Alsar Manufacturers, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 286 (N.L.R.B. 1963)

286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Having found that there have been violations of the Act by Respondent Wear
Ever, it will be recommended that Respondent Employer cease and desist there-
from . Although there is no reinstatement or backpay involved in this case , it will
be recommended that the employes be advised by their employer , by means of a
notice, of the basic provisions of the Act , namely, that employees are free to exercise
the rights guaranteed under Section 7 of the Act without reprisal and that the em-
ployer will not interfere therewith by discrimination or otherwise . The circum-
stances are such that I shall recommend that the notice be in both English and
Spanish.
CONCLUSIONS OF LAW
1. Respondent Employer is an employer engaged in commerce within the mean-
ing of the Act.
2. Respondent Local 98 is a labor organization within the meaning of the Act.
3. By discriminating against Luis Yeras by terminating his employment because
of his union activities , Respondent Employer engaged in unfair labor practices within
the meaning of Section 8(a)(3) and ( 1) and Section 2(6) and (7) of the Act
4 By conveying to employee Eddie Ramos the reasonable impression and belief
that the destruction of Local 424 employee cards was relevant and material to the
matter of employee Luis Yeras' reinstatement and was a factor in such reinstate-
ment and by effectuating the reinstatement under such circumstances , Respondent
Employer engaged in unfair labor practices within the meaning of Section 8(a) (1)
and Section 2(6) and (7) of the Act.
5. Respondent Employer has not otherwise violated the Act.
6. Respondent Local 98 has not violated Section 8 (b)(l)(A) of the Act as
alleged.
[Recommended Order omitted from publication.]
Alsar Manufacturers , Inc. and Roosevelt Holloway and Samuel
L. Kelly. Cases Nos. 7-CA-3947 and 7-CA-3947(2). June 28,
1963
DECISION AND ORDER
On April 11, 1963, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that 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 attached Intermedi-
ate Report. Be also found that the Respondent had not engaged in
other unfair labor practices and recommended that the complaint be
dismissed as to them. Thereafter, the General Counsel and the Re-
spondent filed exceptions to the Intermediate Report and supporting
briefs.
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 [Chairman McCulloch and Members Rodgers and
Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
143 NLRB No 58.
ALSAR MANUFACTURERS, INC. 287
diate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, in which charges were filed on October 17 and November 19,
1962, and in which the complaint was issued on January 3, 1963, involves allega-
tions that the Respondent, Alsar Manufacturers, Inc.,' violated Section 8(a) (1) and
(3) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq.
On March 4 and 5, 1963, Trial Examiner A. Bruce Hunt conducted a hearing at
Detroit, Michigan, at which the General Counsel and the Respondent were repre-
sented. Upon the entire record, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE RESPONDENT
The Respondent, a Michigan corporation, is engaged at Southfield, Michigan, in
the manufacture, sale, and distribution of aluminum siding and related products.
During 1962, the Respondent purchased aluminum and other materials exceeding
$50,000 in value which were shipped to its plant directly from points outside Michi-
gan. During the same year, the Respondent shipped directly to points outside
Michigan products valued in excess of $50,000. There is no dispute, and I find,
that the Respondent is engaged in commerce within the meaning of the Act.
II. THE UNIONS
Two labor organizations , neither of which is a party to this proceeding, are
mentioned frequently below. They are Local 458, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America , and Sheet Metal
Workers International Association , Local Union 566, AFL-CIO, herein respectively
called the Teamsters and the Sheet Metal Workers.
III. THE UNFAIR LABOR PRACTICES
A Background
In Applicators, Inc. (the Respondent's former corporate name), 136 NLRB 1017,
decided April 13, 1962, the Board found that the Respondent violated Section
8(a) (1) during a period when the Teamsters sought to displace Sheet Metal Workers
as the employees' bargaining representative. To some extent, the facts disclosed
in that case appear also in the record in this case.
B. The issues
The principal issue is whether the Respondent invalidly discharged Roosevelt
Holloway. Another issue is whether the Respondent inv Alidly laid off Samuel Kelly
for 1 week. A final issue is whether a management representative, Robert Rogers,
violated Section 8(a) (1) during a conversation with an en ployee.
C. The discharge of Hollowa
1. The facts
During 1960 and 1961, Holloway was a steward for the Sheet Metal Workers,
then the bargaining agent. On July 20, 1961, two er iployees, Kelly and Ward
' In the pleadings, the Respondent's name appeared as " applicators, Inc." Sometime
following the filing of the initial charge, the corporate n ime was changed to "Alsar
Manufacturers, Inc.," and the style of the case has been ( )rrected by a motion at the
hearing.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Washington, filed a decertification petition in an effort to have the Sheet Metal
Workers removed as the employees' representative. Sometime thereafter, activity
in behalf of the Teamsters began. Kelly was the most instrumental employee in
inducing his coworkers to join the Teamsters, and Holloway helped him. On Octo-
ber 12, 1961, the Sheet Metal Workers' contract expired. An election on the de-
certification petition was delayed, and for some months the employees were not
represented by a union? During that period Kelly handled their grievances, and
in some instances Holloway participated?
Holloway was discharged following his appearance at a conference at the Board's
Regional Office in Detroit on July 23, 1962. The conference related to the de-
certification petition. A question is whether Holloway was discharged because of
his activities in behalf of the Teamsters or because of deceitful tactics which he
used in order to obtain time off from work during the hours that the conference
was held.
On April 13, 1962, the Board issued its decision in the earlier case, 136 NLRB
1017. On July 11, a representative of the Board in the Regional Office wrote a
letter in which he fixed Monday, July 23, at 1.30 p.m. as the time for a conference
in that office on the petition to decertify. Among the persons to whom the letter
was sent are Kelly and Washington, who had filed the petition, the Respondent,
the Teamsters, and the Sheet Metal Workers. A copy of the letter was not sent to
Holloway. The Regional Office and the Respondent did not suggest that he attend
the conference, nor, insofar as appears, did any party to the decertification case.
During the workweek preceding the Monday conference, Kelly obtained the Re-
spondent's permission to be off from work in order to attend the conference Kelly's
workday normally ended at 3 o'clock, at which time a second-shift employee named
John Cole took Kelly's place. The Respondent arranged for Cole to report to work
at noon on July 23 Also during that preceding workweek, Kelly showed to Hollo-
way the letter which he had received from the Regional Office, and Holloway decided
not to work during the afternoon of the 23d and to drive Kelly to the conference.
Holloway waited until the 23d to ask the Respondent for the afternoon off, however,
and shortly before noon a second-shift employee, John Alston, appeared at the plant,
to the Respondent's surprise, and began working in Holloway's place The con-
tradictory testimony of the General Counsel's witnesses concerning the circumstances
under which Alston reported to work more than 3 hours early is set out in the
footnote.4
We turn to events early on July 23 and to the circumstances under which Holloway
obtained the Respondent's permission not to work that afternoon. He had several
conversations that morning with Rogers, the plant superintendent In the first
conversation, according to Holloway, he asked Rogers if he could get off from
work at noon because he "had some business downtown," and Rogers immediately
granted the request. On the other hand, Rogers testified that when Holloway made
the request, saying that he "had some personal business to attend to that day,"
Rogers answered that it was "short notice" and that Rogers would "have to see.
In Applicators, Inc, supra, It is said that the delay was occasioned by the filing of
charges in that case
8 The transcript, at page 20, indicates that Holloway testified that the employees, by
voice vote, selected him and one Cole as their representatives. It may be that Holloway's
reference was to himself and Kelly, not to himself and Cole, but In their briefs the parties
do not say that the transcript is in error. On the other hand, Kelly, who also was a
witness for the General Counsel, testified that after expiration of the Sheet Metal workers'
contract he and Holloway presented employees' grievances to management, but that he
and Holloway assumed the function and were not selected by employees to represent them
4 Alston performed the same type of work on the second shift which Holloway per-
formed on the first shift. Ordinarily, Alston began work at 3 o'clock. Holloway testified
that on July 20, shortly before the change of shifts at 3 o'clock, Alston overheard Hollo-
way say to Kelly that Holloway intended to be absent from work during the afternoon of
the 23d in order to attend to a personal matter and that Holloway would drive Kelly to
the Board's Regional Office. Holloway testified also that on the 20th Alston volunteered
to report to work early in order to substitute for Holloway. On the other hand, Kelly
testified that no one else was present on July 19 or 20 when Holloway spoke to him of
having to be in downtown Detroit on the afternoon of the 23d and offered to drive him
to the Regional Office. Next, Alston testified that he overheard a conversation between
Kelly and it representative of management in which Kelly spoke of having to attend the
conference, that Alston supposed that Holloway would drive Kelly because Kelly did not
own an automobile, and that Alston came to work early on the 23d to replace Holloway
although he did not know that Holloway would not work that afternoon and also did
not know that Holloway "was going to go any place" that afternoon
ALSAR MANUFACTURERS, INC. 289
Rogers testified also that he inquired if Holloway could postpone the personal busi-
ness until after 3 o'clock, Holloways' usual quitting time, and that Holloway an-
swered in the negative. As we shall see, Holloway was not frank when he spoke
to Rogers of having personal business to attend to, and 1 cannot credit his testimony
that Rogers promptly granted his request for time off. It is more reasonable to
conclude that Rogers, who did not know that Alston v ould report to work early
to replace Holloway, would have inquired whether Holloway's business could be
postponed until after 3 o'clock and would have deferred a decision on the request
for time off until he could arrange for a replacement .5
Later that morning, Rogers mentioned the matter to a foreman, Ralph Shotwell,
who suggested that perhaps Holloway had to attend the -,onference at the Regional
Office. Rogers inquired of his superior, Plant Managei Allen L. Grant, whether
Holloway "had any connection with" the conference, explaining that Holloway
had asked for time off. Grant answered in the negative and suggested that Rogers
pointedly ask Holloway. Rogers again talked with Holloway, who insisted that his
request for time off was unrelated to the conference but refused to disclose the
nature of the "personal business" that made it necessary for him to be excused
from work at noon. Later, when Rogers noticed that Alston had begun to work
in Holloway's place without first obtained management's approval, Rogers spoke
to Alston who said that Holloway had told him to report to work early, but who
explained to Rogers somewhat later that he had merely overheard a conversation
during the preceding week between Kelly and Holloway in which they had spoken
of going downtown during the afternoon of July 23. Rogers gave Holloway per-
mission to clock out at noon to attend to personal business which could not be
postponed and which had no connection with the conference at the Regional Office.6
About noon, when Holloway and Kelly were at the timeclock, Rogers expressed
to Holloway doubt that Holloway had been thruthful, and Holloway said that he
would "take a lie detector test." Rogers replied that Holloway might have to
take one.
Holloway and Kelly left the plant together in the former's automobile. Their
testimony concerning events before the conference began is conflicting. The
conference was held in the Industrial Building. Kelly testified that before the con-
ference began, he and Holloway went into a coffee shop in that building, stayed there
from 10 to 15 minutes, and then went upstairs together to the conference room.
Support for Kelly's version is found in the testimony of Grant that he arrived at the
conference room 15 minutes or more early and that he noticed Kelly and Holloway
standing outside the room. On the other hand, Holloway's testimony is that he
attended to personal business before and during the conference. According to
Holloway, he had seen an advertisement for laborers which the Detroit Civil Service
Commission (herein called the Commission) had published in a newspaper, and
his personal business was to obtain an application from the Commission.? Holloway
testified further that after he and Kelly left the plant in his automobile, he drove
to the Industrial Building where Kelly got out of the automobile, he then drove
to the Commission's offices where he obtained an application, and he then returned
to the Industrial Building, arriving outside the conference room about 1:30, the
time the conference was to begin. There is no dispute that several representatives
of management saw Holloway as they arrived for the conference. When the con-
ference began, an employee of the Board spoke to Holloway concerning his presence
there, but the details of the conversation are not disclosed in the record. Holloway
did not enter the conference room.
While the conference was in progress, Holloway sat outside the conference room
for some time. He testified that he filled out the application while he awaited the
6 Holloway's job required skills, and it was not a simple matter to obtain a replacement.
This fact is demonstrated by events after Holloway's discharge The plant was operated
on a three-shift basis. After the discharge, the two men who performed the work on the
second and third shifts were assigned to 12-hour shifts for some time. Surely the Respond-
ent would not have paid overtime rates for one-third of each 12-hour shift if a qualified
person had been available to do the work on the first shift
e Rogers so testified for the Respondent. Kelly testified for the General Counsel that
Kelly heard Holloway say to Rogers that he wanted to go downtown "for personal busi-
ness," that Rogers asked if Holloway was sure that he was not "going down just to be at"
the conference, that Holloway said that be was sure, repeating that "it was personal
business," and that Rogers said that Holloway would be permitted to leave work "for
personal business . . . [bust] not to attend" the conference
7 One may wonder why Holloway, who had worked for the Respondent in more than one
capacity and whose last job was skilled, would apply for employment as a laborer. His
reason, so he testified, was the large " number of people out of work in" Detroit.
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
end of he conference and an opportunity to drive Kelly home. He testified also
that shortly before 4 o'clock he had completed the application and decided to take
it to the Commission , that the Commission's offices closed at 4 , that he arrived
there too late to file the application, and that he returned to the Industrial Building
where he waited on the sidewalk for Kelly. After the conference ended, but be-
fore Kelly came downstairs , Grant and another representative of management left
the building and saw Holloway outside. Later Kelly came down , and Holloway
drove him home. Grant went to the plant where he told Rogers that Holloway
had been outside the conference room , and asked Rogers whether Rogers had made
it clear to Holloway that permission to be off from work that afternoon had been
given on the basis of personal business unconnected with the conference . Rogers
answered affirmatively . He and Grant decided that disciplinary action was ap-
propriate , and Holloway was sent a telegram reading, "Do not report to work
balance of week pending decision re: your status as employee ." The Respondent
did not have Holloways correct residence address, however , and the telegram was
not delivered . The next morning , Holloway reported for work as usual . Rogers
asked him if he had received the telegram , learned that he had not then told Holloway
its substance, and directed that Holloway leave the plant. Rogers did not explain
to Holloway the reason why disciplinary action was being taken . Holloway did
not tell Rogers that his personal business of the day before had been to obtain a
civil service application although , according to Holloway , he filed the application
with the Commission on the day of this conversation with Rogers . On the next day,
Grant sent to Holloway 's correct address a telegram which read : "This is official
notification of your dismissal for cause ." Holloway telephoned Grant and asked
why he had been discharged . Grant refused to discuss the matter on the telephone.
Holloway did not tell Grant that he had obtained time off from work in order to
file an application with the Commission.
Subsequent developments need not be detailed . It suffices to say that on Au-
gust 10 a grievance procedure was utilized , that , insofar as appears, on that day
Holloway told the Respondent for the first time that his "personal business" on
July 23 had been to obtain an employment application from the Commission, that
the discharge was upheld, that the Respondent offered to arbitrate the matter and
to pay all costs regardless of the arbitrator's decision , that Holloway accepted the
offer but asked for a delay because of personal matters, that during September the
Respondent wrote Holloway that it considered the matter closed because it had not
heard from him, that Holloway protested , that the Respondent again offered to
arbitrate but not at its own expense if it should win, and that Holloway rejected
the new offer and filed the charge which initiated this proceeding.
2. Conclusions
The first question is the weight to be given to Holloway 's testimony concerning
an application for civil service employment . As recited , he testified that he filed
it on July 24, presumably after he was sent from the plant by Rogers . On the other
hand, there is testimony by Rogers and Grant, contradicted by Holloway, that at
the grievance proceeding on August 10 Holloway told three representatives of
management and two employees that he still had not filed the application. At the
time of the hearing herein , the records of the Commission were in such condition
that the Commission could not locate the application if it had been filed. On
these facts , and bearing in mind that it appears to have been August 10 when
Holloway first told the Respondent of an alleged application to the Commission,
I cannot credit Holloway's testimony concerning such application . I do find, how-
ever , that , assuming that Holloway wanted to apply to the Commission for a job as
a laborer, he could have left the Respondent 's plant at his usual quitting time,
3 o'clock , and have obtained the application before the Commission closed its
offices at 4 . I find also that , assuming that Holloway obtained an application from
the Commission on July 23, he could have filed it that day by remaining in the
Commission 's offices to fill it out. Obviously , Holloway's principal , if not his only,
objective in being off from work on the afternoon of July 23 was to accompany
Kelly to the conference although he might be unable to attend.
The General Counsel , pointing to Holloway 's activity in behalf of the Teamsters,
and to Applicators, Inc., supra , as proof of the Respondent 's opposition to the
Teamsters , argues that the Respondent granted Holloway time off for the afternoon
of July 23 promptly upon Holloway's request therefor , that thereafter the Respond-
ent sought to condition the time off upon Holloway 's not appearing at the conference,
and that Holloway was discharged for his appearance there, not because of any
false reason he may have given to get the time off.
ALSAR MANUFACTURERS, INC. 291
I do not doubt the Respondent's hostility toward the Teamsters during 1962.
And I agree with the General Counsel that, under some circumstances, an employee
has a Section 7 right to attend conferences at an office of the Board. But I have
discredited Holloway's testimony that he was given time off before the Respondent
began to suspect that he was being untruthful in his request therefor. Too, I have
been unable to credit Holloway's testimony that he wanted to apply for a civil
service job as a laborer. As I see it, Holloway, not having been invited to the con-
ference, and not believing that he could satisfy the Respondent that his presence
there was needed, decided that he could not reasonably expect the Respondent to
give him time off if he should tell the Respondent that he wanted to attend the
conference. Therefore, Holloway's judgment was to use undisclosed "personal busi-
ness" as the basis of his request for time off. When the Respondent suspected that
he had not been truthful, and when the Respondent expressed its suspicion to him,
he continued his attempted deception. Hopeful of being convincing, he ultimately
said that he would take a lie detector test. One would suppose that Holloway might
have known that his falsehoods would become apparent upon his being seen later
at the conference, but unimaginative liars are not unique.
I find that Holloway was discharged because he proved himself to be untrust-
worthy, not because he appeared at the conference. It is true, as the General
Counsel says, that when Holloway was discharged the Respondent did not tell him
precisely why, but waited until the grievance proceeding on August 10 to particu-
larize. I see no reason to draw an inference adverse to the Respondent. Holloway
himself appears to have waited until the grievance proceeding to tell the Respond-
ent that his "personal business" on July 23 had been to file an application for a
civil service job and, according to the Respondent, at that proceeding Holloway
said that he still had not filed it. When Holloway was discharged, the Respondent
reasonably could have assumed that Holloway knew the reason. In my opinion,
Holloway needed no enlightenment I should think too that, if a reasonable ex-
planation of his "personal business" had occurred to him when he talked with
Grant as late as July 25, he would have offered it. When Grant talked with him,
Grant had no reason to believe that Holloway had applied for a civil service job.
Instead, Grant had reason to regard him as a deceitful employee and to discharge
him as such. I find that the Respondent did not violate the Act in discharging
Holloway.
D. The 1-week layoff of Kelly
Kelly began work for the Respondent in 1957. The Respondent concedes that
he is a capable employee. The Respondent concedes too that it was aware that
Kelly was a "spokesman" for the employees, and we have seen that Kelly processed
their grievances following the termination of the Sheet Metal Workers' contract and
that Kelly and another employee filed the petition to decertify that labor organiza-
tion. Thereafter, Kelly was the most active employee in behalf of the Teamsters,
which was certified following an election on the petition, and at the time of Kelly's
layoff during November 1962 be was a member of the Teamsters' bargaining
committee.
Kelly's work is in connection with certain tanks which contain a liquid. By
means of pumps and sprays, aluminum articles are sprayed with the liquid as the
articles move along a production line. The liquid falls back into the tank. There
is uncontradicted testimony that the #3 tank is about 10 feet in length, 4 feet in
width, 5 feet in depth, and contains 500 gallons of liquid which measure in depth
about 3 feet. My computation, set out in the footnote, shows an inaccuracy in those
figures.8 During the night before Kelly's layoff, the #3 and other tanks were
cleaned by Harry Bowman, an employee. During the next morning, November
16, when Kelly was at work, a rag was found in the plumbing attached to the #3
pump. According to the Respondent, Kelly was careless in allowing the rag to
get into the tank, from which place it was drawn by suction into the plumbing,
causing the pump to become inoperative, and Kelly was laid off therefor.
Kelly testified that on November 16 he began work as usual at 7 o'clock, and
turned on the pumps in three tanks, including #3. Kelly may not have put the
pumps in operation promptly after that hour, however, because Rogers testified
for the Respondent that the #3 pump was started about 8 o'clock. About 9, the
#3 pump ceased pumping the liquid into the spray properly. Kelly and another
employee noticed it and summonded Rogers and a maintenance employee, Carroll
8 Five hundred gallons would have a depth of only 1 foot 8 inches If the liquid has a
depth of 3 feet, nearly 900 gallons would be required in a tank of the dimensions listed
717-672-64-vol. 143-20
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Potter. As the pump was removed from the tank for inspection , Kelly, a member
of the Teamsters ' bargaining committee , was called to the office where negotiations
were to take place. After the pump was taken from the tank , the rag was discovered
and removed . The pump was replaced in the tank. It did not operate properly,
however, and again it was removed . It was taken apart and throughly cleaned,
but the cleaning did not disclose why the pump had not functioned properly. Again
the pump was installed in the tank , and again it did not function properly. This
time it was determined that Potter , the maintenance man, had rewired improperly.
The wiring was corrected and the pump was in working order . Preparations were
made to start the production line again . About 1.30 p .m. the bargaining session
in the office ended and Kelly returned to his place of work . About 2 , the produc-
tion line was started . Kelly worked until his usual quitting time, 3 o'clock, and
went home. Upon his arrival there, he was told that Rogers had sought to reach
him by telephone . He called Rogers who told him that a rag had been discovered
in the pump , that he had been careless, and that he was being laid off for a week.
On the next workday, a Monday, Kelly nevertheless reported for work . Rogers
referred him to Grant , Rogers' superior . Grant said that Kelly had been respon-
sible for the rag's being in the tank and that it may have dropped from Kelly's
pocket, but Kelly insisted that he had not been at fault and that he did not carry
rags in his pockets. Grant said that the layoff would remain in effect . Within
about 1 day , Rogers learned that during the night of November 15 the tanks had
been cleaned by Bowman . Robert Kabeth , Bowman's supervisor , informed Rogers
that it was possible that Bowman had dropped the rag in the tank, but Bowman
denied having done so and Rogers accepted his denial . According to Rogers, the
suction from the pump is so great that the rag must have been drawn into the pump
within 15 minutes after the rag got into the tank. On the other hand, there is
testimony to the contrary by witnesses for the General Counsel , and the findings
in connection with the footnote next preceding, read in the light of the testimony
concerning the suction power of the pump , do not enlighten one who would deter-
mine how long the rag could have remained in the tank without being drawn into
the plumbing.
I cannot credit the defense that Kelly was careless in allowing the rag to get into
the tank, nor do I believe that the Respondent thought that Kelly had been care-
less. The Respondent contends that Kelly was careless, but not deliberately so,
and that the rag somehow must have gotten into the tank after Kelly began work
that morning . The Respondent 's contention is based on the proposition that the rag
must have been drawn into the plumbing within about 15 minutes after it got in
the tank . The record , however, will not support a finding that the rag could not
have been in the tank longer than 1 hour before it was drawn into the plumbing,
and we have seen that the pump became inoperative about 9 o 'clock and that Rogers
testified that Kelly started the pump about 8. Moreover , after the rag had been
removed, the pump remained inoperative and was thoroughly cleaned . Too, the
maintenance man rewired incorrectly , extending the delay. In short , the fact that
the production line was not in operation from 9 to 2 o 'clock can be attributed only
in small part to the rag, and even so the rag's presence in the tank cannot be at-
tributed definitely to carelessness by Kelly. Under these circumstances , and bear-
ing mind Kelly 's prominent part in the activities of the Teamsters and the Respond-
ent's opposition to that labor organization during 1962, I conclude that the presence
of the rag in the tank was seized upon by the Respondent as an excuse to lay off the
strongest Teamsters ' adherent. I find a violation of Section 8(a)(3) and (1) in
the layoff.
E. Interference , restraint, and coercion
The complaint alleges that the Respondent violated Section 8(a)(1) in two re-
spects involving Holloway's time off on July 23 : ( 1) by conditioning the time off
upon Holloway's not attending the conference at the Regional Office, and (2) by
advising Holloway that he would be disciplined if he should attend the conference
With respect to the first allegation , Holloway, unlike Kelly, had not been invited to
the conference , which was not open to the public. Therefore, whatever right
Holloway may have had to seek admission to the conference was subordinate to his
employer 's right to require that he work a full day. The Respondent yielded its
right because of Holloway's plea of urgent personal business , and, therefore, the
Respondent could reasonably limit the use of the time off to the condition which
caused it to be granted . This case is distinguishable from one in which an em-
ployer, in granting an employee a general time off, seeks to restrict the employee's
use of the time to nonunion matters. Turning to the Respondent 's threat to dis-
cipline Holloway if he should attend the conference , this was a threat to discipline
ALSAR MANUFACTURERS, INC. 293
him if it should develop that he was lying in order to obtain time off; it was not a
threat to discipline him if he should exercise a Section 7 right. I find no violation
of the Act in these allegations of the complaint.
The complaint alleges also that the Respondent violated Section 8 (a)( I) by a
conversation which Rogers had with an employee, Elisha King. On an undisclosed
date following the conference on July 23, but before the layoff of Kelly in Novem-
ber, an election was conducted at which the employees selected the Teamsteis as
their representative. Two weeks or so before the election, Rogers said to King inter
alia that if the Teamsters should win the election, management might find it neces-
sary, in the interest of efficient operations, to hire men off "the street" in order
to obtain "the best man" for any particular job. The hiring of new employees, with-
out first affording old employees the opportunity to upgrade to a vacancy, would have
been contrary to the Respondent's practice at the time of the conversation between
Rogers and King .9 I find that Rogers' remark was a threat to induce King to vote
against the Teamsters. Such threat is consistent with the Respondent's hostility
to the Teamsters as recited in 136 NLRB at 1020-1021. It also is consistent with
the hostility as reflected in the layoff of Kelly. I find a violation of Section 8(a)
(1) in Rogers' remark.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices set forth above, occurring in connection with the opera-
tions of the 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 of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and that it take certain affirma-
tive action designed to effectuate the policies of the Act. I have found that Kelly
was laid off for 1 week in violation of Section 8(a)(3) and (1). Ordinarily, I
would recommend that the Respondent give Kelly backpay for the period of the
layoff and that the Board issue a broad cease-and-desist order, N L.R B. v. Express
Publishing Co., 312 U.S. 426; N.L R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C A
4). I shall not so recommend, however, because on undisclosed dates following
Kelly's reinstatement the Respondent entered into a 3-year contract with the
Teamsters and gave backpay to Kelly. Indeed, in view of the nature of the unfair
labor practices found, and the fact that the major one has largely been remedied,
I should be inclined to grant the Respondent's request that I recommend dismissal
of the complaint were it not for the fact that the Respondent engaged in unfair
labor practices after issuance of the Order in Applicators, Inc., supra.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1 The Teamsters and the Sheet Metal Workers are labor organizations within the
meaning of Section 2(5) of the Act.
2. By discouraging membership in a labor organization through discrimination
in employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engag-
ing in unfair labor practices affecting commerce within the meaning of Section 8(a)
(3) and ( 1) and Section 2 ( 6) and (7).
3. The allegation of the complaint that the Respondent violated the Act by dis-
charging Roosevelt Holloway has not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent,
Alsar Manufacturers , Inc., its officers, agents , successors , and assigns , shall:
9The findings are based upon the credited testimony of King On the other hand,
Rogers testified that King inquired "what type of seniority" Rogers thought King "would
have after the Teamsters were in the picture," and that Rogers answered that he did not
know but that management would seek a contract which would allow it "the opportunity
to increase the efficiency of the plant , placing the right men on the right jobs " I cannot
credit Rogers' testimony that the conversation was so brief or innocuous as he Indicated.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Discouraging membership in Local 458, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor
organization, by laying off any of its employees because of their union or concerted
activities, or in any other manner discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
(b) Threatening employees concerning union activities.
(c) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post at its place of business, copies of the attached notice marked "Ap-
pendix." 10 Copies of said notice, to be furnished by the Regional Director for the
Seventh Region, shall, after being duly signed by the Respondent's representative,
be posted by it immediately upon receipt thereof, and be maintained by it for at
least 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees customarily are posted. Reasonable steps shall be taken by
the Respondent to ensure that said notices are not altered, defaced, or covered by
any other material.
(b) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report, what steps the Respondent has taken to comply
herewith.ii
It is further recommended that the complaint be dismissed insofar as it alleges
that the Respondent engaged in unfair labor practices by discharging Roosevelt
Holloway.
10 If this Recommended Order should be adopted by the Board, the words "As Ordered
by" shall be substituted for "As Recommended by a Trial Examiner of" in the notice In
the further event that the Board's Order be enforced by a United States Court of Appeals,
the words "A Decree of a United States Court of Appeals, Enforcing an Order of" shall
be inserted immediately following "As Ordered by."
11 If this Recommended Order should be adopted by the Board, this provision shall be
modified to read: "Notify said Regional Director, In writing, within 10 days from the date
of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
we are posting this notice to inform our employees of the rights guaranteed them
in the National Labor Relations Act:
WE WILL NOT lay off or otherwise discriminate against any of our employees
because they engage in union activities.
WE WILL NOT threaten you about your union membership or activities.
WE WILL NOT violate your rights under the National Labor Relations Act
to join a union of your own choice and to engage in union activities, or not to
join a union and not to engage in such activities.
WE HAVE given Sam Kelly full backpay for the week that he was laid off.
Kelly's reinstatement to his job has been without loss of any seniority or
other rights or privileges.
ALSAR MANUFACTURERS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If the employees have any questions concerning this notice or whether the Em-
ployer is complying with its provisions, they may communicate with the Labor
Board's Regional Office, Fifth Floor, Book Building, 1249 Washington Boulevard.
Detroit, Michigan, 48226, Telephone No. 963-9330.