 5, he
and employee John Sellong were discussing unions and
union wage rates, and that Havrilla was also present.
Grimm said that "union companies were paying a much
higher rate than we were receiveng ." The foreman threw
in the remark : "Grimm, you will never get a better job
through a union ." At this point, still according to Grimm:
"I went on to tell him that if we weren't going to get
Local 491 of the Teamsters Union in there so that I could
get a decent wage that I knew I was worth, then I would
be better off if he would fire me ; then , I would not have
to go out and find a better job."' Havrilla "laughed" and
walked away.
Grimm continued to testify that during that afternoon
Edgar Van Sickle , also a foreman , asked him "What is
this you are asking Rudy Havrilla to fire you, what is this
all about ." Grimm denied having asked to be discharged,
and said he had only told Havrilla he, Grimm , "would be
better off if he would fire me rather than work under
these present working conditions ." Van Sickle said
nothing then.
Two days later Grimm , who had acquired a Teamsters
book , was showing it during the morning coffee break to
two employees, Don Bolen and Jerry Van Sickle , foreman
Van Sickle's brother. Again Havrilla approached , took the
union book in his hand , looked at it , and returned it to
Grimm . Forty five minutes later the foreman was back
and took Grimm into the office of Martin Roth , the plant
manager.
As with the earlier conversations , there is a conflict in
the testimony also as to what took place in the offices that
day. Continuing the story still as Grimm told it, with both
foremen - Van Sickle and Havrilla - present, Roth
asked "if I had asked Rudy to fire me ." Grimm said
"No," and then called both Roth and Havrilla liars. Roth
told him only to go back to work.
Within 15 minutes Havrilla again went to Grimm's
workplace and escorted him this time to the office of
Dulaff, the top man in the plant. Roth was there and
again both foremen - Havrilla and Van Sickle - stood
by. Dulaff asked whether he "wanted to be fired or quit."
Grimm insisted he was not quitting and did not want to
be discharged . To this Dulaff simply said : "Well, I am
going to consider that you voluntarily quit employment."
Whereupon Grimm was ordered to punch out and leave
the plant . He left and never returned.
In contrast to the foregoing version of events, the
composite story of both foremen , Havrilla and Van
Sickle , and of Roth - Dulaff did not testify - is on its
face utterly implausible and internally inconsistent.
Havrilla started by saying that a few days before the
discharge Grimm "asked me if I would fire him , that he
could get a better job," that he , the foreman , then asked
"If you can get a better job, why don't you just quit?",
and that Grimm answered "he had to be fired to get the
better job . . . making a dollar more on the hour . . . I
told him I couldn 't fire him ... that if he wanted to leave,
to just quit." The Respondent made no attempt to explain
The word not in the last phrase of Grimm's testimony as it appears on
the record , was an obvious slip of the tongue. He intended to say that in
that event he "would have to go out" and find a better job.
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the complete failure of logic in the words thus attributed
to Grimm by its witness Havrilla.
Foreman Van Sickle put different words into Grimm's
mouth. He said that 2 or 3 days before the dismissal "He
[Grimm] asked me if I could take some action to get him
fired," because "firing to him would be a new experience
because he had never been fired from a job before .... I
just asked him that if he did not like it there, why didn't
he leave .... He didn't want to leave, he would rather be
fired." Again, for what conceivable reason a man would
desire to experience a discharge sensation , no one offered
to explain.
The defense becomes more muddled with the manager's
testimony of how and what he heard about all this. Roth
said Havrilla reported that Grimm had said to him
(Havrilla) "I want you to fire me, I have never been fired
before, I want to find out what it is like." But this is
foreman Van Sickle' s version of what Grimm is alleged to
have said, and quite different from what Havrilla himself
testified he heard. It is clear, therefore, that the witnesses
for the defense were not able to keep their stories straight.
This is what happens when lies are told.
There is also the matter of how Roth learned of
Grimm's jest with the foreman. To further support the
contention Grimm simply desired to be discharged, the
Respondent offered the testimony of Jerry Van Sickle, the
foreman's brother, who said Grimm once told him of his
intention to seek discharge. "... but I thought he was just
joking. I mean, we joked back and forth, we always kid
each other back and forth." Sellong, an employee called
by the Respondent, testified about Havrilla's duties on the
job, but also said that Grimm's remark was a jest: ".. .
he was laughing about it when he said it.... I even asked
him [Havrilla] myself to be fired. I was joking too." The
foreman, Edgar Van Sickle, although seriously disclaiming
at the hearing any status as an agent of management,
blandly said he checked with foreman Havrilla on this
matter, and then reported in to the plant manager.
Havrilla testified that "the next day" Roth asked him
"what the story was"; he said it was not he who
volunteered to inform Roth, and explained that "Roth
evidently saw me talking to Grimm." Havrilla then was
foreman over about 20 men, and no doubt talked to many
of them time and again all day. Roth's office was 200 feet
away from the fabrication section where the foreman and
Grimm talked. In these circumstances, why should Roth,
out of the blue, ask him "the next day" what had been
said at that pinpointed exchange of words a day before? I
think more likely it was Havrilla who volunteered an idea
to Roth when he saw Grimm's union book on the
morning of the 7th, shortly before the man was
discharged. When asked had he in fact seen Grimm's
book, Havrilla equivocated. "One day, he showed me
something, but I don't recall, I can't tell you what it was,
I didn't see what it was. It was a card of some sort, but I
don't remember whether it was a union card or what it
was . . He just reached in his pocket and pulled
something out and show it . . . I just glanced at it, I
couldn't see what it was." I credit Grimm, and find that
foreman Havrilla asked to see his union book less than an
hour before bringing him into the manager's office.
The company witnesses' testimony of what was said in
the offices of Roth and Dulaff is equally unconvincing. To
begin with they were confused as to what was said in
Roth's presence only, and what was said later when both
Roth and Dulaff badgered Grimm. It is clear, however,
that Grimm was first questioned by Roth, who just sent
him back to work, and later again with both managers
present. Foreman Havrilla started by saying that Dulaff
asked "if that was true, that he had asked me [Havrilla]
to fire him," that Grimm answered "he was only joking
about it," and that Dulaff then said "he would accept his
request to be terminated." Havrilla then added that when
no one would believe him, Grimm became angry and
called both Havrilla and Roth liars. Foreman Van Sickle
recalled it differently. According to him, the first talk was
only with Roth and the two foremen present, that Roth
asked had Grimm requested discharge, that the answer
was "that he had, but by me not being a foreman, that he
was only joking with me," that Roth then "asked why he
didn't quit," and that Grimm replied "he didn't want to
quit, because if he was fired, he would have another job to
go to." But Roth persisted, and again asked Grimm "if he
still wanted to be fired," with the employee then saying
"he didn't know right now, that he would have to check."
Van Sickle also recalled Grimm called Roth a liar, but
was finally told "to forget the issue and go back to
work." This foreman's story continues that a little later,
with Dulaff present and Grimm called in again , Dulaff
asked "Grimm if it was still his wish to be fired, and
Grimm told him that yes, it was," whereupon Dulaff
added "We will oblige you," and discharged him. In the
face of this direct testimony that Grimm told Dulaff he
wished to be discharged, Van Sickle also said clearly and
directly that Grimm that day called Dulaff a liar in his
office.
Again Roth's version is different from that of his
foreman. According to him, when he first asked had
Grimm requested discharge, the answer was: "Marty, go
ahead and fire me if you want to . besides, you are
nothing but a liar." Later, after sending the man back to
work and then recalling him to the office to confront
Dulaff, Dulaff asked, still as Roth testified, "Mr. Grimm,
I understand you want to be fired," Grimm said "I was
only joking," and Dulaff "accepted" the resignation.
Quite apart from the difficulty these three witnesses had
in trying to keep their stories straight and consistent, one
thing is clear, everyone understood without question
Grimm did not want to leave his job at all. With the
witnesses admitting he became angry and called two of
them liars, there can be no doubt Van Sickle lied outright
when he went as far as to testify Grimm told Dulaff he
did want to be fired. I do not believe these men.' I find
that the Respondent seized upon Grimm's jesting remark
to foreman Havrilla while explaining why he favored
having a union, and used it as a pretext to discharge, not
because of his manner of jesting, not because he used the
word liar to anyone, but because he really favored the
Teamsters, as witness foreman Havrilla's examination of
his union book that very morning. It was not the first
such unlawful discharge in this plant. In June 1966 the
Respondent discharged John Cudzillo, and, after formal
hearing (Case 6-CA-3653) a Trial Examiner found the
discharge to have been motivated by Cudzillo's union
activities and therefore a violation of Section 8(a)(3) of
the Act. The Company filed no exceptions to this finding
and reinstated the man to his job. I find that by
discharging Grimm on September 7, 1967, the Respondent
violated Section 8(a)(3) and (1) of the Act.
'In its brief the Respondent argues that Grimm should be discredited
because of variances in his testimony as to precise dates in July and
August when he distributed Teamster cards and when he was spoken to by
foremen The attack on credibility centers primarily upon the fact he was
sure he himself signed a Teamster authorization card in July and obtained
a Teamster book in September . An exhibit placed in evidence by the
Respondent, captioned "Authorization cards signed for Teamster Local
XALOY, INCORPORATED 697
C. Supervisory Status of the Foremen
Evidence of union animus in the Respondent centers
primarily upon statements made by foremen, in both
plants and on the day and night shifts, during the last 6
months of 1967. There were at the time about 150
employees overall, about 70 percent working days and the
remainder from 4:30 p.m. to 2 a.m., the second shift. The
Company disclaims responsibility for the activities of its
foremen on the ground that they were not supervisors as
defined in the Act. Roth was plant manager over both
locations and David Dulaff was vice president and general
manager, also dividing his time between the two plants.
Their regular hours were from 8 a.m. to 5 p.m., although
at times they remained late. Dale Eicher, formerly a
foreman, was night superintendent, in charge of both
plants, located 5 or 6 miles apart. The Company would
have it that no one but these three exercised any statutory
supervisory authority over the entire complement. The
question is whether the foremen classification, which
functioned between the three top men and the
rank-and-file employees, were possessed of sufficient
indicia of supervisory authority as to fall within the
statutory definition of the term. The critical rule of Board
law in point was stated in Research Designing Service,
Inc., 141 NLRB 211:
While it appears that none of these individuals had the
authority to hire, discharge, or effectively recommend
such action , an individual to be a supervisor within the
meaning of the Act need have only one of the indicia of
a supervisor enumerated in Section 2(11) of the Act.
Inasmuch as the record establishes that these three
exercised independent judgment in assigning men to
jobs, we find, in agreement with the General Counsel,
that they are supervisors within the meaning of the Act.
491 prior to January 3, 1968," lists 66 names but does not include Grimm.
In his brief, counsel for the Respondent argues this is proof positive
Grimm never signed a Teamster card and therefore lied in every respect at
the trial.
In the course of the hearing, the Respondent called upon the General
Counsel to produce all the union authorization cards in his possession, for
the purpose of showing that when 41 employees were laid off on January 3,
1968, there was a large number of card signers who were retained, an
indication the Respondent did not then deliberately select union adherents.
It was in response to this request that the General Counsel furnished two
lists to Respondent 's counsel , the one already mentioned here, and another,
listing 59 names , captioned "Authorization cards signed for United
Steelworkers of America, AFL-CIO prior to January 3, 1968." This latter
exhibit, also received in evidence , has the following phrase inserted in ink
handwriting on the caption : "Of employees working."
On November 29, 1968, the General Counsel filed a motion "To Amend
or Clarify" these two exhibits , and to reopen the hearing for the purpose of
placing Grimm 's authorization card into evidence . His explanation of this
request is that when he produced the two lists , it was explicitly understood
between him and Respondent 's counsel that the data was limited to those
employees who were still at work on January 3, when the layoff selection
was made, and that any card signers who had left the Company before that
date where not included . The Respondent opposes the motion primarily on
the ground that Grimm' s union card is not newly discovered evidence.
The motion to amend and clarify the two exhibits is granted . The logic
of the moment when the lists were produced by the General Counsel
supports the request; whether or not employees who were no longer with
the Company when the layoff selection was made, had also signed cards,
was irrelevant to the question raised . Moreover , the second exhibit
indicates on its face that it is limited to employees then on the job. And
finally, Grimm 's testimony that he himself signed , besides widely soliciting
others, is uncontradicted and supported by that of other witnesses. I am
satisfied he did sign a Teamster card, and find it unnecessary to rule upon
the motion to reopen the record.
The following pertinent facts stand on the admission of
the plant manager. In 1967 the foremen had desks in the
work area, and later offices were built for them. They
assigned work to the employees in their respective
departments, showed them how to do it correctly, brought
errors to their attention and had them correct mistakes in
the products, shifted employees from one assignment to
another when work ended or for other reasons, attended
biweekly foremen' s meetings in the offices or conference
room where production and personnel problems were
discussed, recommended raises or other changes in status
and issued warning slips.' It is also a fact, as told by a
number of employees and admitted by various foremen,
that it was they who granted requests of employees to
leave work early and corrected and initialed their
timecards when punched by mistake. The record also
shows that whereas the vast majority of rank-and-file
employees were paid between $1.95 and $2.75 per hour,
foreman John Hall received $3.40, foremen McGibbon,
Slampack and Havrilla received $3.30 per hour, and
Frank Hicks received $2.80. Of the 88 employees who
remained after the January 3 mass layoff, 5 received $3, 1
received $3.10, 2 received $3.20, and 1, Colbert - a
former foreman - was paid $3.30.
In disputing the assertion of supervisory status, the
Respondent relies on the further facts that foremen were
hourly paid, punched the timeclock, and received overtime
pay. It is also clear they did not have authority
independently to grant raises, to discharge or hire
employees, or to take direct disciplinary action.
As to how the foremen spent their time in the various
departments, the testimony is overly detailed, often in
general terms and confusing, and necessarily vague.
Several employees said the foremen spent almost all their
time walking about the departments checking on the work
generally and just supervising; some said they did not see
the foremen do production work with any regularity. The
foremen, in turn - those who testified - speaking largely
in response to purely leading questions by counsel for the
Respondent, tried to make it appear they were no more
than instructors who worked all day themselves. The truth
lies somewhere between the extremes. No doubt at times
they actually produced a manufactured article to illustrate
how the work should be done; they repaired tools,
maintained and adjusted machinery, helped more the work
along. Foreman Slampack admitted it was his
responsibility if a man did not work as told, to bring the
matter to the attention of somebody else, and that part of
his work was to see that "the assembly jobs were
completed on schedule." ". . .if I thought he was not
doing his job right there, I would take him away from
there and put him on another job, and put somebody else
on the job he was doing." Inexplicably at variance with
the entire contention that the foremen were not
supervisors, Roth testified that he had instructed all of
them "not to get involved in any discussion with the
employees pertaining to the Union," that this order had
been passed down to him "from upper management." And
it was in accord with this position that the Company
challenged the ballots of foremen in the January 1967
'In explaining how foremen consulted him about "problems," Manager
Roth gave the following as an example:
... for an example , they thought maybe a particular individual wasn't
doing as good a job on one particular job , and they thought that by
talking to me, maybe I could advise them and put them on a different
job, and they would consult me to see if that would be all right with me;
and, I would tell them that if they thought a man would do better on
another job, to put him on that job.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election on the ground that they were supervisors.
I conclude that the record as a whole warrants a
finding that these foremen exercised sufficient independent
judgment in their day to day supervision of the ordinary
employees , and that their opinions of the work
performance of employees under them were so weighty
with management, as to place them within the statutory
definition of supervisors . If the question is at all in doubt,
it is definitively resolved by the part foremen Havrilla and
Van Sickle played in the discharge of Grimm , and the
extent to which the plant manager relied upon their
opinion as to the work performance of a great number of
employees he chose to discharge in January 1968. If
Havrilla was no more than an ordinary production and
maintenance employee , how could anything Grimm said
to him be viewed as a "resignation" by vice president
Dulaff? One does not resign his job to the man on the
next machine . Van Sickle and Havrilla may have been in
Roth's office, when Grimm was first called in, only to
verify what he had said in the first instance , but the
presence of both foremen again in Dulaff's office could
only indicate they were considered part of management in
the very act of dismissal . At one point in his testimony
Roth said that he decided to discharge some people whose
paper records were not as bad as those of others , because
the comparative individual work production records of the
individuals were more important to him. He also
admitted , however , that he personally had no knowledge
of such matters , and that there did not exist any records
he could use. He said he talked to the foremen on January
2 to help him decide who to let go the next day. On the
basis of their opinion of the work performance of this or
that workman , therefore, he made his selection. In the
light of the clear evidence that it was in fact the duty of
the foremen to see to it that the employees in their
respective departments did the work they were assigned to
do, and did it competently, it would be difficult to view
their determinative opinions as anything but effective
recommendations . I therefore find that foremen Havrilla,
Edgar Van Sickle , Frank Hicks , John Hall and Albert
Slampack were supervisors as defined in the Act.
D. Violations of Section 8(aX l )
Ten employees gave testimony of coercive statements
by management representatives during the course of the
Teamster organizational campaign in 1967, and in 1968
when the Steelworkers prepared for the March election.
Part of this testimony is uncontradicted , some of it even
conceded , and therefore perfectly credible . Some was
controverted by the foremen involved. Shortly after
Grimm and Lovis started soliciting signatures to union
cards in July and August 1967, Lovis was called into the
office of Mr. Duvall, who said he had heard Lovis wanted
to have a union. When Lovis said yes, Duvall said "Do
you want a con for a leader," and then , displaying certain
papers from his briefcase, added: "Do you know what
these are? . . . These are raises for yourself and several
other workers in the plant , which if you get a union in,
nobody will see them, they will go into the garbage can.,,
Dulaff then told Lovis that if he wished to continue
distributing union cards, he must do so on his own time,
or at coffee breaks, but not on company time . Dulaff did
not testify , and Roth , who had been present, recalled his
superior did demand there by no solicitation on company
time . Roth said there were no threats voiced , but I credit
Lovis. It is not claimed there was need for preventing
solicitation on so broad a basis, and other forms of
solicitation were being permitted on company time. In the
circumstances , Dulaff's announcement of the new rule, at
that particular moment , especially coupled with his threat
to withhold raises in reprisal for the employees'
persistence in exercising their statutory right to
self-organization , was a form of unlawful restraint in
violation of Section 8(a)(l) of the Act, as, of course, was
the threat itself.'
Wilbur Daniels testified that in August foreman
Slampack told him: ". . . you better quit passing out those
union cards and poisoning these other guys' minds, if you
know what side your bread is buttered on. Don't overlook
the large family you've got, you've got a bunch of kids
you've got to look after. You can't afford to go without a
job." Daniels also testified that on another occasion
foreman Slampack said to him "that he had Rudy
Havrilla watching me, that if they found out that I was
talking to Grimm, I would get it." Daniels went on to
recall that Slampack continued the harassment into
September : "Stop poisoning these guys ' minds about the
union . In case you don't know it, Marty Roth is watching
you and he is going to catch you. . . . You are going to
cause a lot of those other guys to lose their jobs too."
That same month , still according to Daniels, Dulaff, the
vice president , told him: "Mr. Slampack has been giving
me some bad reports on you. Did you go over and talk
about the union to the rest of the guys at the other
plant?" Dulaff then called the Teamsters Union "nothing
but a bunch of murderers," and in response the employee
asked him: "Dave, where is that raise you promised me?"
At this point Dulaff went down to say: "I will tell you
what you do. You keep that union out of here and you
guys will be making better than $3 an hour , better than
union wages.... Mr. Slampak is your foreman. If you do
the right thing , Mr. Slampak will let me know ; and, in
return, I can do something about it."'
Daniels also testified to a conversation he was having
one day after lunch with Paul Guerriere , another
employee; they were talking about the Union. Slampack,
who was present , told them : "That' s all right, you guys go
ahead and get a union and you won 't even have a job."
As Guerriere, who also testified , recalled , Slampack at
that time said: "That's all right , you guys go ahead and
get the union in and nobody will be working." Guerriere
also testified that Slampack once told him: "I don't know
why that God Damned Daniels has to keep stirring up this
union . . . . He's got a big family to feed and he is going
to get himself fired ." Guerriere added Slampack used to
call him a "good union man ," and once brought a new
employee to Guerriere with : "Here is another good guy
you can brainwash on the union ." The witness then closed
his testimony with saying that after being cautioned by
Slampack not to talk with Cudzillo, "I wasn 't permitted
away from the assembly area at all ...."
Slampack denied all talk with any employee on the
subject of the Union; he said this was because he had been
instructed by management not to speak on the subject. He
did remember telling Daniels not to leave early "for his
'Ward Manufacturing, inc., 152 NLRB 1270.
'The record as a whole leaves no doubt the Teamsters union campaign
started in the summer of 1967. Daniels was discharged on January 1%8.
According to the record transcript , Daniels appears to have said at the
hearing that this statement was made by Dulaff in February . There was a
motion by the General Counsel , filed with his brief, to correct the
transcript in this detail by changing the word "February" to "September."
No opposition to the motion was filed. I am convinced the word February
appears as a typographical error, and therefore grant the motion to correct
the transcript.
XALOY, INCORPORATED 699
own benefit ," but explained he had only done this because
the man "had six children ." He also pinpointedly denied
telling Daniels or any employee they were being watched,
or not to speak to any particular other man about unions;
but the testimony that Dulaff warned Daniels there were
"bad reports" coming from foreman Slampack stands
uncontradicted . And Guerriere corroborated Daniels as to
Slampack ' s statement to the two of them that their jobs
would be lost if the Union prevailed . I do not credit
Slampack ' s denials. I therefore find that by foreman
Slampack ' s threats , to Daniels and Guerriere, that
persistence in union activities would mean loss of jobs, by
his statements to Daniels that foreman Havrilla and plant
manager Roth were watching him, and by vice president
Dulaff's statement to Daniels that foreman Slampack was
reporting the employees ' union activities and his promise
that the employees would receive raises if they
discontinued their union activities , the Respondent
violated Section 8 (a)(l) of the Act.
There is also testimony concerning Edgar Van Sickle,
who testified for the Respondent but contradicted none of
this . I therefore credit Daniels' testimony that in August
foreman Van Sickle told him: "You better watch yourself
passing those union cards out , you are going to get it." I
also credit Glisen's testimony that once in October, when
he asked Van Sickle for a raise, the foreman said to him:
"Well, you are overpaid now.... If you don ' t think you
are getting enough money now, wait until the union gets
in here. . You probably will be going out the door."
Van Sickle tried to persuade Glisen to stay out of the
Union , but Glisen said he would continue to favor it. I
find that foreman Van Sickle' s threat to both Daniels and
Glisen that their jobs would be endangered by union
activities were violations of Section 8(a)(1) of the Act.
Another foreman was Larry Hicks . In December he
heard Eugene Johnson and Michael Cossick discuss the
union campaign as they worked . They complained about
the cramped posture the work required , and Hicks said:
"You think it ' s bad now , wait until the union gets in."
The men then told him that with a union in the picture
they would be doing the work for which they had been
hired . Hicks was not called to testify.
Cossick also testified that in December , when union
leaflets were being distributed , he asked Dale Eicher, the
night superintendent , had he received one. Eicher
answered , according to Cossick : " If you don't watch what
we say, we might be out of a job." As to the
superintendent there is also testimony by Robert
Heinbaugh, who said he asked Eicher "about the men
wanting a union ," and that the superintendent answered
"if the union would come in here, we would go back on
40 hours, the company is not going to pay time and a
half. The men out there on the floor will be laid off, and
you can ' t be guaranteed as a layout man." Employee
Robert Klink testified that Eicher once told him
"something about if a union was voted in or if we got the
union in, that the plant could close down until November
or longer . He said that the plant could close down
until November or it could close down indefinitely."
Like Slampack , Eicher also said at the hearing that he
had been instructed not to speak of the union at all with
anyone in the plant , and accordingly denied talking to any
of these witnesses , as well as with any other employee, on
the entire subject . He also expressly denied making any
threats or inquiries.
Foreman Hicks did not testify. The testimony of
Cossick , Heinbaugh and Klink is not only internally
corroborative as to Eicher 's statements about the union
activities, but is consistent with the coercive statements
made by other supervisors as found above . For these
reasons, as well as from my appraisal of the demeanor of
the witnesses , I credit them . Accordingly, I find that by
foreman Hicks' statement that working conditions would
be harsher with a union representing the employees, by
superintendent Eicher ' s threat that employees would lose
their jobs, or be laid off, and that the entire plant might
be closed, the Respondent violated Section 8(a)(1) of the
Act.
E. The Allegations of Illegal Discrimination
in the Economic Layoff of January
As stated above, these two plants came into existence in
1966, one at the beginning of the year and the other in
November . A month later a general layoff was necessary,
and 26 employees were released ; the selection followed
seniority . On January 3, 1968, another reduction in force
took place - strictly for economic reasons - and of the
approximately 150 persons working at both plants 41 were
dismissed . In general , the reduction continued - although
a few men were recalled in January and some new people
hired - with one plant closed entirely by February 28,
and the other discontinued by June, with all the employees
terminated.
The complaint picks 5 of the 41 and asserts they were
consciously selected for such early discharge because of
their prounion activities , and this was discrimination in
employment in violation of Section 8(a)(3) of the Act. It
is clear they would have been dismissed in a short time
anyway; apparently, according to the complaint , these 5
men should have been kept on a little longer . There is no
direct evidence of an intent , at the time of the layoffs, to
hurt these particular persons for such reason . There is no
allegation, nor is it argued , that management may have
aimed its illegal objective against Lovis , or Dodds, or
anyone or two of these men, and perhaps not have meant
to retaliate against the others . The thrust of the
prosecution is not directed towards the men individually,
as though any one could be considered apart from the
others constituting the group of five. It is an all or
nothing theory; either the evidence supports the complaint
as to all, or it fails as to every one of them.
And this is because the Respondent ' s contention that 41
men had to be let go is not disputed by the Government.
If the five men named in the complaint had not left that
day, five others , who remained, would have had to go in
their instead . It is the manner in which plant manager
Roth made his selection from among all of the 150 that is
faulted by the General Counsel. Significantly , however, no
positive suggestion is made, as indeed none could properly
be advanced , as to precisely which 41 he should have
chosen. More in point , it is not claimed that any other
five named persons should have been laid off, and not
kept on, to permit retention of these five. And consistent
with that logic , none of the five men is compared - in
terms of any objective, lawful and measurable criteria -
with any single employee who stayed . For example, it is
not said that because Glisen was absent from work only 9
days during 1967 , the Respondent should have laid off,
instead of him , Gergely, or Kollar, or Breman , each of
whom was absent 58, 57, and 79 days, respectively. There
may have been other pertinent factors - perhaps seniority
or production capacity - which dictated otherwise. This
position is indeed forced upon the General Counsel, for 8
of those who remained were never absent at all, and 13
lost no more than 2 days in 12 months . In short, it is
argued that the pinpointed 5 must be appraised as a
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
group, both with respect to their union activities and their
record of performance, and collectively weighed against a
comparable, overall, group appraisal of the 95 persons
who remained.
All this means that the question is one of inference,
whether consideration of all factors relevant to the
Respondent's mass layoff action on January 3 proves the
complaint allegation. Suspicion alone, of course, is not
enough. There always rests upon the complaint the
affirmative burden of proving, by a preponderance of the
substantial evidence in the entire record, that in fact these
five were selected for the reason asserted. Mere failure by
the Company to convince the Board, on any outsider, that
the reasons stated by Roth at the hearing were the real
ones, will not suffice to prove an unfair labor practice. In
my judgment, the evidence is insufficient to carry the
burden of proof in this respect.
As always in cases of this kind, there are facts pointing
to illegal motivation, and offsetting factors running
counter to the inference sought. The Respondent was
opposed to having a union represent its employees, even to
the extent of resorting to illegal conduct to achieve its
proscribed objective. Witness the many coercive
statements in 1967 violative of Section 8(a)(l), the illegal
discharge of Grimm in September, and the improper
dismissal of Cudzillo in 1966. Lovis, Daniels, Glisen,
Gibson, and Dodds were active unioneers and the
Company knew it. In August general manager Dulaff told
Lovis to restrict his solicitation activities in the plant to
his own time - at lunch or coffee breaks. Daniels was
told three times, in August and September, by foreman
Slampack and Van Sickle, and by Dulaff himself, he was
being watched in his union activities. In October Van
Sickle warned Glisen, and said he would be "going out the
door" if the Union prevailed. Gibson also was warned by
a foreman, Gibbon, "somebody is out to get you. Dodds
was active in 1966, and Dulaff back at that time asked
him how he felt about the Union. Beyond this, all that
appears is that he helped Cudzillo, in December of 1967,
to distribute Steelworker cards. Evidence that
management then knew what he was doing is limited.
The fact of union activities by discharged employees,
known to the employer, is certainly to be considered on
any issue of motivation. In view of the question here,
however, similar activities, possibly also known to the
Company, by employees who were treated differently, or
who were also discharged, cannot be ignored. Had these
been the only employees doing what the Respondent
resented, the discharge of them all, even granted the
necessity for releasing a much larger number, would be
very revealing indeed. The fact of the matter is there were
many others who favored one union or the other; of the
95 or so who remained no less than 66 signed
`Gibbon is a Scotsman , apparently brought to this country by the
Respondent as part of its original plan to start the Uniontown operation
with skilled workmen . Several of the five also came from Scotland , and the
group were therefore friends and spent much time together off duty. There
is evidence that during the activities in behalf of the Teamsters in July and
August , these men used to meet in a cafe and do much talking about the
advisability of unionism , comparing it with unionism back home. Gibbon
was quoted as speaking against any union, at these friendly gatherings of
old country cronies, and the General Counsel asks for a finding that his
words to the fellow Scotsmen were unlawfully coercive, and binding upon
the Respondent . In the circumstances , it would strain matters to hold
Gibbon a spokesman of management in these cafe meetings. His statement
to Gibson to "watch himself ," however , must mean someone over Gibson
in the Company was indeed aware of Gibson 's prounion leanings, for the
least.
authorization cards for the Teamsters, and 59 for the
Steelworkers, all before January 3. In his brief, the
General Counsel states these five were the only persons
soliciting cards for the Teamsters. The assertion is not
fully supported by the record. It is true only these, of the
witnesses who were called, said they did so. There is
indication they attempted obliquely to create the
impression no one else was involved, for they exaggerated
as to the extent of their solicitation activities. Here and
there they approximated how many signatures each
obtained: Daniels - 14 or 15; Glisen - 20; Gibson - 14
or 15; Dodds - 4 or 5. Lovis described himself as one of
the two prime actors; he said they - meaning Grimm and
'himself - signed up all of plant No. 2 except 3 men,
perhaps 50 persons, but forgot to credit himself with a
particular number. Anderson, an employee who quit
before 1968, also solicited, to an extent unknown. And
then there was Grimm himself, who was discharged in
September. He said he alone obtained 30 signatures. But
these numbers exceed the number of card signers shown
on the exhibit. Could Glisen have been right instead, when
at one point in his testimony he said he got 20 cards "with
the help of Glisen, Daniels and Dodds?" If so, there must
have been others, unmentioned at the hearing, who also
solicited, and whose activities, if knowledge by
presumption can be found, were also known to
management.
Assuming these five were the ringleaders, does it follow
the Company knew this exact fact also? The specific
finding would have to be inferred, for no direct evidence
so indicates. But if there is basis for inferring - perhaps
from the size of the two plants or for other reasons -
that management spied with such detailed success, it must
also be found the Company knew who had signed cards.
With this, the argument that all culprits were weeded out
starts to weaken. A number of employees who had signed
were also laid off, while still others were retained. and
when employees were recalled - because of unexpected
need later in the month - eight of the machinists who
returned were card signers.
Of greater substance than speculation on company
knowledge or ignorance of card solicitors and card
signers, is the testimony showing a wider employee
participation in the union activities and a more extensive
knowledge and reaction by management. Every employee
called by the General Counsel for his case-in-chief told of
being warned, or' at least subjected to the Company's
antiunion campaign , before January 3. Cudzillo, the only
other government employee witness, was called in
rebuttal. He had been discharged in 1966 because of his
own union activities. There is no reason to believe that of
all the 150 employees these 10 - the witnesses - were
the only ones whose union predilection, if not more,
became known to the Company, nor that there were not
also additional workmen similarly warned or threatened.
Klink said superintendent Eicher voiced a threat to him to
close the plant to November; this must have come before
the layoff. Eicher also knew in December that Johnson
went to union meetings , for he asked the man was
anything said about Eicher at the meeting. Neither Klink
nor Johnson were discharged. Foreman Slampack called
Guerriere a good union man, capable of "brainwashing"
others. Guerriere was laid off on January 3, and while one
of the charges names him as having been unlawfully
treated, the complaint ignores him, thus raising an
unanswered question . It is no less unlawful to discharge a
"good union man" than it is to send home a more
prominent activist. Was Guerriere passed over in the
XALOY, INCORPORATED
complaint order not do-dull the^halo of the special five?
But all of these ,-- whether - maned in the complaint or
-not, had done their prounion stint 4 or 5 months before
January. The really-active man-in December was Cudzillo,
who started things, for the--Steelworkers. He solicited
extensively then, and the foreman told the employees to
stay away from him like the plague. Yet he too survived
the reduction in force . Retention of this man must be
deemed some support, whatever the weight accorded, for
the defense assertion that the basis of selection was not
union business .' With at least three employees retained,
despite -company knowledge as to them, plus the
possibility - not precluded by the record as made - that
other known union adherents may have remained, the
mathematical probabilities of a random hand falling upon
a percentage of unioneers in any event becomes an
element that must be considered.
In December 1966 the Respondent laid off 26
employees strictly in accordance with seniority. This time
it did not , and all five named in the complaint were
among those selected out of seniority. On December 29,
only 4 days before the selection, was, made, the
Respondent received a letter from the Teamsters Union
demanding recognition. That Roth may have hit upon the
idea, at that convenient moment , of bypassing seniority in
his choice of employees in order to catch Levis, Dodds,
Glisen, Gibson and Daniels, all of whom had assisted that
union the summer before, is a very positive likelihood.
And yet it would seem that every coin in this bag of
pertinent factors has two faces ,. In ;December 1966 one of
the two plants had been in operation only 1 month, and
the Company -necessarily knew less of the relative
production capacity of its individual employees and had
only brief - records of their attendance or behavior. Also
pertinent now is the fact seven other - employees , besides
the five in question , were .released out of seniority in
January 1968.
Despite all this, the fact of having departed from
seniority , the selection of such a high percentage, even if
not all , of the activists for the Teamsters , the timing of
the Teamster demand and the departure of all these men,
coupled with the background of antiunion animus and the
threat of discharge in some instances voiced to these very
employees , do raise a disturbing suspicion of illegal
scheming in the layoff selection . In fairness , however,
some thought must be given =to Roth's insistence of the
grounds he used to choose . He said he considered four
objective criteria to start with - sick leave absences, plain
unexplained absences , time lost by coming late for work,
and time lost by leaving early . These are matters that
were recorded , and the . personnel cards received in
evidence make possible a very precise comparison of those
who left and those who remained . Roth also testified that
he considered the production records of all the employees,
how well or how much they worked, and therefore in
some instances retained persons with poorer written
records in order to keep better producers now that the
overall complement bad to. be shrunk . He admitted this
element in his thinking was vague , he had no personal
knowledge of individual work performance , and, of
course, nothing was produced to give concrete , objective
'In the General Counsel brief appears this statement : "It can hardly be
contended by Respondent - that the latter's [Cudzillo's] retention after
January 3 rebuts any' inference of discrimination , particularly since
Cudzillo had formerly been discharged unlawfully and ordered reinstated
by the Board ." I find no merit in this argument , for it rests upon an
unwarranted implied assumption thar the discharge of any reinstated
employee automatically constitutes an unfair labor practice.
701
support to his pure self-serving expression of opinion when
he detailed how this man was better than that one as he
commented upon a long list of individuals. Given the
background of hostility towards any union , this part of his
explanation was unconvincing; it presented little that could
be deemed probative.
The attendance records that do exist give support to
part of Roth's asserted grounds of selection. And it is
important at this point to remember that the case against
the Company does not rest upon comparison of any one
of the alleged discriminatees with any single employee
who remained, but only upon a weighing of the 5-man
group as a whole against the total picture of the 95 who
were, in a sense, selected for retention. And this can only
be accomplished by comparing the average experience of
the five against the average of the larger group. The
records in evidence all cover the calendar year 1967.
During that year the 5 men worked a total of 53
months instead of 60; 2 came to work after the start of
the year and 1 quit for a 3-month period. Their individual
employment records show the number of days absent
(whether sick or for other reasons being of no significance,
because the same distinction appears in all of the records)
and time lost from work, mornings or evenings, in
minutes . The five men were absent from work 103 days in
1967; for 53 months worked, this averages 3 days absent
per month per man. The 5 men also lost 2,676 minutes
from work for late arrival, and 10,041 minutes for leaving
early. Dividing each of these totals by the 53 months
worked, it appears that the average monthly experience
for each man was 50 minutes lost in the morning, and 190
minutes lost at the end of shift.
For the large group which continued to work, the
General Counsel prepared summary sheets reflecting the
pertinent data taken from the voluminous records in
evidence, and attached them to his brief for purposes of
argument and as a convenience to the Trial Examiner.
They show slight discrepancies but not of such magnitude
as to affect the total picture substantially. The days absent
summary lists 94 employees retained, after exclusion of 2
supervisors - Hicks and Havrilla - and 6 whose names
were added because they were recalled after having been
laid off on January 3. The late arrival and early departure
summaries show only 101 names all told, thus leaving
only 93 retained rank-and-file employees after the proper
correction. There is also a slight variance among all of the
summaries with respect to exactly how many months
during the year 1967 some of these were not on the
payroll at all; the days absent summary blanks out 159
months, the minutes came late summary blanks out 165
months, and the minutes left early summary blanks out
161 months . These very minor inaccuracies are of no
material importance in the light of the great number of
employees involved and the size of the numerical sums to
be divided.
A number of the men who remained were hired during
1967; the number of months the entire group worked that
year was 969, a figure reached by deducting 159 -
months not worked by individuals - from 1128, which
would be total months in 1967 if all 194 men had been on
the payroll all the time. In simple arithmetic, the average
absences was 1.18 days per month per man in 1967. This
group also lost a total of 65,415 minutes for having left
early during the 964 months worked. Dividing these
months into the total , it is seen that the average time was
68.6 minutes lost per man per month for early departure.
A like calculation - the total group lost 20,734 minutes
for coming to work late during 951 worked - shows that
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the average was 22 minutes lost per man per month
during 1967. In sum , to the extent that the employment
records, and these are the only definitive and probative
evidence of employee desirability, show anything, they
prove that Lovis, Dodds, Glisen, Gibson and Daniels as a
group were approximately 3 times less desirable than any
other random 5 that might have been chosen in their
place. This is indeed persuasive support for the defense
assertion of a proper selection , whatever may be said of
other reasons generally articulated but poorly proved.
I have considered all the contentions urged by the
General Counsel, some in the brief, some voiced at the
hearing, and others suggested tangentially by the
technique of adducing pinpointed facts of testimony.
Many of these arguments are of virtually no weight at all,
because they compare one employee against another - in
some cases with respect to a single aspect of employment
- in a situation where the test must be only one group
against another as such . Gibson had been given permission
to visit Scotland, and was not back yet when the selection
was made. Daniels had been in the hospital for a long
time, still out sick on January 3. Glisen was a toolcrib
attendant, a job abolished when so many were laid off.
There is evidence - by no means conclusive - that later
some other employees was used, or even hired, to work at
least part time as a toolcrib attendant . These are details
that might have persuasion if the question were a
pinpointed issue concerning only one discharge - for
good reason or bad. This is not such a case. I find no
more convincing the argument that retention of seven
other employees out of seniority should be ignored on the
theory that it must be presumed the Respondent
deliberately laid them off "to lend an aura of legitimacy
to the selection ." If there is a presumption in these
proceedings, it is one of legality, not illegality. No useful
purpose would be served by listing here every minute
contention made. The personnel director tried to find jobs
elsewhere for Dodds and Gibson when they complained at
being released. While the kindness indicates he must have
thought well of their skill, it also shows he bore them no
animosity.
Suspicion apart, I conclude that the total evidence does
not prove these five men were released because of their
union activities, and I shall therefore recommend
dismissal of the complaint as to them.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set out in section III,
above, occurring in connection with its operations set
forth in section I, above, have a close, intimate and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found the Respondent has engaged in certain
unfair labor practices , I shall recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. Because the
Respondent has discriminatorily discharged Eugent
Grimm, it must be ordered to offer him reinstatement in
the event it should resume its operations in the City of
Uniontown, Pennsylvania, without prejudice to his
seniority and other rights and privileges previously
enjoyed, to his former or substantially equivalent position.
It must also be ordered to make him whole for any loss of
pay he may have suffered by reason of the discriminatory
discharge from the date of the dismissal in September
1967 to the day in June 1968, when the remaining plant of
the Respondent in Uniontown was closed. Backpay shall
be computed on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company,
90 NLRB 289, and it shall include interest at 6 percent
per annum as provided in Isis Plumbing & Heating Co.,
138 NLRB 716.
Upon the basis of the above findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Xaloy, Incorporated, is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Teamster Local
No. 491, and United Steelworkers of America, AFL-CIO,
are labor organizations as defined in Section 2(5) of the
Act.
3. By discharging Eugene Grimm to discourage union
activities , the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
4. By the foregoing conduct, by announcing a novel rule
against union solicitation at any time in the plant, by
threatening to withhold raises, by threatening to discharge
employees, by telling employees that management was
surveying their union activities, by promising raises in
pay, and by threatening to close its plant, all for the
purpose of discouraging union activities, tht Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and pursuant to Section 10(c) of the
Act, I recommend that Respondent , Xaloy, Incorporated,
New Brunswick , New Jersey , its officers , agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against its
employees for having engaged in union activities for the
purpose of collective bargaining or other mutual aid or
protection , or for having joined or assisted any labor
organization.
(b) Announcing any novel rule against union solicitation
at any time in the plant , threatening to withhold raises,
threatening to discharge employees, telling employees that
management is surveying their union activities , promising
raises in pay, threatening to close its plant , or in any other
manner interfering with , restraining , or coercing its
employees in the exercise of their rights to
self-organization , to form , join , or assist any labor
organization, to join International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America , Teamster Local Union No. 491, or United
Steelworkers of America , AFL-CIO, to bargain
collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
XALOY, INCORPORATED
to refrain from any or all such activities.
2. Take the following affirmative action which I find
will effectuate the policies of the Act:
(a) In the event it resumes operations in the City of
Uniontown, Pennsylvania, offer Eugene Grimm immediate
and full reinstatement to his former or substantially
equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any
loss of pay which he may have suffered as a result of the
discrimination against him, in the manner set forth in that
portion of this Decision entitled "The Remedy."
(b) Notify Richard Grimm, if he is serving in the
Armed Forces of the United States, of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(c) Preserve and, upon request, make available to the
Board, or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all records
necessary to analyze the amount of backpay due under the
terms of this Order.
(d) Mail to the home address of Eugene Grimm and to
each of its employees who were employed at the
Uniontown plants as of January 1, 1968, copies of the
attached notice marked "Appendix.""
(e) Notify the Regional Director for the Sixth Region,
in writing , within 20 days from the date of receipt of this
Decision, what steps the Respondent has taken to comply
herewith.'
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges illegal discrimination in the
discharge of John Gibson, Robert Dodds, Edward. Lovis,
Fred Glisen, and Wilbur Daniels.
'In the event that this Recommended Order is adopted by the Board, thq
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,.
this provision shall be modified to read : "Notify said Regional Director, in
writing , within 10 days from the date of this Order , what steps the
Respondent has taken to comply herewith."
703
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a trial in which both sides had the opportunity to
present their evidence, a Trial Examiner of the National
Labor Relations Board has found that we violated the Act
and has ordered us to mail you this notice and to keep
our word about what we say in this notice.
WE WILL NOT announce a novel rule against union
solicitation at any time in our plants; WE WILL NOT
threaten to withhold raises, or to discharge employees,
because of their union activities; WE WILL NOT tell
employees that management representatives are spying
upon their union activities, or promise raises in pay to
discourage union activities; WE WILL NOT threaten to
close our plants for the purpose of coercing employees
away from joining unions.
Since the Trial Examiner has found that we violated the
law when we fired Eugene Grimm, WE WILL give him
backpay from the time of his discharge until the final
day when we closed our last plant in Uniontown,
Pennsylvania, and WE WILL offer him his old job back
if we should ever reopen our plants in that city.
You are all free to become or remain members of any
union of your choice, and we won't punish you in any way
if you do.
XALOY, INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 1536 Federal
Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania
15222, Telephone 412-644-2969.