Challenge Cook Brothers of Ohio, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1965

153 N.L.R.B. 92 (N.L.R.B. 1965)

92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in writing, that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the Respondent to take the action
aforesaid.
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 you that:
WE WILL NOT refuse to recognize Electrical Workers Union No. 494, Inter-
national Brotherhood of Electrical Workers, AFL-CIO, as the exclusive repre-
sentative of the employees in the appropriate bargaining unit described below.
WE WILL NOT change any terms or conditions of employment without first
giving the above-named labor organization a reasonable opportunity to bargain
with us concerning any proposed change.
WE WILL NOT engage in individual bargaining with the employees in deroga-
tion of the exclusive bargaining status of the Union.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of the right to self-organization, to form labor organi-
zations, to join or assist the above-named or any other labor organization, to
bargain collectively through representatives of their own choosing, and to engage
in any other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities.
WE WILL, upon request, bargain collectively with the above-named Union as
the exclusive bargaining representative of all employees in the bargaining unit
with respect to rates of pay, wages, hours of employment, and other conditions
of employment, and, if an understanding is reached, embody such understanding
in a signed agreement . The appropriate bargaining unit is:
All production and maintenance employees, excluding office clerical
employees , guards, professional employees , and supervisors , as defined in
the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named Union, or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8(a) (3) of the Act, as amended.
FRITCHOF A. FOSDAL and ADELINE M. FOSDAL,
d/b/a FOSDAL ELECTRIC,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Second
Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, Tele-
phone No. 272-8600, Extension 3860, if they have any question concerning this
notice or compliance with its provisions.
Challenge Cook Brothers of Ohio, Inc. and International Union
of District 50, United Mine Workers of America. Case No.
8-CA-3608. June 18,1965
DECISION AND ORDER
On April 6, 1965, Trial Examiner A. Bruce Hunt issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
153 NLRB No. 18.
CHALLENGE COOK BROTHERS OF OHIO, INC. 93
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision 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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Respondent, Challenge Cook Brothers of Ohio,
Inc., Bryan, Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
as so modified :
1. Add the following as paragraph 2(b) to the Trial Examiner's
Recommended Order, the present paragraph 2(b) and those subse-
quent thereto being consecutively relettered :
"(b) Notify James Weldon if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon
application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , in which the charge was filed on August 31, 1964, and the com-
plaint was issued on October 22, 1964, involves allegations that the Respondent,
Challenge Cook Brothers of Ohio, Inc., violated Section 8(a)(1) and ( 3) of the
National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq. On Novem-
ber 10 and 11, 1964 , Trial Examiner A. Bruce Hunt conducted a hearing at Bryan,
Ohio, at which all parties were represented . Upon the entire record and my observa-
tion of the witnesses , I make the following:
FINDINGS OF FACT
1. THE RESPONDENT
Challenge Cook Brothers of Ohio , Inc., an Ohio corporation , has its office and
place of business in Bryan , Ohio, where it is engaged in the manufacture and distri-
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bution of cement mixers. The Respondent annually ships products valued in excess
of $50,000 directly to points outside Ohio . There is no dispute, and I find , that the
Respondent is engaged in commerce within the meaning of the Act.
It. THE UNION
International Union of District 50, United Mine Workers of America, is a labor
organization which admits to membership employees of the Respondent
III. THE UNFAIR LABOR PRACTICES
A. The issues
There are two basic issues : ( 1) whether the Respondent invalidly discharged James
Weldon on August 24, 1964 ; and (2 ) whether the Respondent , which permits employ-
ees to post personal notices of various types on the plant's bulletin boards, violated
Section 8 (a)(1) during August and thereafter by removing from the bulletin boards
notices of union meetings which employees had posted.
B. Background
The Respondent is a subsidiary of a Califoi nia corporation , Challenge Cook
Brothers , Inc., which operates plants and a distribution center in that State . During
December 1963, the Respondent 's president , one Hall, visited Respondent 's plant in
Ohio and addressed the employees . His remarks consisted largely, but not entirely, of
a prepared speech of 20 pages, triple spaced, of which nearly 6 were devoted to
organizational activity which had occurred at the Respondent's plant and at the
parent corporation 's 2 plants, and to the Respondent 's relationships to labor organi-
zations other than the Union in this case . Hall stated frankly that the Respondent
is opposed to [employees '] joining a labor union ," and he recited arguments against
unionization At one point he told of an election at one of the plants in California
which had been won by a labor organization on September 12, 1962, and he added
that during the next month certain production operations were transferred from Cali-
fornia to the Respondent 's plant . At another point, he emphasized that "a gooii
measure" of the profit at the Respondent 's plant had been "attributable to the increase:
in production" at that plant that had resulted from the transfer of production opera-
tion from the organized plant in California . Hall's address to the employees was,
made more than 6 months before the charge was filed in this case, and the complaint
does not allege that the address violated Section 8(a)(1) There is conflicting testi-
mony concerning Hall's extemporaneous remarks when he departed from the prepared
text. I do not believe that these conflicts need be recited and resolved - It suffices to:
say that the prepared text discloses that the Respondent strongly opposes unionization
of the employees.
C Events during 1964
During the spring, several months before the Union 's organizational campaign,
Weldon, the dischargee , went on a fishing trip. He stopped at a store and noticed
a paper or poster upon which words had been written or printed . He regarded the
paper as humorous . That night , upon his return home, he dictated to his wife the
words on the paper as he remembered them, inserting the Respondent 's name as
"Challenge," and she wrote his dictation in longhand The next day Weldon posted
the paper in the plant . Earlier he had attached a large photograph of a nude girl,
which he had obtained from Playboy magazine , to a light fixture immediately above
the machine at which he worked . He attached the paper to the photograph at about
the eye level of a man who might stand at his machine. The paper reads: I
To Whom it May Concern
Since I have worked at Challenge I have been shot at, Robbed , beat up, knocked
up, knocked down, Fired , Hired, counted , discounted , credited , discredited, lied
to, died for , liked, disliked , fought for , fought against , organize [ d], disorga-
nize[d] , baffled, burned , cut, jabbed , pled for, pleaded with , warned about , talked
about, talked to, blamed for , and cussed . The only reason I continue to work
here is to see what the Hell They' ll do to me next
Jim Weldon
'To facilitate reading, I have inserted an occasional comma and have corrected the
spelling of four words- credited , discredited , to, and baffled I have also , in brackets,
changed the tense of two verbs * organize and disorganize.
CHALLENGE COOK BROTHERS OF OHIO, INC. 95
Other employees hac: posted photographs of girls, as well as cartoons and writings
which they regarded as humorous, near their machines. The paper which Weldon
posted is the only one which mentioned the Respondent, however. Other postings
include a handprinted sign that reads: "They said it couldn't be done-so the Hell
with it;" a cartoon of a man's head followed by the words. "CAUTION Be Sure
Brain is Engaged Before Putting Mouth in Gear;" and a cartoon of a dog in a field
of tobacco with the words: "Do your cigarettes taste different lately?"
The paper which Weldon attached to the photograph of a nude girl during the
spring remained posted until shortly before his discharge on August 24 when, accord-
ing to the Respondent, it learned of the posting. As will appear, the Respondent
asserts that Weldon was discharged because he posted the paper. At this point, we
consider the question whether any supervisory employee noticed the paper before
August. LaVerne Parsons is the Respondent's general foreman. Lawrence Markel
is an employee whose place of work was close to that of Weldon. Markel and
Weldon testified without contradiction, and I find, that during the months that the
paper was posted, Parsons stopped at Weldon's place of work upon various occa-
sions. Parsons testified, however, that he did not see the paper until August 20. He
was asked if, prior to that date, he had seen the photograph to which the paper was
attached, and he answered, "Not to lust look at it, no " In clarification of the quoted
answer, he was asked if he meant that he had not noticed the photograph, to which
he replied, "No." The circumstances under which, according to Parsons, he saw
the paper on August 20 are recited hereinafter in the discussion of Weldon's discharge.
Virgel Luke is foreman of a department other than that in which Weldon worked,
but Luke had occasion to speak with Weldon at the latter's machine. Two months
or more before Weldon's discharge, Luke was at Weldon's machine for 2 or 3 minutes
while awaiting an article on which Weldon was working. Weldon testified, and I
find, that Luke looked at the paper or the photograph or both On the other hand,
Luke, who did not deny having waited for Weldon to complete work on the article
and having seen the photograph, denied having seen the paper.
On August 24 Dorrance Moore became foreman of the burning department in
which Weldon worked. On the same day, Weldon was discharged. Prior to that
date, Moore had been a foreman in another department and upon occasion had gone
into the burning department. Weldon testified credibly, and I find, that Moore
stopped at Weldon's machine two or thiee times while the paper was posted On the
other hand, Moore who denied having seen the paper until August 24,2 did not deny
having stopped at Weldon's machine upon occasion, nor did he deny having seen the
photograph.3
It is a reasonable inference, and I find, that prior to the commencement of the
Union's activities, management had become aware of the paper which Weldon had
posted and had expressed no opposition to it.
We turn now to events during August, months after the paper had been posted by
Weldon. On August 14, a Friday, union activity began with a meeting at Weldon's
residence. H. Lee Martin, the Union's representative, addressed 15 or more employ-
ees. On the next workday, August 17, at lunchtime, Weldon and Markel distributed
union literature within the plant. There is no dispute, and I find, that Weldon gave
a handbill to Foreman Luke. Insofar as appears, Luke did not participate in the
discharge of Weldon a week later and he testified that he did not inform any repre-
sentative of management that he had seen Weldon distributing union literature
On August 19, a union meeting was held at the local American Legion Hall Thirty
or more employees attended and Weldon was elected secretary-treasurer of an orga-
nizing committee. Martin gave the employees literature, stickers for automobile
bumpers, and lapel buttons. The buttons are circular, about the size of a half dollar,
with blue letters on a white background. The words "I am a Union member. District
2 The transcript recites at page 201, lines 18 through 21, that Moore was asked by the
Respondent' s counsel whether he had ever seen General Counsel' s Exhibit No. 3, the paper
which Weldon posted, and that Moore replied, "This one I don't recall, no." The question
and answer next preceding, and the question and answer immediately following , indicate
to me that at lines 18 through 20 Moore was asked whether he had seen General Counsel's
Exhibit No. 6, not No. 3.
3 Moore" testimony concerning his visits to the burning department prior to becoming
the foreman therein is conflicting . At one point his testimony indicates that prior to Au-
gust 24 he rarely went into the burning department . At another point, when he was asked
whether he had seen certain cartoons which employees had posted in the burning depart-
ment, he testified that he had seen a particular cartoon "a year and a half or two years"
before the hearing and that he had seen it "many times."
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
50, UMWA. Are you?" are from one-eight to one-quarter inch in height, the largest
letters being those which compose the name of the Union. After the date of this
meeting, Weldon and various employees wore buttons. Weldon wore his button at
work regularly, having it pinned to his shirt in plain view of anyone with whom he
might converse. He also distributed authorization cards for signatures by employees.
Within a day or two after Weldon began to wear his button, Foreman Parsons
talked with him upon two occasions. In one instance, Weldon and Markel were
together, wearing their buttons, when Parsons talked with them. There is a dispute
concerning the details of the conversation, but the dispute need not be resolved. The
significant point is that Parsons acknowledged that a conversation occurred but
denied that he noticed that Weldon and Markel were wearing union buttons. I can-
not credit the denial.4 In the other instance, Parsons talked with Weldon and Ralph
Schilt when those two employees were wearing union buttons. Parsons showed
them a button or badge on which there was a drawing of a man seated on a commode
and the words, in substance, "If I don't catch hell from my boss, my day ain't com-
plete." Parsons said to them that they were not the only ones who could wear
buttons.5
On August 24, Weldon was discharged under circumstances described hereinafter.
On August 25 and on 3 subsequent days, the Respondent removed from its bulletin
boards notices of union meetings which had been posted by employees who had not
first obtained the Respondent's permission for posting. The notices were removed as
soon as management observed them, and in two instances the removals were within an
hour of the postings. Notices of other types which had been posted by employees,
often without specific permission, were not removed. Such notices related to sales of
automobiles, meetings of charitable organizations, clambakes, roasts of various sorts,
and church suppers. Joseph R. Staudt, the Respondent's personnel manager, testified
that the Respondent had not announced any policy with respect to the use of its
bulletin boards by employees, that the practice is to allow postings concerning matters
that "are not controveisial in nature," and that he did not know of any notices posted
by employees that had been removed by management other than the notices concern-
ing union meetings. Upon being asked whether there was a practice with respect to
employees' requesting permission to post notices, Staudt answered that no employee
had ever requested permission of him and that he had "not been involved." The
question whether the Respondent violated Section 8(a)(1) by its removal of the
notices of union meetings is discussed below. The Respondent does not defend
upon the ground that the meeting mentioned in any notice had been held and, there-
fore, that the notice was out of date.
D. The discharge of Weldon
Weldon began work for the Respondent on January 25, 1962, and he worked for
approximately 21/2 years. He proved to be capable and at the time of his discharge
he was earning the maximum rate paid to anyone below the level of supervisor or
leadman. He was never warned or reprimanded. Staudt testified that warning
notices are given to employees for "minor offenses, such as absenteeism, lateness,"
depending upon "the nature of the seriousness." As will appear, the Respondent
claims that it regarded the paper which Weldon posted as a very serious offense,
warranting immediate discharge. On the other hand, certain conduct in which Markel
engaged prior to the commencement of union activities brought warning notices
only. About January 1, 1964, Markel received a warning notice because he had
playfully thrown an object at an employee, hitting the employee on the ankle. There
was no serious injury, but the employee was taken to a hospital for X-rays. Six or
seven months later, on July 23, 1964, Markel had a dispute with leadman Walz during
which Markel threatened Walz. Staudt and Parsons investigated the matter and
gave Markel a warning notice which recited:
You [Markel] are hereby notified that your conduct is unsatisfactory for the
reason that on July 23, 1964 you used threatening and abusive language to your
leadman in an act of insubordination.
* There is testimony that Parsons' son-in-law, Dick Walz, a nonsupervisory leadman or
group leader, was present for at least a portion of the conversation. Walz was not a
witness.
5 These findings are based upon the testimony of Weldon and Schilt who impressed me
as truthful. On the other hand, Parsons denied that the conversation occurred. He
testified further that at an undisclosed time he noticed that Schilt was wearing a union
button.
CHALLENGE COOK BROTHERS OF OHIO, INC. 97
This notice is being served upon you in accordance with the Company's per-
sonnel policy to give the employees , whose conduct or work or attendance is
unsatisfactory as a final warning prior to taking more drastic disciplinary action.
We hope that this warning will induce you to eliminate further cause for
complaint.
Note: In the establishment of this warning policy, the company does not in
any way forfeit the right to discharge employees without warning for major
infractions of company rules or for insubordination.
Turning to Weldon 's discharge , the Respondent 's testimony concerning its decision
to discharge him begins with events, or purported events, 4 days before the discharge.
The Respondent 's version is set forth below in this paragraph . To the extent that
evidence was available to the General Counsel to contradict the Respondent 's version,
such evidence is recited in footnotes . Foreman Parsons testified that on Thursday,
August 20 , he first saw the paper which Weldon had attached to a photograph of a
nude girl 6 and that his attention was called to the paper by Schilt who pointed it out,
asking if Parsons "had seen what Jim [Weldon ] thought of the company ?" 7 Parsons
testified further that he read the paper, following which he promptly asked Weldon
whether Weldon "felt that was the way the company was treating him?" to which
Weldon did not reply but merely "shrugged his shoulder and smiled ." 8 On the next
day, according to Parsons , he checked to see whether the paper had been removed,
saw that it had not been , but did not speak to Weldon or suggest that the paper be
removed. On Saturday, August 22, a nonworking day, the Respondent 's version
continues , Parson told Staudt of the paper, and Staudt , upon reading it, said, "Well,
this [is] serious ." Staudt removed the paper , made a copy of it, following which he
reposted the original , and informed Plant Manager Kenneth Harman , so he and
Harman testified , saying to Harman that the paper "was detrimental to the company"
and asking what Harman thought of it. Harman replied that the subject would be
discussed on Monday .9 Both Staudt and Harman testified that they were unaware of
the paper until Saturday , August 22, and there is no evidence to the contrary. On
Monday, August 24, Harman , Staudt, and Parsons met to discuss the paper and the
action, if any, to be taken . Moore joined them. The testimony of these representa-
tives of management will be recited, beginning with that of Parsons . According to
Parsons, they met about 9 o'clock and Staudt suggested that Weldon be called to the
office, to which Parsons and Harman agreed, but Weldon was not called until about
1:30 o'clock . Parsons testified further that Harman and Staudt said that Weldon
should be discharged , that Moore, who had been on vacation and who had assumed
the duties of foreman in the burning department that morning , was called to the
office, was shown the copy of the paper which Weldon had posted , and was asked to
state his opinion, to which Moore replied that he "would fire the man." Staudt testi-
fied that the meeting began about 11 o'clock, that he said that the matter was so
serious as to warrant Weldon's discharge , explaining that the paper held "management
up to mockery and jest," that Harman and Parsons said that Weldon should be dis-
charged, that Moore was called to the office and asked his opinion of the copy of the
paper and whether he had seen it , and that Moore replied that he had not seen it
and that Weldon "should be fired." Staudt testified further that , the meeting having
extended "close to lunch time ," it was decided to wait until after lunch before dis-
6 The evidence concerning Parsons' opportunities to have seen the paper and the photo-
graph has been recited, as has Parsons' testimony concerning whether he had seen those
articles.
7 Schilt credibly denied that he spoke to Parsons about the paper and that he told Par-
sons that the paper reflected Weldon's thoughts about the Respondent.
8 Weldon credibly denied that Parsons asked him the question or ever spoke to him
about the paper before his discharge. Weldon impressed me as a truthful witness. More-
over, he impressed me as a person who regarded the paper as humorous, as just one of
various posted papers or cartons which employees regarded as humorous, and not as
derogatory of his Employer. I do not believe that if Parsons had asked him the quoted
question, he would have "shrugged his shoulder and smiled ." I believe that instead he
would have answered the question, telling Parsons truthfully that the paper was humorous
in his point of view.
9 Parsons and Staudt testified that the latter removed the paper promptly after reading
it and made a copy, following which Staudt reposted the original. Staudt testified that
after making the copy he told Harman of the paper. On the other hand, Harman testified
that he directed Staudt to make a copy.
796-027-66-vol. 153-8
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charging Weldon. Harman testified that the meeting began about 11 o'clock, that it
lasted for approximately 45 minutes, and that he could recall only that Staudt said
that the paper "was detrimental to the company and an attack upon the company,"
that he and Parsons agreed, that Staudt suggested that Weldon be discharged, that
he and Parsons again agreed, that Moore was called to the office and shown the copy
of the paper, that Moore's opinion was asked, that Moore answered that "whoever
the person was should be terminated," and that the men adjourned for lunch Har-
man testified that he could not recall any comment by anyone that Weldon may have
posted the paper in an attempt at humor, and that the possibility of such an attempt
did not occur to him. Moore testified that he was summoned to Staudt's office about
11 o'clock, that he was shown the copy of the paper and was asked whether he had
seen it, that he responded in the negative, and that he then read the copy and, upon
being asked his opinion, he said that he "felt that anyone who would direct a message
to the company and sign their name to it with derogatory remarks such as this should
be discharged." Moore testified that the men then went to lunch. It does not appear
that anyone suggested that Weldon, a very capable employee, should be heard in
advance of a decision to discharge him or that anyone suggested that a warning notice,
instead of discharge, might be appropriate. All four representatives of management
testified that they were unaware of Weldon's interest in the Union and that nothing
was said about that labor organization during their meeting.
During the afternoon of August 24, Staudt, Parsons, and Moore went to Weldon's
place of work where Staudt removed the paper which he had reposted 2 days earlier
after making a copy Staudt told Weldon to accompany the three representatives of
management to the office. There Staudt asked if Weldon thought that the Respondent
had treated him as recited in the paper, and Weldon responded in the negative, adding
that he had seen a similar paper when he had been on a fishing trip, that he had
thought it funny, that he had made a copy, inserting the Respondent's name, and had
posted it in a joking manner. Staudt said that the matter was not a joke and that
Weldon was discharged
The above factual recitation compels the conclusion that Weldon was invalidly dis-
charged. With respect to the Respondent's denial of knowledge of Weldon's union
adherence, I have been unable to credit Parsons' testimony that Parsons did not
notice the union button which Weldon wore and that Parsons did not speak to Weldon
and Schilt about buttons. Too, it is clear that Weldon was a leader in the organiza-
tional activities and that he engaged in such activities within the plant during non-
working hours, without any effort to hide his actions. It is a reasonable inference that
Foreman Luke, to whom Weldon gave a handbill at lunchtime, was not the only
supervisor who observed Weldon's activities inside the plant Moreover, Luke's
denial that he told anyone that Weldon was engaged in union activities need not be
credited because the facts in this case, including President Hall's announced opposi-
tion to such activities, warrant the inference that Luke did tell other supervisors.
N L R.B. v. Edward F. Tepper, d/b/a Shoenberg Farins, 297 F. 2d 280, 283 (C.A.
10), enfg. 129 NLRB 966. Turning to the paper which Weldon posted, I have been
unable to credit the denials of certain representatives of management that for months
after the posting they remained unaware of the paper and that they did not become
aware of it until August 20 or later, after the commencement of union activity. In
particular, I have been unable to credit Parsons' testimony that the paper was called
to his attention by Schilt on August 20 and that he promptly spoke to Weldon about
it. Assuming arguendo, however, that Schilt called the paper to Parsons' attention,
the latter's failure to remove it, and Staudt's reposting it on August 22 after making
a copy, weaken their assertions that the existence of the paper at Weldon's machine
was an affront to the Respondent. Next, the Respondent's version of the meeting of
four supervisors on the morning of August 24 does not have the ring of truth. The
meeting extended much longer than was necessary for the supervisors to say to each
other the brief remarks disclosed by their testimony and to reach the quick and
unanimous decision that Weldon should be discharged. Something more must have
been said by them than their testimony discloses. Assuming arguendo that the four
supervisors discussed the question whether Weldon should be discharged for having
posted a paper which had not come to their attention until a few days before, as
distinguished from the question whether the paper would afford the Respondent a
usable pretext for discharging him, I find it incredible that all four supervisors were
so offended by the paper that none would have suggested that Weldon, a very capable
employee, may not have intended the paper to be a serious evaluation of, his
working conditions, or that none would have voiced other words in Weldon's behalf.
Finally, bearing in mind that Weldon had never been warned or reprimanded, but
that Markel had been reprimand twice without a layoff, and that Markel's second
CHALLENGE COOK BROTHERS OF OHIO, INC. 99
reprimand had been for using threatening and abusive language to a leadman, I can-
not conclude that the Respondent 's representatives honestly believed that Weldon
should receive the most severe discipline , discharge , for posting the paper.'°
Although the Respondent asserts that Harman, Staudt , Parsons, and Moore were
unaware of Weldon 's union adherence , the Respondent says in its brief that those
four supervisors were aware , or became aware, that other employees were union
adherents and that the other adherents were not discharged . According to the
Respondent , this fact supports a finding that Weldon 's discharge was valid. The con-
tention is unpersuasive . "[I]t is established that a discriminatory motive, otherwise
established , is not disproved by an employer 's proof that it did not weed out all
union adherents .... [authorities omitted]." Nachman Corp. v. N L.R.B., 337 F. 2d
421, 424 (C.A. 7).
I find that Weldon was discharged in violation of Section 8(a) (3) and (1).
E. The removal of notices of union meetings from bulletin boards
We have seen that the Respondent's practice is to permit employees to post on its
bulletin boards notices of various types, including notices relating to social and
religious affairs and meetings of charitable organizations, but that the Respondent
removed notices of union meetings which employees had posted The Respondent
argues in its brief that it was not required to make its facilities available to the Union
for organizational purposes and that the record shows that employees distributed
union cards and literature to other employees "without hindrance " The Respondent
asserts that the issue here is controlled by cases "dealing with the right of a Union to
have access to an Employer's plant." I do not believe that the Respondent's approach
to the problem is correct. I have no doubt that if the Respondent had consistently
not allowed its employees to use the bulletin boards to publicize their personal affairs,
the Respondent could properly have prohibited the posting of notices of union meet-
ings. But that is not our set of facts. The question, I believe, is whether the Respond-
ent, having made its bulletin boards available to employees for posting of notices
relating to social and religious affairs, as well as meetings of charitable organizations,
could validly discriminate against notices of union meetings which employees had
posted. According to the General Counsel, "the [Respondent's] act of singling out
the union notices for removal" constitutes interference with the employees' organiza-
tional rights in violation of Section 8(a)(1). The General Counsel's position is
supported by authority. Gallup American Coal Company, 32 NLRB 823, 829, enfd
131 F. 2d 665 (C.A. 10).
The Respondent also argues that, if it had not removed the notices, it would have
been subject to a meritorious charge of having invalidly assisted the Union and that
"the Act never contemplated a situation where the employer would be in violation of
the Act, regardless of what it did " We do not have here a situation in which an
employer favored one labor organization over another, and the Respondent is in error
in asserting that it would have violated Section 8(a) (2) if it had not removed the
notices. Cf. Jolog Sportswear, Inc., et al, 128 NLRB 886, affd. sub nom. Mary
Kiinbrell, et al. v. N.L.R.B, 290 F. 2d 799 (C.A. 4), where an employer's assistance
to a labor organization that did not represent a majority of employees was much more
substantial than would have been a failure by the Respondent to remove the notices
from its bulletin boards. In the cited case, the employer's assistance was held not to
have constituted an unfair labor practice.
I find that the Respondent, by removing the notices of union meetings from its
bulletin boards, was motivated by hostility toward the employees' organizational
activities, and violated Section 8(a) (1).
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices affecting
commerce , I shall recommend that it cease and desist therefrom and that it take
affirmative action to effectuate the policies of the Act. I shall recommend that the
Respondent offer Weldon immediate and full reinstatement to his former or a sub-
stantially equivalent position (The Chase National Bank of the City of New Yoik,
San Juan, Puerto Rico, Branch , 65 NLRB 827), without prejudice to his seniority or
other rights or privileges , and that the Respondent make him whole for any loss of
pay he may have suffered as a result of the discrimination against him, by payment of
a'sum 'of money equal to that which he normally would have earned from the date
of the discrimination , August 24 , 1964 ; to the date of a proper offer of reinstatement,
"Markel received his second reprimand on July 23, 1964 The organizational activities
began,on August 14. Weldon was discharged on August 24.
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
less his net earnings (Crossett Lumber Company, 8 NLRB 440, 497-498) during said
period, the payment to be computed on a quarterly basis in the manner established
in N.L R.B. v. Seven-Up Bottling Company of Miami, Inc, 344 U.S. 344, with
interest at 6 percent per annum, Philip Cmey Manufacturing Company, etc. v.
N.L R.B , 331 F. 2d 720 (C.A. 6).11 I shall recommend also that the Respondent
preserve and, upon request, make available to the Board or its agents, for examination
and copying, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the amount of backpay
and the right to reinstatement under the terms of the Recommended Order.
In order to make effective the interdependent guarantees of Section 7 of the Act, I
shall recommend further that the Respondent cease and desist from infringing in any
manner upon the rights guaranteed in said section N.L.R B. v. Express Publishing
Co., 312 U.S. 426; N L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
Upon the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the Act.
2. By discouraging membership in a labor organization through discrimination in
employment, and by interfering with, restraining, and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engaging
in unfair labor practices affecting commerce within the meaning of Section 8(a)(3)
and (1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I hereby recommend that the Respondent, Chal-
lenge Cook Brothers of Ohio, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union of District 50, United Mine
Workers of America, or in any other labor organization of its employees, by discharg-
ing any of its employees because of their union or concerted activities, or in any other
manner discriminating in regard to their hire or tenure of employment or any term
or condition of employment.
(b) Removing from its bulletin boards notices concerning labor organizations
which have been posted by an employee or employees.12
(c) In any other manner interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
(c) Post at its place of business in Bryan , Ohio, copies of the attached notice
marked "Appendix." 13 Copies of said notice, to be furnished by the Regional
Director for Region 8, shall , after being duly signed by the Respondent 's representa-
tive, be posted by it immediately upon receipt thereof, and be maintained by it for
at least 60 consecutive days thereafter , in conspicuous places, including all places
where notices to employees customarily are posted . Reasonable steps shall be taken
by the Respondent to ensure that said notices are not altered , defaced , or covered by
any material.
(d) Notify said Regional Director , in writing , within 10 days from the receipt of
this Decision , what steps the Respondent has taken to comply herewith.14
11 If Weldon should currently be serving in the Armed Forces of the United States, the
Respondent shall notify him promptly of his right to full reinstatement upon application
after discharge from the Armed Forces, in accordance with the Selective Service Act and
the Universal Military Training and Service Act of 1948 , as amended . Backpay to Weldon
shall be tolled for the period of his military service.
12 This recommendation shall not be construed to prohibit the Respondent 's removing a
notice which has become out-of-date by the passage of time.
13 If this Recommended Order is adopted by the Board , the words "as ordered by" shall
be substituted for "as recommended by a Trial Examiner of" in the notice . In the further
event that the Board 's Order be enforced by a decree of a United States Court of Appeals,
the words "a Decree of a United States Court of Appeals, Enforcing an Order of" shall be
inserted immediately following "as ordered by."
14 If 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."
MILLINGTON MFG. CORP. 101
APPENDIX
NOTICE TO ALL EMPLOYEES
As Recommended by a Trial Examiner of the National Labor Relations Board,
we are posting this notice to inform our employees of rights guaranteed to them by
the National Labor Relations Act:
WE WILL NOT discharge any of our employees because they engage in activi-
ties on behalf of International Union of District 50, United Mine Workers of
America, or any other labor organization.
WE WILL NOT remove from our bulletin boards notices concerning unions
which have been posted by our employees.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice and to engage in
union activities, or not to join a union and not to engage in such activities.
WE WILL offer Jim Weldon immediate and full reinstatement to his former
job, or an equivalent one, and pay him backpay to cover the earnings which
he lost because we discharged him.
All of you are free to become or remain, or to refrain from becoming or remain-
ing, members of a labor organization, except to the extent that such right shall be
affected by an agreement conforming to the provisions of Section 8(a)(3) of the
National Labor Relations Act.
CHALLENGE COOK BROTHERS OF OHIO, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-If Jim Weldon should currently be serving in the Armed Forces of the
United States we will notify him of his right to full reinstatement upon application
after discharge from the Armed Forces in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1948, as amended.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any material.
If the employees have any questions concerning this notice or whether the Employer
is complying with its provisions, they may communicate with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No.
Main 1-4465.
Millington Mfg. Corp . and International Union , United Automo-
bile, Aerospace and Agricultural Implement Workers of Amer-
ica, AFL-CIO. Case No. 8-CA-3401. June 18, 1965
DECISION AND ORDER
On December 8, 1964, Trial Examiner Fannie M. Boyls issued her
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Examiner's
Decision.' She also found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and rec-
ommended they be dismissed. Thereafter, the Charging Party filed
exceptions and a supporting brief.
1No exceptions were filed to the 8(a) (1) violations found by the Trial Examiner.
153 NLRB No. 10.