All-Glass Aquarium Co., Inc.

National Labor Relations Board - Board Decisions

Oct 17, 1974

214 N.L.R.B. 117 (N.L.R.B. 1974)

ALL-GLASS AQUARIUM CO., INC. 117
All-Glass Aquarium Co., Inc . and John Joseph
Schwartz . Case 30-CA-2546
October 17, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 28, 1974, Administrative Law Judge El-
bert D. Gadsden issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and a motion to reopen the
record and a brief in support of that motion. Counsel
for General Counsel filed a brief in support of the
Administrative Law Judge's Decision and in opposi-
tion to the motion to reopen the record.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.'
The Administrative Law Judge found that Re-
spondent had violated Section 8(a)(3) of the Act by
its layoff and eventual termination of the Charging
Party, John Joseph Schwartz. In so concluding, the
Administrative Law Judge found that the circum-
stances surrounding Schwartz' layoff and termina-
tion indicated a discriminatory motive in those ac-
tions. Having also found that Respondent had dem-
onstrated an animus toward certain union activity
Schwartz had undertaken shortly before his layoff,
the Administrative Law Judge therefore found that it
was, in fact, Respondent's concern over Schwartz'
union activity which propelled its actions of placing
Schwartz on layoff and ultimately terminating his
employment. We disagree, as we find no union ani-
mus in any of the incidents recited by the Adminis-
trative Law Judge and in any event we find no cir-
cumstances surrounding Schwartz' layoff and termi-
nation which would yield an inference of a
discriminatory motive. We shall therefore dismiss the
complaint in its entirety.2
Schwartz started working for Respondent in Sep-
tember 1970 and between that time and the date of
his layoff on November 8, 1973,3 he worked at a var-
iety of jobs, including the job of aquarium assembler,
the position he held until shortly before his layoff.
On October 31, Schwartz presented a doctor's slip to
Respondent's superintendent Eich, which indicated
that for health reasons Schwartz should be transfer-
red to an area free of air irritants. Respondent did
immediately transfer Schwartz from his job as an
aquarium assembler but he was told at that time he
would just be doing fill-in work until Respondent
could find a suitable job for him or decided what to
do with him.
Schwartz did this fill-in work until November 8.
On that day, he was called into the office of
Respondent's president, Ritzow. After first informing
Schwartz that Respondent could not create a posi-
tion for him,' Ritzow did inform Schwartz of two job
openings it then had. Ritzow informed Schwartz that
if he did not accept either of the jobs then he would
have to be placed on layoff and would be notified of
any other job openings that might arise. Rather than
accept either of the jobs that were offered him, both
of which paid lower than his aquarium assembler
job,5 Schwartz elected to go on layoff. A few days
after Schwartz went on layoff, Respondent advised
him by letter that the jobs he had been offered were
no longer posted and that no other jobs had opened
up.' Respondent reconfirmed that it would notify
Schwartz of any posted job openings and also noti-
fied him that, if no opening arose within 30 days of
his layoff, he would be terminated in accord with its
policy on layoff. In the 30-day period of his layoff,
Schwartz was not advised of any other job openings
and therefore, pursuant to its policy, Respondent ter-
minated Schwartz on December 10.
On October 31, the day Schwartz presented the
doctor's slip to Superintendent Eich, Schwartz also
began distributing union authorization cards. Re-
spondent admittedly became aware of this activity
almost immediately.' Although knowledge of such
activity is not indicative of an animosity toward it,
the Administrative Law Judge concluded that certain
incidents noted below demonstrated Respondent's
animus toward Schwartz' union activities. We dis-
agree that the incidents demonstrated any such
animus.
3 All dates are 1973 unless otherwise noted.
Ritzow testified Respondent never has had a full-time position akin to
that which Schwartz was then filling on a temporary basis.
5 Schwartz' aquarium assembler job was rated at a G3 in Respondent's
scale . The two jobs offered were terrarium assembler , rated at GI, and belt
sander, rated at G2. Respondent had two belt sander openings at the time.
6 Although Ritzow admitted that the jobs which had been offered
Schwartz were not filled at the time Ritzow sent Schwartz this letter , neither
were the jobs still posted to the employees . Ritzow testified without contra-
diction that once the posting period to the employees had expired (which it
1 In light of our decision here , we find it unnecessary to rule on had in the case of the jobs offered Schwartz) those jobs were no longer open
Respondent 's motion to reopen the record . to the employees , even if they were still vacant, but rather Respondent
2 The Administrative Law Judge had dismissed the only other allegation would then hire from the outside.
of a violation in the complaint and counsel for General Counsel has taken 7 Superintendent Eich knew of it on the same day and so informed
no exception to that dismissal . Respondent ' s president . Ritzow.
214 NLRB No. 24
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The first such incident noted by the Administra-
tive Law Judge was a brief conversation between
Schwartz and Eich and that occurred about 2 p.m.,
Ocotber 31. Schwartz had been handing out cards
during the 2 p.m. breaktime and Eich instructed him
that if he handed out any union cards he should "do
it on [his] own time and not on the company time"
(emphasis supplied). Although the Administrative
Law Judge initially set out this testimony, he thereaf-
ter inadvertently characterized Eich's instructions to
Schwartz to be that Schwartz should distribute the
cards only "on [his] own time and not on the compa-
ny property" (emphasis supplied). Noting that
Schwartz in fact distributed cards only on his own
time, the Administrative Law Judge found that the
restriction that Schwartz could not distribute cards
on company property at any time demonstrated
Respondent's animus toward Schwartz' union activi-
ty. As we have noted, however, the instruction that
Eich gave Schwartz referred only to the time of dis-
tribution and did not limit this distribution to off-
company property only. Although Eich's instructions
to Schwartz concerning solicitation on company time
appear to be stated in overly broad terms, we note
that the statement, itself, was not alleged to be a vio-
lation and was isolated in nature.
The Administrative Law Judge also noted another
conversation Eich and Schwartz had later on Octo-
ber 31. In the conversation, which lasted about 5
minutes, Schwartz made the assertion as an absolute
statement that, if the Union entered the plant, the
starting salary would be in excess of $4 per hour.'
According to Schwartz' credited testimony,-Eich stat-
ed that, if the Union did get in, Respondent's man-
agement could, if they desired, withdraw all the
fringe benefits the employees had. The Administra-
tive Law Judge found, however, that Eich also told
Schwartz that whatever was achieved by the Union
would have been the product of negotiations between
Respondent and the Union. According to Schwartz,
Eich also explained this to the other employees.'
In light of Eich's followup statement to Schwartz
that the Union could obtain benefits, although only
through negotiations, and Eich's telling this to the
other employees as well, we cannot find, as the Ad-
ministrative Law Judge did, that Eich's initial state-
ment on withdrawal of benefits demonstrated any
8 At the time, the starting salary for a GI rated job (Respondent's lowest
classification) was $2 per hour; a G2 starting salary was $2.31 per hour; a
03 starting salary (Schwartz' level) was $2.67 per hour; a G4 started at
$3.10 per hour; a G5 at $3.59 per hour; and a G6 leadman at $3.79 per hour.
9 This is in line with Eich's testimony that, notwithstanding his denial that
he made such a statement, having heard a report that he had said Respon-
dent was going to take away a number of the employees' benefits, he went
to the various departments to tell the employees that this was not true.
union animus. Moreover that statement, coming as it
appears to have in reply to certain boasts by
Schwartz as to the "automatic" beneficial effects of
unionization, may well have been only a retort in
kind, neither of which was meant to be taken serious-
ly by the other party.
We also find no union animus was exhibited in a
30-second conversation Eich and Schwartz had on
November 1 wherein Schwartz asked Eich if Presi-
dent Ritzow and Respondent's vice president were
"mad at all about the Union." Eich's reply,
"wouldn't [Schwartz] be if it [were his] company,"
was found by the Administrative Law Judge to have
been an indicator of such animus. However, we find
this statement was purely speculative. Eich did not
state how the owners actually felt but only how he
personally perceived they felt. Such an observation,
in the absence of information that Eich was, in fact,
aware of the feelings of Ritzow or Respondent's vice
president on the subject, and given as it was only in
answer to a question rather than voiced as an unsoli-
cited statement, will not serve as an indicator of ani-
mus toward the Union.
Nor will another Schwartz-Eich conversation on
November 1 serve as such an indicator. This conver-
sation occurred shortly after 4 p.m. and lasted about
30 seconds. Schwartz had just ended his shift and
had punched out but he was engaged in a conversa-
tion- by the lockers when Eich asked him if he had
punched out and when he replied he had, Eich told
him to leave the plant. The Administrative Law
Judge found this action of Eich demonstrated union
animus since he found no evidence that the following
work period had begun and noted Eich admitted he
had instructed Schwartz to leave because he thought
Schwartz would try to solicit support for the Union
while on "company property."
Contrary to the Administrative Law Judge, the
record shows that the next shift had started working
when Eich instructed Schwartz to leave.10 Further,
while Eich did state, as a reason for instructing
Schwartz to leave, that he did not want Schwartz to
solicit "on company property," it is clear from Eich's
testimony that he did not intend this as a blanket
prohibition on Schwartz' union solicitation but
meant it to cover only those activities of Schwartz
directed toward the second-shift employees, while
they were working, at a time when Schwartz himself
had punched out. This is so since Eich also said
Schwartz could have solicited the second-shift work-
ers when they were on their own breaks, or the first-
shift workers, after 4 p.m., in the parking lot. In such
10 Eich testified that the second shift starts work at 4 p.m. and Schwartz
testified this incident occurred shortly after 4.
ALL-GLASS AQUARIUM CO., INC. 119
circumstances there was no union animus in this in-
struction of Eich.11
Nor can we find any union animus in the last inci-
dent relied on by the Administrative Law Judge;
namely, that, after Respondent discovered Schwartz
was engaged in union activities, it immediately called
its attorney and its business consultant. While the
Administrative Law Judge inferred that Respondent
must have been "adversely concerned" about
Schwartz' activity or it "probably would not have
sought such counsel," we note that Ritzow testified
he wanted to know what he could and could not do
as a result of this situation with Schwartz. Such
would seem to be a perfectly reasonable response of
a businessman confronted with union activity in his
plant who wishes advice on how to proceed. Further,
we note that Respondent had just received notice
that Schwartz for health reasons could no longer per-
form his regularly assigned job. In such circum-
stances, with Schwartz' job situation in an ambiva-
lent state but with Schwartz also then engaged in
union activity, it was perfectly understandable that
Respondent might wish to be apprised of the perime-
ters in which it could act toward Schwartz.
We therefore disagree with the Administrative
Law Judge that Respondent demonstrated any ani-
mosity toward Schwartz' union activities prior to the
time of his layoff. Further, even were we to find that
any of Respondent's actions arguably indicated an
animus toward Schwartz' union activities, we would
still find no violation in the layoff since, unlike the
Administrative Law Judge, we find no discriminato-
ry motivation in that layoff.
In so finding a discriminatory motivation, the Ad-
ministrative Law Judge noted that at the time of the
layoff Respondent did not inform Schwartz that,
pursuant to its new layoff policy, employees in a lay-
off status more than 30 days were automatically ter-
minated. He further noted that, during the 30-day
period in which Schwartz was on layoff, a vacancy
arose at Respondent, of which Respondent did not
inform Schwartz, contrary to its earlier assurances
that he would be informed of any posted jobs. Unlike
the Administrative Law Judge,. we find no discrimi-
natory motive in these incidents.
Respondent's policy on layoff was part of a gener-
11 We note too Eich's testimony that his instructions to Schwartz were
pursuant to the rules in Respondent's handbook . One of those rules prohib-
its "Unauthorized presence of any employee on Company premises for any
purpose other than assigned work" and accordingly Eich said employees are
not supposed to "hang around" after work. In GTE Lenkuri, Incorporated,
204 NLRB 921 (1973 ), we held that where an employer's no-access rule is
nondiscriminatory, that is , it denies off-duty employees access to the prem-
ises for any purpose , and is not disparately applied against union activities.
it is presumptively valid absent a showing that no adequate alternative
means of communication are available . Eich's instruction to Schwartz was
thus fully justified.
al business program set up for it by its business con-
sultant in late September 1973. Prior to the imple-
mentation of the program, Respondent had no layoff
policy, with automatic termination being the only al-
ternative if one could not perform his job or there
arose a situation where no job was available for an
employee. While Respondent admits it did not in-
form Schwartz on November 8 that his taking layoff
might result in his termination, if no job opened for
him within 30 days of his layoff, there is no conten-
tion that the layoff program as instituted was dis-
criminatory. In fact, Respondent had informed none
of the employees of the consequences of its new lay-
off policy and in such circumstances it may well have
been mere inadvertence on Respondent's part in fail-
ing to notify Schwartz and the other employees of
this part of the policy which had just been institut-
ed.12
And while we think it unfortunate that Schwartz
was not notified of the full ramifications of his taking
layoff, we note that Respondent did in fact offer
Schwartz two jobs which he turned down, before he
went on layoff. We note also that it was Respondent
who called Schwartz into the November 8 meeting to
offer him these jobs because the job posting period
for these two positions was due to end on November
9 and thereafter Schwartz would not be eligible for
these jobs.13 In such circumstances, Respondent's
failure to inform Schwartz of the full extent of its
layoff policy, when viewed in light of its other ac-
tions relative to the November 8 meeting (i.e., calling
Schwartz in and offering him various jobs before all
job opportunities were foreclosed to him), was not
indicative of a discriminatory motive.
We also find that Respondent did not demonstrate
any discriminatory motivation in not , notifying
Schwartz of the job which became vacant on Novem-
ber 27.14 While Respondent had informed Schwartz it
would notify him of any job that was posted, Re-
spondent, as was its prerogative, treated the job that
opened as a temporary job for which no posting was
undertaken until December 26. Respondent treated
the opening as a temporary one for economic rea-
sons. There was no assurance that Schwartz would
accept the job if it were posted, and 'If he did not and
Respondent then had to hire a new employee for the
job, that new employee would have become automat-
ically eligible for various upcoming holidays and for
12 The Administrative Law Judge inadvertently found that Ritzow testi-
fied he had told the employees of the layoff policy and then the Administra-
tive Law Judge discredited this statement . As noted , Ritzow admittedly
never told the employees of the possibility of termination after 30 days
under the layoff policy.
13 See fn. 6, supra.
14 That job was a glasscutter classification , rated G3 on Respondent's
scale. Respondent filled the job temporarily by transferring another employ-
ee from terrarium work.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's pension plan if he had been hired be-
fore the year's end.
In sum, we find no union animus in any of
Respondent's actions and no indication of a discrim-
inatory motive in Respondent's layoff and eventual
termination of Schwartz 15 and therefore we shall dis-
miss the complaint.
ORDER
It is hereby ordered that the complaint herein be,
and it hereby is, dismissed.
MEMBER FANNING, dissenting:
I think it clear the evidence demonstrates the pre-
textual nature of Respondent's inducement of Charg-
ing Party Schwartz into taking layoff and its eventual
termination of him. Since Respondent was admitted-
ly aware of Schwartz' union activities shortly before
his layoff and demonstrated an animosity toward
those activities, I therefore conclude that the true
reason for Respondent's actions in inducing
Schwartz to take layoff was to terminate him because
of his union activities. Therefore, I agree with the
Administrative Law Judge that Respondent's layoff
and termination of Schwartz was in violation of Sec-
tion 8 (a)(3) and (1) of the Act and I dissent from the
majority's failure to so find. I set out first my reasons
for finding pretext in Schwartz' termination and then
my conclusions on Respondent's animus toward
Schwartz' union activities.
While the evidence indicates that Respondent's
new policy on layoff was instituted in late September
1973 on a nondiscriminatory basis, the evidence
equally demonstrates that the implementation of that
policy in Schwartz' case was patently discriminatory.
According to the policy, when an employee was
placed on layoff, he was to be kept informed of all
job openings as posted on the bulletin board. Em-
15 Counsel for General Counsel also argued as an indicator of a discrimi-
natory motive that, at the November 8 meeting , although Ritzow offered
Schwartz various jobs Ritzow did not correct Schwartz when Schwartz told
him he had been informed that he would receive the starting rate for the
lower classification jobs. Thereafter, in its letter reconfirming the layoff.
Respondent then listed the jobs at the actual rate Schwartz would have
received, which the General Counsel contends was substantially higher than
what was stated to Schwartz at the November 8 meeting . The General
Counsel therefore contends Respondent tricked Schwartz into taking layoff.
The General Counsel's contention as to what was said at the November 8
meeting was based on Schwartz' testimony . Ritzow , however, testified that
the wage rate was not discussed . There is therefore a conflict as to what
occurred concerning the wage rate but we cannot say from a close reading
of the Administrative Law Judge's Decision that the Administrative Law
Judge made a credibility resolution on this issue . We therefore cannot re-
solve the issue or consider it as an indicator of a discriminatory motive. In
any event, we note that , some 10 days before the November 8 meeting, the
employees were notified in a general meeting and individually of
Respondent 's new wage and transfer policy and were told then that an
employee's seniority and tenure would enable him to have a higher rate, if
he transferred jobs, than merely the starting rate for the job. The wage rate
scale was also posted prior to the November 8 meeting.
ployees who were in a layoff status for over 30 days
were thereafter automatically terminated.
Schwartz and Ritzow conferred on Schwartz' sta-
tus on November 8, 1973. It is undenied that at that
time Ritzow offered Schwartz a job in either of two
job classifications but because those jobs paid lower
than what Schwartz was then earning,16 he decided to
go on layoff, as offered by Ritzow. It is further unde-
nied that Ritzow told Schwartz that he would be no-
tified of any other job openings that might arise.
Lastly, it is undenied that Ritzow did not tell
Schwartz that he would be automatically terminated
at the end of the 30 days if he was still on layoff.
This latter point is the first of the two indicators of
Respondent's pretext in inducing Schwartz to take
layoff. Although Respondent was quick to inform
Schwartz he would be notified of other job openings,
which of course proved not to be the case as dis-
cussed infra, it somehow "inadvertently" forgot to in-
form him of probably the most basic fact of the lay-
off; i.e., that it could well lead to his automatic termi-
nation. It is no answer that Respondent also did not
inform any of its other employees of the possibility of
discharge built into its new layoff system since
Schwartz was the first and, in fact, the only employee
laid off pursuant to the new policy and thus was the
only employee who ever had a need to know the full
ramifications of a decision to take layoff." Needless
to say, Respondent did not supply Schwartz with this
information until it notified him that the jobs he had
originally turned down were not in any event open to
him any more. But even in that communication,
Schwartz was told he would be informed of any jobs
that were posted during the layoff period.
Respondent's opportunity to keep its promise oc-
curred on November 27, 1973, when one of its glas-
scutters quit. The job of glasscutter was rated at G3
on Respondent's scale, which was the same level as
Schwartz' job at the time of his layoff. Additionally,
Schwartz had, at times previous, filled in as a glass-
cutter. With this as background, and with this job
seemingly one Schwartz qualified for and might well
accept, Respondent instead filled the job with an em-
ployee it moved from terrarium work. This transfer,
of an employee with admittedly no previous experi-
ence as a glasscutter, was concededly only temporary
and on December 26 (some 29 days after the job
16 There is a dispute as to whether Schwartz was told his wage rate would
be at the starting rate or higher . While a resolution of that issue would have
been helpful , the lack of such a resolution is not fatal in finding a violation.
There is no dispute that whatever the rate of those jobs offered they were
below that which Schwartz had been earning.
17 Nor is it an answer that prior to the new layoff policy Schwartz would
have been automatically terminated without any layoff period if there were
no job available for him. We are dealing with Respondent's actions under
its new policy, which provided a 30-day layoff period, and what went before
in this regard is irrelevant.
ALL-GLASS AQUARIUM CO., INC. 121
opened up and beyond the expiration date of
Schwartz' layoff period) the job was first posted by
Respondent. Schwartz, of course, was then ineligible
for the job since his last day of employment was his
last day on layoff, December 10.
Respondent's answer to its failure to notify
Schwartz of the job was indeed unique. In
Respondent's view, the vacancy was not a job open-
ing "as such" and hence it had no obligation to offer
Schwartz the job. Respondent listed as its reason for
not considering this a job that had opened its desire
not to fill the job until after the Christmas holidays
for the economic reason that it did not wish to give
some new employee various holidays and an access
to Respondent's pension fund to which the employee
would be immediately entitled if hired pre-Christ-
mas.
This argument completely ignores the strong possi-
bility that Schwartz would have accepted this job, for
which he qualified, if he had been offered it. This
conclusion is supported by the fact that the only rea-
son in the record for Schwartz having turned down
the two jobs offered him was their lower paying- sal-
ary. The job that became vacant, however, was rated
at the same pay level as the job Schwartz had before
his illness necessitated his transfer. Also, since
Schwartz would have been "more" entitled as a long-
time employee to the various holidays coming up
than a new employee, Respondent's fear in that re-
gard would have been allayed also.
Respondent's argument that it was for economic
reasons that the job was not posted until after
Schwartz' layoff period had expired is also undercut
by the fiscal picture of Respondent painted by its
own president. Ritzow testified that Respondent be-
gan operations full time in April 1970 with only two
employees. In the intervening years, however,
Respondent's operations have been, in Ritzow's
words, "continually expanding," and its labor force
has consequently been "constantly expanding." In
October-November 1973, Respondent embarked on
a 40,000-square-foot addition to its plant and in Jan-
uary 1974 Respondent hired "something like thirteen
people to expand and to better organize [its] work
force" according to Ritzow. In contrast to this pic-
ture of a healthy growing company, we have
Respondent's assertion that it was for the economic
reason of not wishing to give one employee various
benefits "right off the bat," in Ritzow's terms, that it
did not post this job. I am unable to accept such a
justification for a failure to-post this job.18
18 1 note also that Ritzow. testified that Respondent has always had two
glasscutters and that he also testified December is one of Respondent's
busiest months. In these circumstances, Respondent still refused to post the
job and fill it with a permanent employee but instead transferred over an
Rather, it seems clear to me that Respondent was
able to induce Schwartz to take layoff rather than
certain lower paying jobs by not informing him such
action on his part could lead to automatic termina-
tion. Once on layoff, Schwartz, according to
Respondent's plans, was never going to be recalled.
That this conclusion is inescapable can be seen from
Respondent's attempts to keep a job from Schwartz'
knowledge once one became vacant during Schwartz'
layoff period. Respondent's actions clearly yield the
inference that Schwartz' discharge was for a discrimi-
natory reason and I find that reason in Schwartz'
union activities of which Respondent was well aware
and to which it was opposed.
While the majority discounts all the incidents de-
scribed by the Administrative Law Judge in his find-
ing that Respondent possessed an animus toward
Schwartz' union activities, I think certain of the inci-
dents considered, in toto, clearly demonstrate that
animus. Most notable of those incidents was Eich's
ordering Schwartz out of Respondent's plant only a
few minutes after Schwartz'. shift had ended on No-
vember 1. Eich admitted it was only because he did
not want Schwartz to solicit for the Union among the
employees then working that he ordered Schwartz
out of the plant. Yet I note that Schwartz, at the time
he was ordered out, was not engaged in conversation
with any working employee, and was not in a work-
ing area but was talking by the lockers. Schwartz was
not then even engaged in any conversation about the
Union but rather was chatting with nonworking em-
ployees after his shift as he had done for 3 years
previously. Schwartz was, in fact, the only one of the
employees who was ordered out. In this context, and
noting Eich's admission of the reason for his or-
dering Schwartz out of the plant, I find this incident
a strong indicator of Respondent's union animus.19
Also indicative of Respondent's animus toward
the Union was Eich's answer to Schwartz' question
whether higher management was upset at the pres-
ence of the Union. The majority finds Eich's re-
sponse "wouldn't [you] be if it [was your] company"
too speculative an answer to warrant any inference
of union animus. The answer, however, clearly indi-
cates Respondent's position that it was "upset" at the
Union's presence. Such a remark, coming from a res-
ponsible member of Respondent's organization,
inexperienced employee on a temporary basis during one of its busiest
months.
"While Eich noted that a rule of Respondent prohibited off-duty em-
ployees from "hanging around" the plant , Schwartz testified , without con-
tradiction , that he had been engaging in conversations such as the one on
November I for years prior to this incident . Thus, Respondent 's rule was
not a valid reason for Eich's action since Respondent only applied it when
Schwartz became involved in union activities . In any event , I would not find
such a rule to be valid . See GTE Lenkurt, Inc., and my dissenting opinion
therein.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clearly is not too speculative to be considered as an
indicator yielding an inference of union animus.
And in the context of the two incidents noted
above which involved Plant Superintendent Eich, I
must also conclude that Eich's statement to Schwartz
to solicit for the Union only on his own time and not
on the Company's time also demonstrated union ani-
mus. I note that Schwartz testified without contradic-
tion that he had in fact only solicited on his own time
when Eich made that statement. Since Schwartz had
only solicited on his own time, I conclude Eich need
not have given Schwartz such an order and further
conclude, in light of Eich's similar order to Schwartz
to get out of Respondent's plant, which order was
motivated by animosity toward the Union, that this
order to Schwartz to solicit only on his own time was
also an indication of Respondent's antiunion atti-
tude.
In sum, I think it clear Respondent demonstrated
an antagonism toward the presence of the Union and
toward Schwartz' activities in its behalf. Viewing
Respondent's clearly pretextual reasons for eventu-
ally terminating Schwartz in light of that antagonism
toward his union activities, I can only conclude that
Respondent's termination of Schwartz was for his
union activities and I would find Respondent there-
by violated Section 8(a)(3) of the Act:20
were elected their representative, and that it laid off the
Charging Party herein because of his union activities in
violation of Sections 8(a)(l) and (3) and 2(6) of the Nation-
al Labor Relations Act, as amended, herein called the Act.
A hearing in the above matter was held before me at
Milwaukee, Wisconsin, on February 28, 1974. Briefs have
been received from counsel for the General Counsel and
counsel for the Respondent and have been carefully con-
sidered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein, a corporation duly organized under the laws of
Wisconsin and engaged in the manufacture of aquariums
and related products-from its headquarters and manufac-
turing facility located in Franklin, Wisconsin. In the course
of conducting its business operations at Franklin, Wiscon-
sin, during the past calendar year, a representative period,
Respondent purchased and received goods valued in excess
of $50,000 in interstate commerce directly from points out-
side the State of Wisconsin.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
201 would also deny Respondent 's motion to reopen the record.
Respondent 's motion is based on its claim that evidence discovered after the
close of the hearing suggests that Schwartz was not terminated but rather
quit his employment with Respondent on November 16, 1973. Respondent
submits information that in applying for a job at another employer on No-
vember 16, Schwartz listed on the application "laid off-then quit" employ-
ment at Respondent and that on November 20, 1973, Schwartz was hired by
the other employer.
By Respondent ' s own admission , it was not aware that Schwartz had
supposedly taken other employment at the time of its discriminatory dis-
charge of him on December 10, 1973. There is no evidence and no assertion
that Schwartz took any. action to inform Respondent that he intended to
terminate his employment and the validity of Respondent 's contention of
what Schwartz may have indicated to another party not involved in this
matter has no bearing on any issue involved herein . The record is clear that
on November 8, Respondent discriminatorily laid off Schwartz and on De-
cember 10 discriminatorily discharged him. Respondent's "newly discov-
ered" evidence is irrelevant to the above conclusions , which are the issues in
this case.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge: Upon a
charge of unfair labor practices filed on December 4,1973,
by John Joseph Schwartz, the Charging Party herein,
against All-Glass Aquarium Co., Inc., herein called the Re-
spondent, the General Counsel of the National Labor Re-
lations Board issued a complaint against Respondent on
January 30, 1974, alleging that Respondent had threatened
to withdraw current benefits from its employees if a union
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the parties stipulated, and I find
that Glazier's Union, Local 1204, is now, and has*been at
all times material herein, a labor organization as defined in
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
Respondent is a relatively new and expanding corpora-
tion, having commenced business in 1970 when it shortly
thereafter employed John Joseph Schwartz, the Charging
Party herein, at a rate of $2.50 per hour. Schwartz started
his employment as a cleanup man, then an inspector, belt
sander, loader and unloader of trucks, aquarium assembler
helper, and finally an aquarium assembler for $3.65 an
hour. On October 30, 1973,1 Schwartz asked Plant Superin-
tendent 2 John Eich for permission to leave the job early to
keep a doctor's appointment. On the next morning, Octo-
ber 31, Schwartz submitted to Supervisor Eich a statement
from his doctor which in essence said Schwartz is subject
to upper respiratory infections and bronchitis and needs to
be transferred to a work area free of irritants in the air he
1 Hereafter all dates will refer to the year 1973 unless otherwise specified.
2 Gerald Ritzow is established to' be president of Respondent and John
Eich is established to be plant superintendent and supervisor or plant fore-
man and, therefore, both are established of record to be supervisors within
the meaning of Section 2(11) of the Act.
ALL-GLASS AQUARIUM CO., INC.
breathes. Whereupon Schwartz was transferred from the
aquarium assembly, where he was exposed to silicone and
vinegar type fumes, and was thereafter used to fill in for
personnel on vacation and sick leave for 2 weeks, loading
and unloading trucks, working on a new saw, and tearing
down aquariums. On the afternoon of October 31,
Schwartz and Superintendent Eich had a discussion of the
advantages and disadvantages of unionization of the plant.
After Schwartz made several inquiries to Superintendent
Eich about a permanent job assignment, Eich arranged a
conference for Schwartz with President Ritzow on Novem-
ber 8, during which time President Ritzow advised
Schwartz that the only permanent job openings were the
two G2 belt sander jobs and the one G I terrarium job
which were currently posted on the bulletin board, and
that he would have to sign up for one of these or he would
have to be put on layoff, in which case he would be there-
after advised of any job openings. President Ritzow learned
about Schwartz' distributing union cards on October 31.
Since Schwartz was told he would have to start at the start-
ing salary in either of the,three jobs posted, which were a
lower rate of pay than his current G3 pay, he elected to go
on layoff on November 10.
On November I 1 or 12, Schwartz received a letter from
Respondent advising him that the three jobs posted No-
vember 8, 9, and 10 were no longer posted; that Respon-
dent would keep him informed of any new jobs posted;
and that according to the Company's new layoff policy, he
(Schwartz) would be automatically terminated after 30
days.'
Issues
The principal subordinate issues presented for decision
are whether Respondent, through its supervisor, Eich,
threatened employee Schwartz with the withdrawal of em-
ployee benefits if the Union were elected representative of
the employees, in violation of Section 8(a)(I) of the Act,
and whether Respondent discriminatorily laid off and ulti-
mately discharged employee Schwartz for his union activi-
ty (passing out cards) in violation of Section 8(a)(3) and (1)
of the Act.
B. Respondent-Schwartz, Employer-Employee Relationship
A composite of the credible testimony of Respondent
President Ritzow, Plant Superintendent Eich, and employ-
ee Schwartz established that Schwartz was employed by
Respondent since September 1970; that during the course
of his work tenure, Schwartz has worked as a cleanup man,
inspector of aquariums, belt sander, light assembler, plate
canopies assembler, helper in assembling and packing ter-
rariums, operated a fork lifter, loaded and unloaded trucks,
filled in as a glasscutter, and finally he worked as an aquar-
ium assembler. Although Schwartz started his employment
with Respondent at a pay rate of $2.50 per hour, he was
earning $3.65 per hour on November 8. Schwartz has never
been given any written complaint about his work perfor-
7
The facts set forth above are undisputed in the record.
123
mance or personal relations with plant personnel. Schwartz
is also qualified as a glasscutter helper.
On October 30 Schwartz asked permission to leave the
job early to see his doctor and on the next day, October 31,
he gave Superintendent Eich the following note from his
physician:
To whom it may concern:
This is to certify that John Schwartz is subject to
recurrent upper respiratory infections and bronchitis
& needs transfer to area free of irritants in the air he
breathes."
Thank you
Schwartz further testified that Superintendent Eich
asked him if he would be willing to take sick leave and he
responded that the handbook says:
that anyone that takes sick leave and it's job related,
that he would get workman's compensation, and they
would have to pay me then if I took sick leave.
Schwartz also testified that several minutes after he gave
his physician's note to Superintendent Eich, the following
conversation between himself and Eich, took place:
A. He said the Jerry said that he couldn' t give me-
there was no jobs available, they were all filled with
that wage schedule thing, and I would just be doing
fill-in jobs until they found something for me to do, or.
made up their mind.
Q. What job, if any, were you then assigned to?
A. For a period of time, I was-1 loaded trucks,
unloaded trucks when they came in, and worked for a
time on tear down of aquariums and cleanup. I
worked on the saw, too.
Q. During what period of time was this?
A. During the time after the doctor's excuse and
some before.
Q. Between what dates?
A. The 31st and the 8th.
Q. The 31st of October?
A. October, and November 8th, the day of my ter-
mination.
Schwartz' testimony in this regard is essentially corrobo-
rated by President Ritzow, who credibly testified that after
receiving the doctor's notes from Mr. Eich, he instructed
the latter to take Schwartz off the aquarium assembly
where he was exposed to vinegar type fumes and put him
on temporary work elsewhere as described by Schwartz.
He further stated that he became aware of Schwartz' union
activity the day before he received the doctor's excuse but
he did not know the identity of other employees who were
involved.
Subsequently about 2 p.m., during the employees' break
period while passing out union cards, Schwartz said Eich
said to him: "If I handed out union cards, I'd do it on my
I credit the above testimony because all of said witnesses appeared to be
telling the truth and because their respective testimonial versions were not
in dispute.
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own time and not on company time." Schwartz said he
only distributed the cards in the morning before work, 7:30
a.m., and during the employee's break period. His testimo-
ny is not in conflict with Eich's in this regard and I there-
fore credit it.
Based upon the foregoing credible testimony, I conclude
and find that on October 31, employee Schwartz presented
the Respondent a note from his physician, stating that he
(Schwartz) should not continue to work in aquarium as-
sembly because the fumes therein affected his respiratory
system; that Respondent immediately reassigned Schwartz
to fill-in work free of the irritants in the aquarium assem-
bly; that Schwartz was a G3, earning $3.65 per hour; that
Schwartz qualified for a G3 glasscutter but there were no
G3 positions of any type vacant on October 31-November
8; that Schwartz distributed union cards on his own time
before worktime (7:30 a.m.) and also at 2 p.m. during
employee's breaktime on October 31, when he was told by
Superintendent Eich that "If I handed out union cards, I'd
do it on my own time and not on company property"; and
that the latter statement by Eich to Schwartz is evidence of
Respondent's union animus when considered along with
the total evidence of record.
C. Schwartz' Union and Nonunion Activity
Schwartz credibly testified further that during the af-
ternoon (2 p.m.) of October 31 a conversation was held
between himself and Superintendent Eich, in the presence
of employee Ken Heritz, during which he (Schwartz) said if
the Union comes in the plant, the starting salary would be
$4 an hour after 1 year's employment. He further testified
as follows:
A. Mr. Eich stated that if a Union did get into the
shop, that Jerry and Roger could, if they wanted to,
withdraw all the benefits that we had, our fringe bene-
fits.
Q. Did he refer to any particular benefits?
A. One was our $50 deductible that Jerry and Rog-
er pay for our Blue Cross-Blue Shield, and maybe our
pension plan, too.
Q. Who do you refer to when you say Jerry and
Roger?
A. Jerry Ritzow, the president, and Roger, the vice
president of All-Glass Aquarium.
Superintendent Eich denied that he threatened Schwartz
with withdrawal of employee benefits and to correct any
misunderstanding, he thereafter told all employees that
there would be no withdrawal of benefits if the Union
came in.
Schwartz did not deny that Superintendent Eich said
whatever was achieved by the Union would have been the
product of negotiation between Respondent and the Union
and that he explained this to other employees.'
Schwartz credibly testified that he had another conversa-
tion with Foreman Eich on November 1 which ensued as
follows:
A. I asked him if Mr. Ritzow and the vice president
were mad at all about the Union.
Q. And what, if anything, did he say in response?
A. He said wouldn't I be if it [were ] my company?
Schwartz' testimony was corroborated by Superintendent
Eich, in this regard.
He (Schwartz) said he held another conversation with
Foreman Eich on November 1 which was as follows:
A. He asked me if I was punched out, and I said,
"Yeah," and then he told me to get out of the plant,
leave.
John Eich credibly testified that he is plant superinten-
dent of Respondent, with the responsibility of overlooking
foremen. He further testified that on or about October 31,
Schwartz asked him if he wanted to join the Union because
the rate of pay would be $4 per hour; that he simply told
Schwartz wages and other benefits would have to be nego-
tiated if the Union came in and he denied that he said
employees would lose their benefits but since that rumor
spreaded throughout the plant, he went to all employees
and denied the rumor; that he told the employees if they
wanted the Union they can have it.
Superintendent Eich testified that when Schwartz pre-
sented him with the doctor's note, on October 31, he took it
to President Ritzow to see where he was going to assign
Schwartz, since the latter had performed several jobs and
that he was advised to use Schwartz to fill in for workers on
leave, which Schwartz did for 2 weeks.
With respect to his ordering Schwartz to leave the plant
on or about November 1, he said:
A. I think the reason on that was-well, I knew he
was starting a Union, and I figured if he's going to be
passing out cards, this was on, you know, it maybe
wasn't on his time, but it was on company property
where he had no business, as far as being there.
Q. At the time you told him to leave, was he doing
anything with respect to union activity?
A. No, as far as I'm concerned he wasn't. I think he
was just talking to Kenny or something, but I figured
as long as the second shift was in there working,
maybe he wanted to talk to them or something, so
instead of disturbing them during their work hours, I
figured he should go.
With respect to the prospective pay discussion, Superin-
tendent Eich said he told Schwartz that he really did not
know what Schwartz would receive but he would be going
down a grade because, as far as the merit system goes, he
had an in-between percentage, between an 8 to 28 or a 9 to
5 1 credit Schwartz' testimony that Superintendent Eich made the state- tions of Eich's attitude toward the employee's efforts to unionize the Be-
ment about withdrawal of employee benefits, because not only did he im- spondent. Moreover, Superintendent Eich does not deny that he made a
press me as testifying truthfully on this point, as opposed to Superintendent statement about withdrawal of employee benefits but he simply says he did
Eich, but the statement is also consistent with other statements and posi- not threaten the employees with such withdrawal.
ALL-GLASS AQUARIUM CO., INC.
30, but where President Ritzow is going to set it, he did not
know, that Schwartz would have to talk to Mr. Ritzow.
Eich continued as follows:
A. Because I was actually told, you know, what I
can do and what he can do and so forth and so on,
and I was supposed to leave him alone and let him
more or less do his stuff. If he wants to pass out during
lunch time, fine, but when he's not supposed to be on
company property, well then he's not supposed to be
on company property. No stranger can just walk in
any time and start disturbing the workers. My produc-
tion comes first, that's the way I feel. If he comes in at
a break for the second shift or something, fine.
The only employee to whom Schwartz was talking was
Kenny. He never told Schwartz that he was permanently or
temporarily employed because he did not know the status
of the fill-in work assignment. When the three jobs were
posted in November with respect to future employment he
said:
"You're going to have to sign for a job." I said,
"Maybe you're going to have to stay in a Grade 2 until
a Grade 3 or Grade 4 opens up again," and I said,
"The opportunity is here, because the addition is com-
ing on, because you're about fourth or fifth in line in
seniority." He would have a great chance of, you
know, picking his job.6
I therefore conclude and find upon the foregoing credi-
ble evidence that on October 31 Superintendent Eich did
tell employee Schwartz that if the Union gets into the
plant, Jerry and Roger [Ritzow] could, if they wanted to,
withdraw all employee fringe benefits, however, that since
the latter statement was made during a personal discussion
of the Union between Schwartz and Eich and because it
was stated as a possibility rather than as a positive fact, I
do not find that such statement was coercive and threaten-
ing within the meaning of Section 8(a)(1) of the Act. I fur-
ther conclude and find that while said statement was not
coercive and threatening, I do conclude and find that it is
another item of evidence of union animus as was Eich's
answer to Schwartz when he asked was President Ritzow
mad about the Union, and Eich replied: "wouldn't I be if it
were my company." Also evident of union animus is Su-
perintendent Eich's ordering Schwartz to leave the plant on
November 1 because he thought Schwartz would solicit
support for the Union on his own time while on company
property.
6 1 credit the testimony of Superintendent Eich. except his possible denial
that he made the statement about withdrawal of employee benefits, not only
because I received the impression that he was testifying truthfully, but also,
because his version of the conversation with Schwartz is essentially consis-
tent with that of Schwartz.
125
D. Schwartz ' Layoff and Discharge by Respondent
Respondent 's Wage Scale and Layoff Policy
President Ritzow credibly testified further that in August
or September Respondent engaged Colette of Carlson and
Associates , a personnel management consulting firm
(Resp . Exh. 3 ), to study and recommend a wage scale sys-
tem and other policies , including a layoff policy, which
were established in September . Respondent implemented
the wage scale plan in October by advising all the employ-
ees about the same, by posting the wage scale system (G.C.
Exh. 3 ) on the plant's bulletin board on October 29, and by
talking to each employee individually to explain the sys-
tem. He admitted that the layoff policy was not communi-
cated to the employees but that management personnel
knew about it.
On the afternoon of November 8, Superintendent Eich
arranged a meeting for Schwartz to talk with President Rit-
zow at 3:30 p . m. regarding his future job status . Schwartz
stated that the conversation during the meeting between
them was as follows:
A. Mr. Ritzow offered me two jobs in Grade I or
Grade 2, or I could take a lay-off instead. He had this
sheet here on his desk, and I asked him how come I
couldn't be put in a different job, and he said, "Well,
there's a new policy," he couldn't bump anybody, and
there were no positions opened, except those two. The
only way I could get a job, he says, was if I would quit
or....
Q. Did he indicate what the two jobs were?
A. Grade I and Grade 2, one was on terrariums
and one was on belt sanders.
Q. Did he indicate what the wage salary would be?
A. I told him what I told Eich before. He said it
would be-it was the starting. It would be a starting
pay, if I had gone to another job.
Q. Did he indicate any numerical figure for the
wage that you would be receiving?
A. No.
Q. You referred to-that he had a sheet on his
desk. Could you tell us what that was?.
A. This wage scale and increase chart.
Q. I show you General Counsel Exhibit 3, is this the
sheet that he had on his desk?
A. Yes.
Q. Was anything else said during that conversa-
tion?
A. I just said that I'd take the lay-off, because if
I-I could make just as much on unemployment sit-
ting home at forty hours as I could working for $2.30,
or something, for forty hours, and he said, "Okay," the
lay-off was fine.
Q. Did you mention that specific figure in your
conversation?
A. I mentioned it was like about $2.37 an hour. The
other one would be like $2.48, and that was less than I
started at three years ago.
Q. Did you mention that figure in your conversa-
tion?
A. Yes.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On or about November I I or 12 he (Schwartz) received
a letter in the mail (G.C. Exh. 5) advising him that the two
jobs he had been offered were no longer posted and that
Respondent would keep him advised of any new jobs post-
ed. The last sheet in the letter contained the Company's
layoff policy, advising Schwartz for the first time that after
30 days he would be automatically terminated . Subse-
quently, he received his last two checks from Respondent.
On cross-examination Schwartz said President Ritzow
explained.the wage scale to him and thereafter had a copy
thereof posted on the bulletin board for employees' inspec-
tion prior to November 6 and he admitted that he under-
stood the posting procedures and that he could post for
one of the jobs posted on November 8.
President Gerald Ritzow testified that upon his receipt
of the doctor's excuse from Schwartz on October 31 he
immediately removed him from the job which was affect-
ing his respiratory system and he was placed in a tempo-
rary job, filling in for people on sick leave or vacation,
since the Company does not have temporary positions.
President Ritzow continued to testify as follows:
A. After repeated requests for information through
John Eich, I told John Eich to have Schwartz come in
to the office and I would discuss whatever he wanted
to discuss. I explained to him the two job openings
that were there. I told him I could not create a posi-
tion for him. He understood this. I told him if he did
not accept one of these positions, I would have to put
him on lay-off, I had no other choice.
Q. Now, can you tell me if there was any particular
occurrence or event that you anticipated that necessi-
tated this meeting on November 8th between yourself
and Mr. Schwartz?
A. The-as of Monday-November 8th was a
Thursday, the posting would end on Friday, Novem-
ber 9th, and as of Monday, the best we could de-
termine we'd be up to full strength, and we would
have no other temporary openings that I could put
him in.
Q. Now, on November 8th at your meeting with
Mr. Schwartz, did you fire John Schwartz?
A. No, I didn't.
The two jobs he offered to Schwartz were two belt san-
der G2 jobs and a terrarium assembler GI job posted at
that time, November 8 (Resp. Exh. 1). The first consider-
ation for posted jobs is qualifications and the second is
seniority. This posting procedure, the layoff policy, and the
wage scale system were implemented upon the recommen-
dation of the consulting concern of Carlson and Associ-
ates.
President Ritzow further testified as follows:
Q. Can you recall approximately what time Carlson
and Associates completed its work at All-Glass
Aquarium Company?
A. It was completed late in September.
Q. What did All-Glass Aquarium Company do in
response to the work that was done by Carlson and
Associates?
A. We immediately put into operation what things
could be put into operation at that time, such as the
various policies and the organizational chart. The
other job progression required more work. We had the
tools to do it with, but now we had to set up cards on
each individual employee, what their rate is now, fig-
ure out how they were going to fit into this program,
so that at the meeting that I had with each individual
employee, I could discuss with them what their rate
was now, when their next raise would be, and this took
a considerable amount of time, it took for the better
part of October to complete this.
All of the implemented wage scale procedures heretofore
described were posted on the bulletin board for the em-
ployees October 29 and it is still posted. President Ritzow
also had a meeting with all employees and met with each of
them individually to explain the systems, including the
transfer system but not the layoff policy about which only
management personnel were informed. During his confer-
ence with Schwartz on November 8, Schwartz declined to
sign up for either of the jobs posted and elected to take a
layoff. The layoff policy, part 2 of G.C. Exhibit 5, was
completed and recommended by Carlson and Associates
and adopted by Respondent in September. Prior to the
adoption of said layoff policy, Respondent had no such
policy for a person with no job and consequently such per-
sons were terminated. No other jobs were posted subse-
quent to November 12, until December 26, and that job
was not filled until early January. Upon the advise of his
counsel herein, and Colette of Carlson and Associates, he
took no action against Schwartz for his union activity. He
explained to the employees that the Company has an open
door policy with its employees and that means any employ-
ee is invited into his office or that of his brother, vice presi-
dent, to discuss any problem they have. This policy is set
forth in the employees handbook (Resp. Exh. 4) which is
distributed to all employees. Schwartz has never contacted
him about any alleged harassment for his union activity.
During his meeting with Schwartz on November 8, Presi-
dent Ritzow said he told Schwartz he could not create a
position for him; that there were three jobs posted at the
time (two belt sander G2 jobs and one terrarium G 1 job);
and that if he (Schwartz) did not sign up for the posted
openings, he would have to lay him off. President Ritzow
further testified that the first jobs ever posted were posted
October 29 and thereafter on November 1-5. He'said he
did not want to lay off Schwartz but the latter indicated he
did not want to sign up for either of the jobs posted.
Schwartz mentioned the possibility of going on unemploy-
ment and he was the first and only employee laid off pur-,
suant to the new layoff policy and ultimately terminated by
letter (G.C. Exh. 5) on December 10. President Ritzow ad-
mitted that Respondent did not inform Schwartz of any
job vacancies or postings between November 8 and De-
cember 10. When he was asked did any employees quit
during that interim, he said it was possible, but when asked
did a glasscutter, Randy Czerwinski, quit he said I believe
he did quit November 27. Paul Imes was moved into
ALL-GLASS AQUARIUM CO., INC.
Czerwinski's position to fill in until January 2, 1974. Imes
had been working for Respondent for a few months in
terrariums where it was getting pretty slow. He had no
prior experience as a glasscutter.
As of December 26 or 27 President Ritzow posted the
position for glasscutter and three or four people signed up
for it. Randy Moze was selected for the position. He has
always had two glasscutters and he did not inform
Schwartz that Czerwinski had quit because the position
was not posted until December 26 or 27. For the three
positions that were posted on November 7-9, two persons
were hired in late November and one was hired December
3. At the time of termination, Schwartz was earning $3.65
an hour and if he had accepted a grade 2 position he would
have earned $3.26 per hour, and had he accepted a grade I
position he would have received $2.82 an hour. Manager
Ritzow did not explain this wage breakdown to Schwartz
on November 8 or when he was officially laid off Novem-
ber 10 because he said this had been explained to the em-
ployees before. Reviewing the Company's official records
(G.C. Exh. 7), Mr. Ritzow said Antoinette Paulson was
hired as a grade 1 terrarium assembler on November 29;
Bob Weber was hired as a G2 belt sander on November
30; and Gary Hauck was hired as a belt sander on Novem-
ber 12 and terminated on November 28, 1973. On Decem-
ber 3, Bob Angus was hired as a G2 belt sander.
Terminations During November and December were: Joy
Peterson, terrarium taper GI, 11/28/73; Randy
Czerwinski, glasscutter G3, 11/27/73; Timothy Braun,
part-time helper, 11 /9/73; Daniel Braun, part-time
helper, 12/20/73.
Schwartz had worked as a G3 aquarium assembler for
about 1 year or more prior to the doctor's notice.
The Company only gave verbal warning to employees
for infractions of rules. The Company's reorganization af-
ter the first of the year resulted in the hiring of 13 people
because the Company did not want to hire them before the
holiday season because they would have been entitled to
paid holidays and December is the busiest month of the
year.?
Finally I conclude and find upon the foregoing credible
evidence that when Respondent learned about Schwartz'
union activity on October 31, he consulted with its attorney
and with Carlson and Associates to ascertain what could
be done about the same; that such consultation at least
indicates that Respondent was adversely concerned about
the Union; that Respondent's layoff policy was established
in September but was not communicated to the employees
I credit the literal testimony of President Ritzow as to the policies rec-
ommended by Carlson and Associates and as to the conversations he held
with Schwartz because their testimonial versions of what was said are essen-
tially not in conflict. However, I do not credit the witness' stated and im-
plied reasons and motives for his application of the layoff policy and his
conversations about job openings and layoff which he held with Schwartz
on November 8, because they are inconsistent with other facts established
by the entire tenor of the evidence'of record. I discredit his statement that
the layoff policy was explained to the employees because it is contradictory
to his previous statement that only management personnel knew about it.
and he admitted he did not explain said policy to Schwartz on November 8.
127
nor to Schwartz on November 8 when he elected to go on
layoff; that Schwartz was orally advised on November 8,
and in writing on November 10 or 11, that he would be
advised by Respondent of any job vacancies; that although
a job vacancy (glasscutter G3) for which Schwartz could
qualify occurred on November 27, Respondent did not in-
form Schwartz about the same, but instead had another
employee fill in the vacancy until after December 10 (30
days after Schwartz' layoff) when it posted the job; that
another Respondent employee posted for the job and was
hired in the same; that such application of its posting and
layoff policy on the part of Respondent was discriminatory
and reveals that it used its layoff policy as a pretext layoff
and discharged Schwartz for his union activity, of which it
knew and against which it had previously manifested ani-
mus.
Analysis and Conclusions
The Respondent herein is charged with having threat-
ened its employees with the withdrawal of employee bene-
fits if. the Union were elected their collective-bargaining
representative and with.having discriminatorily discharged
employee Schwartz for his union activity. In reviewing the
entire record o' evidence in the context of these alleged
charges, it is readily observed that Respondent's conduct,
through its supervisors, manifested some evidence of union
animus. Specifically, on or about October 31 employee
Schwartz was advised by Plant Superintendent Eich that if
he handed out union cards, he should do it on his own time
and not on company property. Since the undisputed evi-
dence shows that Schwartz distributed union cards in the
lunch area before worktime on the morning of October 31,
and during the employee's break period on the afternoon
of the same day, it is obvious that Eich was opposed to
Schwartz' efforts to unionize the plant. This is especially so
since the plant was not shown to have had a no-solicitation
rule and because Schwartz was not distributing the cards
during work periods or in any manner interfering with the
production of fellow employees. Moreover, Superintendent
Eich had not only already advised Schwartz that he was
not interested in the Union but on the following day (No-
vember 1) he ordered Schwartz out of the plant because he
was talking to fellow employees after he punched out and
without any, evidence that the following work period had
begun or that Schwartz was interfering with employees at
work but simply because (as. Eich admitted) he figured
Schwartz was going to solicit employee support for the
Union.
Further. evidence of Respondent' s union animus is mani-
fested in Superintendent Eich's. statement to Schwartz on
October 31, that "If the Union did get into the shop, that
Jerry and Roger could, if they wanted to, withdraw all the
benefits that we had, our fringe benefits." Since this state-
ment by Eich was made as a personal observation of an
adverse possibility, in response to a discussion of the ad-
vantages of unionization initiated by Schwartz, I do not
construe it as a positive threatening statement of fact made
on behalf of management. Therefore the allegation. and
charge that Respondent threatened to withdraw employee
benefits if the Union were elected representative of the em-
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees should be dismissed. However, since the statement
is again evidence of Eich's opposition to the Union and he
is, nevertheless, a supervisor in frequent communication
with management (President Ritzow) which admitted it
had knowledge of Schwartz' union activity on October 31,
I am persuaded by all of the evidence that such statement
is a manifestation of Respondent's union animus. Superin-
tendent Eich's undenied response to Schwartz' question on
November 1, as to whether President Ritzow was mad
about the Union, is also indicative of evidence of union
animus on the part of Respondent. Finally, while there is
nothing improper about Respondent consulting its attor-
ney about what to do about Schwartz' union activity, it is
nevertheless evidence that Respondent was adversely con-
cerned or it probably would not have sought such counsel.
Moreover, while each of the above-described instances
may not conclusively establish union animus when consid-
ered singly, there can hardly be any question that their
combined effect clearly establish union animus on the part
of Respondent.
With respect to the allegation and charge of discrimina-
tory layoff and ultimate discharge of Schwartz, a cursory
review of the evidence of record readily leads one to the
conclusion that Schwartz relinquished his job on account
of his health, declined to accept several lower paying jobs,
and elected to go on layoff until he was discharged for
cause on November 10. However, a very careful examina-
tion of all of the evidence of record clearly shows that
although Schwartz declined to sign up for either the GI or
two G2 jobs, which were considerably less in pay than his
G3 position with 3 years' seniority, he was nevertheless not
fully and properly informed by Respondent of all of the
options available to him at the time he elected to go on
layoff. More specifically, Schwartz was not advised by Re-
spondent that it had a revised and secret 30-day limited
layoff policy which, at the expiration of 30 days, resulted in
job termination. Corresponding to this omission by Re-
spondent was its recitation to Schwartz, orally and in writ-
ing, that part of its layoff policy was that he (the laid off)
would be informed of any job vacancy and postings during
the layoff period. Perhaps if Respondent had given
Schwartz the whole story on its policy and had not misrep-
resented that it would keep him informed of job openings
or postings, Schwartz might not have taken layoff. Howev-
er, Respondent did not follow through on its own policy in
this regard since a glasscutter G3 vacancy occurred on No-
vember 27 and Respondent failed either to post the vacan-
cy or to advise Schwartz about it during his 30-day layoff
period. Instead, Respondent used another employee to fill
in the subject vacancy until after the expiration of
Schwartz' 30-day layoff period and then posted and filled
the vacancy with an employee no more qualified than
Schwartz.
Since Respondent admitted that prior to September, it
had no employee layoff policy and that it did not timely
inform Schwartz of its new 30-day layoff policy, I am per-
suaded by the evidence that Schwartz'was laboring under a
misunderstanding of the layoff policy (not knowing it
would result in his termination in 30 days), especially since
Respondent suggested it to him as an alternative with the
promise that it would keep him informed of all job vacan-
cies posted during the next 30 days, but did not post a job
opening which occurred on November 27. While the rec-
ommended and newly adopted wage scale and layoff poli-
cies of Respondent appear to be a sound and reasonable
managerial implementation, the evidence clearly shows
that its use and application in Schwartz' case was discrimi-
natory, at least, in favor of another employee (glasscutter)
of equal or less qualifications and experience (tenure) as
Schwartz. This raises the question then as to why and how
was Schwartz disparately treated. At no time is it shown by
the record that Respondent wanted to discharge Schwartz
because he could no longer work in the aquarium assem-
bly, which it could have done immediately upon receipt of
his doctor's statement.
It is well established by the evidence that although
Schwartz was removed from his aquarium assembly job at
his request on October 31, Respondent (President Ritzow
and Superintendent Eich) also learned and had actual
knowledge of Schwartz' union activity on the same date
October 31. At the time Respondent gave Schwartz fill-in
work until November 8 when-it suggested that he sign up
for one of the G2, GI jobs, the evidence does not indicate
that Respondent was trying to get rid of Schwartz. Howev-
er, when Respondent suggested that Schwartz sign up for
one of the lesser paying jobs or go on layoff, without ex-
plaining the 30 days limitation and promising to inform
him of occurring vacancies or postings, Respondent's mo-
tives for Schwartz' layoff and discharge then came into
question. Respondent's real motive became apparent when
it failed to post and/or notify Schwartz of the glasscutter
G3 position which became available November 27 but was
not posted nor permanently filled until after December 10
(subsequent to the expiration of Schwartz' 30-day layoff
period.). Such conduct on the part of Respondent is incon-
sistent with his statement under oath that he did not want
to lose Schwartz as an employee. At this juncture, the evi-
dence is clear that Respondent used its new and secret
layoff policy to lay off and ultimately discharge Schwartz.
Since the record is sufficiently replete with evidence of
Respondent's animus toward Schwartz' union activity of
which it had full knowledge, I am persuaded by the evi-
dence that Respondent's initial layoff and ultimate dis-
charge of Schwartz was substantially motivated by its
union animus. Respondent's contention that Schwartz' lay-
off and ultimate discharge was for cause is obviously predi-
cated upon its use of its new wage scale posting and layoff
policies as a pretext to discharge Schwartz. Such discharge
having been carried out for Schwartz' union activity, it was
obviously discriminatory and violative of Section 8(a)(3)
and (1) of the Act.
Since Schwartz' discharge was discriminatory, the cases
cited by counsel for Respondent are inapplicable to the
facts in the instant case. Suffice it to say that if the dis-
charge is substantially motivated by union animus, the real
cause, the discharge is unlawful. Here, if Respondent really
wanted to retain Schwartz it would have posted the G3
glasscutter position prior to December 10 and notify
Schwartz of the same and/or rehire him since the job was
not filled until January. Since Schwartz was not a new em-
ployee, he would have been essentially entitled to the up-
coming paid holidays.
ALL-GLASS AQUARIUM CO., INC. 129
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall recom-
mend that it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It having been found that Respondent discharged John
Schwartz in violation of Section 8(a)(1) and 8(a)(3) and (I)
of the Act, the recommended Order will provide that Re-
spondent offer reinstatement to his job and make him
whole for any loss of earnings within the meaning and in
accord with the Board's decisions in F. W. Woolworth
Company, 90 NLRB 289 (1950), and Isis Plumbing & Heal-
ing Co., 138 NLRB 716 (1962), except as specifically modi-
fied by the wording of such recommended Order.
Because of the character of the unfair labor practice
herein found, the recommended Order will provide that
Respondent cease and desist from or in any manner inter-
fering with, restraining, and coercing employees in the ex-
ercise of their rights guaranteed by Section 7 of the Act.
N. L. R. B. v. Entwhistle Mfg., Co., 120 F.2d 532, 536 (C.A. 4,
1941).
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. All-Glass Aquarium Co., Inc., the Respondent, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Glazier's Union 1204 is and has been at all times ma-
terial herein a labor organization within the meaning of
Section 2(5) of the Act.
3. By discriminating in regard to the tenure of employ-
ment of John Schwartz, thereby discouraging membership
in the Union, a labor organization, Respondent has en-
gaged in unfair labor practices condemned by Section
8(a)(3) and (l) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]