Amerace Corp.

National Labor Relations Board - Board Decisions

Dec 22, 1966

162 N.L.R.B. 338 (N.L.R.B. 1966)

338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is abundantly clear to me that no credence can be given to Sherwood's testi-
mony that he refused employment to United employees because they were UE
members. It is evident to me that when Sherwood testified , he was biased against
Respondent who had discharged him.
I find insufficient probative evidence that Respondent failed to hire employees
because they were members of or active in the UE.
Having found that Sherwood's testimony is not to be believed, I find no credible
evidence of assistance by Respondent to the AIW other than the admitted procure-
ment of employees through the AIW. In the circumstances of this case, I find no
violation of the Act in such hiring.
I further find insufficient probative evidence that Respondent is a successor to
United or in anyway obligated to United's contract or to bargain with the UE.16
Respondent 's business was not the same employing enterprise as United. In the
record making field a "custom" manufacturer differs substantially from a "captive"
manufacturer. Of course, this is not controlling but it is indicative of the fact that
Respondent 's "industry" was not substantially the same as the "industry" of
United. Respondent had the same location and a substantial portion of the same
machinery and equipment as United. It had substantially the same method of
operation . It did not have either the same supervisory staff or the same work force.
Assuming, arguendo , that Martin was a supervisor at United, he was at best a
minor one . I understand the Board indicia for a finding of successorship to require
more than the mere continuance of minor supervision . Of course, I find insufficient
evidence that Martin was a supervisor for United. It is clear that a substantial part
of Respondent's work force did not come from United. Respondent did no more
than purchase substantial assets and take an assignment of a lease from United.
It assumed no obligations. It provided new supervision for new employees. While
it made records, as did United, it did so for a different purpose. Again, it was not
United's "successor."
General Counsel, in his very able brief, emphasizes that most of Sherwood's
testimony is uncontradicted . Uncontradicted incredible testimony is still incredible.
I conclude that General Counsel has failed to establish any part of his case
by a preponderance of the substantial evidence.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact , and upon the entire record, I
make the following conclusions of law:
1. Respondent is, and at material times has been , an employer engaged in
commerce within the meaning of the Act.
2. The UE and the AIW are labor organizations within the meaning of the Act.
3. The -record does not establish that Respondent has engaged in the unfair
labor practices , or any of them , alleged in the amended complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record, it is recommended that the Board enter an order dismissing the
complaint, as amended.
16I do not pass upon the question of whether one or more of Bilari ' s companies is a
successor to United.
Amerace Corporation , E.M.C. Plastics Division and United Textile
Workers of America , AFL-CIO. Case 25-CA-2453. Decem-
ber 22, 1966
DECISION AND ORDER
On September 9, 1966, Trial Examiner James V. Constantine
issued his Decision in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
162 NLRB No. 35.
AMERACE CORP. 339
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended the dismissal of such allegations. There-
after, the Respondent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection, with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.]
[The Board further ordered that the complaint be dismissed inso-
far as it alleges unfair labor practices not specifically found in the
Trial Examiner's Decision.]
' In the absence of exceptions ,` we adopt, pro forma, the Trial Examiner ' s' recommenda-
tion that certain 8(a) (1) allegations of the complaint be dismissed and his rulings denying
the General Counsel's motions to amend the complaint.
The Respondent 's exceptions to the Trial Examiner's Decision are in large part directed
to credibility resolutions of the Trial Examiner . We will not overrule the Trial Examiner's
resolutions as to credibility unless a clear preponderance of all the relevant evidence con-
vinces us that they are incorrect . Such a conclusion is not warranted here. Standard Dry
Wall Products , Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is an unfair labor practice case litigated under Section 10(b) of the National
Labor Relations Act, herein called the Act . 29 U.S.C. 160( b). It was commenced
by a complaint issued on April 27, 1966, following a charge filed on February 28,
1966, by United Textile Workers of America, AFL-CIO. Naming Amerace Corpo-
ration, E.M.C. Plastics Division, as Respondent , the complaint in substance alleges
that Amerace has violated Section 8(a)(1) and ( 3), and that such conduct affects
commerce within the meaning of Section 2(6) and (7) of the Act . Respondent has
answered admitting some facts but denying that it committed any unfair labor
practices.
Pursuant to due notice this case came on to be heard by Trial Examiner James
V. Constantine on June 16 and 17, 1966, at Seymour, Indiana. All parties were
represented at and participated in the hearing, and were granted full opportunity
to adduce evidence, examine and cross-examine witnesses, submit briefs, and pre-
sent oral argument. Briefs have been received from Respondent and the General
Counsel . At the trial I denied two motions to amend the complaint . The first was
denied because the additional matters sought to be alleged were known to the Gen-
eral Counsel at the time the complaint issued ; and no showing was made as to why
they were omitted . The second was denied because the additional allegations were
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known to the General Counsel a week 'before the hearing; yet he chose hot, to
amend as a matter of right during the substantial period of time remaining prior
to the opening of the hearing. See Sec. 102.17 of the Board's Rules and Regulations.
No valid reason was advanced why the latter motion was postponed until the hear-
ing opened, thus requiring a continuance (to give Respondent an opportunity to
prepare to meet the amendment ), at some stage of the trial if the motion was
granted. At the trial, motions filed by Respondent to quash two subpenas were
granted because proof of service was found to be faulty.
Upon the entire record in this case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. AS TO JURISDICTION
Amerace, a Delaware corporation, is engaged in several States in the business
of manufacturing custom injection molded products. Only its plant located in
Medora, Indiana, is involved in this proceeding. During the year preceding the
hearing herein, Amerace received materials valued in excess of $50,000 directly
from, and shipped finished products valued in excess of $50,000 to, points outside
the. State of Indiana. I find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, and that it will effectuate the purposes
of the Act to assert jurisdiction over it.
II. THE LABOR ORGANIZATION INVOLVED
United Textile Workers of America , AFL-CIO, herein called the Union or Tex-
tile Workers , is a labor organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
.This case involves the questions of (a) Whether employee Harlan Nichols was
illegally discharged for union membership, or activity, or both; (b) Whether
Respondent unlawfully interrogated employees concerning their own and other
employees' union membership, activities, and desires; whether Respondent threat-
ened employees with reprisals if they joined or assisted the Union; and (c) Whether
Respondent promised or granted benefits and increased wages to employees to
induce them to refrain from joining or assisting the Union.
A. The discharge of Harlan Nichols
In late January 1966,1 the Textile Workers initiated an effort to organize Respond-
ent's plant at Medora, Indiana. Abe Pincus, an international representative of the
Textile Workers, was in charge of the organizing campaign. Officials of Local 445
of the Union in nearby Seymour, Indiana, arranged for Pincus to meet employee
Harlan Nichols. Pincus did so in late January and directed Nichols to bring inter-
ested employees to a meeting on the first Saturday in February. Nichols did so.
At the meeting Nichols was designated "head committeeman" in signing up mem-
bers. Cards were distributed at the meeting. Employee solicitors were told to turn
in cards to Nichols who was appointed "liaison" between, employees and Pincus.
They did so. Thomas Wineinger, a day-shift foreman whom I find to be a super-
visor under Section 2(11) of the Act, became aware of this union activity about
February 8 or 9 and Plant Manager Paul knew of it on February 7. A day or two
later Respondent's counsel, Frank M. Swift, spoke to Respondent's assembled
supervisors about the Union's drive at the plant.
Harlan Nichols worked for Foreman Franklin Kiser in the finishing department.
It is admitted by Respondent that it had knowledge of Harlan's activities, including
passing out membership cards, and that Harlan was a strong union adherent. I also
find that Harlan's activities, as well as the Union's activities at the Medora plant,
were discussed by Respondent's supervisors among themselves. In addition, I find
that Plant Manager Paul on February 7 telephoned Plastics Division President
Fiser in Denton, Texas, "that the Union organizational drive was going on at the
Medora plant." I also find that at some time before February 14 Paul also dis-
cussed Harlan Nichols' activities with Fiser.
'Ali dates mentioned hereafter refer to 1966 except where otherwise noted.
AMERACE CORP. 341
1. General Counsel 's evidence
a. Testimony of Harlan Nichols
Harlan Nichols was hired to work in the tumbling department on December 13,
and started on December 14, 1965. His regular shift consists of 5 days each week-
Monday through Friday-from 7 a.m. to 3:30 p.m. At no time did he work on a
Saturday. On February 7, 8, and 9, while accompanied by employee Canada, Har-
lan obtained 16 signatures to union cards. Other employee solicitors turned in cards
to Harlan. As noted above, Harlan on February 5 at a union meeting was appointed
chairman of the committee to conduct the organizing drive at the plant.
On February 8 Harlan reported to Supervisor Elkins that he was not feeling
well. Elkins replied, "You're probably coming down with the flu." On February 7,
8, and 9, Supervisors Paul and Earley visited Harlan's area "more than usual." On
February 10 Harlan from home telephoned employee George Prather at the plant
and requested Prather to report him ill ' to Harlan's foreman. It was part of
Prather's duties to receive such calls and make such reports. In this conversation
Harlan requested Prather to summon Carl Nichols to the telephone. Prather did
so. Harlan then told Carl, his son, that he was sick. On the same day Harlan also
visited Dr. Butler. On February 11 Harlan from home called employee Sharon
Bane at the plant between 9 and 9:30 a.m., told her that he was under a doctor's
care, that he was in bed and unable to work, and asked her to report this to his
foreman. Sharon promised to do so. Harlan did not report his absence on Febru-
ary 12, a Saturday, as he did not work on Saturdays.
Harlan again from home telephone George Prather on February 14, men-
tioning that he was still sick and that he was unable to come to work. This was
about 9:30 a.m. Prather promised to report it. On February 15 Harlan received
a letter from Plant Manager Paul (General Counsel's Exhibit 3), in relevant part
informing him that because of four consecutive unreported absences, "we therefore
consider this action on your part as a voluntary resignation . . . in accordance
with the rule as stated on Page 5 of Employee Handbook." Harlan testified he never
received a handbook or knew of any rules at the plant.
Respondent's employee handbook (General Counsel's Exhibit 4E) provides on
page 5 that "An employee who is absent three (3) consecutive days without mak-
ing contact with his/her foreman or supervisor will be considered a voluntary
resignation." It also states on page 4, "If you are unable to report for work for any
reason, you are requested to notify your foreman or supervisor daily prior to the
start of the work shift . . . Failure to notify . . . will be considered an unexcused
absence. Any employee who accumulates a total of three (3) unexcused absences
will be considered for dismissal." Finally, in relevant part it also asserts on page 6
that "Rules are necessary for protection and guidance . . . Whenever disciplinary
action is necessary regarding . attendance or violation of company rules, the
following procedures will be in effect:
1st-Oral warning from foreman. 2nd-Oral warning from supervisor. 3rd-
Formal written warning with copy to employee. 4th-Termination."
b. Other evidence of the General Counsel
While working at the plant about February 8, Harlan Nichols told his son, Carl,
that Harlan was not feeling well. Nevertheless, Harlan worked the full day. On the
next day, Harlan repeated to Carl that he still was not feeling well; but Harlan
again worked a full day. The day starts at 7 a.m. However, on February 10, Harlan
remained home because of illness and telephoned Carl at the plant at 8 or 8:30
a.m. Each lives in a different home ; Harlan's is located in Austin , Indiana, about
32 miles from the plant. As a result of this call, Carl asked Foreman Wineinger to
fill out an absentee slip for Harlan . Wineinger did so . Then the slip was "placed in
[a receptacle] in the office there where all the paperwork goes to the front office."
Harlan Nichols was still sick on February 11, a Friday. Pursuant to Harlan's tele-
phone call of February 10, Carl again reported Harlan sick to Foreman Marvin and
requested Marvin to fill out an absentee slip. Marvin did so. This also was depos-
ited in "the usual place" in the office . That afternoon Carl asked Supervisor Denver
E. Earley if Harlan 's union activity would have any effect on Carl 's job. Earley
replied in the negative.
When Carl visited his father on February 12 and 13, he found the elder Nichols
ill in bed . The following day, February 14, Carl himself filled out an absentee slip
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for Harlan and turned it in to the office. Wineinger had previously authorized Carl
to do so. On that or the next day Supervisor Elkins asked Carl where Harlan had
been. When Carl replied that Harlan had been sick, Elkins instructed Carl that Har-
lan's illness should be reported to Foreman Kiser. Carl agreed to do so and did
report Harlan's illness to Kiser on February 15; the latter said he would fill out an
absentee slip.
Admittedly, Harlan Nichols did not work on Saturday, February 12, nor did he
or anyone for him request that an absentee slip be executed for this absence. How-
ever, Carl Nichols testified that Harlan did not work Saturdays, although the plant
often did.
On February 14, Plant Manager Paul knew that Harlan Nichols had telephoned
Carl Nichols at the plant. On that date Paul had no knowledge that any employee
had theretofore been terminated for four successive unexcused absences.
Supervisor Denver E. Earley spoke to Carl Nichols 3 or 4 days before Febru-
ary 14. Carl wanted to know how the Company felt about him and hoped it held
no grudges against him "because of his [Carl's] father's actions" were "so active."
Earley further testified that, to his knowledge, Harlan Nichols was the most active
person in the union movement at the plant.
Employee Ed Canada was recommended for employment to Supervisor Earley on
February 9 or 10 by a Reverend McDaniels. However, at that time Earley rejected
Canada because Canada "was giving us trouble," and so stated to McDaniels. Earley
testified that he meant "union activity" by "trouble." Canada was later hired.
Earley testified that Marilyn Sons, William Decker, and Roger Bennett were ter-
minated for three successive unreported absences. However, Earley also testified
that Marilyn had called in, while on maternity leave, to report that she would not
return to work following the birth of her child; and that he then "had to terminate
her" because of this fact. This occurred about the time Harlan Nichols was termi-
nated. Decker and Bennett were terminated after February 14, the date of Harlan's
termination.
It was stipulated'that Harlan Nichols was absent on February 10, 11, and 14.
Carl Nichols, a son of Harlan Nichols, works as a molding technician and fore-
man trainee under the supervision of Wineinger. Supervisor Wineinger testified that,
between February 10 and 14, Carl Nichols did not ask Wineinger to make out an
absentee report on Harlan Nichols, but Carl did so request "on one or more occa-
sions" at other times including January 5 and February 1 and 2. No connection is
made that the absences of January 5 and February 1 and 2 were unexcused. Further,
according to Wineinger, during the period between February 10 and 14, Carl did
not make any statement to him as to why Harlan was absent.
However, Wineinger testified that on February 15 Carl told him that Carl had not
heard from Harlan for several days 2 and that Harlan "has laid drunk for the last
twenty years." To this, Wineinger replied, "I don't think he'll be back any more;
he's been terminated."
At some time on February 14 a "Wage Administration Control Notice" for Har-
lan Nichols was prepared by Respondent. It was signed on February 14 by Super-
visor Earley, and purports to be signed on February 15 by Plant Manager Paul and
Plant Controller Curry. In relevant part it provides: "Action requested-TERMI-
NATION. Classification-present, UTILITY; proposed, TERMINATION." An "X"
is inserted opposite the word "Resignation" in a column designating the reason for
the action (General Counsel's Exhibit 6).
By letter dated February 14, Plant Manager Roy C. Paul wrote to Harlan Nichols
that
Our records indicate that you have been absent for the last four consecutive
scheduled days. There is no indication that you have reported this absence with
your foreman or supervisor, and we therefore consider this action on your part
as a voluntary resignation.
This is in accordance with the rule as stated on Page 5 of Employee Hand-
book. You will find enclosed a check covering wages due you up to the time of
your absence, and we have marked your records as employment terminated.
3I do not credit Wineinger that Carl made any derogatory remarks about his father.
This is because it is not likely that Carl would lie that he had not heard from his father
for several days before February 15 In this connection I credit employee Prather, a witness
for Respondent, that Harlan called Carl at the plant shortly before February 14, and Carl's
and Harlan's testimony which confirms Prather on this aspect of the case.
AMERACE CORP. 343
2. Respondent's evidence
Sharon Bane is a receptionist in the front office of the plant. As part of her duties
she answers the telephone. Among incoming calls to her are those from employees
reporting that they will not work that day. Such employees identify themselves and
their foreman. Thereafter, Sharon prepares an absentee slip and either gives it or
routes it to the foreman concerned as part of her duties.
On one occasion Harlan Nichols called Sharon, stated that he was sick, and
requested that his son, Carl, be called to the telephone. Although calling Carl was
irregular, because it was permitted only in cases of emergency, Sharon did call Carl
at Harlan's insistence. However, Harlan did not request her to report to his foreman
that he was ill or to prepare an absentee slip. Sharon further testified that Harlan
hung up before Carl reached the telephone.
Frank Kiser is admittedly one of Respondent's supervisors in the finishing depart-
ment. Harlan Nichols was assigned to Kiser's department and placed under Kiser's
supervision. Under the Company's rules on absenteeism, according to Kiser, an
employee who does not report for work calls Kiser at home or at the plant. If an
employee is absent, Kiser is "responsible for reporting that employee's absence." He
does this by executing a "yellow absentee report" and transmitting it to the office.
Kiser made out such reports for Harlan Nichols on February 10, 11, and 14, assert-
ing "not known" as the reason for absence. See Respondent's Exhibits 3A, 3B, and
3D. This is because Harlan did not contact Kiser "by telephone or by message to
the office, or by any other employee." These yellow slips were made out each day
"usually at the evening when [Kiser] checked [his] time slips." At no time did
Kiser talk to Sharon Bane or George Prather to learn if Harlan had called in. Kiser
could not recall any other employees who had been absent three or more consecu-
tive days.
George Prather is employed by Respondent as a junior accountant at its Medora
plant. In the morning of a day in the middle of February, Harlan Nichols tele-
phoned the office. Prather answered this call as part of his duties. Nichols asked to
speak to his son, Carl, but did not mention that he was ill. This was the only time
Harlan talked to Prather on the telephone. Prather then went to Carl and asked him
to answer Harlan's call. Then Prather returned to the office where he informed
Supervisor Earley that "Harlan Nichols is talking to his son Carl." Prather did this
because he "had overheard Mr. Earley say" that, "if Mr. Nichols calls in I [Earley]
would like to speak to him."
Employee Opal Ray was discharged "effective on" October 25, 1965, for three
consecutive unexcused absences. Her Wage Administration Control Notice" (Re-
spondent's Exhibit 5) in part reads "Action Requested-TERMINATION. Classi-
fication proposed-Termination effective 10-25-65. Remarks: NEVER RETURNED
TO WORK." However, it is dated "11/4/65" and signed by Supervisor Earley,
Plant Manager Paul, arid Plant Controller Curry. Further, Opal Ray's "absentee
reports," which are initialed by Supervisors Wineinger or Bud, are dated 10/20,
10/23, 10/25, and 10/27, respectively, and that of 10/27 bears the legend "Evi-
dently has resigned . Never has called in and has been off several days ." (Respond-
ent's Exhibit 2C).
Supervisor Earley testified that employee absenteeism is "a major problem in the
plant."
The "Wage Administration Control Notice" of Marilyn Sons was signed on 2/16
by Supervisor Earley and 2/22 by Plant Manager Paul.
According to Supervisor Earley, on the morning of February 10 Earley learned
from employee Prather that Harlan Nichols telephoned Carl Nichols, his son, at
the plant. Thereupon, Earley proceeded to a plant telephone to speak to Harlan, but
Carl had already ceased talking to Harlan. However, Carl said nothing to Earley as
to why Harlan was absent that day.
At about 8 or 9 a in. on Monday, February 14, Earley spoke to Plant Manager
Paul concerning Harlan Nichols. In the conversation Earley showed Paul a control
notice (General Counsel's Exhibit 6) concerning the termination of Harlan. This
provides, in part, that-the "proposed" action requested on Harlan is "termination on
February 14," with the reason assigned therefore as "resignation." Harlan had been
absent on February 10, 11, 12, and 14. The whole plant had been scheduled to work
on Saturday, February 12, but the only communication thereof to employees was a
notice posted on bulletin boards on February 10. Previously, Earley had discussed
Harlan's absences with Paul on Friday, February 11, although Harlan had then
been absent but two consecutive days. Late on February 14 a notice was mailed to
Harlan that he had resigned. General Counsel's Exhibit 3.
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings as to the Discharge of Harlan Nichols
In order to find that Harlan Nichols was unlawfully discharged , it must first be
established that Respondent knew or was conscious that he was engaging in union
activity shielded by the Act. I find that Respondent had such knowledge since its
supervisors who testified expressly acknowledged that they were aware that Harlan
was a strong and active union adherent who solicited membership in the Union and
distributed union cards.
It is my opinion , and I find, that Harlan Nichols was discharged or terminated
for engaging in activity on behalf of the Textile Workers, and that the reason
assigned to him by Respondent , i.e., voluntary resignation , is a pretext to cloak or
conceal the true reason . Respondent vigorously contends that the onus is on the
General Counsel to establish that the employee was discriminatorily discharged. I
expressly rule that this is a correct statement of the law. N.L.R.B. v. Chicago Per-
forating Co., 346 F.2d 233, 238 (C.A. 7); Interborough Contractors , Inc., 157
NLRB 1295 ; Rubin Bros., 99 NLRB 610, 611 , set aside 203 F.2d 486 (C.A. 5);
N.L.R.B. v. Murray Ohio Manufacturing Company, 326 F.2d 509, 513 (C.A. 6);
N.L.R.B. v. Park Edge Sheridan Meats, Inc., 341 F .2d 725 (C.A. 2). I have fol-
lowed this principle in arriving at all findings in this case.
Further, I am cognizant of and have followed the rule of law that union activity
neither confers immunity from discipline by the employer (Metals Engineering Cor-
poration , 148 NLRB 88, 90 ) nor insulates an employee from being terminated for
nondiscriminatory reasons. Wellington Mill Division v. N.L.R.B., 330 F.2d 579,
586-587 (C.A. 4); N.L.R .B. v. Park Edge Sheridan , supra; Mitchell Transport, Inc.,
152 NLRB 122 , 123. I also find that Respondent's rules on absences (General Coun-
sel's Exhibit 4E) are valid , and that , if Harlan Nichols was in fact terminated pur-
suant to those rules, such action must be upheld in this proceeding regardless of its
soundness , wisdom, or harshness . N.L.R.B. v. Prince Macaroni Manufacturing Co.,
329 F 2d 803, 809 (C.A. 1); N.L.R.B. v. United Parcel Service Inc., 317 F.2d 912,
914 (C.A. 1); Thurston Motor Lines , Inc., 149 NLRB 1368; Interborough Contrac-
tors, supra; N.L.R.B. v. Ace Comb Co., 342 F.2d 841, 847 (C.A. 8). Nevertheless,
the fact that a lawful cause for termination exists will not justify a discharge
prompted by the employee 's union activities . N.L.R.B. v. Symons Manufacturing
Co., 328 F.2d 835, 837 (C.A. 7); Portable Electric Tools, Inc. v. N.L .R.B., 309
F.2d 423, 426 (C.A. 7); N.L.R.B. v. Ace Comb Co., supra.
In ultimately finding that Harlan Nichols was discharged for union activity, and
that he was not terminated for unreported absences from work, I have relied on the
entire record and the-following subsidiary findings, which I find as facts:
a. Timing is important . I find that Harlan Nichols was terminated shortly after
Respondent's supervisors learned that he became prominent in the union movement
at,the plant . N.L.R.B. v. Mira-Pak, 354 F.2d 525 (C.A. 5); Arkansas-Louisiana
Gas Company , 142 NLRB 1083 , 1085 ; Texas Industries , 156 NLRB 423 . "Obviously
the discharge of a leading union advocate is a most effective method of undermin-
ing a union organizational effort ." N.L.R.B . v. Longhorn Transfer Service, Inc., 346
F.2d 1003 , 1006 (C.A. 5).
b. Also, I find that the manner of the discharge is significant. Harlan Nichols was
abruptly terminated without warning immediately after his alleged fourth consecu-
tive unreported absence. Yet such strict adherence to plant rules had not been
enforced or administered prior to the advent of the Union . Cf. Scott's Inc., 159
NLRB 1795 . It is true that employee Opal Ray was terminated for unreported
absences . Yet action against her was not taken immediately but only after it was
definitely ascertained that she had "never called in and has been off several days."
On the other hand , Harlan Nichols had called in on all previous occasions when he
could not come to work , so that Respondent was put on notice that Harlan , unlike
Opal Ray, still showed an interest in keeping his job.
It is also true ( and I find) that employees Marilyn Sons , William Decker, and
Roger Bennett were terminated for three successive unexcused absences But I find
that Marilyn , who was on maternity leave, called Supervisor Earley to state that
following the birth of her child she would not return to work. This is an express
disavowal of employment without regard to any of Respondent 's rules. And the
terminations of Decker and Bennett not only were not abrupt but also took place
after Harlan Nichols was terminated.
"The abruptness of a discharge and its timing are persuasive evidence as to moti-
vation ." N.L.R.B. v. Montgomery Ward & Co., 242 F.2d 497, 502 (C.A. 2), cert.
AMERACE CORP. 345
denied 355 U.S. 829; N.L.R.B. v. L. E. Farrell Company, Inc., 360 F.2d 205 (C.A.
2). And failure to warn, when warning can be reasonably expected (see p. 6 of
Respondent's Rules, General Counsel's Exhibit 4E) is laden with probative value.
Dunclick, Inc., 159 NLRB 10; N.L.R.B. v. Melrose Processing Co., 351 F.2d 693
(C.A. 8); N.L.R.B. v. Whitin Machine Works, 204 F.2d 883, 887 (C.A. 1). While
it is true that the above rules of Respondent provide that three consecutive unre-
ported absehces "will be considered a voluntary resignation," they also provide that
"a total of three (3) unexplained absences will be considered for dismissal," as well
as that "whenever disciplinary action is necessary regarding . . . attendance or viola-
tion of company rules," three warnings will first be given. Thus, I find that Harlan
Nichols reasonably could expect to be warned before his unreported absences were
used by Respondent as a vehicle to get rid of him.
In this connection, it is significant that Harlan's foreman was not consulted on the
question of his termination. Virginia Metalcrafters, Inc., 158 NLRB 958.
c. Respondent demonstrated union hostility. I recognize that it is not an unfair
labor practice to dislike unions or to say so. (N.L.R.B. v. Audio Industries, 313
F.2d 858 (C.A. 7); N.L.R.B. v. Threads, Incorporated, 308 F.2d 1, 8 (C.A. 4);
N.L.R.B. v. Howard Quarries, Inc., 365 F.2d 236 (C.A. 8).) But it is a factor
which may be considered in evaluating the reason for an employee 's termination.
In this area I find that some of Respondent 's antipathy to the Union did amount to
unfair labor practices , as found elsewhere herein . But this alone cannot auto-
matically render a termination illegal; the two must be causally connected . N.L.R.B.
V. Covington Motor Co., 344 F.2d 136, 138 (C.A. 4); N.L.R.B. v. Citizens-News
Company, 134 F.2d 970, 974 (C.A. 9); Lasko Metal Products, 148 NLRB 976,
978. However, I find a proximate link here under all the circumstances . McCormick
Longmeadow Stone Co., 155 NLRB 53; N.L.R.B. v. L. E. Farrell Co., supra;
N.L.R.B. v. Ace Comb Co., supra. Norfolk Tallow Co., 154 NLRB 1052, upon
which Respondent relies , is not controlling , for there an express finding was made
that the employer 's union animus did not enter into the decision to terminate the
employee. Similarly distinguishable is Fashion Fair, Inc., 159 NLRB 1435.
Moreover, I find that Respondent once rejected Canada, an applicant for
employment, on the ground that, as Supervisor Earley testified, Canada "was giv-
ing us trouble" by engaging in "union activity." It is reasonable to infer, and I
do so, that Respondent would refrain from employing or retaining in its employ
any known active union solicitor.
d. I find that Harlan Nichols did not violate Respondent's rules in failing to call
in on Saturday, February 12. This is becasue I find that his regular workdays
were Monday to Friday and that he did not work on Saturdays. Respondent's own
payroll records confirm this. However, Respondent contends that Nichols was
required to work on February 12 because notices posted on the plant bulletin
boards scheduled the entire plant to work that day. It is difficult to perceive how
an absentee can read a bulletin board miles away from him. Moreover, nothing
in the record points to the conclusion that Nichols was obligated at his peril to
ascertain whether to report to work on days other than his regular workdays,
especially since he had never worked on a single Saturday. Hence, I find that
Respondent's claim that Harlan should have either come to work or reported his
absence on February 12, is not well taken and is some evidence of a pretext to
discharge him for union activity. Cf. Goodyear Tire & Rubber Company, 159
NLRB 834.
e. It is significant not only that Respondent's supervisors at Medora discussed
Harlan's union activities, but also that Plant Manager Paul expressly called them
to the attention of Plastics Division President Fiser in Denton, Texas. While I am
aware that such conversations are lawful and may be expected "during the course
of an organizational campaign," (N.L.R.B. V. Howard Quarries, supra), neverthe-
less they demonstrate that, in the eyes of Respondent, the conduct of Nichols did
not go unnoticed and, that Harlan was an important personage to it. This, when
considered with the fact that not long after Paul's telephone call to Fiser, Respond-
ent abruptly and without warning considered Harlan to have resigned, aids in
demonstrating that the alleged resignation was seized upon as a mask to disguise
a discriminatory discharge. Cf. Telecom, Inc., 157 NLRB 104 (employee
O'Daniel).
f. It has been found that Harlan did not vountarily resign. I further find that
Respondent's action in considering him as having voluntarily resigned amounts to
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a dismissal or discharge. Telecom, Inc., supra (employee O'Daniel). As also found
herein, I have found such discharge to be discriminatory, i.e., for union activity.
g. I find that Harlan Nichols called employee George Prather twice and employee
Sharon Bane once, informed them of his illness, and requested them to report his
absence therefore to his foreman. This was standard company practice. To the
extent that Respondent's evidence is not consonant with the foregoing findings, I
do not credit it. However, Bane in part corroborates Harlan, for, as a witness for
Respondent, she testified that Harlan informed her he was ill. But she testified
that she did not report this to the foreman. It is difficult to understand why Bane
failed to mention this illness to Harlan's foreman, for it was incumbent upon her
to report calls made by those who were so sick they could not come to work.
Merely because Harlan did not expressly direct her to tell this to the foreman does
not excuse such failure; it is sufficient that Bane was notified and that her regular
duties imposed upon her an obligation to notify the appropriate foreman of sick
calls.
Further, I find that Harlan's son, Carl, reported Harlan ill as requested by
Harlan. Respondent's contradictory evidence is not credited.
In finding that Harlan made the foregoing calls, I deem it significant that Harlan
always reported his absences in the past. It is inconceivable that he would depart
from his past practice when such divergence would expose him to the risk of
losing his job. In this connection I find that Harlan knew the contents of the
employee handbook (General Counsel's Exhibit 4E) relating to the consequences
attendant upon three successive absences without accounting therefor. His denial
of such knowledge is not credited. The fact that I have not credited Harlan on this
aspect of the case does not destroy his credibility as to other matters on which
I have accepted his testimony; for a trier of facts may credit in part and reject in
part the testimony of any witness. Marquandt v. Y.W.C.A., 282 Mass. 28; 184
N.E. 287, 288.
h. Nichols was one of the prime movers in bringing the Union to the Medora
plant and assiduously strove to aid it. It is not necessary to show that Harlan's
union activity was the only reason for the discharge. Hence, the fact that Harlan
did not report his absence, as contended by Respondent, even if true, will not
automatically save the discharge as lawful. N.L.R.B. v. Symons, 328 F.2d 835,
837, 426 (C.A. 7). For I have found that antiunion motives also prompted the
discharge. It is sufficient to condemn the discharge as unlawful "if [discrimination]
is a substantial or motivating reason, despite the fact that other reasons may exist."
N.L.R.B. v. Whitin Machine Work, 204 F.2d 883, 885 (C.A. 1). I find that Har-
lan's union activities were a substantial or motivating reason for his discharge. On
this branch of the case I have not overlooked the rule of law that merely because
employer action coincides with union activity does not establish, without more, a
discriminatory purpose. But I find that the record unfolded before me reveals such
a discriminatory purpose.
B. Interference, restraint, and coercion
1. General Counsel's evidence
On March 5 Supervisor Wineinger asked employee Martha Shelton if she read
the notice on the bulletin board which had been posted the day before. Signed by
Plant Manager Paul, this notice related to the "charges by the N.L.R.B. against
the Company." Shelton replied that she had read it. Continuing, Wineinger stated
"if we voted the union in, that the Company would move out before they'd let a
union tell them how to run their company."
On February 9 Supervisor Elkins asked employee Norma J. Hall if she heard
anything about a union trying to get in the factory. Hall said that she had. This
evidence is offered solely to show union animus. Thereafter, on February 16, Elkins
told Hall that the Company did not want the Union in; that "all they was good
for was blowing up people's houses and kidnapping their kids; and that they was
run by nothing but a bunch of gangsters." In this same conversation Elkins told
Hall that if the Union obtained "any raise at all," it would not be over a nickel,
and that if a machine broke down an employee would have to go home "because
the Union wouldn't allow us to do anything else." Cf. N.L.R.B. v. Brownwood
Manufacturing Company, 363 F.2d 136.
AMERACE CORP. 347
Supervisor Wineinger on March 4 or 5 told employee Norma J. Hall that if the
Union got in the plant would move out of town; that if a raise were obtained it
would be a nickel, an amount insufficient to pay union dues; and that the Company
did not have to sign a contract.
During the week of February 13 Supervisor Wineinger told employee Ed Canada
that if anyone was caught passing or signing union cards on company property he
"would get fired." Wineinger added, "That goes for you, too, Ed." Canada reported
this to Supervisor Kiser; however, in this conversation Canada told Kiser that Wine-
inger also accused Canada of passing out union cards.
2. Respondent's evidence
Supervisor Thomas Wineinger testified that on or about February 13, he talked
to employee Ed Canada after several "complaints" had been made to Wineinger
that Canada solicited employees "to sign union cards." Wineinger told him that if
he caught Canada "passing union cards" on company time he would fire Canada
because "we 've got a no solicitation rule." Further , Wineinger denies that about
March 4 and 5 he warned employees that if the Union got in the plant would be
closed down. However, about that time employee Norma Hall told Wineinger that
Respondent "might as well quit fighting the Union and let them in; if it don't
they'll close the doors." Although unable to recall what he replied, Wineinger
"didn't agree with her . . . in any way."
About February Supervisor Chester Elkins told some employees that he thought
unions were run by a bunch of gangsters.
Supervisor Chester Elkins testified that on February 16 he spoke to employee
Norma Hall. During the conversation Hall asked him about unions and how they
worked. Elkins replied that "people would be assigned to machines . . . and . .
if a machine was broke down for a day or so, I guessed, the way I understand it,
they would have to go home." Otherwise, he did not say anything as to what
would happen if the Union got in the plant. On another occasion an employee
asked Elkins "how much we'll get" if the Union gets in. He replied he did not know
but that probably by the time union dues were paid "you won't have a whole lot
left."
At first Wineinger did not deny telling Shelton that the Company would move
out before it would let a union run its business. Rather, he testified that he could
not "remember making a statement like that to her." However, he denied having
any discussions with Shelton pertaining to union activities in the plant. Further, he
denies that he told employee Norma Hall that if the Union came in the plant the
Company would move out of Medora. However, he admits he told Hall that the
Company would not have to sign a contract with the Union, but denies that he told
her that any contract signed would limit wage raises to a nickel.
Concluding Findings as to Interference, Restraint, and Coercion
1. As to interrogation
A perusal of the General Counsel's evidence upon this aspect of the case dis-
closes that on March 5 Supervisor Wineinger asked employee Martha Shelton if she
had read a notice posted on the bulletin board relating to "charges by the N.L.R.B.
against the Company," and that Supervisor Elkins on February 9, asked employee
Norma J. Hall if she heard anything about a union trying to get in the factory. It
is my opinion , and I find, that neither conversation transgresses the bounds of
allowable interrogation. set by Section 8(c) of the Act. Johnnie's Poultry Co., 146
NLRB 770, 774-776, is inapplicable. This is because I find that no threats are
included in either interrogation. Bourne Co. v. N.L.R.B., 332 F.2d 47 (C.A. 2);
Blue Flash Express, 109 NLRB 591. Hence, I shall recommend that this portion of
the complaint be dismissed.
2. As to threats of reprisals
In Supervisor Wineinger's talk to employee Martha Shelton on March 5, men-
tioned above, Wineinger stated that "if we voted the Union in, the Company would
move out before they'd let a union tell them how to run their company ." Wine-
inger's testimony contradicting this is not credited . I find that this statement contains
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a threat of reprisal if employees selected the Union as their collective -bargaining
agent, and therefore , transgresses Section 8 ( a)(1) of the Act.
Wineinger on March 4 or 5 told employee Norma J. Hall that if the Union got
in the plant would move out of town . His denial is not credited. I find this is a
threat of reprisal prohibited by Section 8(a)(1) of the Act . In this same talk
Wineinger stated that the Company did not have to sign a contract . I construe this
to mean that the Company was not compelled to agree to any terms which it did
not approve . Hence , this statement is not unlawfully coercive as it does no more
than correctly restate the law. Perkins Machine, 141 NLRB 697 , 700; Schick, Inc.,
118 NLRB 1160 , 1162-63; NLRB v . Texas Industries, 336 F .2d 128 , 130-131
(C.A. 5). See Section 8(d) of the Act . Cf. Coors Porcelain Company, 158 NLRB
1108 . Further, Wineinger told Hall that if the Union obtained a raise it would be
a nickel , a sum insufficient to pay union dues. Wineinger's denial is not credited.
I find this statement coercive as it implies that it would be futile for the employees
to select a union powerless to obtain a significant raise in pay.
On February 9 Supervisor Elkins told employee Norma J. Hall that the Com-
pany did not want a union , that unions blew up homes and kidnapped children, and
that unions were run by a bunch of gangsters . While this statement is deplorable,
and is one which I hasten to condemn as inaccurate as well as intemperate, I find
nothing coercive in it . I do find that it is decidedly and vituperatively antiunion.
But no violation of law is revealed by an employer 's statements that he does not
like unions . N.L.R.B . v. Threads, Inc., 308 F .2d 1, 8 (C.A. 4); N.L.R.B. v. Howard
Quarries, 365 F .2d 236 (C.A. 8). However , Elkins also told Hall that if the Union
obtained a raise it would not exceed a nickel and that if a machine broke down an
employee would have to go home . Elkins' version thereof is not credited . I find this
statement is coercive.
During the week of February 13, Supervisor Wineinger warned employee Canada
that any employee caught passing or signing union cards on company property
would be fired . I do not credit Wineinger that he threatened to fire Canada or
employees only for passing union cards on company time as the Company had a
no-solicitation rule. Hence , I find that Wineinger threatened to fire Canada or any
other employee for union activity on his own time. This is coercive, and I so find,
for a no -solicitation rule may not proscribe union activity in a plant on an employ-
ee's own time . Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 620.
C. Wage increases and promises or grants of benefits
1. General Counsel 's evidence
By notice dated February 8, posted on its bulletin boards, Respondent notified
employees that, "As has been our practice in the past, a wage survey has been made
during the past few months of our local area. . . This survey revealed that certain
increases are in order ." Further, it stated that a "schedule of increases " was being
prepared and, when approval was received , employees would be notified of, and
receive, the new rates . General Counsel's Exhibit 4A. Respondent posted on its
bulletin board a document dated March 10, captioned "Wage Policy Announce-
ment," and signed by Plant Manager Roy C. Paul. In it a "general wage increase
of ten cents an hour for all hourly employees" was announced "effective March 7,
1966." General Counsel 's Exhibit 4D.
Respondent also posted a notice dated March 1, 1966, that , effective March 1,
1966 , employees and their dependents will be covered under "new" group hospital-
ization and surgical benefits there specified . These benefits were increased without
additional cost to employees . General Counsel 's Exhibit 4C.
Roy Paul is Respondent's plant manager. He testified as a witness for the General
Counsel that Respondent's Plastics Division president , Fiser, gave him permission
on February 7 to announce the above wage increases . That announcement was
posted on the Medora plant bulletin boards the next day. Paul first learned of the
union drive on February 7 and, after acquiring such knowledge , on the same day
telephoned President Fiser to inform him "that the union organizational drive
was going on at the Medora plant." During the course of this call, Paul and Fiser
discussed the question of whether to post a notice announcing wage increases. Paul
further testified that the decision to grant increased insurance benefits was reached
in mid-February, although the matter had been under consideration before this.
AMERACE CORP. 349
2. Respondent's evidence
Respondent's policy concerning employee wage rates was described by Plant
Manager Paul as follows: Periodic surveys, which occur at least once a year, are
made of wages and benefits granted by other plants in the area . See General Coun-
sel's Exhibit 4E, p. 8. Comparisons are then made of wages and benefits given to
"classifications of work as closely similar to what we are using as possible." These
surveys are made "to be competitive with rates that are being paid in order to be
able to hire people and to keep them." Generally such reviews are conducted in
the last 3 months of the year. When completed, they are submitted, along with
Paul's recommendations, to Respondent's Plastic Division headquarters in Denton,
Texas. In 2 to 6 weeks, authorization is given to Paul by the division president to
increase wages, and to make "companion adjustment of employee benefits." These
wage increases are "normally" announced in January , although "there is no set
time."
As an example, the above procedure was followed in 1964. As a result, a memo
dated December 8, 1964, from Division President Fiser to Paul gave Paul authority
to raise wages, but only as to employees with 2 or more years' service "effective
January 1, 1965," to be "awarded as a merit increase" and "not ... to be granted
as a result of mere passage of time." (Respondent's Exhibit 8.)
Paul made a periodical wage area survey in December 1965, or January 1966,
and on January 21, 1966, submitted a report thereof to Division President Fiser.
Its tardiness , according to Paul, is due to his being preoccupied with more essential
matters. On February 8, 1966, Paul notified the employees .that an upward wage
adjustment was pending (General Counsel's Exhibit 4A), although no adjustment
had yet been authorized. Then on March 1, 1966, Paul announced increases in
insurance benefits. (General Counsel's Exhibit 4C.) When Paul discussed these
insurance benefits with Fiser there was no union activity at the plant. The insur-
ance adjustments were finalized in the middle of February.
Kenneth Hunt, Respondent's manager of industrial relations, testified that
increases in wages and fringe benefits are submitted to him by division presidents
and are put into effect immediately if he and the division president are in agree-
ment thereon. Otherwise Respondent's president renders the final decision. The
Medora plant 1966 wage structure was discussed by Hunt and Division President
Fiser in November and December 1965. Fiser's formal wage recommendation was
dated January 25, 1966. About February 25 or 26, Hunt met with Fiser regarding
the raises in wages and benefits. Substantially the same wage increase was granted
to Denton employees on March 10, retroactive to March 7. (Compare General
Counsel's Exhibit 4A with Respondent's Exhibit 13.)
Hunt testified that increases in fringe benefits are handled in the same manner
as raises in wages. He also testified that Fiser discussed union activity at the
Medora plant with him prior to February 25.
Concluding Findings as to Wage Increases and Promises or Grants of Benefits
It is lawful to increase wages and grant benefits or to promise to do so during a
union's organization drive unless such action is motivated by antiunion considera-
tions or is intentionally timed to undermine the union's drive. N.L.R.B. v. Frantz
and Company, 361 F.2d 180 (C.A. 7). "The relationship between the granting of
benefits and the [drive must be] more than mere tempora co-incidence " United
Screw & Bolt Corporation, 91 NLRB 916, 919; Bata Shoe, 116 NLRB 1239,
1241-42; Hudson Hosiery Company, 72 NLRB 1434, 1437. The question here is
whether the Respondent's increases in wages and benefits , as well as the announce-
ment thereof, was intended or reasonably calculated to frustrate the Union.
a. As to the wage increase
Initially, I credit Respondent 's evidence , and therefore find, that periodically,
and at least annually, it conducts wage surveys for the purpose of bringing its
wages at the Medora plant in line with other plants in the area . But I further find
that such surveys do not always result in general wage increases at the Medora
plant. Thus, I find that the 1964 review of wages in other area plants did not pro-
duce any general wage increase for 1965 at the Medora plant . Instead of affecting
wages, that survey resulted in not a single increase for any classification of
workers. See Respondent 's Exhibit 8.
350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, the 1964 wage survey did bestow merit wage increases, but then only
to "employees who have been with E . M.C. Plastics Company for two years or
longer. This is not, however , an increase to be granted as a result of mere passage
of time. This increase should be awarded as a merit increase, and must be as a
result of improved efficiencies on the part of employees." Thus, I find that,
although Respondent at least annually reviewed wages, it did not periodically or
regularly grant general wage increases . Even Respondent's Exhibit 11, which was
rejected , confirms the foregoing analysis , i.e., the 1961 wage changes consisted
entirely of merit increases except in a few instances.
Since Respondent did not follow an established ' practice of granting recurrent
general wage increases , I find that the general wage increase of 1966 (General
Counsel 's Exhibit 4D) was not a periodic increase which employees could reason-
ably expect as a matter of course . Further, I find that this 1966 general wage
increase was reasonably calculated to undermine the Textile Workers and was so
timed . This latter finding is based upon the entire record and following subsidiary
findings of fact.
a. Respondent displayed union hostility . While this is not an unfair labor prac-
tice, it is a factor which may be examined in ascertaining the motive underlying
the general wage increase.
b. Timing is particularly significant . Although an area-wage survey had been
undertaken by Plant Manager Paul long before February 8 , he did not notify
employees thereof. It was not until Paul had learned of the union drive and dis-
cussed it with Division President Fiser on February 7, that these two decided to
announce on February 8 that the survey had been consummated and "that certain
increases are in order ." No sound reason is given for this rush to announce, so far
in advance of their effective date , impending wage increases , especially since this
procedure had not been adopted in the past . Thus, I find that employees in 1966
were notified of indefinite ("certain increases are in order") wage increases immedi-
ately after Respondent 's officials and supervisors had ascertained that the Union was
promoting an organizational campaign . Jervis Corporation , 159 NLRB 262 . In fact,
Denton employees were not notified until the increases were approved.
c. Further, I find that no rational reason has been shown why the announcement
of general wage increases was delayed until February 8, so that it came concur-
rently with the Union's campaign . If Respondent merely desired to inform employ-
ees that a survey had been made and that "certain increases are in order" it could
have done so long before February 8 ,' that is, on or shortly after January 21, when
the survey was submitted to Division President Fiser and when no union had
appeared on the scene. Moreover, although increases in wages had to be approved
by Kenneth Hunt , Respondent 's manager of industrial relations, and Hunt did not
discuss them with Fiser until February 25 or 26, . the notice of February 8 categor-
ically assures employees "that certain increases are in order ." This assurance is a
departure from past practice , i.e., employees were not notified of raises in the past
until they were sanctioned by Hunt . I find that this assurance was published in
order to forestall employee sentiment for the Union . No different result is required
because the increases are also mentioned as "suggested increases ." This is because
employees are practically told that the "suggested increases" will, in fact , be granted
by informing them that "a schedule of the increases has been prepared and is now
in the process of final approval . . . as soon as the approval has been received .. .
you will be notified and the rates will be put into effect." (General Counsel's
Exhibit 4A.)
TMT Trailer Ferry, 152 NLRB 1495, 1496, footnote 1, does not dictate a con-
trary conclusion. In that case , unlike here , the actual decision to improve employee
benefits antedated the union 's organizational activities . In the instant case the
decision to announce "certain wage increases" (which increases had not even been
definitely ascertained and approved until February 25 or 26 ), was made contem-
poraneously with the acquiring of knowledge of the Union's drive . In fact, the wage
increases became effective on March 7 , but it was not until March 10 that the actual
raise was disclosed to employees. This contrasts strongly with the speed with which
the inchoate increases were first announced , and then only to Medora employees.
Denton employees were not notified until March 10.
And True Temper Corporation , 127 NLRB 839 , 842-844, is distinguishable
because there the plan to increase wages had been adopted before the advent of
the Union. In my opinion , the instant case resembles American Freightways, 124
AMERACE CORP. 351
NLRB 146, where the Board held that "advance posting of holidays, where it had
not been done before," has probative value. See also Scott's, Inc., 159 NLRB 1795.
b. As to grants of benefits
By a notice dated March 1, Respondent notified employees that, effective
March 1, increases were being made in life insurance , health and disability insur-
ance, and hospitalization benefits without additional cost to the employees. It is
my opinion , and I find, that this increase and its announcement were not inspired
by union hostility or an attempt to thwart the Union 's campaign, and, therefore, do
not contravene Section 8 ( a)(1) of the Act. The reasons for this are enumerated
below.
a. In the first place, I find that Respondent periodically , and at least annually,
conducts surveys of benefits granted by other plants in the area . After comparing
these other benefits with Respondent's, upward adjustments , in order to hire and
retain employees , are determined and then submitted by Plant Manager Paul to
Division President Fiser . The latter submits them to Manager of Industrial Rela-
tions Hunt for final approval . I find that this procedure was pursued with respect
to the 1966 increases in benefits . See Golub Corporation , 159 NLRB 355 and 503.
b. Paul discussed these benefits with Fiser before union activity took place at
Medora. Cf. Norfolk Livestock Sales Co., 158 NLRB 1595. They were finalized
in the middle of February and then discussed by Fiser and Hunt on February 25 or
26. Shortly after Hunt approved them they were announced and simultaneously put
into effect in March. Unlike the announcement as to wages, the announcement as
to benefits was not hastily or prematurely proclaimed before the benefits were
determined and granted . Nor were the benefits and the announcements thereof
subject to further approval when divulged to the employees ; they represented action
already completed.
c. The announcement of benefits was not made , as in the case of wages, as soon
as knowledge of union activity was acquired . Rather, usual procedures were
followed.
Hence, I find that the procedures for increasing increases were initiated before
the advent of the Union , past practices were followed in pursuing such procedures,
the increases were not announced until adopted , and union activity is not shown to
have been very active on March 1, when the increases became effective.
Accordingly , I shall recommend that this segment of the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Those activities of Respondent , set forth in section III, above , found to constitute
unfair labor practices , occurring in connection with its operations described in sec-
tion 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 Respondent has engaged in certain unfair labor practices
proscribed by Section 8(a) (1) and (3) of the Act, it will be recommended that it
cease and desist therefrom and that it take specific affirmative action, as set forth
below, designed to effectuate the policies of the Act. In view of the finding that
Respondent discriminated with respect to the tenure of employment of Harlan
Nichols, it will be recommended that it be ordered to offer to Nichols immediate
and full reinstatement to his former position or one substantially equivalent thereto,
without prejudice to his seniority and other rights and privileges. It will further be
recommended that Nichols be made whole for any loss of earnings suffered by
reason of the discrimination against him. In making Nichols whole Respondent
shall pay to him a sum of money equal to that which he would have earned as
wages from the date of such discrimination to the date of reinstatement or a proper
offer of reinstatement, as the case may be, less his net earnings during such period.
Such backpay , if any, is to be computed on a quarterly basis in the manner estab-
lished by F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6
percent calculated by the formula adopted in Isis Plumbing & Heating Co., 138
NLRB 716. It will also be recommended that Respondent preserve and, upon rea-
sonable request , make available to the Board or its agents , all pertinent records and
data necessary to aid in analyzing and determining whatever backpay may be due.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the discrimination involved in the discharge of Nichols goes "to the very
heart of the Act" (N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4) ), it
will be recommended that the Board's Order contain a provision safeguarding
employees against infringement in any manner of the rights vouchsafed to them by
Section 7 of the Act. R & R Screen Engraving, Inc., 151 NLRB 1579, 1587.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Section 2(2), and is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Textile Workers is a labor organization within the meaning of Section 2(5)
of the Act.
3. By discriminating in regard to the tenure of employment of Harlan Nichols,
thereby discouraging membership in Textile Workers, a labor organization,
Respondent has engaged in an unfair labor practice as defined in Section 8(a)(3)
and (1) of the Act.
4. By (a) threatening to close its plant and to take other reprisals if employees
selected the Union as their collective-bargaining representative, (b) threatening to
discharge employees who solicited for the Union on company property during non-
working hours, and (c) timing the announcing and granting of wage increases to
coincide with the Union's organizing drive in an effort to persuade employees not
to select the Union as their collective-bargaining agent (Jervis' Corp., 159 NLRB
262), Respondent has engaged in unfair labor practices within the meaning of Sec-
tion 8 (a)( I) of the Act.
5. Respondent has not committed any other unfair labor practices as alleged in
the complaint.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that Respondent, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in Textile Workers, or any other labor organiza-
tion, by discharging employees or otherwise discriminating in any manner in respect
to their tenure of employment or any term or condition of employment.
(b) Threatening employees with closing the plant and other reprisals if they select
Textile Workers as their collective- bargaining agent.
(c) Threatening to discharge employees who engage in activity on behalf of Tex-
tile Workers, or any other labor organization, on company premises during non-
working hours.
(d) Announcing and granting wage increases when such conduct is adopted and
timed in an effort to persuade employees not to select Textile Workers, or any other
labor organization, as their collective-bargaining agent.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of rights guaranteed to them by Section 7 of the Act, except to the
extent that such rights may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8 (a) (3) of the Act.
2. Take the following action designed to effectuate the policies of the Act:
(a) Offer Harlan Nichols immediate and full reinstatement to his former position
or one substantially equivalent thereto, without prejudice to his seniority or other
rights and privileges previously enjoyed by him, and make him whole for any loss
of pay he may have suffered by reason of the discrimination against him, with inter-
est thereon at the rate of 6 percent.
(b) Notify Harlan Nichols if presently serving in the Armed Forces of the United
States, of his right to reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon reasonable request, make available to the Board or its
agents, for examination and copying, all payroll records and reports and all other
records necessary to ascertain the amount of backpay due under the terms of this
Recommended Order.
AMERACE CORP. 353
(d) Post at its plant in Medora, Indiana, copies of the attached notice marked
"Appendix.' 13 Copies of said notice, to be furnished by the Regional Director for
Region 25, after being signed by a duly authorized representative of Respondent,
shall be posted by it immediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily displayed. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 25, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply herewith .4
IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects.
3In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words, "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
4 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in United Textile Workers of Amer-
ica, AFL-CIO, or any other labor organization, by discharging any of our
employees or in any other manner discriminating against them in regard to hire
or tenure of employment or any term or condition of employment.
WE WILL NOT threaten to close our plant or take other reprisals if you select
said Textile Workers as your collective-bargaining agent.
WE WILL NOT adopt or time announcements or grant of wage increases in an
effort to persuade employees not to select said Textile Workers, or any other
labor organization, as their collective-bargaining agent.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of rights guaranteed to them by Section 7 of the Act,
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment as author-
ized in Section.8(a)(3) of the Act.
WE WILL offer Harlan Nichols immediate and full reinstatement to his for-
mer position or one substantially equivalent thereto, and make him whole for
any loss of pay incurred by him as a result of his discharge by us, with inter-
est thereon at 6 percent per annum.
All of our employees are free to become, remain, or refrain from becoming
or remaining, members of the above-named Textile Workers or any other labor
organization.
AMERACE CORPORATION, E.M.C. PLASTICS DIVISION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his rights to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 633-8921.
264-047-67-vol. 162-24