Air Control Products, Inc,.

National Labor Relations Board - Board Decisions

Mar 16, 1961

130 N.L.R.B. 1378 (N.L.R.B. 1961)

1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint and amended complaint within the meaning of Section 8(a)(1), (3), and
(5) of the Act.
[Recommendations omitted from publication.]
Cabinets, Inc., subsidiary of Air Control Products , Inc. and'
Carpenters Local Union 2376, United Brotherhood of Car-
penters & Joiners of America , AFL-CIO. Cases Nos. 12-CA-
1390-1 and 12-CA-1390-2. March 16, 1961
DECISION AND ORDER
On August 11, 1960, Trial Examiner Louis Libbin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent 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 copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Rodgers, Leedom, and
Jenkins].
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 entire
record in this case, including the Intermediate Report, the exceptions,
and the brief, and hereby adopts the Trial Examiner's findings, con-
clusions, and recommendations except as herein modified.
1. The Trial Examiner found that the Respondent violated Section
8(a) (1) of the Act by the conduct of employee Barbara Linkhous
who asked an employee what she thought about the Union and made
various statements which the Trial Examiner deemed to be coercive.
The Trial Examiner based his finding that the Respondent was re-
sponsible for the conduct of Linkhous on a finding that Respondent
"did clothe" Linkhous "with certain authority which could affect the
employment status and accorded her certain privileges not granted to
other employees, and that her activities were such as clearly to estab-
lish her identification with management in the eyes of the employees,
if not indeed an actual agency."
We do not agree that the Respondent is responsible for Linkhous'
alleged 8(a)'(1) conduct; because we find that the relationship be-
tween Respondent and Linkhous was not such as to constitute an
agency relationship.
Employee Linkhots' primary duties involved manual labor on the
line in the hardware department. It is true that -she had the addi-
130 NLRB No. 138. 1 1 ,
CABINETS , INC.,' SUB . OF AIR CONTROL PRODUCTS, INC. 1379
tional duty of reporting to Superintendent Schmoyer on the moral
character of female applicants for employment. It is also true that
Linkhous timed other employees who went to the restroom and re-
ported them to Schmoyer if they stayed too long. But we do not
deem such facts as weighty enough to find an "agency" relationship
between Respondent and Linkhous, as that term. is used in the Na-
tional Labor Relations Act, as amended.'
Consequently, we reject the Trial Examiner's finding that the Re-
spondent is responsible for the alleged 8(a) (1) violations of the Act
by Linkhous.
2. We concur with the Trial Examiner's finding that the Respond-
ent violated Section 8(a) (3) of the Act by discriminatorily discharg-
ing employee Padgett.
We base our concurrence on two essential elements which are pres-
ent in the case. First, the Respondent learned of Padgett's prounion
sentiments from Linkhous prior to Padgett's discharge.' Not only
did Linkhous have frequent talks with Schmoyer during working
hours, but also Schmoyer testified that Linkhous might have told him
that one or more of the employees were in favor of the Union. In
addition, Padgett advised Linkhous, on March 2 , 1960, that the Union
was a good thing and that it was needed, and later that day Padgett
was terminated without prior notice.
Secondly, we find that the Respondent's real reason for discharging
Padgett was because she supported the Union. Schmoyer testified
that Padgett was discharged because her production dropped, and
because she was absent and tardy which also affected her produc-
tion. He admitted, however, that it is not unusual for an employee
i In Page Boy Company Inc., 107 NLRB 126, the Board affirmed the findings of the
Trial Examiner that the respondent company was not responsible for various remarks
and promises made by two employees allegedly in violation of Section 8(a) (1) of the
Act. The Trial Examiner found that the employees were not supervisors , that there was
no evidence that remarks and promises were authorized or ratified by the Respondent, or
that the two employees involved were regarded as spokesmen for the Respondent even
though one of the employees was a close relative of officers of the Respondent.
The facts in this case are similar to the foregoing case in that Linkhous is not a
supervisor and there is no evidence that her conduct , which was alleged to be in violation
of Section 8(a) (1) of the Act, was authorized or ratified by the Respondent . Nor are we
persuaded that Linkhous was regarded as a spokesman . of the Respondent by the other
employees.
The Trial Examiner relied on Wagner Iron Works , a corporation, 104 NLRB 445, 462
(Beck ) ; Solo . Cup Company, 114 NLRB 121, 122-123 , enfd . 237 F. 2d 521 (C.A. 8) ;
and Mississippi Products , Inc., 103 NLRB 1388, 1393 , enfd. 213 F. 2d 670, 673 (C.A. 5),
as authority for his finding that the . Respondent is responsible for Linkhous ' conduct.
These cases , we find, however , are distinguishable . They involved factors not present in
this case . Thus Linkhous did not interview applicants or hire any personnel ; she was
not referred to as the "personnel woman" nor did she attend supervisors ' meetings ; she
did not handle any interviews respecting employee benefits ; she did not make anti-
union speeches to the employees in behalf of the Respondent; and, as noted in our
Decision . herein, her primary duties involved manual labor on the line in the hardware
department.
2 Our finding attributing knowledge to Respondent through Linkhous is not incon-
sistent with our finding that Linkhous was not an agent of the Respondent , because in
the one case ( agency ) we deal with a legal relationship and in this situation we are
concerned with a factual matter (knowledge).
1380 .' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be late and that "they usually bring a written statement from a,
doctor as to why they were absent for any period of time." The
employment records of Padgett disclose no extended absences, and
Schmoyer did not tell Padgett that he was discharging her for ab-
senteeism and tardiness. Nor was she reprimanded at any time dur-
ing her employment. Instead Schmoyer told Padgett that she was:
terminated because of a cutback in production. In addition, Padgett
testified that her quota was 200 drawers a day and that she always;
produced more than that number. On the other hand, Schmoyer's
prehearing affidavit states that he advised Padgett that her quota was
400 drawers per day, but he admitted at the hearing that it is impos-
sible for a person to make 400 drawers a day. Finally, Schmoyer'
did not deny Padgett's accusation on the day of her termination that
she was discharged because of the Union.
As we have found that the Respondent violated Section 8(a) (3),
by discriminatorily discharging Padgett, we shall enter an appropri-
ate order requiring the Respondent to reinstate Padgett.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor-
Relations Board hereby orders that the Respondent, Cabinets, Inc.,,
Subsidiary of Air Control Products, Inc., De Land, Florida, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Carpenters Local Union 2376,,
United Brotherhood of Carpenters & Joiners of America, AFL-CIO,,
or any other labor organization of its employees, by discriminatorily
discharging, laying off, or failing to reinstate any of its employees, or,
by discriminating in any other manner in regard to their hire or tenure
of employment or any term or condition of employment.
(b) Interrogating applicants and employees as to their own and as
to other employees' feelings, and positions with respect to the Union,.
in a manner constituting interference, restraint, and coercion within
the meaning of Section 8 (a) (1) of the Act.
(c) Warning employees of loss of employment for supporting the
Union, threatening employees with loss of employment, the removal
of the water cooler and vending machines, the elimination of break
periods, and any other reprisals if they selected the Union as their
bargaining representative.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form labor organizations, to join or assist the above-named or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in concerted activities for
CABINETS, INC., SUB. OF AIR CONTROL PRODUCTS, INC. 1381
the purpose of collective bargaining and other mutual aid or protec-
tion, or to refrain from any and all such activities.
2. Take the following affirmative action which the Board finds will
.effectuate the policies of the Act :
(a) Offer to John C. Sullivan, Irwin Page, Emerson E. Berney,
Audrey Padgett, and Harold Lantz immediate and full reinstatement
to their former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and make them
whole for any loss of pay they may have suffered by reason of the dis-
crimination against them, in the manner set forth in the section of the
Intermediate Report entitled- "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
:agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its plant at De Land, Florida, copies of the notice at-
tached hereto marked "Appendix." 3 Copies of such notice, to be fur-
nished by the Regional Director for the Twelfth Region, shall, after
being duly signed by an authorized representative of the Respondent,
be posted by the Respondent immediately upon receipt thereof, and
be maintained by it for a period of 60 consecutive days thereafter, in
,conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
,ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the said Regional Director for the Twelfth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleged that Respondent violated the Act by
attempting to have employees leave the plant by an exit which would
prevent them from coming into contact with union organizers known
to be in the area; and to the extent that it was based on allegations
that the Respondent violated Section 8(a) (1) of the Act by conduct
of employee Lin'khous who asked an employee what she thought about,
the Union and who made various statements asserted to be coercive.
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order 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 :
1382 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in Carpenters Local
Union 2376, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, or any other labor organization, by dis-
criminatorily discharging or laying off any of our employees, or
by discriminating in any other manner in regard to their hire or
tenure of employment or any term or condition of employment.
WE WILL NOT interrogate applicants and employees as to their
own and as to other employees' feelings and position with respect
to the Union, in a manner constituting interference, restraint,
and coercion within the meaning of Section 8 (a) (1). of the Act.
WE WILL NOT warn employees of loss of employment for sup-
porting the Union; nor threaten employees with loss of employ-
ment, the removal of the water cooler and vending machines, the
elimination of break periods, and any other reprisals if they se-
lect the Union as their bargaining representative.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist the
above-named or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to,
engage in concerted activities for the purpose of collective bar-
gaining and other mutual aid or protection, or to refrain from
any and all such activities.
WE WILL offer to the following employees immediate and full
reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges, and make them whole for any loss of wages they may
have suffered by reason of the discrimination against them : John
C. Sullivan, Irwin Page, Emerson E. Berney, Audrey Padgett,.
and Harold Lantz.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of the above-named or any other
labor organization.
CABINETS, INC., SUBSIDIARY OF AIR
CONTROL PRODUCTS, INC.,
Employer.
Dated---------------- By------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by Carpenters Local Union 2376, United Brotherhood of Car-
penters & Joiners of America, AFL-CIO, the General Counsel of the National
CABINETS, INC., SUB. OF AIR CONTROL PRODUCTS, INC. 1383
Labor Relations Board, by the Regional Director for the Twelfth Region (Tampa,
Florida), issued his complaint, dated May 11, 1960, against Cabinets,-Inc., Sub-
sidiary of Air Control Products, Inc., herein called the Respondent. With respect
to the unfair labor practices, the complaint, as amended at the hearing, alleges, in
substance, that Respondent (1) discharged and refused to reinstate five named em-
ployees because of their union and concerted activities, (2) by its supervisors and
agents engaged in conduct constituting interference, restraint, and coercion within
the meaning of the Act, and (3) by the foregoing conduct engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the National Labor Relations Act, 61 Stat. 136, herein called the Act. In its
duly filed answer, Respondent admits the discharges but denies the unfair labor
practice allegations.
Pursuant to due notice, a hearing was held before the duly designated Trial Ex-
aminer on June 20 and 21, 1960, at De Land, Florida. All parties were represented
at the hearing and were afforded full opportunity to be heard, to examine and cross-
examine witnesses, to introduce. relevant evidence, to present oral argument at the
close of the hearing, and thereafter to file briefs as well as proposed findings of fact
and conclusions of law. Subsequent to the hearing, the Respondent filed a brief,
which I have fully considered.
Upon the entire record I in the case, and from my observation of the witnesses,
Tmake the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Florida corporation and a wholly owned subsidiary of Air Control
Products, Inc., whose main office is in Miami, Florida, is engaged in the manufac-
ture of kitchen cabinets at its plant in De Land, Florida. During the calendar year
1959, Respondent sold and shipped goods valued in excess of $50;000 from its De
Land, Florida, plant to points located outside the State of Florida.
Upon the above-admitted facts, I find that the Respondent is engaged in com-
merce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that Carpenters Local Union
2376, United Brotherhood of Carpenters & Joiners of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
The Union began its organizing campaign on Monday, February 29, 1960, when
two union representatives, Jones and Don Carpenter, passed out-union leaflets to
employees of Respondent as they left the plant at the end of the workday. Attached
to the leaflets were union authorization cards which the employees were urged to
sign. The issues in this case are (1) whether Respondent discriminatorily discharged
and failed to reemploy employees Sullivan, Padgett, Lantz, Page, and Berney on
Tuesday and Wednesday, March 1 and 2, and (2) whether agents and supervisors
of Respondent engaged in acts of interference, restraint, and coercion within the
meaning of the Act.
A. Liability for conduct of leadmen and of Barbara Linkhous z
The General Counsel contends, and Respondent denies, that leadmen are super-
visors within the meaning of the Act, that Barbara Linkhous is an agent of Re-
spondent, and that Respondent is liable for the conduct of both.
1. The supervisory status of leadmen
The top management representatives at Respondent's De Land plant are General
Manager John W. Delaney and Superintendent Schmoyer. Directly under Schmoyer
are a number of leadmen, each in charge of a department. Leadmen assign work
and give orders to the employees in their department, check to see if the employees
are performing their work properly, instruct, and reprimand employees in connec-
tion with their work, discuss the employees' work with Superintendent Schmoyer,
and make recommendations with respect to the transfer, layoff, or discharge of
"The record inadvertently falls to show the receipt In evidence of Respondent's, Exhibit
No. 1. Said exhibit-is hereby received-in evidence and the record corrected in this respect.
2 The factual findings in this section are based . on admissions and undisputed testimony.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees to Schmoyer, who, as a rule, follows their recommendations. All lead-
men also attend foremen's meetings which are held twice a month and which are
also attended by Delaney, Schmoyer, and the mill foreman. Management problems,
working conditions, and the merits of employees are some of the matters discussed
at such meetings.
In view of the foregoing, and upon consideration of the entire record as a whole,
I am convinced and find that the leadmen possess, and in fact have exercised, the
authority which constitutes them supervisors within the meaning of Section 2(11)
of the Act. Respondent is therefore responsible for the conduct of the leadmen,
hereinafter set forth.
2. Status of Barbara Linkhous
Barbara Linkhous was the second woman employed at the plant when operations
commenced in 1958, and she worked in the hardware department. As she had lived
in De Land for about 20 years and knew most of the women in the area, Respond-
ent's vice president, Pendergrass, instructed her to assist Superintendent Schmoyer
in selecting female applicants of good moral character. Pendergrass also instructed
Superintendent Schmoyer to check with her on the moral character of applicants
before hiring them. On one occasion in March 1960, when two women applied
for work, Schmoyer telephoned the hardware department and asked Linkhous for
character references on the applicants and whether they were suitable for employ-
ment. After this conversation, Schmoyer told the applicants that "we can't use you."
The employees were aware of the aforementioned role played by Linkhous in the
hiring of applicants and were also under the general impression that she could affect
the status of those already employed. This impression was fostered by Linkhous'
conduct and actions at the plant, by her close association with Schmoyer, and be-
cause of certain privileges accorded to her. Thus, she was frequently seen talking
to Schmoyer during working hours, having coffee with him both before work and
during coffee breaks, and eating lunch with him. She would stay in the restroom
for extended periods but would time other employees who went there and report
them to Schmoyer if they stayed too long. She was also given the privilege of tak-
ing an hour off each month during regular working time to pay her bills, and some-
times failed to punch out during these extended absences. The employees were
aware of her practice in this regard and that her failure to punch out was condoned
by Schmoyer.
In view of the foregoing and upon consideration of the entire record as a whole,
I am convinced and find that, whether or not Linkhous was technically a statutory
"supervisor" or "agent," Respondent did clothe her with certain authority which
could affect the employment status and accorded her certain privileges not granted
to other employees, and that her activities were such as clearly to establish her iden-
tification with management in the eyes of the employees, if not indeed an actual
agency. Hence, Respondent is responsible for her conduct, as hereinafter set forth?
B. Interference, restraint, and coercion
1. Superintendent Allen Schmoyer
During the cleanup period on Monday, February 29, 1960, which was about 10
minutes before quitting time, Irwin Page, one of the employees alleged in the com-
plaint to have been discriminatorily terminated, noticed Leadmen Stradder and
Donahue going through the parking lot. Thinking that they were looking through
the cars parked on the lot, Page asked Schmoyer. "What are you doing. Al, looking
at the cars to see if any company property is there?" Schmoyer replied that the
Union was trying to organize the plant and they wanted to make sure that the
union representatives did not come on company property. Schmoyer then asked
Page if he knew what had happened in Miami, referring to Respondent's plant in
Miami. When Page replied in the negative, Schmoyer stated that over 30 employees
had been laid off for union activity. I find that this constituted a threat or warning
that Respondent would take similar action at the De Land plant.
After the union leaflets had been passed out to the employees on February 29,
Schmoyer asked employee Florence Strickland, during working hours, what she
thought about the Union and if anyone had spoken to her about the Union. On two
other separate occasions in March, Schmoyer asked two applicants for employment
what their feelings were about the Union and whether they were for it or against it.
Both applicants stated that they were not in favor of the Union; they were both hired.
Cf., e.g., 'Wagner Iron Works, 104 NLRB 445, 462 (Beck) ; Solo Cup Company. 114
NLRB 121, 122-123 , enfd. . 237 F. 2d 521 ( C.A. 8) ; Mississippi Products,. Inc.,•103 NLRB
1388, 1393, enfd. 213 F. 2d 670_673 (C.A. 5).
CABINETS, INC., SUB. OF AIR CONTROL PRODUCTS, INC. 1385
During the workday on Tuesday, March 1, Emerson Berney, another employee
alleged in the complaint to have been discriminatorily terminated, asked Schmoyer,
in the presence of other employees, when they were going to get a raise. Schmoyer
replied that they would get a raise when the minimum wage law was passed increas-
ing the minimum wage to $1.25 per hour. Berney then stated that "if we get that we
won't need a union" but that "on the other hand it's kind of hard to live on $1.10 an
hour." Schmoyer then said that "if we have the Union, we'll have to take the water
cooler out, cigarette machine, coca-cola machine and we won't have that ten-minute
break."
The foregoing findings are based on the credited testimony of employees Irwin
Page, Florence Strickland, Betty. Nusbaum, and Emerson Berney. Strickland and
Nusbaum testified under subpena and were still in the Respondent's employ at the
time of the hearing in this case. Schmoyer denied telling anyone that employees
were laid off at the Miami plant because of union activities. He admitted telling
employees that the Miami plant was closed down and had been moved to De Land.
He also admitted having discussed with General Manager Delaney the Union's ef-
forts to organize the Miami plant. Schmoyer admitted that he might have asked
applicants for employment whether or not they were in favor of the Union, but
denied telling Berney that, if the Union came in, the water cooler and various vend-
ing machines would be taken out and the 10-minute break period eliminated.
Schmoyer's testimony discloses a number of material contradictions and discrepan-
cies in connection with the terminations of the alleged discriminatees, as hereinafter
detailed. He was a most unimpressive witness and failed to testify in a forthright
and candid manner.4 Under all the circumstances, and upon consideration of the
entire record as a whole, I do not credit Schmoyer's denials.
2. Leadman William Donahue
William Donahue was the leadman in the assembly department where about 16•
employees worked. On Wednesday morning, March 2, he systematically interro-
gated each employee in his department, individually, as to whether they were for or
against the Union. He had a tablet with three separate lists under the headings of
"FOR," "AGAINST," and "UNDECIDED" and put a checkmark under the appro-
priate heading as each employee gave an answer to his inquiry. There is no show-
ing that the employees were aware that their names did not appear on this tablet.
Thus, although employee Harold Lantz, alleged in the complaint to have been dis-
criminatorily terminated, had signed a union authorization card the preceding eve-
ning when Union Representatives Jones and Don Carpenter had visited him at his
home, he told Donahue that he was neutral but would be willing to join if the
Union got in. He credibly testified that the reason he gave Donahue this response
was because he had heard that some employees had been laid off the preceding day
and he had a family and needed his job. Donahue admitted having interrogated the
employees in this manner and at first testified that he got this information only for his _
own benefit and did not tell anyone in the Company about it. At a later point, he
admitted that he told Schmoyer his "opinion" as to how many employees would be
for and against .the Union and how many were undecided, without mentioning any
names.5
Employee Margaret Carter had told Donahue, in response to his inquiry, that she
did not think they needed a union, that her husband was opposed to unions, and
that she did not know how a union would better working conditions. After the
lunch period that same day, Donahue asked Carter and another employee if they had
heard employee Lantz say anything about the Union. Carter told Donahue that
Lantz had talked about the Union and was for it.
The foregoing findings are based on the credited testimony of employees Lantz and
Carter, and admissions by Donahue. Donahue admitted asking Carter and another
employee whether Lantz had been talking about the Union but denied that Carter
told him that Lantz was for the Union. Carter, testifying under subpena, was still
* For example, on direct examination he testified that only 21 employees were working
on that day because of lack of orders ; however, on cross-examination, he admitted that
the current week had been set aside by Respondent for employee vacations, that all pro-
duction employees were on vacation, and that the 21 employees were maintenance
personnel.
5 Donahue testified that the results of his poll disclosed that 1 was for the Union,
9 or 10 were undecided, and the rest were not even going to vote. That this was not an
accurate reflection of the poll is demonstrated by the fact that Margaret Carter told
Donahue that she was ' opposed to the Union, as found in the text.
1386 .' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employed by Respondent at the time of the instant hearing. She admitted that she
was not in favor of unions. Under all the circumstances, and upon consideration of
the entire record as a whole, I do not credit Donahue's denial.
3. Barbara Linkhous
After the distribution of the union leaflets, the Union was more or less a subject
,of conversation among the employees paricularly in the restrooms and during
breaks. On Wednesday morning, March 2, Barbara Linkhous came over to Audrey
Padgett, another employee alleged in the complaint to have been discriminatorily
terminated, and said, "Sit down I want to talk to you." Linkhous then asked Padgett
what she thought about the Union. Padgett stated that she thought it was a "good
thing" and that "we actually need it." Linkhous replied, "You know what will
:happen. They closed the plant in Miami and we'll all be out of a job if they come
up here." I find that this constituted a threat or warning of loss of employment if the
employees selected the Union as their bargaining representative.
After Padgett's termination on Wednesday, March 2, she had a number of tele-
phone conversations with Linkhous. During these conversations, Linkhous stated
that if the Union got. in the plant everybody would be laid off. Linkhous also
stated that Padgett knew a lot about what was going on concerning the Union, about
who was for and against it, and that if Padgett would go back and tell Schmoyer what
-she knew about who was for and against the Union she could go back to work.
Padgett replied that she was for the Union and that she could only speak for herself.
The foregoing findings are based on the credited testimony of Audrey Padgett.
Linkhous admitted that she was not in favor of the Union and that she had asked
Padgett about her opinion of the Union. She, in effect, denied that Padgett made
-the reply hereinabove set forth. Linkhous also admitted having had a number of
'telephone conversations with Padgett after the latter's termination but did not deny
having made the statements attributed to her in these conversations. Under all the
circumstances, including the demeanor of the two witnesses, and upon consideration
of the entire record as a whole, I do not credit Linkhous' denial and find that she
made the statements hereinabove set forth. '
4. Concluding findings
I find that (1) by the conduct of Superintendent Schmoyer in interrogating an
:employee as to what she thought about the Union and as to whether anyone had
spoken to her about the Union, in interrogating applicants for employment as to
their feelings about the Union, and as to whether they were for it or against it, in
telling an employee that Respondent had laid off over 30 employees at its Miami
plant for union activity, thereby threatening or warning that similar reprisals would
be taken at the De Land plant, and in threatening employees with the removal of the
water cooler and various vending machines and the elimination of the 10-minute
'break period if the Union came in the plant; (2) by the conduct of Leadman Dona-
hue in interrogating each employee in his department as to whether they were for
-or against the Union in the manner previously described, and in asking two em-
ployees if employee Lantz had said anything about the Union; and (3) by the con-
duct of Barbara Linkhous in asking an employee what she thought about the Union,
in stating that Respondent closed its Miami plant, which had become organized,
and that everyone would be laid off if the Union got in the DeLand plant, and in
telling an employee who had been terminated that she could get back to work if she
would go back and tell Superintendent Schmoyer what she knew about who was for
or against the Union, Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act and has
thereby violated Section 8(a) (1) of the Act.6
6 The complaint, as amended at the hearing, also alleges that Respondent violated
Section 8(a) (1) of the Act by the conduct of Schmoyer on February 29, 1960, in attempt-
ing to have the employees leave the plant by an exit which would prevent them from
coming into contact with union organizers known by him to be in the area. On that occa-
sion, a union representative was stationed at both the front and back exits of the plant
for the purpose of handing out leaflets to the employees who were leaving. Page testified
that as the employees were clocking out, preparatory to leaving by the front exit,
Schmoyer made the remark to the effect that if they went out the back way they would
not have to ran into the union people. Schmoyer denied having made such a remark
but admitted that Union Representative Carpenter, who was stationed at the back exit,
left about 5 minutes after'Schmoyer,asked him' if he had a permit-to-solicit. Assuming,
,without deciding, that Schmoyer did make the statement attributed to him by Page,
CABINETS, INC., SUB. OF AIR CONTROL PRODUCTS, INC. 1387
C. Discrimination with respect to hire and tenure of employment
As previously noted, Respondent's employees first became aware of the Union's
organizational efforts on Monday, February 29, when Union Representatives Jones
and Don Carpenter passed out leaflets to the employees as they left the plant at the
end of the workday. On the afternoon of the next workday, Tuesday, March 1,
-employees John Sullivan, Irwin Page, and Emerson Berney were terminated. The
next day, Wednesday, March 2, employees Harold Lantz and Audrey Padgett were
terminated. The complaint alleges, and the General Counsel contends, that in
effecting these terminations and thereafter failing to reemploy these employees,
Respondent was discriminatorily motivated in violation of Section 8(a) (3) and (1)
of the Act.
1. John C. Sullivan 7'
Sullivan was first employed by Respondent on October 21, 1959, in the assembly
department under Leadman Donahue, at $1.10 per hour. At the time of his
termination on March 1, 1960, he was working in the hardware department under
Leadman Stradder. About 2 months before his termination, while still working in
the assembly department, he received a raise of 10 cents per hour. He had never
at any time been reprimanded in connection with his work.
During one of the lunch periods before Christmas, Sullivan commented to Donahue
on the low wage scale and expressed the belief that a union would do well at the
plant and would raise the standard for both the employees and for Donahue.
Sullivan had known Union Representative Don Carpenter for a number of years
and saw him frequently.
On such occasions Carpenter had asked Sullivan about the working conditions at
Respondent's plant. The day before the leaflets were passed out at Respondent's
plant, Union Representative Jones met with Don Carpenter, at the latter's motel, to
discuss the organizational campaign at Respondent's plant. Sullivan was also present
and stated that he felt they needed a union at Respondent's plant and that he would
do all he could for it.
On Monday, February 29, the day before his termination, Sullivan signed a union
authorization card which was given to him by Don Carpenter. He had discussed
the Union with fellow employees and expressed the thought that it would be a fine
thing if the Union came in. On Tuesday morning, March 1, Superintendent
Schmoyer came over to Sullivan while. he was at work and said, "I understand
you're quite a fellow friend of this fellow Carpenter." Sullivan replied, "Yes, I
know Don. I've known him for many years. He's the one behind this unionizing." 8
That afternoon Sullivan was informed by Schmoyer that there was going to be a
production cutback and that he would have to let Sullivan go. Sullivan had re-
ceived no prior warning from Respondent of a production cutback. An examina-
tion of the data furnished by Respondent in General. Counsel's Exhibit No. 2 dis-
closes a number of employees in the hardware department with less seniority who
were retained after Sullivan's termination.
2. Irwin Page 9
Page was first employed by Respondent on October 24, 1958, and worked until
July 3, 1959, when he voluntarily quit. During that period he worked in the assem-
bly and repair departments and-openly expressed his prounion sentiments. He was
reemployed again on January 13, 1960, by Schmoyer, at the latter's solicitation,
and worked in the repair department.
As previously found, at the time when the union representatives were stationed
outside the plant for the purpose of passing out leaflets on Monday, February 29,
Schmoyer told Page during the cleanup period before quitting time that the Union
was trying to organize the plant and they wanted to make sure that the union
representatives did not come on company property. Schmoyer then asked Page if
he knew what had happened at Respondent's Miami plant. When Page replied in
I find the evidence insufficient to warrant a finding that the aforestated allegation has
been sustained by a preponderance of the evidence upon consideration of the entire record
as a whole. I will accordingly recommend its dismissal.
7 Unless otherwise indicated, the findings in this section are based on admissions and
credited testimony which is undisputed.
. 8 Schmoyer denied having.had such a conversation with Sullivan. . For reasons previ-
ously indicated, I do not credit Schmoyer's denial.
8 Unless otherwise indicated ,. the findings in this section are based on admissions and
credited testimony which is undisputed., „ ,.
1388 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the negative, Schmoyer told him that over 30 employees had been laid off for union
activity. As previously found, this constituted a warning or threat that similar
reprisals would be taken by Respondent at the De Land plant.
Page received one of the union leaflets which was passed out as he left the plant
that day. Attached to the leaflet was a union authorization card which Page signed
and mailed to the Union that night. The next day, Tuesday, March 1, he informed
Schmoyer about having signed the union card.1° That afternoon Schmoyer in-
formed Page of his termination, stating that Page had less seniority than the other
employee in the repair department who was retained.
A few days later, having heard that a new employee was hired, Page returned to
the plant and asked Schmoyer for a written recommendation to help him get an-
other job. Schmoyer gave him such a recommendation, addressed "TO WHOM
IT MAY CONCERN" and stating that Page's work was satisfactory, that he was
found to be "honest, trustworthy and able to take orders," and that he "was re-
leased due to a cut back in production." Page returned again 2 or 3 weeks later
to see if there, was any work available because he had heard that Respondent "was
taking other people in." On this occasion, Schmoyer stated that they were not doing
any hiring but would let him know if they had anything. Although admittedly
vacancies thereafter occurred for which Page qualified, he was never recalled.
3. Emerson Berney 11
Berney was first employed by Respondent on January 4, 1960, and worked on
the night shift. When the night shift was discontinued on February 12, the more
productive employees were retained on the day shift. Berney was retained and
assigned to the hardware department under Leadman Stradder. Berney was satisfied
with his work and realized the necessity of his job in order to save money for the
sixth child which his wife was expecting. He was never reprimanded about his
work by Stradder.
As he was driving out of the plant parking lot after work on Monday, February 29,
he accepted one of the union leaflets which was being handed out by Representative
Jones. The next day before the commencement of work, he asked Stradder if he
had gotten one of the union pamphlets. Stradder replied in the negative and asked
what was in them . Berney explained what was in the leaflet and that the Union
promised certain benefits such as job protection and higher wages. Stradder re-
plied that he had belonged to three different unions at one time and that none of
them had ever done anything for him.la
Berney's wife had visited the Red Cross to seek financial aid. During that day
Schmoyer came up to Berney, told him that the Red Cross had called and informed
him of Mrs. Berney's visit and wanted to know if Berney worked there, and that he
had told the Red Cross that "you worked here and you had a job here any time you
wanted it." 13
As previously found, it was during that day that Berney asked Schmoyer, in the
presence of other employees,, when they were going to get a raise, that Schmoyer
replied it would be when the minimum wage law was passed raising the minimum
wage to $1.25 per hour, that Berney replied that if they get that "we won't need a
union" but that on the other hand it was hard to live on $1.10 per hour and that
Schmoyer then warned that, if the Union came in, the water cooler and .the vending
machines would be removed and the 10-minute break period eliminated.
About 2 p.m. that afternoon, Stradder came up to Berney and asked if he knew
whether Maurice Carpenter lived in Orange City. Berney replied that he lived in
10 Schmoyer did not specifically deny Page's testimony in this respect. He merely testi-
fied that, at the time of Page's termination, he neither knew nor heard any rumors that
Page was a member of or sympathetic to the Union. For reasons indicated in this
report, I do not regard Schmoyer as a credible witness and do not credit this testimony.
n Unless otherwise indicated, the findings in this section are based on admissions and
credited testimony which is undisputed.
12 Stradder denied discussing the Union with Berney but admitted having told Berney
about belonging to three unions and that this may have occurred in the morning of the
day of Berney's termination. Stradder displayed an extremely faulty memory on cross-
examination and impressed me as not being a credible witness. Under all the circum-
stances, including the demeanor of the two witnesses, I do not credit Stradder's contrary
testimony.
' Schmoyer admitted that he had received a call from the Red Cross about Berney
and that he told Berney about it and'also told Berney about recommending him. to the
Red Cross. He denied having told Berney that he could have a job whenever he wanted
it. I do not credit Schmoyer'scontrary testimony.
CABINETS, INC., SUB. OF AIR CONTROL PRODUCTS, INC. 1389
De Land.14 Berney knew this because Carpenter was a friend of his. Carpenter
was at that time employed by Respondent in Stradder's department. However,
Don Carpenter, the union organizer, did live in Orange City.
About 3 p.m. that afternoon Stradder asked one of the employees in the depart-
ment to "take over" while he attended a meeting in the "front office." Stradder was
gone until shortly before the 4 p.m. quitting time. About 5 or 10 minutes before
quitting time, Schmoyer came over to Berney while he was at work and told him that
he was going to have to lay Berney off because of cutback in production.
4. Harold Lantz
Lantz was first employed by Respondent on October 28, 1959, in the assembly
department under Leadman Donahue at $1.10 per hour. About 3 months later,
Lantz received a 10-cent per hour raise which, Donahue admitted, Lantz merited.
He was never reprimanded , as Donahue admitted.
On Monday evening, February 29, 1960, Union Representatives Jones and Don
Carpenter visited Lantz at his home, explained the benefits of the Union, and solicited
his signature to a union authorization card. He told them that he was very much in
favor of union organization and signed a card. The next day, Tuesday, March 1, he
talked about the Union with employee Margaret Carter, who worked with himin the
assembly department, and told her that he thought the Union would be a good thing
and that he had always been in favor of a union.
As previously found, on Wednesday morning, March 2, Leadman Donahue polled
the employees, individually, in his department as to whether they were for or against
the Union and checked their response on a tablet. Having heard that some employees
had been terminated the preceding day and being in need of his job, Lantz told
Donahue at that time that he was neutral. After lunch period that same day,
Donahue asked employee Margaret Carter and another employee if they had heard
Lantz say anything about the Union, also as previously found. Carter told Donahue
that Lantz had talked about the Union and was for it. Shortly before quitting time
that day, Schmoyer informed Lantz that he was being laid off because of a cutback.
When Lantz inquired how long the layoff would last, Schmoyer replied that he did
not know and that Lantz better look for another job. The data submitted by Re-
spondent in General Counsel's Exhibit No. 2 shows that a number of employees in
the assembly department with less seniority than Lantz were retained after his
termination.
5. Aubrey Padgett is
Padgett had been employed by Respondent on a few prior occasions and had volun-
tarily quit. She was reemployed on the last occasion on October 14, 1959, and was
assigned to the hardware department, building drawers. Schmoyer told her at that
time that he would have to have a quota of 200 drawers a day and that he had not
been getting that many from the other employees. Padgett asked if she could go
home if she built 200 drawers a day. Schmoyer replied if Padgett built 200 drawers
a day, she could go home. Until the last few weeks of her employment, Padgett
averaged 300 drawers or better a day. Because of a back injury and due to some
warped material, she only averaged over 200 drawers a day during the last few weeks
of her employment.
On Monday evening, February 29, Union Representatives Jones and Don Carpenter
visited her at her home and talked to her about the benefits of the Union. She
signed a union authorization card that night. Thereafter, during break periods and
at lunchtime, she spoke in favor of the Union, stating that the Union was a good
thing, that the employees needed it, and that there were many things which the
Union would enable them to get which they did not then have. As previously found,
on Wednesday morning, March 2, Barbara Linkhous, who worked in the same de-
partment , asked her what she thought about the Union. Padgett replied that she
thought the Union was a good thing and that "we actually need it." Linkhous then
warned her that Respondent had closed the Miami plant and that if the Union came
"up here" they would all be out of a job, as previously found. Later that afternoon,
Schmoyer came to her and informed her that he had to lay her off because of a
cutback in production.16 Padgett asked why she was selected instead of others who
11 Stradder testified that, while he did not recall asking Berney this question, he could
not definitely say that he did not ask him.
1a Unless otherwise indicated, the findings in this section are based on admissions and
on credited testimony which is not disputed.
16I do not credit Schmoyer's testimony that he mentioned her tardiness as another
reason. Nor do I credit his testimony, denied by Padgett, that she was warned "twice or
more each week that she was late."
1390 . DECISIONS OF.NATIONAL LABOR RELATIONS BOARD
had less seniority. Schmoyer replied that it was not his idea and that it was lucky
her son was working there for a contractor because otherwise he would have to let
her son go too.
Later that day Padgett was informed by someone on the "outside" that the real
reason for her termination was the fact that the union representatives had been to
her home. This made her "so mad" that she returned to the plant to see Schmoyer.
She told Schmoyer that she hated a liar. Schmoyer replied that he had never told
her a lie. Padgett. accused him of firing her on account of the Union and that he
had lied and not told 'her the truth. Schmoyer did not deny the accusation. The
data submitted by Respondent in General Counsel's Exhibit No. 2 shows that a
number of employees in the hardware department with less seniority than Padgett
were retained after her termination.
Thereafter, Padgett had a number of telephone conversations with Barbara Link-
hous. As previously found, during these conversations Linkhous again warned that
if the Union got in the plant everybody would be laid off, stated that Padgett knew
a lot about what was going on concerning the Union, and advised that if Padgett
would go back and tell Schmoyer what she knew about who was for and against the
Union she could go back to work. Padgett replied that she was for the Union and
could only speak for herself.
6. The Respondent's defenses
The Respondent contends that the five employees were laid off as a result of a
cutback in production caused by a drop in sales. The big cutback admittedly came
in February when the night shift was discontinued on February 12 and the more
productive people admittedly retained and transferred to the day shift. Schmoyer
testified that at a foremen's meeting held on Tuesday afternoon, March 1, and
attended by Manager Delaney and all leadmen, he was informed by Delaney of the
need for a further cutback and that the layoff of the five employees was discussed
and decided upon at this meeting, with Schmoyer recommending the. termination
of Page and Padgett, Leadman Stradder recommending the termination of Berney
and Sullivan, and Leadman Donahue recommending the termination of Lantz.
Delaney testified that he told Schmoyer to follow seniority where possible but that
capability was to override seniority. Stradder however denied ever attending a fore-
men's meeting where the termination of the five employees was discussed and Donahue
testified that the decision to discharge Lantz was made a few days after the foremen's
meeting of March 1. At another point in his testimony, Schmoyer testified that only
Sullivan and Page were laid off because of a cutback in production and that Berney,
Padgett, and Lantz were laid off for not doing their work properly.
In addition, Respondent advanced further reasons for the selection of these five
employees as follows:
With respect to Sullivan: Schmoyer testified that at the March 1 foremen's meet-
ing, Leadman Stradder stated that Sullivan had a back injury, that he was unable to
do the job, and that Stradder wanted him replaced. As previously stated, Stradder
denied even attending any such foremen's meeting. Stradder testified that Sullivan's.
work was unsatisfactory, that Sullivan complained about his feet hurting, and that
he had never told Schmoyer that Sullivan had complained about any other part of
his body. Barbara Linkhous testified that Sullivan was slow in his work because he
had an infected eye. On the other hand, it was not denied that Sullivan had never
been reprimanded about his work and had received a raise about 2 months before
his termination, as previously found. Moreover, Schmoyer also testified that the
reason he did not consider Sullivan for reemployment when vacancies subsequently
occurred was not because Sullivan's work had been unsatisfactory but because
Schmoyer assumed that Sullivan had his own job.
With respect to Page: Schmoyer testified that at the March 1 meeting he recom-
mended the layoff of Page because he no longer needed two men in the repair de-
partment and the other man had more seniority. On direct examination he testified
that there was nothing wrong with Page's work. On cross-examination Schmoyer
stated that Page was not a good worker and was unproductive. However, in his
pretrial affidavit, dated March 30, 1960, Schmoyer stated that he told Page that his
work was better than the other man's but that Page had to go because he was the
younger in point of seniority. And in the letter of recommendation, given to Page
2 days after his termination, Schmoyer stated that Page's "work was satisfactory."'
Moreover, Delaney testified that he told Schmoyer that ability was to override
seniority. Again, Schmoyer testified that he did not consider Page for reemployment
when subsequent vacancies occurred because he assumed Page had another job in
view of the fact that he had asked for a recommendation . The preponderance of
CABINETS, INC., SUB. OF AIR CONTROL PRODUCTS, INC. 1391
the evidence clearly shows , and I find, that Page did not tell Schmoyer at that time.
that he wanted the recommendation for a specific job. This is borne out by the fact
that the recommendation is addressed "TO WHOM IT MAY CONCERN " and the:
fact that Page returned 2 or 3 weeks later to see if any work was available. More-
over, on this occasion, Schmoyer promised to call Page when work became available.
With respect to Berney: Schmoyer testified that Berney was released on Stradder's.
recommendation at the March 1 foremen 's meeting.
According to Schmoyer 's testimony , Stradder stated at this meeting that Berney
was standing around not doing any work. However, as previously noted, Stradder
testified that he never attended a foremen 's meeting at which the termination of the,
employees in question was discussed . Stradder testified that Berney's work was not
satisfactory because he did not take an interest in his work and resented taking
orders and that he told Schmoyer about it before he learned of the need for a cut
back. However, as previously found, it was not denied that Berney was never.
reprimanded by Stradder . When the night shift was eliminated on February 12,.
Berney was transferred to the day shift as one of the more productive workers. And
before the foremen 's meeting on the day of his termination, Berney was told by
Schmoyer that he had told the Red Cross that Berney had a job here . any time he:
wanted it, as previously found. Indeed , even Barbara Linkhous testified that Berney
was a "pretty good worker."
With respect to Lantz: Schmoyer testified that Leadman Donahue recommended
Lantz' release at the March 1 foremen 's meeting because he was an unproductive:
worker. Donahue testified that the decision about Lantz ' layoff was made a few
days after the foremen 's meeting . Donahue testified that Lantz was a poor worker-
and would stand around with his hands in his pockets. Yet, he admittedly never
reprimanded him when he saw him allegedly doing nothing. He further admitted
that Lantz deserved the 10-cent per hour raise which he had received . Schmoyer
testified that another reason why Lantz was replaced was because he could not get
along with his fellow employees , pointing to an incident which Schmoyer testified'
occurred 3 or 4 weeks before Lantz' termination . Donahue placed this incident on
the day of Lantz' termination . The incident involved Leroy Henry, a fellow em-
ployee. Lantz had refused to perform some of Henry's work in addition to his own.
However, Donahue admitted that it was not Lantz ' job to help Henry.
With respect to Padgett : Schmoyer testified that when he hired Padgett he told'
her that he needed a quota of 200 drawers a day, that her production dropped be-
cause of being absent and tardy , "so liquidating the night shift, we replaced her."
However, the night shift was liquidated on February 12, whereas Padgett was not
terminated until March 2. Moreover , Schmoyer admitted that other employees were
also tardy and absent , that it was not an unusual situation , and that only in the cases:
of absences for an extended period did the employee bring in a doctor's excuse.
However, the employment records for Padgett, introduced by Respondent , disclose
no extended absences . Although Schmoyer testified that Padgett 's production had'
dropped, he did not deny her testimony that it had dropped from over 300 a day
to over 200 a day, nor did he testify specifically that her production had dropped'
below the required quota of 200 a day. Moreover , as previously found, the only
reason advanced by Schmoyer to Padgett was a cutback in production. On the
other hand , Schmoyer attempted to build a case against Padgett by falsifying her
required . production quota. Thus, while he testified that it was impossible for a
person to make 400 drawers a day, he admitted that he stated in his pretrial affidavit
to the General Counsel that he had told Padgett her required quota was 400 "every
day not 200."
7. Concluding findings
Upon consideration of all the foregoing and the entire record as a whole, I am,
not convinced that Respondent had any further need for an economic cutback on
March 1 and 2, 1960 . The data submitted by the Respondent in General Counsel's
Exhibit No. 2 shows that two new employees were hired for the assembly department
on March 4, 1960 , and a third employee rehired for the assembly department on
March 8. In any event , I cannot accept the reasons advanced by the Respondent
as being the true motivating causes for selecting these particular employees for
termination.
As soon as Union Representatives Jones and Don Carpenter began distributing
leaflets on Monday, February 29, Schmoyer warned Page of loss of employment for
union activity . The following day, when Berney indicated the need for the Union
if they would not get a raise , Schmoyer threatened the employees with the removal
of the water cooler and vending machines and the elimination of break periods if
the Union came into the plant. He also thereafter interrogated applicants and at
least one employee as to whether they were for or against the Union . On Tuesday
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
morning, March 1, Schmoyer was informed that Page had signed one of the union
authorization cards which had been attached to the leaflets distributed the preceding
afternoon . That same morning, in response to Schmoyer 's query, Sullivan identi-
fied himself as a close friend and associate of Don Carpenter who was "the one be-
hind this unionizing." Also before the commencement of work that morning,
Berney explained to Stradder about the benefits promised by the Union in the
leaflet which he received the preceding afternoon. Stradder replied that he had
once belonged to three different unions and none had ever done anything for him.
Whether or not the terminations of these three employees was discussed that after-
noon at a foremen 's meeting, all three were summarily terminated at the end of the
day, without prior notice or warning. 'I am convinced and find that on that day,
before the foremen's meeting, Schmoyer knew that Page had signed a union card and
also believed, or at least strongly suspected, as did Stradder, that Berney and
Sullivan were in favor of promoting the Union.
The following morning, Wednesday, March 2, Donahue systematically interro-
gated all the employees in his department as to whether they were for or against the
Union and checked their answer on a tablet. Fearing for his job because he.had
heard of the, terminations of the preceding day, Lantz stated that he was neutral
although he had already signed a union authorization card when Jones and Don
Carpenter had visited his home on Monday evening. After lunch that same day,
Donahue inquired of Margaret Carter, an admitted antiunion employee, whether
she had heard Lantz speak about the Union and was informed by her that Lantz
had spoken in favor of the Union. During that day, Barbara Linkhous also sought
out Padgett and asked how she felt about the Union. Padgett, who had also signed
a union card when Jones and Don Carpenter had visited her home on Monday
evening, replied that the Union was a good thing and that they needed it. Linkhous
then, in effect, reiterated Schmoyer's earlier threat of loss of employment if the
Union came in. Later that afternoon, Lantz and Padgett were summarily termi-
nated, without prior notice or warning. Schmoyer admitted that Linkhous might
have told him that certain employees were in favor of the Union. I am con-
vinced and find from all the circumstances, including Linkhous'. close association
with Schmoyer and her subsequent telephone conversations with Padgett, that Link-
hous had informed Schmoyer of Padgett's prounion interest and support. Donahue,
who recommended Lantz' termination, had learned of Lantz' prounion interest and
support from Margaret Carter. Respondent gave no explanation why these two
employees were terminated on Wednesday, the first day of a new workweek, instead
of on Tuesday as in the case of the other three. Nor was any explanation offered
as to why Schmoyer would also have had to terminate Padgett' s son if he had not
been working there for a contractor. A reasonable explanation is that their termi-
nation had not been decided upon until their prounion sentiments and sponsorship
were discovered on Wednesday. And this explanation is consistent with the testi-
mony of Donahue that the decision to terminate Lantz was made a few days
after the foremen's meeting of March 1.
Although a cutback in production was the only reason mentioned to the five
employees for their terminations,17 Respondent thereafter advanced a variety of dif-
ferent and inconsistent additional reasons. Thus, where the employee had less
seniority, his overriding ability was ignored, as Schmoyer admitted in his pretrial
affidavit having told Page; but where the employee had more seniority, other alleged
derelictions were advanced, as in the case of Sullivan, Lantz, and Page. On direct
examination , Schmoyer testified that there was nothing wrong with Page's work; on
cross-examination, he testified that Page was an unproductive worker; and in his pre-
trial affidavit Schmoyer stated that he told Page that he was a better worker than the
employee who was being retained. Leadman Stradder attributed Sullivan's alleged
slow work to his complaints about his feet hurting;. Schmoyer testified that Stradder
had reported it was because Sullivan had a back injury; and Linkhous testified it was
because of an infected eye. A drop in production due to absences and tardiness was
a reason advanced by Schmoyer in Padgett's case. While it is true that Padgett's
production had dropped in the last few weeks from over 300 drawers a day, it still
remained above the required quota of 200 per day. None of the employees had
been reprimanded for their alleged derelictions; some had received raises; one was
told by Schmoyer on the day of his termination that the Red Cross had been in-
formed that he could have a job there as long as he wanted; and at least one had
been given a specific promise by Schmoyer to be recalled. However, none were
recalled, although vacancies subsequently became available for which they were
qualified. On the other hand, Schmoyer did not deny to Padgett her accusation on
17Page was also told that he-had less seniority. than, the person who was being retained.
CABINETS, INC., SUB. OF AIR CONTROL PRODUCTS, INC. 1393
the day of her termination that she was discharged on account of the union. And
Barbara Linkhous thereafter told Padgett that she could get her job back if she
would go back and inform Schmoyer about who was for and against the Union.
Indeed, Schmoyer deliberately tried to build a case against Padgett by admittedly
falsifying in his pretrial affidavit that he had told Padgett the required quota would
be 400 drawers a day, a quota which he admitted it was impossible to achieve.
Upon consideration of all the foregoing, and upon the entire record as a whole,
I am convinced and find that, whether or not there may have been a need for an
economic layoff at that time, Respondent selected these particular employees for
termination and thereafter failed to reemploy them, because of their known or
suspected prounion interest and support. By such conduct Respondent discriminated
with respect to their hire and tenure of employment, thereby discouraging member-
ship in the Union, in violation of Section 8(a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set -forth in section III, -above, occurring in connec-
tion with the operations of Respondent described 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in and is engaging in certain unfair
labor practices, I shall recommend that it cease and desist therefrom and take cer-
tain affirmative action which I find necessary to effectuate the policies of the Act.
Having found that Respondent has discriminatorily discharged five named em-
ployees, I shall recommend that Respondent offer them immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, and make them whole for any loss of pay
they may have suffered by reason of such discrimination, by payment to each of a
sum of money equal to that which each normally would have earned as wages from
the date of the discharge to the date of Respondent's offer of reinstatement, less his
or her net earnings during that period, such sums to be computed in accordance with
the formula set forth in F. W. Woolworth Company, 90 NLRB 289, 291-294. I
shall further recommend that Respondent, upon request, make available to the Board
or its agents, for examination and copying, all payroll and other records necessary
to enable the Board to analyze and compute the amounts of backpay due.
Because discriminatory discharges, as in the instant case, go to the very heart of
the Act and also because I am convinced that it may be anticipated, from Re-
spondent's past conduct, that Respondent may commit other violations of the Act
in the future, I find it necessary in order to effectuate the policies of the Act to recom-
mend that Respondent be ordered to cease and desist from infringing "in any other
manner" upon the rights of its employees as guaranteed by the Act, in addition to
those rights found to have been violated herein.is
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Carpenters Local Union 2376, United Brotherhood of Carpenters & Joiners of
America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discriminating with respect to the hire and tenure of employment of its
employees and thereby discouraging membership in the aforesaid labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
3. By the above conduct and by interrogating applicants and its employees as to
their own and as to other employees' feelings and position with respect to the Union,
by warning employees that they might be laid off for supporting the Union, by
threatening employees with loss of employment, the removal of the water cooler
and vending machines, and the elimination of break periods, if they selected the
Union as their bargaining representative, and by advising an employee that she
could get her job back if she would give information about the Union and about the
employees who were for and against it, Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed by Section 7 of the
18 See, e.g., Layton Oil Company, 128 NLRB 252.
59725"1-vol. 130--89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act and thereby has engaged in and is engaging in unfair labor practices within the-
meaning of Section 8 (a) (1) of the Act. -
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The Respondent has not engaged in unfair labor practices by attempting to have-
employees leave the plant by an exit which would prevent them from coming into.
contact with union organizers known to be in the area.
[Recommendations omitted from publication.]
Kolker Chemical Corporation 1 and Paint, Varnish & Allied
Products , Local Union #1310, B. of P .D. & P. of A., AFL-CIO,'
Petitioner
Kolker Chemical Corporation and International Union of Operat-
ing Engineers, Local 68, AFL-CIO,' Petitioner . Cases Nos-
22-RC-983 and 22-RC-992. March 16, 1961
DECISION, ORDER, AND DIRECTION OF ELECTIONS
Upon separate petitions duly filed under 'Section 9(c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before:
Richard W. Coleman, hearing officer. The hearing officer's rulings:
made at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3(b) of the Act, the Board'-
has delegated its powers in connection with these cases to a three-
member panel [Members Rodgers, Leedom, and Fanning].
Upon the entire record in these cases, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer."
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section-
9(c) (1) and Section 2(6) and (7) of the. Act.
4. In Case No. 22-RC-983, the Painters seeks a unit of production
and maintenance employees at the Kolker Chemical Corporation'-
plant. The Employer agrees that a production and maintenance unit.
1 The name of the Employer appears as amended at the hearing.
2 Herein called Painters.
8 Herein called Operating Engineers.
On December 9, .1960, subsequent to the close of the hearing , District 50 , United'
Mine Workers of America , herein called District 50, filed a petition in Case No . 22-RC--
1071, seeking to represent the employees here involved . Thereafter , on December 14,.
1960, District 50 moved to intervene in these proceedings , alleging that it received no.
notice of the hearing. As we are administratively satisfied that District 50's card show-
ing is both adequate and timely for the purposes of intervention , the motion to intervene.
is granted . Accordingly , as District 50 indicated it desired to withdraw its petition upon
the granting of its motion, we shall dismiss the petition in Case No . 22-RC-1071.
5 Hereinafter referred to as Kolker.
130 NLRB No. 131.