Chemvet Laboratories, Inc.

National Labor Relations Board - Board Decisions

Feb 8, 1973

201 N.L.R.B. 734 (N.L.R.B. 1973)

734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chemvet Laboratories , Inc. and Department Store,
Package, Grocery Paper House, Liquor, and Meat
Drivers, Helpers and Warehousemen , Local Union
955 affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America . Cases 17-CA-5095 and
17-RC-6839
February 8, 1973
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND PENELLO
On October 19, 1972, Administrative Law Judge
Samuel Ross issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, General Counsel filed
exceptions and supporting brief, and Respondent
filed an answering 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
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and had decided to affirm the rulings,
findings,I and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
herein modified.
The Administrative Law Judge concluded that
Respondent discriminatorily reduced the overtime of
certain employees in violation of Section 8(a)(3) and
(1) of the Act. To remedy that violation, he
recommended that Respondent be ordered to make
the employees whole for any loss of earnings they
may have suffered by reason of such discrimination.
We do not adopt the make-whole order recommend-
ed by the Administrative Law Judge.
While we find, in agreement with the Administra-
tive Law Judge, that the evidence is sufficient to
show a decline in available overtime offered to these
employees and to establish a causal relationship
between this and the employees' union activities, we
find no practicable way to measure how much
overtime would have been available or which
employees would have availed themselves of over-
time opportunities, had they been offered. Employee
Ruhl, for example, had made clear at the outset of
the events with which we are here concerned that he
was not going to be willing to perform as much
overtime as he had in the past. Employee Terrell's
testimony leaves us in some doubt as to how much
additional overtime he would have accepted. There is
also evidence that new equipment lessened somewhat
the need for overtime. These and other factors
suggest that an affirmative make-whole order would
lead only to an evidentiary morass in our compliance
proceedings. We will therefore substitute for the
affirmative make-whole order recommended by the
Administrative Law Judge a specific injunctive
prohibition against future discrimination in offering
overtime opportunities to employees.
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 Administrative Law Judge as
modified below and hereby orders that Respondent,
Chemvet Laboratories, Inc., Kansas City, Missouri,
its officers, agents, successors, and assigns, shall take
the action set forth in the Administrative Law
Judge's recommended Order, as modified:
1. Insert the following as paragraph l (b), and
reletter the present paragraphs l(b) and 1(c) as 1(c)
and (d):
"(b) Discriminating in regard to the assignment of
overtime to employees."
2. Delete paragraph 2(c) and reletter the succeed-
ing paragraphs accordingly.
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
DIRECTION
It is hereby directed that, as part of the investiga-
tion to ascertain a representative for the purposes of
collective bargaining with the Employer, the Region-
al Director for Region 17 shall, pursuant to the
Board's Rules and Regulations, within 10 days from
the date of this Direction open and count the ballot
cast by Connie Sue Ellis and thereafter cause to be
served on the parties a revised tally of ballots
including therein the count of the above-mentioned
ballot. Thereafter, the Regional Director shall issue
the appropriate certification in accordance with the
Board's Rules and Regulations.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions were incorrect Standard Dry Wall
Products, Inc, 91 NLRB 544, enfd. 189 F.2d 362 (C A 3) We have carefully
examined the record and find no basis for reversing his findings
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had the opportunity to
201 NLRB No. 104
CHEMVET LABORATORIES, INC.
present their evidence, the National Labor Relations
Board has found that we violated the National Labor
Relations Act, and has ordered us to post this notice
and we intend to carry out the Order of the Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any and all these things.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT discourage union activity or
membership in Department Store, Package, Gro-
cery, Paper House, Liquor, and Meat Drivers,
Helpers and Warehousemen, Local Union 955,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, or any other labor organization,
by discriminating against you if you choose to
engage in union activity or join that union or any
other union.
Since it was decided that we violated the Act by
terminating the employment of Connie Sue Ellis
because she engaged in union and protected
activities, WE WILL offer her full reinstatement to
her former job, and we will pay her for any loss
she suffered because we fired her.
Since it also was decided that we violated the
Act by discriminating against Kenneth Ruhl,
Polmur Terrell, Joann Downey, and Connie Sue
Ellis in the assignment of overtime work, WE WILL
NOT discriminate in offering overtime opportuni-
ties to employees in the future.
WE WILL NOT threaten you with closure of the
business, or any other reprisal to discourage your
support of the above-named or any other union.
WE WILL respect your rights to self-organiza-
tion, to form, join, or assist any labor organiza-
tion, or to bargain collectively in respect to terms
or conditions of employment through Depart-
ment Store, Package, Grocery, Paer House,
Liquor, and Meat Drivers, Helpers and Ware-
housemen, Local Union 955, affiliated with the
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or
any representative of your choice, or to refrain
from such activity, and we will not interfere with,
restrain, or coerce our employees in the exercise
of these rights.
You and all our employees are free to become
members of any labor organization, or to refrain
from doing so.
735
CHEMVET LABORATORIES,
INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States , of the 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.
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 compli-
ance with its provisions may be directed to the
Board 's Office, 616 Two Gateway Center, Fourth at
State , Kansas City, Kansas 66101, Telephone
816-374-4518.
DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Administrative Law Judge: On a charge
filed by the above-named Union on April 6, 1972, and
amended on May 18, 1972, a complaint issued on May 25,
1972, which alleges that Chemvet Laboratories, Inc.
(herein called the Respondent or the Company), engaged
in unfair labor practices within the meaning of Section
8(a)(1) and (3) and Section 2(6) and (7) of the Act. More
specifically, the complaint charges that during the penden-
cy of a petition by the above-named Union to be certified
by the Board as the collective -bargaining representative of
the Respondent's employees , the Company threatened
employees with plant closure, reduced the amount of
overtime work performed by union proponents, and
discharged one employee (Connie Sue Ellis) because of her
union adherence , membership, and/or activities. The
Respondent filed an answer which denies the substantive
allegations of the complaint and the commission of unfair
labor practices.
On April 17, 1972, at the election conducted by the
Board among the Respondent 's employees on the Union's
petition for certification , there were nine eligible voters,
four of whom cast votes for the Union , four against, and
there was one ballot challenged , that of Connie Sue Ellis
whose discharge on March 29, 1972, is alleged in the
complaint to have been motivated by her support of the
Union. Because the resolution of the challenged ballot
depends on the disposition of the unlawful discharge
allegation in the instant complaint , the Regional Director
on May 30, 1972, issued an order consolidating the
representation case (17-RC-6839) with this case
(17-CA-5095) for the purpose of resolving the merits of the
challenge to the ballot of Connie Sue Ellis.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to due notice , a hearing on the issues thus
joined was conducted before me on June 21 and 22, 1972,
at Kansas City, Missouri . Upon the entire record,' and my
observation of the witnesses and their demeanor , and after
due consideration of the briefs filed on behalf of the
General Counsel and the Respondent , I make the
following:
FINDINGS OF FACT
1. COMMERCE
The Respondent is a Missouri corporation whose
principal place of business is located in Kansas City,
Missouri , where it engages in the manufacture of veterinar-
y products. In the conduct of the said business, the
Respondent annually purchases and receives goods valued
at in excess of $50,000 directly from sources located
outside the State of Missouri, and annually sells and ships
products valued in excess of $50,000 to customers located
outside the State of Missouri. On these admitted facts, the
Respondent concedes, and I find, that it is engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
ff. THE LABOR ORGANIZATION INVOLVED
It is not disputed , and I find , that at all times material
herein the Union named in the caption above has been a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent is a small, family owned, manufacturer
of medicinal and other products used by veterinarians. It is
wholly owned by two brothers, Nick Yovetich, its
president, and Mike Harmon, its vice president, who
devote their full time and attention to the operation of the
business. The Respondent's plant occupies a two-story
building. At the times material herein, six of the Respon-
dent's nine employees worked "downstairs' 12 and the
remaining three worked upstairs in this building.3
The 88-year-old father of the Respondent's owners,
known to the employees as "Pop," also works at the plant,
generally with the "downstairs" employees. Pop also is the
godfather of the husband of Anna Dodig, and she takes
him home from work. In conversations with or about the
owners of Respondent, all of the employees call or refer to
them as Nick and Mike, and the latter similarly address
their employees by their first names.
B. Union Organization
About March 15, 1972, employee Terrell, while inquiring
I After the Llose of the hearing, the General Counsel moved to correct
some errors in the transcript thereof No opposition was filed to the said
motion and it hereby is granted.
Y Kenneth Ruhl , Charlotte Borden, Polmur Terrell , JoAnn Downey,
Connie Sue Ellis, and Charlene Rodriguez
3 Anna Dodig , Geneva Leslie , and David Ballew
i The findings in this paragraph are based on Ruhl 's credited testimony
about the nature of the overtime work to be done that
evening , told President Yovetich that employee Ruhl did
not intend to work overtime that night, and Yovetich said
that if Ruhl didn' t want to work overtime he would find
someone who did. A few minutes later, Terrell reported
Yovetich's remark to Ruhl , and the latter promptly went to
Yovetich's office and inquired whether he had said what
Terrell had reported. Yovetich admitted making the
statement , and Ruhl responded that he had worked 27
hours of overtime the previous week , and already had
worked 8 overtime hours "so far this week ." Yovetich
repeated that he meant what he had said to Terrell.4
Whether or not Yovetich so intended it, Ruhl apparently
regarded Yovetich's statement as a threat to his job
security. In any event, following his conversation with
Yovetich, Ruh) promptly contacted the Union and
inquired whether its jurisdiction included employees who
performed the type of work done at the Respondent's
plant. Ruhl received an affirmative response from the
Union, and on the following day (March 16), he held a
luncheon meeting at a drugstore near the Respondent's
plant with four of the five other "downstairs" employees.5
At this meeting, there was general agreement by all the
employees that they wanted the Union to represent them,
and Ruhl accordingly called the Union from the drugstore
and made an appointment for all of them to go to the
Union's offices the following evening after work. In
addition, on the same or following day (March 16 or 17),6
Ruhl asked Charline Rodriguez the only "downstairs"
employee who did not attend the luncheon meeting,
whether she was interested in trying to get a union
organized , and Rodriguez replied that she didn 't think so,
and that she would have to think about it.7 On Friday,
March 17, after work, the five "downstairs" employees
who had attended the luncheon meeting on March 16 went
to the Union's office and signed union authorization cards.
On March 20, the Union by letter notified the Respondent
that a majority of its employees had designated it as their
representative "for the purpose of collective bargaining,"
and requested a meeting "to negotiate a contract ." On the
same day, the Union filed a petition with the Board seeking
certification as such representative.
None of the Respondent's three "upstairs" employees
were solicited to join the Union but they nevertheless
learned from Charline Rodriguez soon after union organi-
zation commenced that Ruhl and Connie Sue Ellis had
approached her to join, and that she had told them that she
would have to think about it. Subsequently, the upstairs
employees discussed among themselves the fact that none
of them had been solicited to join, and David Ballew, one
of them, called the Board's office to inquire why "we were
According to Terrell , this incident occurred about March 17, but in the light
of subsequent events, I regard Ruhl's testimony about the date as the more
accurate one
3 In addition to Ruhl , the employees who attended the luncheon meeting
at the drugstore were Downey , Borden , Terrell, and Ellis
6 All dates hereinafter refer to 1972 unless otherwise noted.
I Rodriguez subsequently told Ruhl that she "wasn 't too interested "
CHEMVET LABORATORIES , INC. 737
not notified." He was told that only 30 percent of the
employees was needed to support an election petition.8
unfair labor practices within the meaning of Section
8(a)(1).
C. The Threat To Close the Plant
On March 21, the Respondent received the Union' s letter
requesting recognition and bargaining, a notice from the
Board that the Union had filed a petition to represent its
employees, and a copy of the Board's notice to employees
regarding their rights under the Act.9 While posting the
latter notice in the plant, Yovetich and Harmon told the
employees that they could read it on their own time, but
not on company time.
About a week later, dunng the pendency of the Union's
petition, and without any apparent provocation, Harmon
told the downstairs female employees in a loud tone of
voice, that "he was the boss and if he had to, he would shut
it [the plant] down." 10 Harmon then walked into the bolus
room (also downstairs) where Ruhl and Terrell were
working and he said to Ruhl, "Ken, I want you to
understand that I'm the boss and I always will be." Ruhl
replied, "I've never questioned your authority." Harmon
then told Ruhl to look him in the eye when he spoke to
Harmon. Ruhl responded that he was required to listen to
what Harmon said, and do what Harmon told him, but he
was not required to look Harmon in the eye, and that he
was "trying to get the machines running ." Harmon told
Ruhl, "Forget about the machine," and Ruhl said, "O.K."
Harmon then repeated, "I'm the boss here, do you realize
that?" Ruhl answered, "Yes, I have never questioned that."
Harmon then said that if he had to he would close the
place down, and he asked Ruhl, "Do you believe that?"
Ruhl replied, "Yes, I believe it.""
Conclusion
As found above, on March 28 Harmon told the
"downstairs" employees, all but one of whom had signed
union cards, that he was the boss, that after everything (the
election) was over, he would still be the boss, and that if he
had to, he would shut the plant down. Significantly,
Harmon made no like statement to any of the "upstairs"
employees, none of whom had signed union cards.
Harmon's statement clearly conveyed to the downstairs
employees a threat that job terminations might result from
their activities on behalf of the Union. It also clearly
revealed the Respondent's opposition to the representation
of its employees by the Union. I therefore find that the
Respondent thereby interfered with, restrained, and
coerced employees in the exercise of their rights guaran-
teed in Section 7 of the Act, and that it thus engaged in
8 The findings in the preceding paragraph are based on Ballew's
testimony which I credit to this extent
9 NLRB Form 666, G.C. Exh. 10.
10 The finding above is based on the uncontroverted credited testimony
of Charlotte Borden
II The findings above are based on Ruhl 's credited testimony which was
not materially controverted by Harmon. Thus, Harmon admitted that he
said to Ruhl during this conversation, "I would like to have you look at me
when I am talking to you," and that he also said that he "was the boss of the
plant there and [when] everything is over, I'm still going to be the boss."
Harmon conceded that although he did not mention union activity, his
statement that when "everything was over" meant, "Regardless of how the
D. The Reduction of Overtime Work for Union
Adherents
In the operation of its business , the Respondent
generally has available for its employees a considerable
amount of overtime work. Prior to the events charged
herein as unfair labor practices, it was the Respondent's
policy to give its employees overtime work "if they wanted
it," but it "would not insist on their working." It also was
the Respondent's practice to allow its employees to
complete jobs they were working on at the end of the day.
Generally, overtime work required one employee to
operate one of the Respondent's machines, and another to
assist him and package the material.12
When Kenneth Ruhl was hired by Vice President
Harmon in May 1971, he specifically inquired whether
overtime work would be available, and he was told that he
could have all the overtime work he wanted. Thereafter,
until union organization was initiated by Ruhl, he and
some of the Respondent's other employees worked a
substantial number of overtime hours each week. The
Respondent's timecards and other records in evidence thus
disclose that in 1972, in the period preceding March 17
(when Ruhl and four other employees signed union
authorization cards), Ruhl and the other union card signers
worked the following average number of overtime hours
per week: Ruhl's average was over 27 hours per week,
Terrell worked an average of 10 hours of overtime per
week, Downey's weekly overtime average was about 13
hours, Ellis' was 8 hours, and Borden's overtime average
(excluding weeks when she worked less than a full week)
was about 3-1/2 hours.13 During the same period, some of
the Respondent's employees who did not sign union
authorization cards also worked a substantial number of
overtime hours per week, and some did not: Ballew, about
22 hours per week; Leslie, about 15 hours per week; Dodig,
2-1/2 hours; and Rodriguez, less than 2 hours.
On March 29, Respondent's president, Yovetich, execut-
ed a Stipulation for Certification Upon Consent Election.
On the same day, just before quitting time at 4 p.m., he
fired Connie Sue Ellis under circumstances which will be
described and considered infra. Five minutes later, Vice
President Harmon, without stating any reason therefor,
demanded that union card signers Ruhl and Terrell return
the keys to the plant which had been entrusted to them for
the "sole purpose" of facilitating ingress to and egress from
the plant while working overtime.14 They promptly
complied. No like request was made of noncard signers
[Board] election went I would still be boss ." Harmon denied saying, "I was
closing the plant," but he admitted saying , " if the pressure gets too great for
me I would have to sell out and retire ." I regard Ruhl's version of Harmon's
statement regarding closing the plant as the more reliable one.
12 The foregoing is based on the testimony of Respondent 's president,
Nick Yovetich, which is credited to this extent.
13 See G.C. Exhs. 9-a through 9-x and Joint Exh. 1.
i4 The quotes are from Ruhl's uncontroverted and credited testimony I
therefore regard as irrelevant, the testimony adduced by the Respondent
that egress from the plant through the rear door could be affected without
keys.
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ballew and Dodig, who also had keys to the plant, and
they continued to retain theirs. Thereafter, there was an
immediate and continuing reduction in overtime work by
union card signers , notwithstanding that such work
admittedly was available.15 There was no like diminution
of overtime work by the employees who had not signed
union cards. Thus, in respect to the overtime work
performed by the employees who signed union cards, the
Respondent's records disclose that during the period
following March 17 and ending on June 16,16 Ruhl's
average overtime hours per week decreased from over 27 to
less than 2, Downey's average overtime dropped from
about 13 to about I hour per week, Borden averaged I
hour of overtime per week, and Ellis, in the 2 weeks
preceding her discharge on March 29, had no overtime
work at all.17 However, during this same period, the
overtime work by the noncard signers remained virtually
unchanged. Thus, Ballew continued to work about 21
overtime hours each week, Dodig's overtime work re-
mained constant at about 2-1/2 hours per week, Rodri-
guez' hours of overtime increased from less than 2 to over 5
per week, and that of Leslie dropped from about 15 to 10-
1/2 hours per week.18
On May 20, the Respondent received a copy of the
amended charge filed by the Union which alleged that the
Company had discriminatonly reduced the amount of
overtime work of Ruhl, Terrell, Downey, and Ellis because
of their activities on behalf of the Union. About May 24,19
Yovetich separately called Ruhl, Terrell, and Downey to
his office, and he in turn told each of them that he had
been charged with unfair labor practices for "cutting their
overtime out," and denied doing so. Yovetich asked each
of them whether they wanted overtime work. Ruhl
answered that his "position hadn't changed," and that he
"wanted the same amount as I did before," "between 15
and 25 hours , sometimes more , sometimes less." Yovetich
responded that overtime would be allotted on the basis of
seniority, and that since Terrell had more seniority, he
would have "first choice" at available overtime. When
is President Yovetich so testified , and I credit his testimony to this extent
as an admission against interest Contrary to that admission , Yovetich
sought to convey the implication that overtime work was not available after
the Respondent took back Ruhl's and Terrell 's keys to the plant . In this
regard , Yovetich testified that there is a seasonal decline in the Respon-
dent's business from April to August , and that in March and April 1972 the
Respondent experienced more machine breakdowns than in any other
period of its history ( see Resp Exhs I through 6 ) 1 am not persuaded by
this testimony that substantial overtime work was not available for Ruh[
and the other prounion employees after March 29. 1 note first that during
the Respondent 's slack season in 1971, substantial quantities of overtime
work was performed by the Respondent 's employees, and that Ruhl. then a
new employee , averaged 21 hours of overtime work per week in May, June.
and July. Moreover, to the extent that Yovetich could remember, the
machine breakdowns were of short duration and thus patently could not
have been responsible for the continuing reduction of overtime work
performed by the union adherents after March 29 Indeed , to the contrary.
one would assume that upon the completion of repairs , more overtime work
would be needed to fill and ship orders that had accumulated in the interim
I therefore reject the implication sought to be created by Yovetich that
overtime work was not available for the union adherents after March 29
ie June 16 was the last day of the final workweek preceding the hearing
in this case
it In computing these averages , weeks in which employees worked less
than a full week by reason of absence were excluded from consideration.
Similarly, the week in which Terrell was on vacation was excluded from the
computation of Ruhl 's average overtime as nonrepresentative
Terrell was asked , he replied that he did not want overtime
"at that precise time because I had other commitments." 20
Downey answered Yovetich that she was available for
overtime work.
Later that same day , just before quitting time ,21 in the
presence of Terrell and Downey, Ruhl asked Harmon
whether he wanted them to stay overtime and finish
packing a batch of tablets , whether he desired that they
turn the machine off, or whether he preferred that they
leave the machine running for Harmon to complete the
packing . Harmon replied that he would have to consult
with Yovetich . Harmon came back a few minutes later and
told the three employees that only one of them could stay,
that they "were going to go by seniority," and that Terrell
had "first choice ." Prior to these conversations with
Yovetich and Harmon , neither Downey, Terrell , nor Ruhl
had ever been told that overtime work would be allotted on
the basis of seniority. Moreover, prior to the union activity,
overtime work had not previously been limited to "only
one person." 22
E. Conclusions in Respect to the Reduction of
Overtime Work
Except in respect to Charlotte Borden, the facts as found
above present a very persuasive and convincing prima facie
case that the Respondent violated Section 8(a)(3) and (1)
of the Act by reducing overtime work of employees
because of union membership.23 As found above, prior to
the attempt at union organization, the Respondent general-
ly had a considerable amount of overtime work available
for its employees, it permitted its employees to work as
much overtime as they desired, employees were not
required to work overtime if they preferred not to, and
usually overtime was worked in teams of two, a machine
operator and a helper who also packaged. Many of the
Respondent's employees worked a lot of overtime,24 and
since overtime work was not compulsory, it is obvious that
these employees wanted the extra work and earnings. Four
18 Leslie, a witness for the Respondent , nevertheless conceded that "after
March 22 ," she continued to work overtime whenever she wanted to
19 The date of these conversations is based on the credited testimony of
Ruhl and Terrell Downey testified that the date of her conversation with
Yovetich was March 24 but she obviously was in error in this respect
20 1 base this latter finding on Terrell 's credited testimony Yovetich
testified that Terrell said that he did not want overtime I regard Terrell's
version of this conversation as more reliable than that of Yovetich, and I do
not credit the latter I note that Terrell 's timecards disclose that after this
conversation , he went on vacation , and that he subsequently was given and
performed overtime work
21 According to Ruhl , this conversation occurred early in May Terrell,
whom I credit, testified that it occurred on May 24, after his above-
described interview with Yovetich Downey. who admittedly was confused
about dates, testified that it took place on or about March 24
22 The findings above are based on the credited testimony of Terrell,
Downey, and Ruhl , and I do not credit Yovetich's contrary testimony that
departmental seniority had always controlled the assignment of overtime.
23 Borden testified that because of babysitting problems, she had never
worked much overtime before she signed a union card , and she admitted
that "after the union activity ," her overtime assignments were about the
same . The Respondent 's timecards in evidence corroborate Borden's
testimony , and I therefore will recommend dismissal of the complaint
insofar as it is based on the alleged reduction of her overtime work because
of membership in the Union.
24 Ruhl , Terrell, Downey, Ellis, Ballew , and Leslie
CHEMVET LABORATORIES, INC. 739
employees were entrusted with keys to the plant to
facilitate their ingress and egress for overtime work.25 The
rest of the employees worked comparatively little over-
time.26 This situation changed drastically after the Respon-
dent acquired knowledge that at least some of its
employees desired representation by the Union. Thus, on
March 29, the same day that Yovetich signed a Stipulation
for Certification Upon Consent Election, he fired Connie
Sue Ellis, one of the union card signers , Harmon took away
the plant keys from Ruhl and Terrell, two other union card
signers, and thereafter, the overtime work of all union card
signers was reduced to practically zero. On the other hand,
the nonsigners of union authorization cards were permitted
to retain their keys to the plant, and they suffered no
diminution of overtime work and pay.
Viewed in the light of the Respondent's quite apparent
opposition to the representation of its employees by the
Union, the foregoing presents a convincing prima facie case
that the removal of the plant keys and the sudden
reduction in overtime work by union adherents were
motivated by antiunion considerations.
The Respondent offered a number of explanations for its
retrieval of the plant keys from Ruhl and Terrell, and for
the reduction of overtime work performed by the union
adherents after the Union's demand for recognition. Its
basic explanation for both of these phenomena is that,
coincident with their union organizational activities, Ruhl,
Terrell, and the other union card signers ceased overtime
work on their own volition, and thereafter refused to work
overtime. As hereinafter noted, I regard the Respondent's
explanations as both inconsistent and implausible, and the
testimony in support thereof as unworthy of credence.
Vice President Harmon gave an affidavit to an agent of
the Board which stated that the reason for taking the plant
keys away from Ruhl and Terrell was that they were no
longer working overtime, and since he would be in the
plant while they were, there no longer was a reason for
them to have the keys. At the hearing in this case, Harmon
testified that the keys were taken back not only for the
reason stated in his affidavit, but also because of several
additional incidents which he assertedly deliberately
withheld from the Board agent because it might "hurt [the]
family relations" of an employee. There was no like
reticence or indicia of reluctance on the part of Harmon at
the instant hearing. To the contrary, Harmon's initial
testimony regarding these additional incidents for which he
assertedly took back the keys from Ruhl and Terrell was
volunteered in an unresponsive answer to a question.
Without belaboring the issue, I regard these additional
incidents asserted by Harmon as his reasons for taking
away Ruhl's and Terrell's plant keys as pure afterthoughts
25 Ruhl and Terrell, who later signed union cards, and Dodig and Ballew
who did not
26 Rodriguez, Borden , and Dodig Dodig, a noncard signer , had keys to
the plant , apparently because she regularly started to work at 7 a .m., a half-
hour before the rest of the plant
27 1 note in this regard that all of these incidents occurred and were
known by Harmon from I to 4 weeks before he asked for the return of the
keys. I further note that in respect to the most recent incident (lights being
left on in the plant), Harmon added this one for the first time during cross-
examination by his own counsel after he had been called to the stand by the
General Counsel for the second time as an adverse witness . Finally, I note
that Harmon admitted that he never questioned Ruhl or Terrell as to
dredged up by him to bolster the one which he stated in his
affidavit . I therefore place no credence whatsoever in
Harmon's testimony that his withdrawal of the keys from
Ruhl and Terrell was in part motivated thereby.27
This leaves for consideration Harmon 's asserted reason
that he took the plant keys away from Ruhl and Terrell
because "they hadn't been working overtime and since
they left work before me there was no reason for them to
have keys to the building." 28 I place no credence in
Harmon's testimony to this effect. According to testimony
adduced by the Respondent , keys to the plant are
convenient , but not necessary for leaving the plant at the
conclusion of overtime work . Since no employee needed
keys to the plant to stay on for overtime work, there thus
was no reason for Ballew and Dodig , who did not sign
union cards , to keep theirs , but the Respondent neverthe-
less permitted them to retain their keys . Contrary to
Harmon's testimony that Ruhl and Terrell were not
working overtime, the Respondent's records in evidence
disclose that during the 2 weeks preceding March 29 when
Harmon took the keys away from them, both did work
overtime , and that of Terrell was not materially less than
his former weekly overtime average.29 Moreover, in 1971,
before union organization was attempted , there were weeks
in which Ruhl and Terrell worked little or no overtime, but
no request was then made for the return of their plant keys.
For all the foregoing reasons, as well as my lack of
regard in the credibility of his testimony , I regard
Harmon's asserted reasons for taking away the plant keys
from union adherents Ruhl and Terrell , but not from
Ballew and Dodig, as a pretext to conceal the real reason
therefor . In view of the foregoing , in the light of Harmon's
failure at any time to tell Ruhl and Terrell why he was
taking the keys back, and in view of the timing of his
action, 5 minutes after his brother fired Ellis (as hereinafter
found) to defeat the Union at the forthcoming Board
election, I conclude that Harmon's action was motivated
by like antiunion considerations . Since this disparate
conduct tended to restrain and coerce employees in the
exercise of their rights under the Act , I find that the
Respondent thereby engaged in unfair labor practices
within the meaning of Section 8 (a)(1) of the Act.
As noted above, the Respondent principally contends
that the sudden drastic reduction in the overtime work
performed by union adherents Ruhl, Terrell, Downey, and
Ellis after they signed union cards on March 17 resulted
not from any action by it, but from the refusal of these
employees to work overtime .30 I reject this contention as
unsupported by credible probative testimony and, to the
contrary, I find that at all material times Ruhl, Terrell, and
whether they were responsible for the condition of the lights. In view of the
foregoing, and based on both his testimony and demeanor, I regard
Harmon as a generally unreliable witness whose testimony is worthy of
little , if any, credence
28 The quotes are from Harmon 's affidavit given to a Board agent on
April 25, a month after he took the keys back (G.C. Exh. 8)
29 Ruhl worked 7-3/4 and 8-1/4 hours overtime in these 2 weeks, and
that of Terrell was 6-1/2 and 5 hours , respectively.
30 As found above, the Respondent also sought to imply that there was a
lack of available overtime work , but the implication of Yovetich's testimony
to this effect was rejected as inconsistent with his admission that overtime
work was available . See In . 15, supra.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Downey asked for but were denied overtime work. The
record in this regard discloses as follows:
According to Ruhl's credited testimony, on Wednesday,
March 29, after Harmon took away the plant keys from
Ruhl and Terrell, and on several occasions thereafter, Ruhl
asked Harmon whether he wanted him to stay overtime to
finish up products on which he had been working, but
received negative replies. Prior to the withdrawal of Ruhl's
plant keys, no such inquiries would have been made since
permission to stay on and finish a job undisputedly was not
required. Ruhl made the inquiries because, as he credibly
testified, "I was trying to decide whether taking the key
away meant I didn't get anymore overtime or not." Ruhl
denied that he ever specifically refused to work overtime
without explaining why he could not do so31 JoAnn
Downey also credibly testified without contradiction that
on several occasions after the Union filed its petition for
certification , she requested "some overtime ," and on each
occasion she was told "there wasn't anything to do." In
addition and as found above, after the Respondent was
apprised that it had been charged by the Union with unfair
labor practices for reducing the overtime work of Ruhl,
Terrell, Downey, and Ellis, it changed its prior practice of
freely allowing employees to work as much overtime as
they desired, to one of allotting overtime on the basis of
departmental seniority, and in respect to the prounion
employees , it also changed its prior practice of allowing its
employees to work overtime in pairs, and refused to allow
more than one of them to work overtime at the same time.
In contrast with the foregoing credited testimony , that of
the Respondent regarding alleged refusals by Ruhl, Terrell,
Downey, and Ellis to work overtime consisted principally
of generalities and/or hearsay testimony. Thus, Yovetich
testified, "they did not want to work," and that "they
walked off and left the machines running." However, it
was a practice to leave the machines running when
Harmon or someone else was going to continue and
complete a job, and thus this establishes only that Ruhl,
Terrell, Downey, and/or Ellis did not work overtime on
those occasions, but not that they did not want any
overtime work. Indeed, the only specific testimony by
Yovetich of any refusal by these employees to work
overtime was that they told him "on various [unspecified]
occasions that they had meetings to attend ," and, on one
occasion, that "they had to come to the National Labor
Relations Board." Even assuming the veracity of Yove-
31 Harmon admitted that after March 29 Ruhl asked to work overtime
on at least one occasion , and that it was denied . According to Hannon, he
told Ruhl on that occasion that he required advance notice of a desire for
overtime work so that it could be properly scheduled It is undisputed that
before union organization began , no such notice was required to finish up
jobs that were in progress It is thus quite apparent that the Respondent thus
changed its overtime practices after Harmon took the plant keys back from
Ruh]
32 Rodriguez , Dodig, and Leslie so testified without specifying to whom
they referred by "them" or "they " I will assume that they were referring to
Ruhl, Terrell , Downey , and Ellis.
33 Rodriguez testified that "even before the Union ," Downey and Ellis
refused to work overtime with Ballew However, contrary to Rodriguez,
Ballew whom I credit in this regard testified that Downey did work overtime
with him
Leslie testified that from May 1971 until February 1972 , at meetings with
Ruhl at a neighborhood bar, he repeatedly told her "that he was sick and
tired of all this overtime , that hejust needed a rest from it, he had too much
tich 's testimony in this regard , it hardly serves to explain
the almost complete elimination of all overtime work by
Ellis in the 2 weeks preceding her discharge , and of the
remaining three prounion employees from the time that
Harmon took the plant keys away from Ruhl and Terrell
until May 24, when the Respondent was apprised of the
Union 's charge that he was denying overtime work
assignments to them . Vice President Harmon also gave no
specific testimony of any refusal by Ruhl, Terrell, Downey,
or Ellis to work overtime . Three of the employees who did
not sign union cards testified for the Respondent that
"some of them," or "they" refused to stay over and work
overtime 32 However , all three disclosed on cross-examina-
tion that their testimony in this regard was based not on
personal knowledge , but on what they were told by others.
I therefore accord no probative weight to this hearsay
evidence . Contrary to this hearsay, Ballew , the fourth
employee witness for the Respondent, and from whom
some of the above hearsay reports allegedly originated,
testified that Ruhl and Downey seemed to be "very much
interested in working overtime."33
In the light of the foregoing record , I reject as
unsupported by any probative credible testimony the
contention of the Respondent that Ruhl, Terrell , Downey,
and Ellis who quite obviously wanted overtime work
before they signed union cards , thereafter suddenly lost
their desire for such work and the extra pay which it
produced . I find, to the contrary , that overtime work was
denied to them by the Respondent when it acquired
knowledge of their interest in the Union.34
I conclude from all the above , including the Respon-
dent's opposition to the representation of its employees by
the Union , the coincidence in the timing of the sudden
reduction of overtime work for union adherents with the
Respondent's acquisition of knowledge of its employees
interest in the Union, the absence of any like diminution in
the overtime work of its employees who had not signed
union cards, and the withdrawal of the plant keys from
union card signers Ruhl and Terrell but not from noncard
signers Ballew and Dodig , that the Respondent 's reduction
of the overtime work it gave to its union adherents was
motivated by antiunion considerations to discourage
adherence to the Union , and that the Respondent thereby
engaged in unfair labor practices within the meaning of
Section 8(aX3) and ( 1) of the Act . I further find that the
Respondent's changes in its overtime assignment practices
of it " The Respondent apparently relies on this testimony to explain the
failure of Ruhl to work overtime after March 29. However , Ruhl credibly
denied ever making any such statement , and I regard Leslie 's testimony as
pure fabrication for the following reasons: The Respondent concededly
never required any employee to work overtime if he or she preferred not to.
Leslie knew this to be the Respondent 's rule , for in respect to her own
overtime , she testified. "If I want to work I work . If I don't want to work I
do not have to work." Ruhl thus was known by Leslie to be under no
compulsion to work overtime , and he thus obviously would not have
repeatedly told her how sick he was of working overtime while continuing to
do so, as he uncontrovertibly did throughout the period about which Leslie
testified.
34 I note in this regard that after May 24 when the Respondent was
apposed of the Union 's unfair labor practice charge against it for the failure
to give its union adherents overtime work , Ruhl, Terrell and Downey again
were given such work albeit at a greatly reduced scale and under different
rules from that which existed before union organization
CHEMVET LABORATORIES, INC. 741
on or about May 24, pursuant to which overtime was
allotted on the basis of departmental seniority, and limited
to a single employee instead of in pairs , was likewise so
motivated, and that the Respondent thereby violated
Section 8(a)(1) of the Act.
F. The Discharge of Connie Sue Ellis
Connie Sue Ellis was hired by the Respondent in
December 1969. She was then 17 years old. She and
Charline Rodriguez worked together in the main work area
on the "downstairs" floor of the Respondent 's plant
labeling and packaging. As previously noted, Ellis was one
of the five "downstairs" employees who signed cards for
the Union on March 17, and Rodriguez, the only other
downstairs employee, although asked to join by both Ruhl
and Ellis, refused to do so. On March 21, the Respondent
received the Union's letter claiming majority status and
requesting recognition , and the Board's notice that the
Union had filed a petition for representation. One week
later, on March 29, President Yovetich executed a
Stipulation for Certification Upon Consent Election. That
same day, just before quitting time from work, he
peremptorily fired Ellis as hereinafter described.35
The regular workday of the Respondent's employees
ends at 4 p.m., and, if they are not working overtime, they
wash up at 5 minutes to 4 without objection by the
Respondent. The labeling machine on which Ellis and
Rodriguez worked together, has to be cleaned, a process
which variously was estimated to take from 10 to 15
minutes .36 The cleaning of the labeling machine is done in
the same washbasin in the downstairs washroom which the
employees use to wash up at the end of the day.
Accordingly, Ellis and Rodriguez usually started to clean
the labeling machine about 3:40 p.m., and on occasion as
early as 3:30 p.m. When there was time left after that chore
was completed, they would clean up the area where they
worked, and/or make boxes in preparation for the next
day's production. Although this procedure was followed by
Ellis and Rodriguez regularly and openly in the presence of
Harmon and/or Yovetich, they were never criticized, at
least not until the Respondent acquired knowledge that its
employees were engaged in an effort to be represented by
the Union.37
That condition changed on March 29, the day following
Harmon's loud proclamation to the "downstairs" employ-
ees who sought union representation that he was the boss,
that he would still be the boss "after everything [the Board
election] was over," and that if he had to he would close
the plant down. Thus, on March 29, at 20 minutes to 4
p.m., Ellis and Rodriguez, in accordance with their usual
35 Ellis is the only employee ever fired by the Respondent in its 6 years
of operation
36 According to Charline Rodriguez . who quite evidently was predis-
posed to the Respondent and testified for it, it takes about IS minutes "to
clean it good [sic ] but you can do it in 12 "
37 The findings above are based on the uncontroverted and credited
testimony of Ruhl, Terrell, Borden , Ellis, and Rodriguez.
38 The testimony as to when these two employees started to dismantle
the labeling machine is not in substantial dispute. Rodriguez (see In 36,
supra) testified that "it was 23 till 4 and we were getting ready to clean the
machines [sic]." Ellis credibly testified "it was 20 minutes to 4, the same
time we clean the machine every day" Yovetich testified that he observed
that Ellis and Rodriguez were " tearing it [the machine ] down " at "21 or 22
practice, started to dismantle the labeling machine prepar-
atory to cleaning it 38 Harmon was present and said
nothing to indicate any objection to their conduct.
According to Rodriguez whom I credit to this extent,
Yovetich then came by and said to Harmon , "Mike, these
people are cleaning up awfully early, if they don't want to
work we will get someone that will ." Yovetich then walked
back through the door into the bolus room and Ellis said to
Rodriguez , "All right, we'll work till 4 [4 pm ] but the s.o.b.
can clean it [the labeling machine] himself." Rodriguez
accordingly put the glue back into the machine, and Ellis
called over to Harmon , "Mike , did you hear what I said?"
Harmon answered , "Yes, I heard you." Yovetich then
came out of the bolus room and "headed toward the
office," but Ellis called him over to the labeling table.
According to her credited testimony , she complained to
Yovetich that the "upstairs" employees always cleaned up
early, that she and Rodriguez always cleaned up at 20 to 4
p.m., and, "how come it's changing now." Thereupon,
Yovetich said , "I don't have to stand here and argue with
you, get your timecard ," and he left39
G. Concluding Findings in Respect to Ellis'
Discharge
The complaint in this case alleges, inter alia, that Ellis'
termination was motivated by her union membership and
activities , and that the Respondent thereby violated
Section 8(a)(1) and (3) of the Act. According to Yovetich
who alone made the decision to fire Ellis , he fired her
because "she refused to work and she swore at me." In
addition , the Respondent contends that Ellis' organization-
al activities were "minimal ," and that there is no evidence
that the Respondent had any knowledge of her union
sympathies prior to her discharge . For reasons set forth
hereinafter , I conclude, contrary to the Respondent's
contentions : ( 1) that at all material times it knew the
identity of its employees who both favored and- opposed
union representation ; (2) that Ellis was discharged , not for
the pretextual reasons asserted by Yovetich, but to defeat
the Union at the Board election to which he had just
stipulated , and (3) that in any event , Ellis was discharged
for engaging in concerted activities protected by Section 7
of the Act, and that therefore her dismissal violated the
Act.
1. Knowledge
As previously noted, Nick Yovetich and Mike Harmon,
who own all the stock in Respondent, are brothers who
devote their full time and attention to the operation of their
minutes til four ." However , in his affidavit to the Board (G.C. Exh. 7),
Yovetich stated that it was "3:40 p.m."
39 The findings and quotes above regarding what transpired and was said
dust before Ellis was fired are based on Ellis' testimony which I credit in
general , and that of Rodriguez which conformed substantially with Ellis'
testimony , and therefore is credited to that extent . In a number of other
respects . I regard Rodriguez ' testimony as unreliable . However , as Judge
Learned Hand appropriately said in N.LR.B. v. Universal Camera Corp,
179 F 2d 749, 754 (C A . 2), reversed and remanded on other grounds 340
U.S. 474.
It is no reason for refusing to accept everything that a witness says,
because you do not believe all of it , nothing is more common in all
kinds of judicial decisions than to believe some and not all.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant . At the times material herein , the Respondent had
only nine employees . Yovetich and Harmon had a first
name relationship with these employees , and they in turn
called and addressed their bosses as Nick and Mike. The
father of Yovetich and Harmon also worked in the plant
"primarily in the downstairs area ," and he was familiarly
known to the employees as Pop . In addition , the husband
of Anna Dodig , one of the upstairs employees , is a godson
of Pop , and Anna Dodig frequently drove Pop home from
work.
Five of the six "downstairs" employees (where Pop also
works) signed union cards on March 17 , and the sixth
(Charline Rodriguez) was also asked to join but refused to
do so . During the week of March 20 which followed the
card signing (and during which the Respondent was
apprised of the Union 's majority claim and representation
petition), the Union was discussed in the plant everyday by
the downstairs employees .40 The three upstairs employees
who had not been solicited to sign union cards (including
Dodig who drives Pop home ) quickly learned from
Rodriguez that Ruhl and Ellis had asked her to sign for the
Union and that she had refused . The upstairs employees,
including Dodig, thereafter discussed among themselves
the fact that none of them had been solicited to join, and
one of them (Ballew) even called the Board Office and
inquired "why we were not notified ." The record thus
clearly discloses that all the employees knew who had
signed union cards and who had not, and that this was a
subject of discussion among them in the plant . In the light
of that discussion by the employees , and the presence in
the plant of Yovetich , Harmon , Pop, and Dodig, the
inference is quite compelling that Yovetich and Harmon
also quickly acquired knowledge as to who had signed the
union cards which supported the Union's representation
petition, and who had not 41
That inference is further buttressed by the Respondent's
conduct immediately after Ellis ' discharge . Thus , as found
above , 5 minutes after her peremptory dismissal, the
Respondent , motivated by antiunion considerations, de-
manded the return of the keys to the plant from Ruhl and
Terrell, both of whom were union card signers , but made
no like demand of either Ballew or Dodig who had not
signed union cards . Moreover , and also as found above,
the Respondent thereafter systematically denied to the
union card signers overtime work which they desired and
which admittedly was available and, at the same time, it
permitted the noncard signers to continue to work as much
overtime as they desired . As found above that conduct also
was motivated by antiunion considerations to discourage
union adherence and violated Section 8 (a)(3) and (1) of the
Act.
I conclude from all the foregoing not only that the
Respondent knew when it discharged Ellis that she had
signed a union card , but that it then also knew the identity
of all the union card signers and those who had not signed
cards.
40 Terrell credibly so testified without contradiction
41 I note in this regard that the record contains no denial , either by
Yovetich or Harmon , of knowledge that Ellis was a card signer for the
2. The motivation for Ellis' discharge
Yovetich, who alone made the decision to fire Ellis,
testified that he did so because "she refused to work and
she swore at me ." I place no credence in Yovetich's
asserted reasons for Ellis' termination.
There is no evidence that Ellis "refused to work" on
March 29. Before Ellis signed a union card , she and
Rodriguez regularly started to clean up the labeling
machine on which they worked at 3:40 p .m., and on
occasions as early as 3:30 p.m., and they had never been
criticized therefor . Indeed , according to Rodriguez, whose
testimony clearly revealed that she was predisposed to the
Respondent , Anna Dodig, who worked upstairs doing
similar work , also cleaned her machine up early and
usually left the plant at 5 minutes before the employees'
regular quitting time . Since Yovetich had never before
criticized the cleaning up procedure regularly and openly
followed by Ellis and Rodriguez , he had no valid or even
rational basis for his expression of annoyance that they
were "cleaning up awfully early," or for his threat that if
they didn't want to work, he would get others that would.
In any event , regardless of the lack of justification for
Yovetich's statement , Ellis did not thereafter refuse to
comply with Yovetich's instruction , and to the contrary,
she openly stated that she would continue to label until 4
p.m. It is thus obvious that no credence can be placed in
Yovetich's assertion that he fired Ellis because "she refused
to work."
It is also obvious that no credence can be accorded to
Yovetich's further testimony that he fired Ellis because
"she swore at me ." In this regard the record clearly
discloses that when Ellis, in her conversation with
Rodriguez, referred to Yovetich as an "s.o.b.," he was then
in the process of walking through the door into the
adjoining bolus room . Profane and vulgar verbiage was not
unusual in the plant , and it was used by both "men and
women ." Yovetich quite evidently was not shocked by
Ellis' use of the term "s.o.b.," and he clearly had no
intention of firing her therefor , for when he came out of the
bolus room a minute or two later, he was headed "towards
the office" and not to the labeling table where Ellis
worked , and only went there because Ellis called him over.
Even then , Yovetich did not tell Ellis that she was fired
until after she complained to him about the disparate
treatment in respect to the time for cleaning up which he
was according to the downstairs employees but not to the
"upstairs" employees who "always cleaned up early," and
not until after she asked him, "how come it's changing
now!" In view of the foregoing , I place no credence in
Yovetich's testimony that he fired Ellis because "she swore
at me," and, in sum, I conclude that all of the reasons
asserted by Yovetich for Ellis' termination are pretexts to
conceal his true motivation for her dismissal.
In Shattuck Denn Mining Corporation v. N. L. R. B., the
court of appeals aptly stated as follows: 42
Nor is the trier of the fact-here the trial examiner-re-
quired to be more naif than is a judge . If he finds that
Union.
42 362 F 2d 466, 470 (C.A 9).
CHEMVET LABORATORIES, INC. 743
the stated motive for a discharge is false, he certainly
can infer that there is another motive. More than that,
he can infer that the motive is one that the employer
desires to conceal-an unlawful motive-at least where,
as in this case, the surrounding facts tend to reinforce
that inference . [Emphasis supplied.]
The "surrounding facts" in this case disclose the Respon-
dent's "unlawful motive" for Ellis' discharge. The Respon-
dent had nine employees for whom the Union was seeking
certification as exclusive representative . The Respondent
clearly was opposed to such representation, for, on the day
before Ellis' termination, Harmon had loudly proclaimed
to the "downstairs" employees that he was the boss, that he
would still be the boss when the election was over, and that
if need be he would close the plant down. On the very same
day that Yovetich fired Ellis, he had signed a stipulation
agreeing to the conduct of an election by the Board to
determine whether the Union enjoyed majority status. The
Respondent knew the identity of its employees who both
favored and opposed the Union. It had already embarked
on a program , which it continued thereafter, to discourage
adherence to the Union by reducing and in some cases
eliminating the overtime work opportunities of its employ-
ees who were union adherents , while at the same time
allowing those who did not support the Union to work as
much overtime as they desired. Moreover, a few minutes
after the discharge of Ellis, the Respondent took back the
keys to the plant from the two union adherents who had
them, but allowed all the nonsupporters of the Union to
retain their plant keys.
In this context, the reason for Ellis' discharge is fairly
apparent. Yovetich, rankled over the union activities of the
five employees who signed union cards and thus constitut-
ed a prounion majority, and perhaps because of the
Stipulation for Certification Upon Consent Election which
he had signed that very day, unjustifiably expressed
annoyance that two "downstairs" employees were cleaning
up their machine too early, when in fact they were doing so
at a time which never had been criticized theretofore. Then
when Ellis complained to Yovetich about the disparate
treatment accorded the "downstairs" employees in respect
to cleaning up, as compared with the upstairs employees,
none of whom supported the Union, Yovetich peremptori-
ly fired her. Under all these circumstances, including the
fact that in its 6-year history, the Respondent had never
previously fired any employee, I infer that Yovetich, who
knew that Ellis was a union adherent , seized upon her
complaints of disparate treatment as a grand opportunity
to dissipate the support of the Union at the forthcoming
election , and discharged her therefor. Accordingly, I
conclude that by discharging Ellis because of her support
of the Union, the Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
3. Moreover, the record also discloses that in any event
Ellis was discharged for engaging in a concerted activity
protected by the Act. In this regard the undisputed
evidence discloses that at the time she was fired, Ellis was
engaged in protesting Yovetich's sudden change in the time
before the end of the workday when she and Rodriguez
could clean up the labeling machine , and in his disparate
treatment of the "upstairs" employees in this regard. The
time when Ellis and Rodriguez started to clean the
machine before quitting time clearly was a condition of
their employment and applied equally to both of them.
Thus , by voicing a protest over the sudden change in this
working condition , Ellis was engaged in a protected
concerted activity even though she had not been designat-
ed by Rodriguez as her spokesman therefor .43 I, according-
ly, further find that by discharging Ellis for engaging in a
protected concerted activity , the Respondent further
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
H. Additional Changes by the Respondent in the
Working Conditions of its Employees
Prior to April 17, the day on which the Board election at
the Respondent's plant was conducted , JoAnn Downey
(the sister of discharged employee Connie Sue Ellis) was
allowed to receive personal telephone calls at the Respon-
dent's plant . Downey received such calls "about once every
two weeks, not very often." Prior to that date, the
Respondent also permitted Downey to use the Company's
telephone to order lunch for herself and the other
downstairs employees. On the morning of April 17, before
the Board election , Vice President Harmon accosted
Downey at her work station and told her that she "couldn't
have any more phone calls or receive any more calls or call
in the lunch order for lunch." Harmon further said that
"after today he would run this plant his way."44
The complaint in this case admittedly contains no
allegation that the Act was violated by this conduct. The
General Counsel nevertheless contends that this matter
was fully litigated, and that a finding of violation of
Section 8(a)(1) should be based on the Respondent's
withdrawal of this employee benefit . I do not regard this
issue as having been "fully litigated," for as noted above,
Downey's testimony in this regard was not controverted by
the Respondent . Moreover , the Respondent's brief con-
tains no reference to this subject . I therefore decline to
make the finding in respect to this matter which the
General Counsel urges.
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 of the
Respondent described in section I, above , have a close,
intimate , and substantial relation to trade , traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
43 Hugh H. Wilson Corporation, 171 NLRB 1040. 1046, enfd . 414 F.2d
1345 (C.A. 3); Guernsey-Muskingum Electric Cooperative, Inc., 124 NLRB
618, enfd 285 F.2d 8 (C.A 6); The Barnsider, Inc., 195 NLRB No. 140
(TXD.); Carbet Corporation, 191 NLRB No. 145.
44 The findings above are based on Downey's uncontroverted and
credited testimony
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that the Respondent terminated the
employment of Connie Sue Ellis, and thereafter failed and
refused to reinstate her because she engaged in union and
concerted activities guaranteed by the Act, I will recom-
mend that the Respondent be ordered to offer her
immediate reinstatement to her former position or, if it no
longer exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges, and
make her whole for any loss of earnings she may have
suffered by reason of the discrimination against her by the
payment to her of a sum of money equal to the amount she
normally would have earned from the date of her
termination to the date of reinstatement, less her net
earnings during said period, with backpay computed on a
quarterly basis in the manner established by the Board as
Having also found that the Respondent withdrew and/or
reduced overtime assignments to Kenneth Ruhl, Polmur
Terrell, JoAnn Downey, and Connie Sue Ellis, to discour-
age their support of and adherence to the above-named
Union, I will recommend that the Respondent be ordered
to make the said employees whole for any loss of earnings
they may have suffered by reason of the said discrimina-
tion in respect to their overtime work assignments.
I will also recommend 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 and
determine the amounts of backpay and other reimburse-
ment due under the terms of this recommended remedy.
In accordance with the order directing hearing on
challenged ballot and consolidating cases, I recommend
that the challenge to the ballot of Connie Sue Ellis be
overruled, that her ballot be opened and counted, that the
tally of ballots be revised to include her vote as counted,
and that the results of the election be certified.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent, Chemvet Laboratories, Inc., is an
employer engaged in commerce and in operations affecting
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Department Store, Package, Grocery, Paper House,
Liquor, and Meat Drivers, Helpers and Warehousemen,
Local Union 955, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
45 F W Woolworth Company, 90 NLRB 289, backpay shall include the
payment of interest at the rate of 6 percent per annum to be computed in
the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716
46 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board , the findings,
3. By discriminating against Connie Sue Ellis by
terminating her employment and by failing and refusing to
reinstate her to her former position because of her support
of the Union and because she engaged in concerted
activities protected by the Act, and by discriminating in
respect to overtime work assigned to Kenneth Ruhl,
Polmur Terrell, JoAnn Downey, and Connie Sue Ellis, to
discourage their support of the above-named Union, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(aX3) of the Act.
4. By the foregoing conduct, by threatening employees
with plant closure, by taking back the keys to the plant
from union adherents while permitting nonunion adherents
to retain their keys, and by changing its overtime
assignment practices , all to discourage adherence to and
support of the Union , the 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.
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this case,
I hereby issue the following recommended: 46
ORDER
Respondent, Chemvet Laboratories, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in and activities on behalf
of Department Store, Package , Grocery, Paper House,
Liquor, and Meat Drivers, Helpers and Warehousemen,
Local Union 955, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or of any other labor organization, by
discriminating in regard to hire or tenure of employment or
any term or condition of employment.
(b) Threatening employees with plant closure or other
reprisals to discourage support of the Union.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights to self-
organization , to form labor organizations, to loin or assist
Department Store, Package, Grocery, Paper House, Liq-
uor, and Meat Drivers, Helpers and Warehousemen, Local
Union 955, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, 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 engaging in such activities, except to the
extent that such rights may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized by Section 8(aX3)
of the Act.
conclusions , and recommended Order herein shall, as provided in Sec.
10248 of the Rules and Regulations , automatically become the findings,
conclusions , and Order of the Board , and all objections thereto shall be
deemed waived for all purposes.
CHEMVET LABORATORIES, INC.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Offer Connie Sue Ellis immediate and full reinstate-
ment to her former job or, if it no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges, previously enjoyed,
and make her whole for any loss of pay she may have
suffered as a result of the discrimination against her in the
manner provided in the section of this Decision entitled
"The Remedy."
(b) Notify immediately the above-named individual, if
presently serving in the Armed Forces of the United States,
of her 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.
(c) Make whole Kenneth Ruhl, Polmur Terrell, JoAnn
Downey, and Connie Sue Ellis for any loss of pay they may
have suffered by reason of the discrimination against them
in the assignment of overtime work.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
47 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 read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
745
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary to analyze and determine the amounts of
backpay and other reimbursement due under the terms of
this recommended Order.
(e) Post at its plant in Kansas City, Missouri, copies of
the attached notice marked "Appendix."47 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by Respondent, shall be
posted by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of the receipt of this
Decision, what steps have been taken to comply here-
with.48
I FURTHER ORDER that the complaint herein be dismissed
insofar as it alleges violations of the Act other than those
found above.
48 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify said Regional Director for Region 17, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith."