C. P. Lesh Paper Co.

National Labor Relations Board - Board Decisions

Dec 21, 1970

187 N.L.R.B. 359 (N.L.R.B. 1970)

C. P. LESH PAPER CO. 359
C. P. Lesh Paper Company and Coal, Ice, Building
Material, Supply Drivers, Riggers, Heavy Haulers,
Warehousemen and Helpers, Local 716, affiliated
with The International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 25-CA-3626
December 21, 1970
observation that , for the most part, collective bargaining is collective rather
than individual To interpret this as a threatened loss of benefits merely
because of the language in the proviso to Section 9 (a) seems to Chairman
Miller farfetched See the somewhat similar view expressed by Member
Zagona in Graber Manufacturing Company, Inc, 159 NLRB 244 at 245, as
it referred to the speech quoted at p. 248 of the Trial Examiner 's Decision
in that case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS BROWN
AND JENKINS
On August 12, 1970, Trial Examiner Lloyd S.
Greenidge issued his Decision in the above-entitled
proceeding, finding that Respondent 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 Trial Examiner's Decision. Thereafter,
Respondent filed timely exceptions and brief to the
Trial Examiner's Decision. General Counsel has filed
a brief in support of the Decision.
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.
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, the briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions,2 and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recommend-
ed Order of the Trial Examiner and hereby orders that
Respondent, C. P. Lesh Company, Indianapolis,
Indiana, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's
Recommended Order.
I Respondent has excepted to certain credibility findings made by the
Trial Examiner It is the Board's established policy not to overrule a Trial
Examiner's resolutions with respect to credibility unless the clear
preponderance of all the relevant evidence convinces us that the resolutions
were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544, enfd. 188
F.2d 362 (C P 3) We find no such basis for disturbing the Trial
Examiner's credibility findings in this case
2 Chairman Miller would find no violation of the Act in Respondent's
statement to several employees that , if the Union came an, "we would be
taking away our freedom of speech because we would have to go to the
union steward instead of going to the bosses " In Chairman Miller's view,
there was nothing improper in Respondent 's essentially truthful
LLOYD S. GREENIDGE, Trial Examiner: This proceeding
was heard at Indianapolis, Indiana , on April 22 and 23,
1970. The complaint, which was amended at the hearing,
issued on February 27, 1970, based on a charge filed on
January 8, 1970. The complaint, as amended , alleges
violations of Section 8(a)(1) and (3) of the Act. Briefs were
filed by the General Counsel and by the Respondent.
Upon the entire record, his observation of the witnesses,
their attitude and demeanor while on the stand, and the
briefs of the parties, the Trial Examiner hereby makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint , as amended , alleges, and Respondent
admits, that Respondent is an Indiana corporation with an
office and place of business in Indianapolis, Indiana, where
it is engaged in the manufacture , sale, and distribution of
pape: products; that, during the past year, which is
representative of its operations at all times material herein,
it purchased, caused to be transported and delivered to its
Indianapolis, Indiana, facility, goods and materials, of
which in excess of $50,000 worth came directly from points
outside the State of Indiana ; and that , during the same
period, of its products manufactured at the above-named
facility, it sold and distributed in excess of $50,000 worth
directly to points outside the State of Indiana. I find, upon
the foregoing, as Respondent also admits , that Respondent
is now , and at all times material herein has been, an
employer engaged in commerce and in a business affecting
commerce within the meaning of Section 2(2), (6) and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
Coal, Ice, Building Material, Supply Drivers, Riggers,
Heavy Haulers, Warehousemen and Helpers, Local 716,
affiliated with The International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of America,
herein called the Union, is now, and at all times material
herein has been , a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues
The principal issues raised by the pleadings and litigated
at the hearing are whether the Respondent: (1), as more
fully set forth in the complaint as amended, engaged in
activity in contravention of the provisions of Section 8(a)(1)
187 NLRB No. 42
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Act, by interfering with, restraining or coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, by (a) the conduct of Respondent's supervisor,
Tom Tomey, interrogating employees with respect to their
own and other employees' union activities and member-
ship, threatening that Respondent would shut down its
business operations before it would recognize the Union,
threatening employees with discharge and other reprisals
should they become or remain members of the Union, or
telling them that they did not and would not receive
planned or scheduled wage increases because they became
or remained members of the Union, on various dates in
November and December 1969 and in January 1970, or (b)
by the conduct of Respondent's supervisors Tomey and
Fred Hunter giving employees the impression that the
Respondent had engaged in and was engaging in surveil-
lance of their union activities on various dates in
November; or (c) by, on, or about early December,
implementing , maintaining, and enforcing a restrictive
work rule prohibiting certain employees from talking
during working hours and by withdrawing certain privi-
leges, all because the employees had become or remained
members of the Union; or (2) engaged in activity in
contravention of the provisions of Section 8(a)(3) and (1),
as more fully set forth in the complaint as amended, by
laying off and terminating the employment of five named
employees on various dates in January and February 1970,
because the said employees and other employees of
Respondent had joined and assisted the Union. The
Respondent denies the commission of any unfair labor
practices.
B. Background
For many years, Respondent has been, and is now,
primarily engaged in the sale at wholesale of paper
products. In addition, Respondent conducts limited
manufacturing operations in what it calls a converting
department. The converting department handles custom
jobs, and manufactures blue books and class record books
for sale to colleges and grade schools. About January 1969,
Respondent replaced two of its blue book machines,
instituted a night shift for polywrap activity, transferred
two female blue book machine operators to the night shift,
and hired another girl to form a three-girl crew on night
polywrap work. The dayshift polywrap activities continued
without interruption. From about October 1, 1969 until
January 3, 1970, the period generally relevant hereto, the
converting department had a work complement of about 30
i Jessie Gibson , Sudan Macon, and Mildred Hensley
2 Also referred to as bookbinding machines, binders , or automatic
collators There had been a nightshift operation on the bookbinder for
more than 6 years prior to the start of the night polywrap operation
3 Leon Beck
4 The names and dates of hire of the alleged discriminatees, who had
been class recordbook gatherers, are as follows
Paulette Lacefield October 13, 1969
Anna Qualls November 23, 1969
The names and dates of hire of the alleged discnminatees , who had been
polywrap operators, are as follows
Patricia Benson October 22, 1969
employees, of whom 21 were assigned to the day shift and 9
to the night shift. On the night shift, three employees'
operated the blue book machines 2 one operated the ruler
cutter,3 two collated or gathered class record books, and
three were assigned polywrap work. On January 3, 1970, the
Respondent laid off the five employees on the night shift
who had been engaged in the assembly of class record
books and in the operation of the polywrapping machine
under circumstances herein alleged to be discriminatory.4
The president of the Respondent is Frederick Lesh, the vice
president and internal manager is William Muir, the day
foreman is Fred Hunter, and the night foreman is Tom
Tomey. The complaint alleges, Respondent admits in its
answer, and I find that, at all times material herein, Lesh,
Muir, Hunter, and Tomey have been and are supervisors of
the Respondent within the meaning of Section 2(11) of the
Act.
C. The Union 's Campaign
In late October or early November 1969, Paulette
Lacefield, a class record book assembler on the night shift,
telephoned the local office of the Union to suggest that it
seek to represent the company's employees. The following
day, Oscar Manual, a business representative and organizer
for the Union, called on Lacefield, discussed with her and
Jessie Gibson the means of organizing the employees, and
gave them union literature concerning the same. On
November 4 or 5, Manual returned to Lacefield's home.
This time he explained to Lacefield, Gibson, and Sudan
Macon the procedure to be followed to obtain employee
signatures on union authorization cards and handed
Lacefield 15 to 20 cards to distribute among the employees.
Lacefield, in turn, passed on about eight of the cards to
Gibson and Macon. Pursuant to instructions from Manual,
Lacefield distributed union cards in the parking lot and
inside the plant and succeeded in obtaining signatures
thereto of eight to ten of her coworkers. Gibson secured
four signed cards and Macon a like number. Both returned
the cards to Lacefield who passed them on to Manual.5 The
last reported organizational meeting with Manual was held
at Marathon Truck Stop, South Harding Street. In
attendance were Lacefield, Gibson, Macon, Frieda Ray-
mond, and Delores Dill .6 The organizational drive did not
attain its objective, however, as the Union did not file a
petition for an election with the Board nor was a demand
for recognition ever made.
D. Interference, Restraint, and Coercion
On November 13, 1969, Day Foreman Fred Hunter
Mary Jane Carter November 9, 1969
Sherry Vance November 12, 1969
5 The names of the signatories to the union authorization cards in
evidence and the dates of execution thereof are as follows
Paulette Lacefield November 4, 1969
Jessie Gibson November 5, 1969
Sudan Macon November 5, 1969
Patricia Benson November 5, 1969
Mary Jane Carter November 10, 1969
Anna Qualls November 23, 1969
6 Raymond and Dill were dayshift employees , the others worked nights
C. P. LESH PAPER CO.
posted a notice on the employees' bulletin board. It read as
follows:
As of November 13,7 1969, we have found it necessary
to cease all conversation not pertaining directly to the
operation of gathering, and wiring Class Record Books
or other wire bound books in that Department.
Benson recounted that, shortly after the notice was put up,
Tomey told her that he had requested the posting and that
his reason for so doing was to get the girls in collating,
particularly Lacefield,8 to stop talking; that he knew
Lacefield could not stop and, the minute he caught her
talking, he would fire her on the spot.
According to Tomey's version, the posting was a natural
and logical response to an intolerable condition. Tomey
elaborated stating that, in early November, Hunter told
him that he (Hunter) had given the day shift employees an
oral warning against talking on the job and suggested that
Tomey do the same with respect to the employees on the
night shift. A couple of weeks later Tomey asked Hunter to
issue a written notice because the employees in gathering
were continuing to talk while at work .9 Initially, Tomey
asserted that his decision to request a posting was prompted
by complaints from Anna Qualls and Sherry Vance about
Lacefield conversing with them during working hours.
However, when it was pointed out to Tomey on cross-
examination that Qualls was hired 10 days after, and Vance
only I day prior to, the posting, Tomey retracted somewhat,
stating that he himself had observed Lacefield leave her
area at least twice each night to go to Gibson's work station,
or to the poly crew, or to Macon where she carried on
conversation about matters not disclosed. But, here again,
according to the credited and unchallenged testimony of
Lacefield, Tomey had instructed her to see that the girls
followed proper procedures in collating, to make certain
that they used the correct materials in their work, and to
insure that there was sufficient material on hand to do the
jobs. Finally, Tomey had cautioned Lacefield that she
would be held responsible for any mistakes the girls might
make.10 Thus, to achieve the results required by Tomey it
was necessary, according to Lacefield, to converse with
employees detailed to collating duties when work in their
respective areas had slacked off. Muir gave a different
explanation as to the reason for the posting. According to
Muir, although he had determined early in 1969 that the
class record book section (day shift) had turned into "some
kind of sewing circle" and had immediately instructed
Hunter to take corrective action, Hunter "messed around
with it for a month or so." Some months later, when Muir
realized that "you couldn't perpetually be counting and
talking," he told Hunter "to knock off as much of the
unnecessary talk as could be knocked off." The posting on
November 13 followed.
r A white mark appears over the "I" in the number "13 " Lacefield,
Gibson, and Benson testified that they saw the notice at the time of, or
soon after , the posting and that the "1" was not covered I credit their
testimony and find that the date set forth in the notice was November 13,
1969
8 Until November 23, when Qualls was hired , Lacefteld was the only
employee assigned to collating on the night shift
9 There is no evidence of an oral warning to the night crew
10 Lacefield was the most experienced night worker among the new
hires She was first employed by the company on January 16, 1968 as a
361
Benson and Mary Jane Carter testified, in substantial
accord, that, sometime about the middle of November
while in Tomey's car, Tomey asked if they had signed union
cards and they told him it was none of his business.
According to Benson, Tomey then stated that Muir knew
the employees who had and those who had not signed cards
for the union; and that Tomey named in the latter group,
Sherry Vance, Mildred Hensley, Frances Long and,
generally, most of the older employees. Carter recalled that
Tomey said "they" knew the employees who had signed
union cards. Continuing, these individuals testified that
Tomey advised that, if the Union became the bargaining
agent, employees would not be permitted to go to the
restroom without first getting a pass from him and, if they
talked back, he would fire them on the spot. After this,
Tomey told Benson and Carter that they were interested in
the wrong union; that the bookbinders' union not the
Teamsters was the union for them; and that, if the former
sought to organize the plant, he would go along because it
would mean $1 per hour increase for him. Tomey
acknowledged a conversation with Benson and Carter in
the middle of November but generally denied the remarks
attributed to him. In Tomey's version, Benson and Carter
initiated the discussion with the statements to the effect that
Lacefield and Gibson were trying to organize the
employees but that they (Benson and Carter) had not and
would not sign union cards. The alleged report about the
employees' organizational effort was not news, according to
Tomey, because "we already knew" a campaign was
underway. Tomey explained that, a "couple of days" before
the mid-November conversation, an office boy had told
him that the employees on Tomey's shift were organizing
and that Muir was aware of it."
On November 23, Hunter and Tomey stopped Gibson
and Macon in the work area . Hunter told them that he
knew who the instigators were "in all this union" activity;
named Gibson, Macon, Lacefield, and Raymond as the
instigators; 12 called Gibson and Macon "a bunch of low-
down rotten people for doing him the way we were doing
him" after all he had done for them; stated it was a "pretty
dirty" thing to do; identified Macon as "a pusher" on the
night shift and Raymond her counterpart on the day shift;
and warned that if the Union comes in "we would be taking
away our freedom of speech because we would have to go
to the union steward instead of going to the bosses." 13
In late November or early December, Tomey had
another conversation with Benson and Carter this time in
the plant and at the end of the work shift. The three had
planned to go bowling that evening but, according to
Benson, Tomey was upset so they stood around and talked.
Benson testified, corroborated in essential particulars by
Carter, that Tomey stated that Muir had called him into the
office that day and had directed him "to get nd of Paula
book machine operator and continued in its employ until May 29, 1969,
when she quit
11 Muir did not deny knowledge of the employees' organizational
activities at times material.
12 Each of these individuals had attended one or more of the union's
organizational meetings
13 These findings are based on a synthesis of the credited and mutually
corroborative testimony of Gibson and Macon Hunter was not called as a
witness and the failure to call him was not explained Tomey did not
challenge any of the statements attributed to Hunter
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Lacefield) or they would get rid of Tom (Tomey)." Asked
why he had to get rid of Lacefield, Tomey replied,
according to Benson , "they said because Paula had started
the union, all the trouble with the union." Continuing
Tomey related, again according to Benson, that Muir had
two plans to accomplish his goal and that "one of them was
that they was going to layoff the polywrap and collating
crew and then in a week or two later they would call
everyone back but Paula." 14 Tomey also reported that
"after they got rid of Paula they would make sure they
would get rid of Jessie (Gibson) and Sudan (Macon), too;
advised that "if the Union didn't get in .. . all the girls that
had signed cards would be fired except Mary Jane (Carter)
and I (Benson)"; and, finally, declared that "before they let
the union in, that the plant would close the doors down."
Tomey categorically denied all the statements and
comments charged to him by Benson and Carter in this
conversation, testifying that all that occurred was what was
related in his version of the episode. In Tomey's view, the
conversation was initiated by the girls who asked what the
Company would do if the Union was voted in. To this
Tomey replied that he did not know but guessed that it
would agree to a contract. The girls went on to say,
according to Tomey, that the Union had promised them a
lot of money and they were going to get it whether the
Company liked it or not. Benson then stated that the
Company had to accept the Union and Tomey answered in
the refrain that it would do so to stay in business but
otherwise would not.
About the end of November or the beginning of
December, Gibson confronted Tomey at her work station.
On this occasion, Gibson told Tomey, according to Gibson,
that she had received a telephone call from one James
Sharpe and asked if Tomey knew the man. Tomey
identified Sharpe as the president of the bookbinders' union
and stated that he had given Gibson's and Mildred
Hensley's telephone numbers to his mother who had passed
them on to Sharpe. Tomey then suggested that Gibson
invite Sharpe to her home; declared that "we will recognize
the bookbinders but not the Teamsters"; stated that Sharpe
had told him he would receive a $1 pay increase if the
bookbinders became the bargaining agent; and advised
that the bookbinders would do more for the employees than
the Teamsters as the latter promised a lot but delivered little
or nothing. In the same conversation, Gibson asked Tomey
about a raise she thought the employees were to receive.
Tomey replied, according to Gibson, that the employees
were scheduled to get a blanket raise but "since the union
talk came up I don't think you'll get anything." Sometime
in December, Tomey had still another conversation with
Benson and Carter this time at the start of the shift and near
the papercutter. According to Benson, whose testimony was
corroborated in major parts by Carter, Tomey told them
that "all the girls in the plant were supposed to get a raise
the first of December but now they were not going to get
the raise or anything else, since they had started trouble
with the union." Tomey's recollection of the Gibson
conversation differs in certain material respects from the
version reported by Gibson. With regard to the bookbind -
ers' union , the testimony is in harmony to the extent that
Tomey confirmed the report with respect to his mother's
activities but conflicts at the point of his alleged interest in
the bookbinders' union . As to the latter, Tomey testified
that he reported to Gibson that he had resisted all attempts
by his mother to get him to "push" the bookbinders' union
because he "had enough trouble with one union and didn't
want to worry about two unions at the same time." With
regard to the pay raise , Tomey declared flatly that he told
Gibson he knew nothing about it. By way of an
explanation, Tomey stated that, sometime prior to Decem-
ber 1, Gibson had inquired about a raise she was supposed
to receive on November 5 and that, during the said
November or December conversation, Gibson advised that
Hunter had told her that she would get a raise in December
because everyone was due for a raise at that time.
Concerning the conversation with Benson and Carter at the
papercutter, Tomey denied the statements attributed to
him. In Tomey's version, Carter inquired about an alleged
blanket raise the employees were to receive on December 1.
Tomey replied that Gibson had asked the same question
and that he had told her he had heard "nothing official."
Lacefield testified, credibly and without contradiction,
that, about December 5 while discussing a shortage of
materials with Tomey in the office, Tomey said that "the
company was going to give the girls a blanket raise but
since this trouble started he rather doubted whether we
would get it or not."
The testimony of Benson, Carter, and Gibson, on the one
hand, and Tomey, on the other, is in irreconcilable conflict.
I resolve the issue in favor of the former and against the
latter and find that Tomey made the statements, in
substance, attributed to him. My reasons are the following:
Judged by the attitude and demeanor of the witnesses
involved and making due allowance for interest, the
testimony of Benson, Carter, and Gibson appeared more
plausible and convincing. Their general demeanor was
affable; their testimony candid, unequivocal, and straight-
forward. Benson frankly admitted that, for about a month
beginning in late November, she had dated Tomey-a
married man-at a time when she was also married but
separated. Considering the close friendly relations which
had existed between them, it is not unreasonable to believe
that Tomey told Benson what was reported above with
respect to Lacefield and others and what follows with
respect to the layoffs, perhaps assuming that she would
hold it in confidence, without suspecting that his remarks
would someday return to confound him. Further, the
testimony of Benson and Carter is mutually corroborative
as to their conversations with Tomey, and Gibson was
employed by the Respondent at the time she testified
adverse to the Respondent. See Federal Envelope Co., 147
NLRB 1030, 1036, citing Georgia Rug Mill, 131 NLRB
1304, 1305, footnote 2, modified on other grounds 308 F.2d
89 (C.A. 5). Conversely, Tomey was uncertain, vacillated,
and conveyed the impression of a man faced with a
problem of implicating his employer in a scheme to
circumvent the law, thereby betraying a trust (and possibly
jeopardizing his job) or resorting to the only refuge
available-formal denials and inadequate explanations. He
elected the latter alternative. To be sure, all of the witnesses
14 The second plan was not disclosed
C. P. LESH PAPER CO.
have an interest in the outcome of this controversy but
Tomey's was more pronounced, his anxieties more acute
though unfounded in at least one instance . Thus, Tomey
acknowledged that he was upset about the prospect of
having to testify and attributed his concern to reports that
"if things are proven like this ... the labor board would
fire me . They had the power to fire people ." He also
disclosed that he was in financial straits to the point where
his wages had been garnished . Hampered by such beliefs,
fears, and anxieties , Tomey's capacity to recollect and
report , accurately and impartially , on the matters in dispute
was seriously impaired . In view of the foregoing, as well as
demeanor , I regard Tomey 's testimony as generally
unworthy of reliance and credit it only when it conforms
with other credited testimony , or constitutes an admission
against the Respondent 's interest . In addition , I do not
accept Muir 's explanation that the posting of the notice at
the height of the Union 's campaign was but a fortuitous
circumstance as the condition which the Respondent
sought to correct was known to and endured by the
Respondent for almost a year prior to the posting.
Concluding Findings
I find from the credited testimony that Respondent
interfered with, restrained, and coerced its employees in the
exercise of their rights guaranteed by Section 7 of the Act
and thereby violated Section 8(a)(1) of the Act by the
following conduct of Tom Tomey and Fred Hunter.
1. The interrogation of employees Benson and Carter
by Supervisor Tomey, in November 1969, (and other
conduct of Tomey directed at these employees on the same
day, as later detailed in this paragraph) concerning their
union activities was coercive as it exceeded permissible
limits of legitimate inquiry; 15 the threat by Tomey that the
employees would lose restroom privileges and face
summary discharge for insubordination if the plant were
unionized; the statement by Tomey that Vice President
Muir knew who had and had not signed union cards
created the impression that the Respondent was keeping
the union activities of its employees under surveillance; 16
and Tomey's statement that the employees were interested
in the wrong union and should instead seek representation
by the bookbinders' union interfered with the right of
employees to freely select their own bargaining representa-
tive guaranteed in Section 7 of the Act.
2. The remarks to employees Gibson and Macon on
November 23 by Supervisor Hunter that he knew the
instigators of the Union's organizational effort and the
naming of the aforesaid employees and employees Paulette
Lacefield and Frieda Raymond as instigators. These
remarks plainly gave the impression of surveillance of
employee organizational activities. Hunter's further remark
that the employees would lose their freedom of speech if
they selected the Union as their bargaining representative
was intended to discourage employee support of the Union
and thereby interfered with the exercise of statutory rights.
3. The promulgation and posting by the Respondent on
15 Bourne Co v N L R B, 332 F 2d 47 (C A 2), Johnnie 's Poultry Co,
146 NLRB 770, 775
16 See Jervis Corporation, 159 NLRB 262, 264
17 New French Benzol Cleaners, 139 NLRB 1176, 1179, American
363
November 13 of a rule forbidding employees in the class
record department unqualifiedly to engage in general
conversation. The rule is broadly restrictive and fails to
distinguish between working time and nonworking time.
Notice of the rule was posted, according to Muir, in the
interest of production, order, and discipline and was
primarily intended to correct a condition prevalent among
the day shift employees. Tomey the night shift foreman,
gave a different explanation. According to the credited
account of Benson , Tomey advised that the rule was
promulgated in order to get the girls in collating to stop
talking. However, since Lacefield was the only night shift
employee assigned to collating at the time of the posting,
the rule was obviously directed at Lacefield and was to be
used as a vehicle to bring about her elimination as Tomey
thought she "could not stop talking."
Tomey conceded that, at the time of his mid-November
conversation with Benson and Carter, "we already knew"
the Union was organizing. Moreover, he acknowledged
receipt of a report from the office boy, "a couple of days"
prior to the said mid-November meeting, to the effect that
the employees on Tomey's shift were organizing and that
Muir knew about it. In these circumstances, I find that
Respondent had knowledge of the employees' union
activities prior to the posting on November 13. In addition,
I find that Respondent was aware of such activities before
November 13 for still another reason . Considering the small
size of the night crew and the plant in general , an inference
of knowledge is permissible under the Board's small plant
rule which I now invoke and apply.i7 On the basis of this
rule, and on the entire record, including the open nature of
Lacefield's union organizing conduct, I infer and find that
word of Lacefield's activities reached Respondent's super-
visors shortly after she became engaged in it and before
November 13.
Inasmuch as the conduct of which Muir complained was
one of long standing, known to, and tolerated by the
Respondent, I can not find that the precipitant promulga-
tion and posting of the rule banning such conduct was
motivated by the necessity of a legitimate purpose. On the
contrary, considering the timing and content, the employ-
ees had reasonable cause to believe, as evidenced by
Tomey's conflicting explanation to Benson , that the rule
was to be used to inhibit employee talk, interest, and
activity in union organization . Accordingly, I find that the
promulgation of the rule was for a discriminatory purpose
and violative of Section 8(a)(1) of the Act. Ward
Manufacturing, Inc., 152 NLRB 1270, 1271.
4. The statements by Supervisor Tomey to employees
Benson and Carter, in late November or early December,
that Vice President Muir had told him to fire Lacefield
because she had started the Union; that Muir had two
plans to get rid of Lacefield, one being to layoff the
polywrap and collating crew and later to recall everyone
except Lacefield; that, after the company had fired
Lacefield, it would fire Gibson and Macon as well; that, if
Union did not get in, all the employees who had signed
Grinding & Machine Co, 150 NLRB 1357, 1366, Angwel! Curtain Company,
Inc v N L R B, 192 F 2d 899, 903, (C A. 7); N L.R.B v. Joseph Ante!!,
Inc, 358 F 2d 880, 882 (C.A 1)
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union cards would be fired except Benson and Carter; and
that the company would close the plant before it would
permit it to become unionized.18
5. Tomey's statements to employee Gibson, in Decem-
ber, to the effect that he had given the telephone numbers
of Gibson and employee Hensley to his mother who had
passed them on to a representative of the bookbinders'
union ; that Gibson should invite the representative to her
home ; that the Respondent would recognize the bookbin-
ders but not the Teamsters; and, that the bookbinders
would do more for the employees than the Teamsters.
These statements were deliberately intended to interfere
with the statutory rights of the employees to select their
own bargaining representative as they implanted in the
minds of the employees the idea that it is right of the
employer to decide which union is suitable for them.19
6. Tomey's statement to employee Gibson, in late
November or early December, that the employees were
scheduled to receive a blanket wage increase but, since
union talk had come up, he did not believe they would get
anything ; a similar statement to employee Lacefield about
December 5 that a planned wage increase would probably
not be granted because "trouble" had started; and his
statements to Benson and Carter, in December, that the
employees had suffered the loss of a wage increase because
of their involvement with the Union.
E. The Discharges and Layoffs
As reported above, Paulette Lacefield was initially
employed by the Respondent from January 16, 1968 until
May 29, 1969 as a book machine operator.20 She returned
to work for the Respondent, on October 13, 1969, as a
polywrapper on the night shift and, 2 weeks later, was
assigned collating or gathering work. At times, Lacefield
worked on the bookbinder as well. Patricia Benson was
hired on October 22, 1969, Mary Jane Carter on November
9, 1969, and Sherry Vance on November 12, 1969, all as
polywrap operators on the night shift. Anna Qualls was
engaged on November 23, 1969, as a gatherer on the same
shift. Lacefield, Benson, Carter, Vance, and Qualls were
laid off on January 3, 1970, in circumstances detailed
below.
On Friday, January 2, 1970, Muir sent Hunter and
Tomey an intraoffice memorandum.21 It read as follows:
NOTE TO: Fred Hunter and Tom Tomey
SUBJECT: Night Shift in Polywrap and Class Record
Book Departments
18 Tomey's admitted remark that the company would accept the Union
to stay in business but otherwise would not reinforces the finding made
above with respect to his statement about plant closure as I construe the
remark as an implied threat that the Respondent might elect to go out of
business if the employees were unionized . As such , it was calculated to
instill in the minds of the employees the futility of selecting the Union as
their bargaining representative and thus interfered with the Sec 7 rights of
employees
19 Not alleged but fully litigated and I am not precluded from making
appropriate findings with respect thereto by the failure of the General
Counsel to have alleged the statements as a violation Associated Home
Builders of Greater East Bay, Inc v N L R B, 352 F 2d 745 (C A 9), Frito
Company, Western Division v N L R B, 330 F 2d 458 (C A 9), N L R B v
Pecheur Lozenge Co, Inc, 209 F 2d 393 (C A 2), cert denied 347 U S 953,
American Newspaper-Publishers Association v N L R B, 193 F.2d 782 (C A
7), cert denied 344 U S 812 , Granada Mills, Inc, 143 NLRB 957, 958,
DATE: January 2, 1970
FROM: W. F. Muir, Internal Manager
Due to reduced demand and the high cost of
production, the Company has decided to lay off the
Night Shift in the Polywrap and Class Record
Departments.
An analysis of the time spent and production results of
the Day Shift and the Night Shift indicates that the Day
Shift may possibly be able to handle the total
production necessary in the Polywrap Department.
Production records in the Class Record Department
Night Shift indicate only about 50% efficiency in
gathering and inserting.
Accordingly, until the Company can develop training
methods that will enable more economical production,
the Night Shift in these two departments will be
discontinued at the end of the work shift on Saturday,
January 3, 1970.
W. F. MUIR
Internal Manager
On January 3, the night shift was scheduled to work a
makeup shift during the day. When Tomey arrived at the
plant that morning he found a note on his timecard to call
Muir. Tomey promptly complied. In the conversation that
ensued, Muir advised that he (Muir) was laying off five girls
on the night shift, specifically, the polywrap girls and
Lacefield and Qualls in gathering, and that notices of the
layoff were in the office. Tomey testified that the news of
the layoff was a complete surprise to him, that it hit him
hard, and that he did not want the layoff. Elaborating,
Tomey explained that, for almost a year, he had asked Lesh
and Muir to augment the size of the night shift for reasons
that appear to be purely subjective. Thus, Tomey did not
know whether more employees were needed but, if needed,
he wanted them to be assigned to his shift. In any event,
Tomey told Muir that, since the news was sudden and
unexpected,22 the employees should be given about 2 weeks
advance notice, but Muir demurred stating that the
Company could not afford to continue them in its employ
beyond January 3. Finally, at Tomey's suggestion, Muir
agreed that the girls could be dismissed at noon with full
pay for the day.
After work had started, Tomey approached Benson at the
book machine.23 First, Tomey reminded Benson of a
suggestion that she look for another job and, then he told
her that the polywrap and collating crews were being laid
off at noon. Pressed for an explanation, Tomey declared,
Monroe Feed Store, 112 NLRB 1336, see also Rule 15(b), Federal Rules of
Civil Procedure
20 This period of Lacefield's employment was interrupted by a
temporary layoff in March 1968.
21 Neither Hunter nor Tomey saw the memorandum on the day it was
transmitted
22 Tomey's assertion of surprise must be weighed against Muir's
uncontested testimony that , in December, he told Tomey , the Company
was not getting as much work from the night crew as it had expected, a
report which presumably prompted Torrey to suggest to Benson that she
look elsewhere for employment . However, while Torrey might have
anticipated a layoff of one or two employees, a mass layoff could
reasonably have been astounding to him
23 Gibson was out sick and Benson was substituting for her on the
machine Lacefield was also out that day.
C. P. LESH PAPER CO.
"Well, that's the only way they had of getting rid of
Paula." 24
Following this exchange, Tomey summoned Qualls,
Vance, Carter, and Benson to the office where he formally
announced that they were being laid off because of a lack
of work and a reduction in the work force. He then gave
each girl a notice of layoff and advised that they would be
recalled in 2 or 3 weeks if the day shift was unable to handle
the work. The notice is entitled Employment Record and
the reason given therein for the layoff is "no work." At this
point, Benson asked Tomey to tell the truth, declared that
the real reason was because Lacefield had tried to bring in a
union and that a mass layoff was the only way the company
could get rid of her. Qualls expressed similar sentiments.
Tomey's response was simply that Benson was
uninformed 25
About noon, while in the collating department, Tomey
walked up to Benson and said, "Patty, I told you not to say
anything about the conversation we had because you could
get me fired ." Continuing Tomey stated that, in 2 or 3
weeks, all the girls would be recalled except Lacefield.26
Sometime the same day, Torrey telephoned Lacefield
and told her that the girls on the night shift had been laid
off. Lacefield asked for how long and Tomey said he did
not know. Lacefield also requested an explanation but
Tomey evaded stating that she would receive a slip which
would give the reason for the layoff.27
Gibson, an employee with about 16 years of service with
the Respondent, testified, credibly and without contradic-
tion, that, except for a 4-week layoff of Lacefield during her
first term of employment, she did not recall a single
instance of a layoff and definitely not one of the magnitude
of the layoff on January 3; that prior thereto the practice
had been to rotate off time among the employees.
At Macon's direction, Tomey placed a call to Muir at the
latter's home on Sunday, January 4, and Macon talked to
24 1 find these facts on the credited account of Benson Tomey denies
the statements attributed to him , asserting that all he told Benson was that
he had "bad news " His denial is not credited
25 The facts above are found from the credited testimony of Benson,
Qualls, Carter and Vance, as corroborated in part by admissions of Tomey
The testimony of the latter in conflict with the findings is not credited
26 1 find this discussion from credited testimony of Benson Testimony
of Tomey at variance therewith is not credited
27 These facts are found from the credited and uncontroverted
testimony of Lacefield
The names, classifications, and dates of hire of the employees who
remained on the night shift after the layoff of January 3 are as follow
Leon Beck, disc operator,
June 3, 1969-quit
Jessie Gibson, book machine operator,
Sept 1954
Sudan Macon. book machine operator,
Aug 29, 1969-quit
about 4 weeks after the layoff
Mildred Henley, book machine operator,
date of hire and present
status not known
365
Muir. In that conversation, Macon asked Muir not to
discharge Gibson 28 and told him that Lacefield not Gibson
was the troublemaker and the source of the problem. To
this, Muir replied that "they had gotten rid of the problem
now" adding "something to the extent that he had to get rid
of the other girls in order to get rid of Paula." 29
Benson was recalled on January 13 to substitute for
Gibson on the book machine. She was laid off again about
February 13 when Gibson returned to work. Sometime
during this period of her reemployment, Benson asked
Tomey why Lacefield had not been recalled since Lacefield
had more seniority than Benson . Tomey replied, "We won't
call Paula back no matter what." 30
On February 26, 1970, Respondent engaged one Roteen
Cowan, a new hire, to work nights on the book machine.
Concluding Findings
The complaint, as amended at the hearing, alleges that
Respondent discriminatorily terminated five named em-
ployees on January 3, 1970, that it recalled one such
employee on or about January 15 but then again laid off
and terminated the said employee on or about February 5.
Apart from the limited recall on or about January 15, none
of the employees had been recalled at the time of the
hearing.
It is the General Counsel's position that such actions were
part of a grand design by the Respondent to rid itself of
Paula Lacefield, the known union leader . Phase one of the
two-part plan was instituted, argues the General Counsel,
by the posting of the "no-talking" notice on November 13
which was intended to provide the Respondent with an
excuse to eliminate Lacefield as it was contemplated that
she would not be able to stop talking. When this action
failed to produce immediate results , Respondent moved to
the second phase of the plan-the mass discharge of all
employees in the class record and polywrapping sections on
the night shift-thereby achieving its goal , namely, the
28 Macon felt impelled to plea for Gibson although the reason for her
action is not readily apparent as Gibson was not among those whose
employment had been terminated and Macon did not explain why she
feared Gibson might be included in any future termination.
29 The above facts are found on the credited testimony of Macon To
the extent that Muir's testimony conflicts with the findings, it is not
credited Muir acknowledged a conversation with Macon but was
uncertain as to the date He testified that, if the conversation took place on
January 4, "it would have been very logical" for him to have said "that the
troublemaker isn't there anymore "
30 These findings are based on the credited testimony of Benson
Testimony of Tomey at variance therewith is not credited Tomey averred
that he merely gave Benson the "general gist" of a conversation with Muir
In the earlier conversation, according to Tomey, Tomey told Muir that
Benson had five children, was separated and on welfare, whereas Lacefield
had only two children and was receiving support from an estranged spouse.
Thus, applying a test of relative need, it was decided not to recall
Lacefield Muir tells a different story According to Muir, Lacefield was
not recalled because she had gone on record as saying she did not want to
work on the book machine or the polywrapper. It was developed, however,
in further testimony by Muir, that, intermittently during the fall of 1969,
Lacefield did in fact work on the binding machine and, for a period of 2
weeks, on the polywrapper In view of the conflict and the admission of
Muir, I do not accept the explanation of either Tomey or Muir for
Respondent's refusal to recall Lacefield
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elimination of Lacefield and, in the process, the elimination
of three other known union adherents as well. The dragnet
caught one nonunion supporter, however, but this, asserts
the General Counsel, was only an attempt by the
Respondent to give the layoffs "an aura of credibility by
following seniority ranking" among the night shift employ-
ees. The objective in all this, the argument continues, was to
dampen the ardor of employees generally for union
representation . It is clear that the recitation of the facts
leading up to the terminations vividly reveals their
discriminatory character. However, in the face of the
overwhelming credited evidence that the terminations were
plainly attributable to Respondent's animosity to the
employees' organizational activities, Respondent contends
that the true reasons for the terminations were economic. In
support of this contention Respondent offered the testimo-
ny of Muir and certain statistical data.
From a synthesis of the testimony of Muir and the
proffered exhibits, it appears that Respondent's version of
its reasons for the terminations is as follows:
In April 1968, Muir was elected secretary and internal
manager of the Respondent and, since then, has instituted a
number of changes in the Company's operations, all
designed to make it more competitive. His first concern was
the custom job section in the converting department. For
some time , the department had allegedly shown a bad
variance31 and Muir attributed the variance to poor
salesmanship on the part of the employees in the custom
job section which he characterized as the "sickest" in the
department.32 In an attempt to solve the problem, Muir
hired a cost accountant in May or July 1968, set up a
system of standards, instituted a polywrap operation on the
night shift in January 1969, added a class record gathering
section to the night shift in October 1969, reduced salary
costs, and replaced all but one of the supervisors. Next,
Muir turned his attention to the blue books and class
records section in a continuing search for a solution to the
variance problem. The departure of Plant Superintendent
John Leach at the end of September provided an excuse for
further exploration, according to Muir, but for about 6
weeks thereafter Muir did little or nothing in this regard.
However, on November 13 after notice of the employees'
organizational activities, Muir (1) installed a photoelectric
counter33 on the delivery belt of the polywrapper and
instructed the girls to take readings, and (2) directed the
night foreman to turn in the Bindery Daily Time Reports
prepared by the girls in the class record section. From these
reports, Muir kept summaries of the polywrap and night
shift class record work for the period November 13 through
December 31.34 About December 15, or approximately I
month after he had instituted the study, Muir decided to
discontinue the night shift polywrap and class record
operations allegedly because no one was putting in a full
day's work on polywrap and not enough work was being
done in class records to justify the continuance of the
31 A variance is the difference between what products should have cost
the company to produce and their actual cost
32 As noted above , the converting department has three functions (I)
the filling of custom jobs, (2) the manufacture of examination blue books,
and (3 ) the manufacture of class record books
33 The counter recorded only the total number of packages wrapped. It
did not give a breakdown for each girl
operations. In addition, an inventory was starting to build
up in class records due to the fact that Muir had raised the
price of custom work to the point where the products were
not moving.
In December, Muir discussed the alleged variance and
business trends with Frederick Lesh, the company's
president, but first advised Lesh of his decision to terminate
the night shift employees in issue sometime between 2 and 4
p.m. on January 2, when Lesh accidentally entered Muir's
office. Tomey was apprised of the decision for the first time
the morning of January 3, Hunter sometime later.
It is my opinion and I find that the limited data submitted
by the Respondent are insufficient to weaken the thrust of
the General Counsel's case . Further, I find that Muir's oral
explanation of Respondent's actions was not credible.
These ultimate findings are based on the entire record and
the subsidiary findings enumerated below which I also find
as facts.
Although Muir denied that his decision to terminate the
employees was in any way motivated by the fact that an
organizational campaign was then in progress, and instead
claimed that it was predicated solely on economic
considerations which indicated that Respondent was losing
money in its operations, no company records, which
certainly exist , were introduced. The failure to do so
warrants the inference that such records, if produced,
would not support Respondent' s case . As the Supreme
Court said in Interstate Circuit, Inc. v. United States, 306
U.S. 208, 226, "The production of weak evidence when
strong is available can lead only to the conclusion that the
strong would have been adverse."
Muir's summary of night production in class records
shows the functions performed by the employees in that
section and the code number for each function but does not
indicate the type book gathered. Attached is a listing of
production standards for book types. It is clearly evident,
therefore, that the summary was of little value to Muir in
determining whether an employee had met the standards as
there was no way for him to tell what type books had been
gathered or what standards had to be applied. Further, the
statistical data assembled for the class record work was
limited to the activities of the night shift employees.
Comparable statistics for the day shift employees was not
presented. Unless production records of the night shift
employees are compared with similar records of the
employees on the day shift it is impossible to determine
whether the former were, as claimed, responsible, in part,
for the alleged variance.
As to the summary on polywrap work, the results here
disclosed that the girls on both shifts were not working full
time. Measured on the basis that a full day required 7.6
hours of work, the summary for the period November 13,
1969 to December 31, 1969 showed that the average of
hours of work per night shift employee was about 5.2 and,
on the day shift, about 4.2. Vance and Macon, former
34 No summary of class record activity was maintained from January 1,
1970 to February 13, 1970 On the latter date , Muir began to compile
statistics of class record work performed by the day shift employees-the
only employees so engaged at that time-continuing the same through
April 12 The summary of polywrap work was continued through Apnl 13
without interruption
C. P. LESH PAPER CO.
polywrap and blue book machine operators, respectively,
averred that, on occasions, they ran out of blue books to be
polywrapped. Vance, a witness for the Respondent,
elaborated, testifying that idle periods also occurred when
she encountered problems with the machines. She went on
to say, supported by Qualls, that there were delays in
gathering and wiring35 as well due, in the first instance, to
the unavailability of needed materials and, in the second, to
the fact that available wire often was not of the right size.
During such idle moments, Vance and Qualls swept the
floor and performed other like chores. A reference to the
reports filed by these individuals reveals, however, that the
amount of time each spent in cleanup work was not
significant. The testimony of Macon, Vance, and Qualls
establishes that periods of idleness were often induced by a
malfunctioning of the machines or a lack of materials to do
the jobs and not by a lack of work, as claimed by the
Respondent.
Considering now the underlying documents used by Muir
to prepare the summary on polywrap work, Muir testified
that "there may be some stuff here that's not quite right.
From now on the times will be recorded automatically. We
will not leave it up to employees to record time ...." And,
when queried about certain notations on the class record
summary, Muir declared that they indicate "confusion in
his mind as to the purport of the documents." Further,
Muir agreed that his summary on class record work was "a
mess"; admitted that he "didn't have enough information",
but then asserted, somewhat apologetically, that "it's the
best I've got to go by." These statements amount to a tacit
acknowledgment by Muir that the documents which he
used as a basis for his decision to terminate the employees
were totally unreliable 36 I agree and so find. Moreover,
assuming relevance, there is no reason to believe that the
summaries maintained by Muir after the decision are any
more reliable than those prepared by him prior thereto.
Thus, on the basis of a 4-week study of production
records in the polywrap and night class record sections,
Muir decided to terminate five employees on the night shift.
The limited statistical information then available was
hardly sufficient to indicate that serious economic prob-
lems were developing for the Respondent, particularly in
view of the known unreliability of the basic documents.
The written explanation itself stumbles into confusion
and ambiguity over the central question of the motivation
for the terminations. In the first paragraph of the January 2
memorandum to Hunter and Tomey, Muir states that "due
to reduced demand and the high cost of production, the
Company has decided to lay off the Night Shift in
Polywrap and Class Record Departments." Muir contra-
dicts this claim, however, by his declaration on the stand
that "No, I don't think there was a reduced demand" for
polywrap products. Further, in the final paragraph of the
said memorandum, Muir advised that the night shift "in
these two departments" will be discontinued "until the
Company can develop training methods that will enable
more economical production." It is not clear, and Muir did
35 When out of polywrap work, Vance gathered or wired class record
books
36 The following examples are illustrative of the unreliability of the
summaries Muir wrote, on the class record summary, the words 'no count'
367
not explain, what a need for training had to do with the
terminations, particularly in light of his testimony that the
jobs were "surprisingly easy" to learn and that he would
have pursued the same course whether or not there had
been a training program. Moreover, Muir absolved the
employees from any blame in this regard as he also averred
that the company "has been lax in training methods" and
has had "a lot of trouble in this area."
For the reasons set forth above and the record as a whole,
I do not believe that the Respondent has established a
convincing defense.
Evaluating all the pertinent and relevant factors, and
resolving credibility issues on the basis of the appearance
and demeanor of the witnesses involved; considering the
conduct of Respondent's supervisors in interrogating rank-
and-file employees regarding their union and concerted
activities and in telling employees they did not and would
not receive scheduled wage increases because of their
involvement with the Union, the implications of surveil-
lance, and the explicit threats of reprisal, all manifesting an
attitude of opposition to the self-organizational efforts of its
employees; taking into account Lacefield's union and
concerted activities; the timing of Muir's decision to closely
scrutinize the polywrap and class record jobs in relation to
the Union's organizational campaign; the fact that Muir's
study of class record production was restricted to the night
shift and was instituted at a time when Lacefield was the
only employee assigned to that section indicating that the
study was directed at Lacefield; weighing the other conduct
of supervisors Tomey and Hunter, described elsewhere
herein in connection with violations of Section 8(a)(1) of
the Act, which amply illustrates Respondent's dislike of
unions in general and the Union in particular; mindful of
the action of Muir in summarily discharging the employees
without consultation with the foremen under his supervi-
sion who were immediately responsible for them, Muir's
statements to Macon on January 4-reported above and
reviewed below-which graphically reveal Respondent's
true motivation in making the layoffs, Muir's refusal to
recall Lacefield-the senior employee among the terminat-
ed employees-to temporarily replace Gibson in January,
the statements of Tomey to Benson in January with regard
to Lacefield's prospect of recall, the hiring of Roteen
Cowan on February 26 for work which could have been
performed by Lacefield, and Muir's refusal to recall
Lacefield when Macon quit in March, all patently
demonstrating that Respondent never intended to reinstate
Lacefield; and, mindful too of Respondent's failure to
supplement Muir's explanation with convincing statistical
evidence or other persuasive proof; it is found that the
terminations were an integral part of Respondent's
antiunion strategy which was to discharge Lacefield, that to
realize this goal Respondent was obliged to terminate four
other employees in order to reach Lacefield, and that its
ultimate purpose in all of this was to warn the employees of
Respondent's displeasure over the union campaign and the
risk they would incur by supporting the Union. According-
opposite the names of several operators indicating thereby that they had
failed to record the requested information In addition , an entry was made
on November 13, 1969, for Anna Qualls despite the fact that Qualls did not
commence her employment with Respondent until November 23
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly, I find that Respondent was discriminatorily motivated
in terminating and laying off Paulette Lacefield, Patricia
Benson , Mary Jane Carter, Anna Qualls, and Sherry Vance
and, for that reason , violated Section 8(a)(3) and (1) of the
Act. 37
I have heretofore found that, during Tomey's initial
conversation with Benson on January 3, Tomey told her
that the polywrap and collating crews were being laid off at
noon and, when Benson remonstrated, Tomey declared,
"Well, that's the only way they had of getting rid of Paula";
that, after the termination interviews and still later in
January, Tomey advised Benson that, in 2 or 3 weeks, all
the girls would be recalled but Lacefield; that, on Benson's
query, in the second of the two January conversations, as to
why Lacefield had not been recalled to temporarily replace
Gibson, Tomey stated, "You know what I said. We won't
call Paula back no matter what"; and that, in a telephone
conversation on January 4, Muir told Macon that "they
had gotten rid of the problem" and that he had to terminate
"the other girls in order to get rid of Paula." As these
statements were clearly coercive, they are additional
violations of Section 8(a)(I) of the Act and I so find and
conclude.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations
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
It has been found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act. It will, therefore, be recommended that
Respondent be ordered to cease and desist therefrom, and
take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent terminated Paulette
Lacefield, Patricia Benson, Mary Jane Carter, Anna Qualls,
and Sherry Vance on January 3, 1970, in an effort to chill
the organizing campaign being conducted at its plant, that
it recalled Patricia Benson on or about January 13, 1970,
but then finally terminated her employment on or about
February 13, 1970, it will be recommended that Respon-
dent offer said employees immediate and full reinstatement
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges. It will also be recommended that Respondent
make said employees whole for any loss of earnings
suffered by reason of the discrimination against them, by
payment to them of a sum of money equal to that which
they normally would have earned, absent the discrimina-
37 The fact that Jessie Gibson and Sudan Macon, other known union
members, were not terminated on January 3 does not detract from the
ultimate finding . "An employer 's failure to discharge all the union
adherents does not necessarily indicate an absence of discriminatory intent
tlon, from the date of the discrimination to the date of the
offer of reinstatement, less net earnings during such period,
with backpay computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716.
It will also be recommended that Respondent preserve
and make available to the Board, upon request, payroll and
other records to facilitate computation of backpay.
In view of the nature and extent of the unfair labor
practices in which Respondent has engaged, it will be
further recommended that Respondent be ordered to cease
and desist from infringing in any other manner upon the
rights of employees guaranteed in Section 7 of the Act.38
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, the Trial Examiner
makes the following:
CONCLUSIONS OF LAW
1. C.P. Lesh Paper Company, an Indiana corporation,
is, and at all times material herein has been, an employer
engaged in commerce and in a business affecting commerce
within the meaning of Section 2(2), (6) and (7) of the Act.
2. Coal, Ice, Building Material, Supply Drivers, Riggers,
Heavy Haulers, Warehousemen and Helpers, Local 716,
affiliated with The International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
is, and at all times material herein has been , a labor
organization within the meaning of Section 2(5) of the Act.
3. By terminating certain employees on January 3, 1970,
by delaying and refusing to recall Patricia Benson-one of
the terminated employees-until January 13, 1970, and by
again terminating Benson on February 13, 1970, in order to
discourage union activity, Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
4. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed in Section 7,
Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(l) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing
findings of fact and conclusions of law, it is hereby
recommended that Respondent, C.P. Lesh Paper Compa-
ny, of Indianapolis, Indiana, Respondent herein, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Coal, Ice, Building
Material, Supply Drivers, Riggers , Heavy Haulers, Ware-
housemen and Helpers, Local 716, affiliated with The
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or in any other
as to those he did discharge " W.C Nabors Company, 89 NLRB 538, 542
enrd 196 F 2d 272 (C A 5)
38 N LR B v Express Publishing Company, 312 U.S 426, 437-438,
N L.R.B v Entwistle Manufacturing Company, 120 F.2d 532, 536 (C.A 4)
C. P. LESH PAPER CO.
labor organization, by discriminating against employees in
regard to their hire or tenure of employment or any term or
condition of employment.
(b) Interrogating employees with respect to their activities
in behalf of the Union in a manner as to interfere, coerce,
or restrain them in the exercise of their rights guaranteed in
Section 7 of the Act.
(c) Threatening employees with discharge, loss of
privileges, or other reprisals if they engage in union
activities.
(d) Telling employees that (1) its plant would be closed if
it were to become unionized, (2) they did not and would not
receive pay raises which were due because of the pendency
of the union campaign, (3) the Company would recognize
the bookbinders' union but not the Teamsters, (4) it was
laying off and had laid off employees in order to get rid of
the union leader, and (5) all of the laid off employees would
be recalled except the union leader.
(e) Creating the impression among the employees that
their union activities are under surveillance.
(f) Promulgating, maintaining, enforcing. or applying any
rule or regulation which would prohibit employees from
engaging in union talk and union activity in the plant
during nonworking time in nonworking areas.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist the above-named
Union, or any other labor organization, to bargain
collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act-
(a) Offer Paulette Lacefield, Patricia Benson, Mary Jane
Carter, Anna Qualls, and Sherry Vance immediate and full
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them whole
for any loss of earnings they may have suffered by reason of
the discriminations against them in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payments records, time-
cards, personnel records and reports, and all other records
necessary to analyze the amount of backpay due under the
terms of this Recommended Order.
(c) Notify the employees named in subparagraph 2(a)
supra, if any of such persons are presently serving in the
Armed Forces of the United States, of their right to full
reinstatement, upon application, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces
(d) Post at its place of business in Indianapolis, Indiana,
copies of the notice attached hereto, marked "Appendix "39
Copies of said notice, on forms to be provided by the
Regional Director for Region 25, shall, after being duly
signed by Respondent's authorized representative, be
posted by it immediately upon receipt thereof, and
369
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
said Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(e) Notify the said Regional Director, in wasting, within
20 days from the date of the receipt of this Decision, what
steps Respondent has taken to comply herewith.40
as In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted
by the Board and become its findings , conclusions , and order, and all
objections thereto shall be deemed waived for all purposes . In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board"
40 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 Respondent
has taken to comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity to
present evidence, the National Labor Relations Board has
found that we, C.P. Lesh Paper Company, violated the
National Labor Relations Act and has ordered us to post
this notice. We, therefore, notify you that:
WE WILL NOT interfere with, restrain, or coerce our
employees in the exercise of their right to support Coal,
Ice, Building Material, Supply Drivers, Riggers, Heavy
Haulers, Warehousemen and Helpers, Local 716, an
affiliate of The International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, herein at times called the Union, or any other
labor organization, as their collective-bargaining repre-
sentative by-
Coercively interrogating them concerning their
union activities and sympathies.
Threatening them with discharge, loss of
privileges, or other reprisals if they engage in
union activities.
Telling them our plant will be closed if it
becomes unionized.
Telling them they did not and would not
receive a scheduled wage increase because of the
pendency of the Union's campaign.
Telling them that we were laying off and had
laid off employees in order to get rid of the union
leader and that all of the laid off employees would
be recalled except the union leader.
Indicating a preference for one labor organiza-
tion over another.
Promulgating and maintaining any rule regula-
tion which will prohibit employees from engaging
in union talk and union activity in the plant
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during nonworking time in nonworking areas, and
enforcing the rule against employees who support
the Union.
Creating the impression that we are keeping
the union activities of our employees under
surveillance.
WE WILL NOT discourage membership in Coal, Ice,
Building Material, Supply Drivers, Riggers, Heavy
Haulers, Warehousemen and Helpers, Local 716, an
affiliate of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
in any other labor organization of our employees, by
discriminating in any manner with regard to hire,
tenure, or any term or condition of employment.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist the above-named or any other labor
organization, to bargain collectively through represent-
atives of their own choosing, and to engage in other
concerted activities for the purpose of collective
bargaining or mutual aid or protection, or to refrain
from engaging in any or all such activities.
WE WILL offer Paulette Lacefield, Patricia Benson,
Mary Jane Carter, Anna Qualls, and Sherry Vance
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges, and make
them whole for any loss of earnings resulting from our
discrimination against them.
WE WILL notify the above-named employees, if any
of them are presently serving in the Armed Forces of
the United States, of their right to full reinstatement,
upon application, in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
All of our employees are free to become, remain, or to
refrain from becoming or remaining members of the above-
named labor organization or any other labor organization.
C. P. LESH PAPER
COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 614
ISTA Center, 150 West Market Street, Indianapolis,
Indiana, 46204 Telephone 317-633-8921.