ComGeneral Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 653 (N.L.R.B. 1980)

COMGNFERAL CORPORATION 653
ComGeneral Corporation and International Union of
Electrical, Radio and Machine Workers, Local
804, AFL-CIO-CLC. Case 9-CA-13847
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS ANt) TRUE.SDAI.E
On April 22, 1980, Administrative Law Judge
Walter H. Maloney issued the attached Decision in
this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed limited cross-exceptions and a sup-
porting brief to which Respondent filed a response.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, ComGeneral
Corporation, Dayton, Ohio, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the said recommended Order.
DECISION
FINDINGS OF FACT
I. STA IEr1PENT OF THE CASE
WAITER H. MAIONEY, Administrative Law Judge:
This case came on for hearing before me at Dayton.
Ohio, upon an unfair labor practice complaint' issued by
the Regional Director for Region 9 of the National
Labor Relations Board, which alleges that Respondent
ComGeneral Corporation 2 violated Section 8(a)(1) and
The principal docket entries in this case are as follows Charge filed
against the Respondent by International Union of Electrical, Radio and
Machine Workers, Local 804. AFL-CIO (herein called Union or IUE).
on May II, 1979 complaint issued against Rspondent by the Regional
Director for Region 9 on June 20, 1979; Respondent's ans¥ser filed on
June 27, 1979: hearing held in Dayton Ohio. on October 22 and 23. 1979:
briefs filed with me by the Girneral Counsel arid Respondent on or before
December 17. 1979
2 Respondent admits. ad I find. that it is an Ohio corporation which
maintains places of business n Dayton, Ohio. here it nianufalclures elec-
Ironic radar detectors In the past 12 months, Respondelit has sold and
shipped from its Dayton, Ohio, places of business directly to points and
places outside the State of Ohio goods and merchandise valued in excess
of S500.() Accordingl) Respondent is an employer engaged in corm-
251 NLRB No. 69
(3) of the National Labor Relations Act, as amended.
More particularly, the complaint alleges that Respondent
threatened employees with discharge if they joined the
Union, informed employees that other employees had
been discharged for union activities, and threatened to
close the plant if the Union were successful. The com-
plaint also alleges that on May 2 and 3, 1979, the Re-
spondent actually discharged or laid off 10 employees for
union activities and constructively discharged 2 other
employees for the same reason. Respondent denies the al-
legations of independent violations of Section 8(a)(1) of
the Act, claims that the 10 employees in question were
laid off or discharged for economic reasons and were se-
lected for termination during an economic retrenchment
on the basis of their attendance records, and asserts that
2 other employees, Mary Reuber and Darrell Salyer,
voluntarily quit. Upon these contentions, the issues
herein were joined.:'
It. THE UNFAIR I ABOR PRACTICES AI.I EFI)
Respondent operates two small plants in Dayton.
Ohio, known as the Taylorsville Road plant and the
Webster Street plant, where it manufactures electronic
radar warning devices. These devices are slightly larger
than a package of cigarettes and are designed to be
plugged into the cigarette lighters of trucks and cars.
When in operation they emit a sound or light whenever
police radar signals are directed at the vehicle.
The owner and operating head of ComGeneral is
Donald Roettele. The Respondent corporation was origi-
nally an Air Force contractor, receiving most of its
orders from nearby Wright-Patterson Air Force Base
and from the U.S. Air Force in Omaha, Nebraska. When
these orders declined in number and in regularity, Roet-
tele decided to switch entirely to commercial production
and developed the radar detector which is now its sole
product. Production of the detector, which bears the
trade name of "The Fox," began at the Taylorsville
Road plant in June 1977, which, at that time, was Re-
spondent's only production facility. When production
began, all of the components of The Fox were both pro-
duced and assembled at Taylorsville Road. As sales and
production increased, Respondent acquired a second
plant on Webster Street and concentrated the electronic
assembly and testing phase of manufacturing at that loca-
tion. The Taylorsville Road plant was then limited to
mechanical production and assembly, repairs, packing
and shipping, and a machine shop. The increase in Re-
spondent's business soon caused it to outgrow the capaci-
ties of two plants, so, for both space and economy rea-
sons, Respondent progressively contracted out portions
of its manufacturing operation. Between March 1977 and
March 1979, it contracted out, in 11 different stages, the
manufacturing of different component parts of the final
product, all of which had originally been produced on an
in-house basis.
Inerce xsithin the meaning of Sec 2(2). (h). aind (7) of the Act The Union
is a labor organizaltin within the mealling of Sec 2t5) of the Act
:' I hereby grant the motlion of the General Counsel. dated December
14. 1979, to crrect the transcript imI firur particulars
COMUENRAL CORPORATION bS3
h54 I)E(.ISI()NS )F1: NAlIO()NAIL LABOR RLAI()IONS l)ARI)
On October 17. 1978, the International Association of
Machinists and Aerospace Workers (IAM) wrote a letter
to Roettele, informing him that the IAM was in the
process of organizing Respondent's employees. In its ini-
tial letter, the IAM did not differentiate between the
Taylorsville Road and the Webster Street plants. On Oc-
tober 27, the IAM followed up this letter with a written
demand for recognition as the bargaining agent of all
production and maintenance employees at both locations.
The letter stated, among other things, that a majority of
the employees in both facilities had signed IAM cards.
Roettele immediately swung into action. He held a
meeting of all his supervisors on October 18, the day
after the receipt of the first letter, to acquaint them with
the "do's" and "don'ts" of an organizing campaign and
to acquaint them with the fact that he definitely did not
want a union at either location. On October 21, Roettele
delivered a prepared written address to employees at
both locations in which he informed them that he was
going to fight the Union by every legal means and that
unions meant trouble. He also warned them in general of
the shortcomings and pitfalls of unionization.
Later, the IAM restricted its efforts to the organiza-
tion of the Webster Street plant. On November 2, 1978,
it filed a representation petition (Case 9- RC-12689) and,
on December 13, 1978, the Regional Director directed
an election limited to the Webster Street facility. Despite
a heavy-handed, hard-sell antiunion campaign on the part
of Respondent, the IAM prevailed at an election con-
ducted at the Webster Street plant on January 17, 1979.
Bargaining has yet to commence following the certifica-
tion of the IAM at the Webster Street location.
During the course of the campaign at the Webster
Street plant, Roettele addressed massed assemblies of em-
ployees at both plants. I credit corroborated testimony of
the General Counsel's witnesses Jacqueline Mann and
Sandra McCollum that, late in November or early in De-
cember, when Roettele spoke to the Taylorsville Road
employees, he noted the possibility that the Union which
was active at Webster Street might want to come to
Taylorsville Road. He informed them that Taylorsville
Road employees would get any increases and benefits
which were given at Plant 2 (Webster Street) if the Tay-
lorsville Road employees did not go union. He also told
these employees that, if the Union came in, he could
close up the plant, pack up, and go elsewhere, or he
could close the plant and reopen it at a later time.
On Monday, April 30, 1979, a number of Taylorsville
Road employees began to discuss unionization during
their afternoon break. Included in this discussion were
Steve Phillips, Darrell Salyer, Roberta McIver, Linda
Hensley, Ann Barnes, and Teresa Mullins.4 When they
agreed that unionization was desirable, Phillips volun-
teered that his uncle was affiliated with a union and vol-
unteered to contact him about unionizing procedures.
On the same afternoon Mrs. Mclver approached Su-
pervisor Shirley Hicks and asked her if she would set up
a meeting between Roettele and the employees at the
Taylorsville Road plant. Mrs. Hicks inquired as to the
I4 credit Miss Mann's statemenlt that Supervisors Leo trenlan and
Shirley Hicks were there
reason for the meeting and Mrs. Mclvcr replied, "em-
ployer-employee relations." Mis. licks said she would
comply with the request.
On the following day at lunch, several cnmployees, in-
cluding Mary Reuber, Miss Hensley. Miss Mullins, and
Mrs. McCollum, met at Brenda Ledbtter's apartment.
During this meeting, Mrs. McIver called the oard
Office in Cincinnati to get more information about union-
ization. She was told to look for a union in the t)ayton
area, so a call was placed to the IUE office and arrange-
ments were made to pick up some authorization cards
from that office.
During the late afternoon of May 1, Mrs. Mclver went
to the IUE office along with Phillips and Donna Muse.
There she obtained union designation cards which she
then circulated among other employees. First, she visited
Miss Ledbetter and Mrs. McCollum at their respective
residences and obtained their signatures. Then she went
to Miss Mullins' house where she met with several other
employees, all of whom signed cards. She proceeded to a
fourth location to obtain an additional signature. O()n the
following day, May 2, she turned the cards over to Phil-
lips. The General Counsel placed in evidence a total of
eight signed IUE designation cards, all dated May ,
1979.'
Otn Wednesday, May 2, at the 2 p.m. break, certain
enmployees again gathered outside the plant in the park-
ing lot to discuss the union campaign. The employees in-
volved were Ledbetter and others who were interested
in the organizing effort.
On that day Respondent had 23 full-time production
and maintenance employees at its Taylorsville Road
plant and 8 part-time employees. Within the next 2 days,
14 of its full-time employees and 1 part-time employee at
this location were terminated by one means or another.
On May 2, Respondent discharged John Peterman and
aforementioned employees Hensley, Ledbetter, Mann,
Muse, and Mullins. O()n May 3, it laid off Thomas D.
Huffman and employees McIver, Phillips, and Jeannie
Wagers. On this same day, employees Salyer and Reuber
quit under circumstances in litigation in this case. Three
other employees were also terminated. Supervisor Ross
quit, part-time employee Newberry was discharged, and
employee Sharp was terminated under circumstances not
apparent from the record. These three separations are
not at issue in this case.
The terminations at issue came about because, on the
morning of May 2, Roettele spoke with his newly hired
financial analyst and personnel director, Dan Broadstone,
and told Broadstone that there had to be an immediate
and substantial reduction in force at the Taylorsville
Road plant. Specifically, Roettele told Broadstone to
retain 12 full-time employees and let the rest of the full-
time employees go. In selecting employees for discharge,
Broadstone was given no guidelines by Roettele other
than to retain the best employees. He left it to Broad-
stone as to whether employees should be fired or laid
off. Broadstone consulted with Foreman Leo Brennan,
t Ihese cards were signed by Jeanlie w'agers, linda lHensley, Mary
K Ruber. eresa Mullins, Roberta A Mclver, Brenda .edbhcler. Dar-
rell Salyer. anid Jacquelinll Kasy annl
COMGFNERAA I CRP)RAFl() 5 5
who had worked at the plant much longer than Broad-
stone. Brennan supplied Broadstone with certain attend-
ance records which he kept and a list of persons whom
Brennan regarded as the better employees. By late after-
noon of May 2, Broadstone had drawn up a list of those
to be discharged and he gave the list to Brennan. Bren-
nan summoned each of the employees individually to
Broadstone's office where they were told the news. At
her terminal interview, Miss Mann was informed by
Broadstone that she was being discharged for tardiness.
She retorted that she had been involved in a motorcycle
accident and frequently had to leave early to see a spe-
cialist. Her excuse was unavailing.
Broadstone told Mrs. Mclver during her final inter-
view that she was being discharged for excessive ab-
sences. Mrs. Mciver objected that she had not received
any verbal or written warnings for absences pursuant to
Respondent's personnel policies.6 She went on to explain
the reasons for the specific absences which Broadstone
brought to her attention. At the end of the May 2 meet-
ing, Broadstone suggested that he might reconsider his
decision and told Mrs. McIver to come in the following
morning. When she did so, Broadstone then told her that
he was laying her off because of insufficient market
demand for Respondent's product. Mrs. Mclver then
asked him, "Why are you doing this?" Broadstone re-
plied, "For the reason I gave you." Mrs. Mclver reject-
ed his explanation and persisted, "I still don't know why
you are doing this. I'm not a threat to you or the compa-
ny." Broadstone's second reply was, "No, Bobbie, you
alone are not, but in a group you are." Her response to
this remark was, "I don't know what you are talking
about," whereupon Broadstone elaborated, asking her to
think about her actions over the past week and adding
that, when she had done so, she would realize what he
meant. He also said that he could not be more explicit
without incriminating himself.
When Teresa Mullins was called into Broadstone's
office, she was told that she was being fired because of
absences and tardiness. She asked Broadstone why she
was not being fired according to the rules, the reference
being to the warning procedures contained in Respond-
ent's posted policy statement. Broadstone said that he
had a piece of paper in hand by which the rules had
been changed.
e According to Respondents posted policy concerning excessive ab-
sence and tardiness, the following rules were in effect at the plant:
.... No more than two (2) excused "early offs" per month is
acceptable.
2. . Excessive sick leave will result in the employees work
record to come under review to determine the fitness of said em-
ployee's ability and suitability for continued employment.
3 Three unexcused absences and/or tardies in 30 days-Ist warn-
ing Two unexcused absences and/or tardy in the follo ing 30
days-grounds for termination.
4. No call-in' to supervisor and/or no-show* for ork
Ist infraction, one working day suspension
2nd infraction, three working days uspension.
3rd infraction, grounds for termination
'Call-in-a valid call-in is made within a 2-hour period com-
mencing at your scheduled starling time
*No-show--a no-show is more than 2 hours absence ssithou a
valid call-in, or a valid call-in with four or more hours unexcused
absence.
The record is silent as to what, if anything. Miss Hens-
ley and John Peterman were told by Broadstone when
he discharged them on May 2. Miss Ledbetter, who was
discharged on the same day during the same series of in-
lerviews, was informed by Broadstone that she was
being discharged because of excessive absenteeism and
for leaving the plant early to go home. Employee Dar-
rell Salyer, who had signed a card the previous day,
learned that a number of union supporters were being
terminated. He testified that he was afraid that he might
also be fired. In addition, he was quite incensed at the
actions of Broadstone in firing union supporters so he
went into Broadstone's office and told Broadstone that
he was going to quit before Broadstone had a chance to
fire him. Salyer then left the plant.
On Monday, April 30, Thomas D. Huffman, who per-
formed electronic assembly work, was suspended for 3
days because of excessive absenteeism. He was told to
report back to work on Friday. On Wednesday evening,
he received word from employee Sandra McCollum that
Foreman Brennan wanted him to return to work on the
following day, so, on Thursday, May 3, Huffman report-
ed for work at 7 a.m. As he was arriving at the plant.
Broadstone happened to meet him in front of the plant
and thanked him for returning to work. Broadstone said
he had originally planned to fire Huffman because of the
latter's work record but, because Huffman had made the
effort to come to work that morning, he could go ahead
and work.
Before clocking in, Huffman had occasion to get into a
discussion with Mrs. McCollum and Phillips. Brennan
was in the immediate vicinity and I find, despite his
denial, that he overheard Huffman's conversation. Phil-
lips had some union cards he wanted to have signed and
discussion centered on whether to ask employees in the
shipping and receiving section to sign. Huffman told
Phillips that he would be willing to sign.
Huffman had worked for about 45 minutes when he
was called to Broadstone's office. Broadstone told Huff-
man that he had not been aware of the facts at their en-
counter earlier that morning but he now had to lay Huff-
man off because of insufficient market demand for Re-
spondent's product. Later on that day, Huffman met
Philips in the parking lot of a supermarket and signed a
union card.
At the end of the day of May 2, Jeannie Wagers was
called into Roettele's office by Broadstone and told that
she was being fired for excessive absenteeism and for
leaving early. They had a lengthy conversation concern-
ing her work record, during which Wagers insisted that
she had brought in a valid excuse for each absence, in-
sisting that her absences were all due to the fact that she
had contracted bronchial pneumonia the previous winter.
Broadstone told her to come in again the following
morning. When she did so, Broadstone then informed
her that he was discharging her because of low sales
volume.
On the morning of May 3, employee Mary Reuber
told Brennan that she was both mad and upset at the
way Respondent was treating other employees and that
she did not think it was fair. She began to cry, telling
COVtGENERAL CRRAION 65
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brennan that the employees who were fired needed their
jobs to support their children. At that point, she told
Brennan that she was quitting and she left. At the hear-
ing, Mrs. Reuber was asked if she quit in protest. Her
reply was that she did not know. She just did not want
to work for ComGeneral if this was the way they treated
their employees. She added that she did not feel at the
time that her own job was in jeopardy.
Later on that day, employees Barnes and McCollum
had occasion to talk with Brennan about the events of
the previous 2 days. Brennan was asked if the employees
who had been discharged could draw unemployment
compensation. He gave no direct reply but asked Barnes
and McCollum if they knew why the others had been
fired. Barnes said no, whereupon Brennan replied that
she should know because she had gone to lunch with
them. Barnes still insisted that she did not know. Bren-
nan then stated that perhaps he should not say so but the
employees had been fired because of the Union. He told
Barnes that, when he said her job was safe, he meant it
was safe if she had nothing to do with the Union. He
also said that if no one had talked union no one would
have been fired, adding that if anyone was still left in the
shop who had anything to do with a union, they too
would lose their jobs. Brennan denied this version of the
conversation, but I credit the corroborated testimony re-
cited above and discredit Brennan.
Ill. ANAI.YSIS AND CONCLUSIONS
A. Independent 8(a)(1) Violations
I have credited corroborated testimony that Roettele
told employees at the Taylorsville Road plant, at a time
within the 10(b) period, 7 that if the Union came into the
plant he could close up and move away or close up and
not reopen the plant until a later date. This statement is
an invasion of the protected rights of employees and a
flagrant violation of Section 8(a)(1) of the Act.
I also have credited testimony of employee Ann
Barnes that Leo Brennan told her that her continued em-
ployment with Respondent was conditioned upon her re-
fusal to engage in union activities. Such a statement vio-
lates Section 8(a)(l) of the Act. Another of Brennan's
statements made to several employees immediately fol-
lowing the mass discharge and layoffs on May 2 and 3,
that the individuals in question were terminated because
they were union adherents, in and of itself violates Sec-
tion 8(a)(1) of the Act and is strong evidence in support
of the further allegation in the complaint that these indi-
viduals were discriminatorily discharged. Kranco Inc.,
228 NLRB 319 (1977); Wickes Lumber, a Division of The
ickes Corporation, d/b/a House Lumber & Supply Com-
pany, 237 NLRB 322 (1978); Machine Tool and Gear,
Inc., 237 NLRB 1109 (1978).
' The defense of limitations under Sec 10(b) is an affirmative defense
which must be proved by the respondent to a complaint. .L.R.B. v
Mueller Brass Co.. 501 F.2d 680 (5th Cir. 1974). In this case, Respondent
did not establish that the statement in question was made more than 6
months before the charge was filed. Respondent's position is that the
statement in question was not made at all
B. The Discriminatory Discharges and Layoffs
Sections 6(a) and (b) of the complaint contain the
names of 10 employees who the General Counsel con-
tends were discriminatorily discharged or laid off on
May 2 and 3, 1979. s Respondent's defense to these alle-
gations is that the individuals in question were terminat-
ed because of a change in production methods accompa-
nied by a downturn in anticipated business. The selection
for discharge or layoff was made on the basis of work
records and particularly those records relating to punctu-
ality and attendance.
In evidence are monthly figures showing Respondent's
sales during the first three quarters of 1979. They are as
follows:
Month
January
February
March
April
May
June
July
August
September
Number of units sold
3,333
1,765
4,939
4,602
3,336
4,434
3,849
5,758
5,680
These figures show a drop in sales in February, a sharp
increase in March and April preceding the discharges
and layoffs, a drop in May following the layoffs, and ups
and downs in the summer months preceding a marked in-
crease in production in August and September. The 1979
sales, noted above, are higher than Respondent's 1978
sales. While an increase in actual sales just before a
layoff or discharge hardly supports a contention that ter-
minations are economic in character, Respondent would
explain this flaw in its rationale by saying that its actual
sales simply did not match its anticipated sales, so, be-
cause the gap between anticipation and realization was
large, a retrenchment owing to market conditions was in
order. Roettele went so far as to testify that, if Respond-
ent's sales had increased as fast as its market projections,
he would not have ordered the terminations which oc-
curred in early May, despite the fact that manufacturing
procedures had been radically altered through subcon-
tracting out the tube assembly. As he put it, "We would
have found something for them to do."
Respondent just started in the radar warning device
business in June 1977. The only meaningful experience it
could have had in 1979 in respect to seasonal cycles in
its business and upon which it might reasonably have an-
ticipated its future volume was its 1978 experience.
Those monthly figures are not in evidence. What is in
the record is a wholly self-serving chart containing in
pertinent part figures and drawings for which there is no
foundation or substantiation other than a gleam in Roet-
tle's eye. It is this vision which is at the heart of Re-
spondent's defense.
" In view of the fact that none of the laid-off employees were ever
rehired, the distinction betwseen layoffs and discharges is meaningless in
this case
COVIG;ENERA CRPORA-r]ON) (57
Respondent progressively subcontracted most of its
mechanical production work over a period of more than
a year and a half, yet during that period it had not expe-
rienced any layoffs due to subcontracting. However,
after the tube assemblies began to arrive from the sub-
contractor, Respondent terminated more than one-half of
its full-time staff in the course of 2 days. The juxtaposi-
tion of its latest subcontracting effort and the failure of
actual sales to meet sales targets, coming together as
they did at an unfortunate point in time, conspired to
cause an economic layoff of monumental and unprec-
edented proportions at the precise interval when an up-
surge of union activity occurred at Taylorsville Road.
Respondent would have us believe that this third set of
events played no part in the discharges which took place
within hours after they occurred.
Respondent had been planning to use manufactured
tube assemblies as early as January 1979, when it placed
an order for 100,000 such items with the Stanhope Prod-
ucts Company. The first batch of tube assemblies arrived
on April 16, 2 weeks before union activity flared up at
Taylorsville Road. Despite the claim that this innovation
meant a precipitous decrease in work at Taylorsville
Road, not I employee, let alone 15, was laid off at that
time, despite Roettele's many asserted requests to Bren-
nan to trim the size of his staff. All of a sudden it became
imperative on May 2 that more than one-half the produc-
tion crew be eliminated forthwith. During this interim,
jobs could be found for employees whose work had been
eliminated by the purchase of items which they had for-
merly fabricated. Indeed, work was transferred from
Webster Street in order to keep Taylorsville Road em-
ployees busy. However, on May 2, this procedure was
no longer acceptable.
The flimsiness of Respondent's economic defense is
also demonstrated by postdischarge events at Taylors-
ville Road. Overtime of part-time employees was in-
creased, several part-time employees9 became full-time
employees, voluntary overtime by full-time employees
continued, and mandatory Saturday overtime on the part
of full-time employees was imposed on at least two occa-
sions. Moreover, one or two new employees were hired.
All of these factors indicate that the economic nature of
the terminations was at best overstated by Respondent.
Respondent attempts to escape the logical, if not ines-
capable, conclusion dictated by the timing of the May 2-
3 terminations by claiming that it had no notice of union
activity and no knowledge of union sentiments and ef-
forts on the part of persons discharged or laid off. Thus
it argues that it cannot be found guilty of antiunion dis-
crimination, regardless of how suspicious the timing of
its actions might seem at first blush. This contention is as
insubstantial as the other elements of Respondent's de-
fense. Respondent was well aware of union activity in
general at both of its plants and had taken vigorous steps
during the IAM election campaign to thwart this effort
and to contain unionization to the Webster Street facili-
ty. The Taylorsville Road employees were included in
Respondent's antiunion campaign in December and Janu-
' Repondent 'is itnesc 'ar a to the umher of part-time emploee
,r ho hecame full-time nipllo'sc
ary because of its fear that union fever would spread
from Webster Street. Credited testimony establishes the
fact the Respondent's supervisors were aware of union
talk at Taylorsville Road on April 30 and that one em-
ployee had asked Supervisor Hicks on that day to set up
a meeting with Roettele to discuss "employer-employee
relations." Broadstone remarked to Mrs. McIver when
he terminated her for the second time (and for a revised
reason) that she was not a threat as an individual but that
the employees, as a group, did pose a threat to the Com-
pany. He also stated that he could not say more without
incriminating himself. Both statements are substantial ad-
missions from a high-ranking company official that union
activities of its employees were known and that these ac-
tivities were the motivating cause of Respondent's ac-
tions. Brennan's remarks to two other employees that no
employee would have been discharged but for the union
talk which had been going around is conclusive evidence
of Respondent's unlawful motivation.
Economic distress has been found to be pretextual in
many situations similar to the present one especially
where, as here, union animus has been established by col-
lateral evidence. West Coast Casket Compan'v, Inc., 192
NLRB 624 (1971), enfd. 469 F.2d 871 (9th Cir. 1972);
Santa Rita Mining Company, 200 NLRB 1070 (1972),
enfd. 84 LRRM 2300 (10th Cir. 1972); Radiadores Para-
gon de Puerto Rico, Inc., 206 NLRB 918 (1973), enfd. 502
F.2d 1160 (st Cir. 1974); JIentre Packing Company. Inc.,
163 NLRB 540 (1967); Serv--ir, Inc., 161 NLRB 382
(1966); Mannington Electric. Inc., 200 NLRB 970 (1972).
The fact that Roettele, Broadstone, and Brennan may not
have had specific knowledge as to exactly who signed
cards and who had not done so and the fact that they
did not discharge all union adherents during the course
of their massive purge is quite immaterial. As the Second
Circuit put it in Majestic Molded Products, Inc. v.
NL.R.B., 330 F.2d 603, 606 (1964), "A power display in
the form of a mass layoff, where it is demonstrated that
significant motive and a desired effect were to 'discour-
age membership in any labor organization,' satisfies the
requirements of Section 8(a)(3) to the letter even if some
white sheep suffer along with the black." In this case,
timing, animus, and a flimsy excuse, together with clear
admissions of wrongdoing by the company supervisors
who administered the unfair labor practices. leave no
doubt that the 10 individuals named in sections 6(a) and
(b) of the complaint were discharged in violation of Sec-
tion 8(a)(1) and (3) of the Act. I so find and conclude.
C. The Terminations of Darrell Salyer and Mary
Reuber
The General Counsel contends that Darrell Salyer and
Mary Reuber were constructively discharged by Re-
spondent because of their union sympathies and activi-
ties. A constructive discharge is not a discharge at all but
a quit which the Board treats as a discharge because of
the circumstances which surround it. Such situations
may arise when an employer confronts an employee with
the Hobson's choice of either continuing to work or
foregoing rights protected by the Act. In such instances,
the confrontation must be clear and unequivocal and the
COtGENERAL CORPORATION t 7
658 DECISIONS OF NATIONAL LABOR RELATIONS BO()ARD
employee's predicament not one which is left to infer-
ence or guesswork on his part. Masdon Industries, Inc.,
212 NLRB 505 (1974); Marquis Elevator Company. Inc.,
217 NLRB 461 (1975); Superior Sprinkler, Inc., 227
NLRB 204 (1976). A constructive discharge may also
occur when an employer harasses a union adherent to
the point where his job situation becomes intolerable and
he is forced to quit. Thurner Heat Treating Corporation,
226 NLRB 716 (1976); Hoerner Waldorf Corporation, 227
NLRB 612 (1976); North Valley Lumber Sales. Inc., 229
NLRB 1209 (1977); John Dory Boat Works, Inc., 229
NLRB 844 (1977). The Board has also treated as con-
structive discharges those situations where discriminator-
ily motivated employers refused to give work to employ-
ees who do not work regular hours but are paid only for
hours worked on a particular assignment. Jack Hodge
Transport, Inc.. 227 NLRB 1482 (1977); Central Dispatch
Inc., 229 NLRB 979 (1977); Chateau de Ville, Inc., 233
NLRB 1161 (1977); Sav-Mor Food Centers, Inc., 234
NLRB 775 (1978).
The Salyer and Reuber quits do not fit any of these
situations. Neither was told to forgo union activity or
leave the plant. Neither was harassed on the job by Re-
spondent. Salyer quit because he felt that if he did not
quit he would be fired. This conclusion is wholly specu-
lative on his part. It is not a constructive discharge to
quit in anticipation of the mere possibility that one might
be discharged. In the case of Mrs. Reuber, she was dis-
tressed at the treatment she saw her fellow employees re-
ceiving at the hands of Respondent and felt that Corn-
General was not a fit place to work because of such
treatment. She made no claim that she was personally
mistreated in any way. Her decision to leave was an indi-
vidual act on her part, not a concerted one, and can find
no legal protection under any alternative theory arising
under Section 7 of the Act. Accordingly, I conclude that
Salyer and Mrs. Reuber quit their employment, that they
were not discharged, either actually or constructively,
and that so much of the complaint which alleges the ille-
gality of their terminations must be dismissed.
Upon the foregoing findings of fact, and upon the
entire record herein considered as a whole, I make the
following:
I. Respondent ComGeneral Corporation is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. International Union of Electrical, Radio and Ma-
chine Workers, Local 804, AFL-CIO-CLC, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By discriminatorily discharging or laying off Linda
Hensley, Brenda Ledbetter, Jacqueline Mann, Donna
Muse, Teresa Mullins, John Peterman, Thomas D. Huff-
man, Roberta McIver, Steven Phillips, and Jeannie
Wagers, Respondent herein violated Section 8(a)(3) of
the Act.
4. By the acts and conduct set forth above in Conclu-
sion of Law 3; by telling employees that the employer
would close the plant if it became unionized; by telling
employees that their continued employment was condi-
tioned upon refraining from engaging in union activities;
and by telling employees that other employees had been
discharged for union activities, Respondent violated Sec-
tion 8(a)(1) of the Act.
5. The aforesaid unfair labor practices have a close, in-
timate, and substantial effect on commerce within the
meaning of Section 2(6) and 2(7) of the Act.
REMED)Y
Having found that Respondent has engaged in certin
unfair labor practices, I will recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes
and policies of the Act. Because the unlawful activity
found herein was widespread, pervasive, and serious, and
because it involved discriminatory discharges, I will rec-
ommend to the Board a so-called broad 8(a)(1) remedy
designed to suppress any and all violations of that section
of the Act. Hickmott Foods, Inc., 242 NLRB 1357 (1979).
The recommended Order will also provide that Re-
spondent be required to offer reinstatement to the 10 em-
ployees named in sections 6(a) and (b) of the complaint,
and that it be required to make them whole for any loss
of pay or benefits which they have suffered by reason of
the discriminations found herein, to be computed in ac-
cordance with the Woolworth formula,' 0 with interest
thereon at the adjusted prime rate used by the U.S. Inter-
nal Revenue Service for tax payments. Florida Steel Cor-
poration, 231 NLRB 651 (1977); Isis Plumbing & Heating,
138 NLRB 716 (1962). I will also recommend that Re-
spondent be required to post notices informing its em-
ployees of their rights and of the remedy in this case.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein considered as a
whole, and pursuant to Section 10(c) of the Act, I make
the following recommended:
ORDER "
The Respondent, ComGeneral Corporation, Dayton,
Ohio, its officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with plant closure if they
engage in union activities.
(b) Telling employees that their continued employment
is conditioned upon refraining from engaging in union
activities.
(c) Telling employees that other employees have been
discharged because of their union sympathies and activi-
ties.
(d) Discouraging membership in or activities on behalf
of International Union of Electrical, Radio and Machine
Workers, Local 804, AFL-CIO-CLC, or any other labor
organization, by discharging employees or otherwise dis-
criminating against them in their hire or tenure.
Fo I. W. Woolworth Comnpany. 90 NLRB 289 (1950).
l In the event no exceptions are filed a provided by Sec. 10246 of
the Rules and Regulationrs f the National Labor Relations Board, he
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
CON16IFNFRAIL CRPI()RA I 10N , 5')
(e) By any other means interfering with, restraining or
coercing employees in the exercise of rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act:
(a) Offer to Linda Hensley, Brenda Ledhetter, Jacque-
line Mann, Donna Muse, Teresa Mullinis John Peternian.
Thomas D. Huffman, Roberta Mclver. Steven Phillips.
and Jeannie Wagers full and immediate reinstatement to
their former or substantially equivalent positions. witihout
prejudice to their seniority or to other rights prciously
enjoyed, and make them whole for any loss of pay or
benefits they may have suffered by reason of the discrinm-
inations practiced against them, in the manner described
above in the section entitled "Remeds."
(b) Preserve and, upon request, make aailable to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timc-
cards, personnel records and reports. and all other re-
cords necessary to analyze the aount of backpay duc
under the terms of this Order.
(c) Post at its Dayton, ()hio. plants copies of the at-
tached notice marked "Appendixs"" (.'opies f said
notice, on forms provided by the Regional Director ior
Region 9, after being duly signed bhy a representative of
Respondent, shall be posted b it irinmediately upon re-
ceipt thereof, and shall be maintainled by Respondent for
60 consecutive days thereafter, in conspicuous places, in-
eluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material
(d)Notify the Regional Director for Region 9, in writ-
ing, within 20 days from the date of this ()rder what
steps it has taken to comply herewith.
IT IS FURTHI R ORDI)IRFI) that, insofar as the complaint
herein alleges matters which have not been found to hce
unfair labor practices, the complaint is hereby dismissed.
In the event thal this Order is enforced h a Judgment f a Ullitcd
States Court o Appeals, the ord, in the notice reading "iPosted hb
Order of he National Laho)r Relations Board" shall read "Po't d Pullr--
ant t a Judgment of the United StailCs Curt of Appeals I nlforing an
Order of the National I.abor Relation, HBoard
APPENDIX
Nol ICt: To ENII, o() t: s
Pos III) H\ ORI)I R Ot lII
N \IION \ I L tOR Ri I I()NS O-\RI)
Ani Agency of the IUnited States (hiVrtrnlnl
WI \v I NOI threaten employees s %ith planit clo-
sure in order to discouragec uniotn acti ities.
\'Wt \1 I NO tell employees that their contiucd
employnlent is conditioned uponl refraining fronl en-
gagiig uion activities
Wi: wIt I NOI tell employees that other cmlplo>-
ces have been discharged for engaging in un1io1 aic-
ix i tics.
'Vi wit NOI discourage membership in or ac-
tivities on behalf of International Urnion of lectri-
cal, Radio and Maclhine Workers Local 80()4. AFI.
CI() CL.C. or an other labor organi/ation, by dis-
charging employees or othersvise discriminating
against them il their hire or tenure. All of our em-
ployces are free to become or remain mcnlhers of
this Union or any other union.
WVt> Wit I NI b anli other means interfere with,
restrain, or coerce employees in the exercise of
rights guaranteed them hb Section 7 of the Act.
'Ihesc rights include the right to form join. or assist
labor organizations, to bargain collectivel) through
representatiecs of their own choosing, alld to
cngage in olher concerted activities for their mutual
aid and protection.
WI % it Ii offer full and immediate reinstatement
to inda lensle , Brenda Ledhetter. Jacqueline
Mann, Donita Muse. Teresa MNullins, John Peter-
mnan, Thomas D Huffman Roberta Mclver. Steven
Phillips, and Jeannie Wagers. and w. wit l make
them whole for any loss of pay or benefits which
they have suffered by reason of the discriminations
practiced against them, with interest.
CON1GIC NIRN CORPORAIION
(i'OM( d-NFRAI. (()Rt'ORAttflN 6