Dart Industries

National Labor Relations Board - Board Decisions

May 30, 1974

210 N.L.R.B. 1086 (N.L.R.B. 1974)

1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fiberfil, Division of Dart Industries and District 153 of
the International Association of Machinists and
Aerospace Workers , AFL-CIO . Case 25-CA-5777
May 30, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On February 5, 1974, Administrative Law Judge
Herbert Silberman issued the attached Decision in
this proceeding. Thereafter, counsel for Respondent
filed exceptions and a supporting brief and counsel
for General Counsel filed limited cross-exceptions to
the Administrative Law Judge's Decision and a
supporting brief, and a brief in support of certain
other findings of the Administrative Law Judge.
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, cross-
exceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith.
We agree with the Administrative Law Judge's
recommended dismissal of those allegations in the
complaint and the amended complaint that Respon-
dent's actions constituted independent violations of
Section 8(a)(1) of the Act. However, we are unable to
agree with the Administrative Law Judge that
Respondent violated Section 8(a)(3) and 8(a)(1) of
the Act in its dismissal of Darrell Grubb. Since we
find no violation in Grubb's termination, we shall
dismiss the complaint in its entirety.
Except for a short layoff, Darrell Grubb worked
for Respondent as a machinist from September 1967
until August 12, 1973, the date of his discharge. On
Monday August 6, 1973,2 Grubb's scheduled vaca-
tion ended and he was to report to work that day.
However , at 6:30 a . m., on August 6, Grubb called
Respondent and notified his group leader that he was
very ill and would not be in to work but was going to
the doctor. The group leader thereafter informed
Respondent 's management of Grubb 's phone call.
The Administrative Law Judge found that in his
phone call Grubb did not indicate how long he
would be absent from work.
Grubb then visited his doctor who advised him that
he should rest and remain away from work for a
week, until August 13.3 Thereafter, Grubb did not
call Respondent to inform it of his status until late in
the afternoon of Sunday, August 12. When he did
call to find out what time he should report on August
13, Grubb was told that he should report to the
personnel office the following day. Instead, Grubb
called Respondent's personnel manager, Joan Mur-
ray, that next day and was told at that time that he
had been terminated. Grubb testified that he asked
Murray whether he had been fired because of his
union activities4 and, when she replied no, he then
stated that he wasn't a probationary employee and
"in the past they had given the employees verbal
warnings, written warnings, two day layoffs and five
day layoffs and [he] asked her what happened to
those" to which she replied that "they had to stop it
here."
Respondent's officials testified that Grubb's dis-
charge was a result of his failure to report his
intended absence, as required by company rules, on
those additional days of scheduled work that Grubb
missed after his initial call in on Monday, August 6.5
Respondent's officials testified that on Friday,
August 10, the Company called its labor counsel in
Los Angeles and explained that Grubb had missed 2
days of work without calling in and asked if it was all
right to proceed in the normal course of company
policy with regard to employees who do not call in
their absences.6 Its labor counsel approved the
sending of an already prepared warning notice 7 to
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 are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F 2d 362 (C A 3, 1951). We have carefully
examined the record and find no basis for reversing his findings . We also
find no merit in Respondent ' s contentions that the Administrative Law
Judge failed to objectively consider the evidence presented ; improperly
shifted the burden of proof to Respondent; and engaged in improper and
hostile questioning of Respondent 's witnesses
2 All dates are 1973 unless otherwise indicated.
3 Grubb's doctor also gave him a slip to that effect to give Respondent
when he returned to work
4 Grubb was in fact a vigorous union adherent Just before Grubb left on
his vacation , there had been a union election at Respondent which had
come about as a result of a petition for an election that Grubb had been
greatly responsible for securing During the election campaign, Grubb had
been visibly vigorous in his support for the Union Charging Party here and
Respondent was aware of Grubb's sympathies Grubb had also been active
in supporting another union 's campaign at Respondent in 1972 Both
unions lost the elections held at Respondent
5 Grubb was also scheduled to work Tuesday, Friday , and Saturday of
that week.
6 The call to its labor counsel was admittedly an unusual action but
Respondent's production superintendent , Charles Mohle, testified that
Respondent knew Grubb was a union adherent and so wanted legal advice
on the course they were planning to take relative to Grubb's failures to call
in
r Mohle testified that a phone call was not possible since Grubb had an
unlisted number
210 NLRB No. 163
FIBERFIL, DIVISION OF DART INDUSTRIES 1087
Grubb which informed him that, due to his failure to
call in,8 any further failure to do so would result in
his termination.9 The letter was mailed from a local
post office about 4 p.m. Friday, August 10. The letter
was sent special delivery, certified mail, return
receipt requested, and, pursuant to instructions, was
to be delivered only to the addressee, Grubb. An
attempt to deliver the letter was made on Saturday,
August 11, but Grubb was not home at that time10
and so a notice was left that a special delivery letter
was waiting for him at the post office. Grubb had not
yet picked up the letter when he called in to
Respondent on Sunday afternoon.
Since Grubb did not call in at any time on
Saturday, August 11, Respondent prepared his
termination papers on the next day, August 12, with
his termination effective on that later date.
Respondent had argued to the Administrative Law
Judge that Grubb's termination was pursuant to a
consistent and nondiscriminatory exercise of a
uniformly enforced company rule on the reporting of
absences. The Administrative Law Judge, however,
found that there was no rule, either in writing, or
promulgated orally, or established by custom or
practice, which called for Grubb's automatic dis-
charge here. He further found that Respondent's
attempt to warn Grubb of his impending infraction
of Respondent's "rule" was so "contrived" that it
supported the General Counsel's assertion that
Respondent sought to use Grubb's absence from
work to conceal its underlying unlawful motive for
discharging him. We disagree with both conclusions
of the Administrative Law Judge.
There was much litigation as to exactly what, in
fact, Respondent's rule was with regard to reporting
absences. From the testimony of the various witness-
es, and Respondent's records that were introduced at
the hearing, we find it fair to state that Respondent's
rule, as it was enforced, called for an employee to
call in on each day of his absence from work unless
he informed Respondent in advance how long he was
B In the letter, Respondent made reference to Grubb's failure to call on
August 7 and 10 of that week and a prior failure to report an absence on
July I See below for details of the July I incident
9 Its labor counsel also recommended that Respondent not terminate
Grubb unless Grubb failed to call in at all on Saturday, August II
is Grubb testified that he had gone to the home of a friend so that the
friend and his wife could take care of him
11 It is noted that in the policy manual distributed to the employees in
the late 1960's it was stated that "an absence of three days without notifying
the company is considered a resignation without notice " There is no
evidence revealing the reason for the change in wording in the later
employee manual
12 Employee Temme testified that in 1972 he had a motorcycle accident
in front of Respondent's plant He then told his group leader he was going
to the hospital and after he went to the hospital he returned to the plant and
informed his group leader that he had been advised to stay off his leg for a
while He returned to work a week later with his doctor's slip Employee
Vick testified that he once had strep throat which his doctor said would
keep him from work for 3 or 4 days Vick thereafter called Respondent and
going to remain away from work. If an employee
informed Respondent that he was hospitalized or
under a physician's care at the outset of his illness
such would be sufficient notice. If an employee was
absent for 3 days or longer, he was to bring a
doctor's statement to verify his illness. However, if
an employee did not call in for 3 consecutive days or
if an employee called in the first day to report he was
ill without mentioning he was in a hospital or under
doctor's orders to remain away from work and
thereafter did not call in for 3 consecutive days, he
was then subject to termination.
In determining that this is a fair statement of
Respondent's rule we note the following:
In Respondent's present employee manual, issued
to the employees in 1973, Respondent states that an
employee is to "call in and report for each shift [he]
must miss as long as [he is] off." The administrative
manual that Respondent distributes to its manage-
ment officials then goes on to state that "An
employee who is absent for three days without
notifying his supervisor will be terminated.ii Excep-
tions may be granted only in unusual circumstances
by the chief executive of the employee's organiza-
tional unit at the location."
With regard to the employees' understanding of the
rule, we note that their impressions of the rule, as
witnessed by the examples they supplied at the
hearing, indicate that they construed the rule as we
have set out above. The testimony of employees
Temme, Vick, and Clark indicates that each employ-
ee when he had been out ill for 3 days or longer had
Respondent notified at the beginning of his illness
that he was hospitalized or under a doctor's care.12
Such action fully comports with Respondent's rule as
we have noted above since in each case Respondent
was told of a condition which would preclude the
employee's attendance at work for a certain period of
time and Respondent could budget its manpower
accordingly.13 Additionally, we find that the employ-
ees' impression of the rule was not, as the Adminis-
told it of his doctor's instructions and his status was then relayed to his
foreman Employee Clark testified that once, when his back was bothering
him, he went home from work sick and thereafter went into the hospital He
testified that the insurance company then notified Respondent that he was
in the hospital
13 We note too that employees Knott and Jessie testified that they
understood that if they were going to be off they were to call in to
Respondent to report such absence Grubb's own records indicate that he
had consistently made it a point to call Respondent on each day that he was
out ill if it was a scheduled workday Among other times, he had done so in
June 1968, January and November 1972, and as recently as June 1973 That
last time , Grubb had called in ill on June 29 and 30 but failed to call in on
July I, when he was also out Thereafter when he returned to work on July
4, he was told he should have called in on July I to report his intended
absence The Administrative Law Judge should not have discounted this
last example simply because Grubb was not also told at that time he could
be subject to automatic discharge for missing 3 days in a row without calling
in
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trative Law Judge found, at substantial variance with
Respondent 's officials' view of the rule, since both
Respondent's officials Mohle and Smallwood stated
that if an employee has told Respondent that he is in
the hospital or under a doctor's care he need not call
in on each day of his illness , although, as would be
reasonable , Respondent would desire an approxima-
tion of the length of the illness.
Also persuasive in our finding that Grubb's
discharge was nondiscriminatory are the records
Respondent introduced at the hearing concerning
other employees who had been discharged between
1966 and 1973 for violating the rule on calling in to
report absences. The records of some 25 employees
who had worked at Respondent for periods ranging
from 4 days to a little over 4 years were introduced.
While the records of 20 of the 25 employees indicate
that they, unlike Grubb, at no time had called in to
Respondent to report their absence before they were
discharged, we take special note of the records of
employees James Walden, Robert Bruce, Oscar Rice,
Charles Cooper, and Carl Chandler. These five
employees had all either left work sick, or called in
sick only on the first day of an extended absence like
Grubb, and thereafter missed at least three consecu-
tive scheduled workdays. In each case the employee
was discharged as was Grubb.14
In the face of these five employees' records which
are strikingly similar to Grubb's situation, the
Administrative Law Judge discounted them by
relying on a statement of Respondent Official Mohle
that Grubb's situation was in fact "unique" vis-a-vis
all the other employee records submitted. To elicit
such a response from Mohle, the Administrative Law
Judge asked Mohle whether the following situation
had ever arisen at Respondent: an employee on his
first day of absence calls Respondent to advise it he
is sick and is going to consult a doctor. Thereafter
the employee does not report his absence further to
Respondent for 3 consecutive days but prior to
notification of his discharge, he seeks to return to work.
While this description of Grubb's situation elicited
Mohle's comment that Grubb's situation was unique,
14 While the dissent alludes to the fact that four of the five employees
noted above were probationary employees when they were discharged, there
is no evidence to indicate that Respondent applied a more stringent call-in
standard to probationary employees than to nonprobationary employees
The evidence presented to us indicates Respondent 's rule was uniformly
enforced on all categories of employees and thus the fact that four of these
five employees were coincidentally probationary employees is of no
significance here.
i5 Walden was discharged on June 27 , 1973. Respondent's records
indicate that he left work sick on June 22 , 1973, and sent word he was still
sick on June 23 Thereafter, he did not call in and on June 27 he was
terminated for failure to follow Respondent 's call-in rule Walden, like
Grubb, called in to Respondent on the day of his discharge and at this time
he was informed of his termination
16 While the dissent notes that we have set out a rule that is nowhere so
fully set out in any of Respondent 's written manuals , we are not relying
solely on the manuals as evidence that such a rule does in fact exist We
and prompted the Administrative Law Judge to
disregard Respondent's records, the description in
fact injected an irrelevant element (the underlined
portion of the situation as noted above) into the
consideration of whether Grubb's discharge was
discriminatory since the fact that Grubb sought to
return to work before being formally notified of his
termination cannot impute a discriminatory motive
in that discharge if, in fact, Grubb had violated
Respondent's rule on calling in prior to his attempted
return to work. This is what we are finding here and
the fact that Grubb may have attempted to return to
work before he was notified of his discharge does not
make the five employees' records on which we rely
any less valid as mirrors of Grubb 's situation.
Further, in light of the employment history of James
Walden, one of the five employees whose record is
noted above, Grubb's situation was not in any event
"unique" even by the Administrative Law Judge's
example.15
In summary, we have found that Respondent had a
rule on calling in that included the prescription that
an employee was to call in for each day he was
absent unless he notified Respondent that he was
hospitalized or under a physician' s care at the outset
of his illness. Grubb merely reported to Respondent
that he was going to see his doctor on the day he
called in, not that he was under a doctor' s instruc-
tions to remain away from work, and thereafter
Grubb did not report to Respondent that his doctor
had instructed him to remain away from work for the
remainder of the week. Since Grubb did not so
inform Respondent and since Respondent had no
way of knowing Grubb's situation, Grubb' s termina-
tion at the end of the week was a consistent
application of Respondent's rule as we have noted it
above. In such circumstances, we find Grubb's
discharge was nondiscriminatory.16 We also find
nothing "contrived" in Respondent's efforts to
contact Grubb to warn him of his impending
discharge.
Respondent openly admitted that employees are
not usually contacted in cases involving the call-in
believe that the employees ' records submitted by Respondent combined
with various of the employees ' accounts of their personal experiences in
reporting their absences from work demonstrate that Respondent has a rule
as we have set out above. Assuming, without finding that it is true , that, as
certain of the employees testified, they have never been informed of the dire
consequences for violating the rule or in some cases have never been
directly informed of the rule itself by Respondent 's officials , that does not,
however, prove a violation here for we again return to the documentary
proof of the course of action Respondent has taken in similar situations in
the past as support for our finding of no violation here With respect too, to
the dissent 's adverse comment on the fact that, because of this one
infraction , Grubb was declared ineligible for future employment with
Respondent, we note that the submitted records of the 25 employees
discharged pursuant to Respondent's rule show that not I was declared
eligible for rehire Lastly , we note that counsel for General Counsel could
adduce no evidence of any employee who had ever been in Grubb's
situation who had not likewise been discharged by Respondent
FIBERFIL, DIVISION OF DART INDUSTRIES
rule. As mentioned before, however, since Grubb
was a vigorous union adherent, Respondent wanted
to give Grubb every chance to comply with its rule
on calling in . To that end, the letter which was sent
on Friday, August 10, was designed to reach Grubb
not later than Saturday, August 11. Since Respon-
dent had decided, pursuant to its phone conversation
with its Los Angeles counsel, to allow Grubb all day
Saturday to respond to the letter, we cannot find the
sending of the letter by Respondent to have been
contrived since in the ordinary course of events
Grubb should have received the letter in time to call
in.
In finding Respondent's action to be contrived, the
Administrative Law Judge noted that Grubb's house
was located about 2 blocks from Respondent's plant
while the post office from which the letter was mailed
was some 12 blocks from the plant. The Administra-
tive Law Judge then noted that Motile could not
offer any explanation as to why the warning notice
had not been delivered directly to Grubb's home
which was located 10 blocks closer to the plant than
was the post office. The Administrative Law Judge
noted that, had the letter been delivered by messen-
ger, Grubb would have then been able to inform the
messenger as to his situation within the applicable
time limit . In such a circumstance, the Administra-
tive Law Judge found the sending of the notice to
have been contrived. In disagreeing, we note simply
that the letter was uncontrovertibly designed to reach
Grubb before the expiration of the time limit
established for him to report in. In such circum-
stances , the fact that Respondent did not take the
further extraordinary step of hand-delivering the
warning slip can in no way demonstrate that its
chosen way of pursuing this admittedly unusual
procedure (done only for Grubb's benefit) was in
fact a contrived act.
We shall therefore dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
MEMBER FANNING , dissenting:
I agree with the Administrative Law Judge's
conclusion that Respondent ' s discharge of Darrell
Grubb was motivated because of Grubb 's activities
17 1 note Respondent has in the past rehired at least one employee, Tom
Crews, who had previously been terminated for having failed to report his
absences from work Crews' name was not included in the list of 25
employees allegedly declared ineligible for rehire by Respondent for the
I
on behalf of the Union and therefore was in violation
of Section 8(a)(3) and (1) of the Act.
Grubb had been an employee of Respondent for
almost 6 years when he was discharged and there is
no contention raised that he was anything but a
satisfactory employee during that entire time . Never-
theless, because of his single failure to comply with
Respondent's alleged rule on the calling in of
absences, this longtime employee was terminated
without any effort being made to ascertain why he
had not called in after his initial call-assuming there
was such a requirement-or whether there were any
circumstances explaining his failure to call in, and
for this offense Grubb was declared ineligible for
future employment with Respondent and has not
since been rehired.17
In its finding no violation here, the majority relies
heavily on the employee records of five employees
who like Grubb had initially called Respondent to
report an illness or had become sick at work, and
thereafter had failed to call Respondent for at least 3
days and who were then discharged. I note, however,
that four of these five employees were probationary
employees at the time of their discharges. Respon-
dent's probationary period is 90 days and employee
Carl Chandler had worked for some 49 days;
employee Ezzard Cooper had worked for some 19
days; employee Oscar Rice had worked some 58
days; and employee James Walden, whose discharge
situation the majority noted was very close to
Grubb's, had worked for all of some 16 days, when
each was discharged.18 In fact, of the 25 employees
whose records were submitted by Respondent, only 6
employees were nonprobationary employees when
they were discharged and only 3 of those 6 had
worked at Respondent for longer than 1 year when
they were discharged. And the two employees of the
six nonprobationary employees with the longest
length of service at the time of their discharges,
employee Gary Daniels (with 2-1/3 years of service)
and employee Maurice Wild (with a little over 4
years of service), were both discharged for excessive
absenteeism and not simply for missing 3 particular
days without calling in. I note that Grubb was a 6-
year employee with no prior history of note of
unexcused absences.
The majority attempts to explicate a rule for
Respondent on the calling in to report absences that
is nowhere so fully set out in any of Respondent's
own manuals to its employees or even to its
management officials. The majority also finds that
the employees' understanding of the rule was not at
same "offense" as Grubb committed
18 In addition , the fifth employee whose situation the majority finds was
similar to Grubb's had only worked at Respondent for 4 months at the time
of his discharge.
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
substantial variance with that of Respondent's
officials, but I note that, while Respondent's officials,
Mohle, Smallwood, and Davis, all stated that for the
breaking of Respondent's rule on calling in an
employee was subject to discharge, that employees
Grubb, Temme, Vick, and Knott all testified that
they had never been told by Respondent's officials
that, if they missed 3 days of work without calling in,
they would be discharged.19
I must conclude therefore that it has not been
demonstrated that Respondent had such a rule as the
majority proposes for it. I must also conclude, as the
Administrative Law Judge did, that Respondent's
attempt to "warn" Grubb of his possible impending
termination was in fact a subterfuge. In so finding, I
note the closeness of Grubb's home to the plant vis-a-
vis the location of the post office to the plant and the
relative ease which would have ensued from simply
going to Grubb's home to inquire after his health
instead of to the post office with the warning notice
and the fact that, in the past, there had been
occasions when someone was sent by Respondent to
Grubb's home; i.e., when Respondent sought Grubb
to do overtime work.
Finding no rule which called for Grubb's automat-
ic discharge, and viewing (1) the employee records
submitted, with special regard to the fact that the two
employees with the longest service who were dis-
charged were let go in part for excessive absenteeism;
(2) the testimony of Respondent Official Mohle (on
the "automatic" nature of a discharge for a "viola-
tion" like Grubb's) which is refuted by Respondent's
records themselves; and (3) the subterfuge involved
in the forwarding of the warning notice, I am
convinced that Respondent's reasons for discharging
Grubb were pretextual. Therefore, looking elsewhere
for the reason, I find it in Grubb's vigorous advocacy
of union causes of which Respondent was well
aware. I therefore find Grubb's discharge to have
been in violation of the Act,20 and I would adopt the
Administrative Law Judge's findings and conclusions
to this effect.
19 1 also note that, although Respondent Official Mohle stated that
violations of the rule would result in "automatic" termination, the 25
employee records submitted by Respondent yield four instances, i e ,
employees Johnston, Rice, Walden, and Wild, where discharge came after 4
days of unreported absence This hardly makes for an "automatic"
termination standard for violation of the alleged 3-day rule Further, while
the majority has noted that employees Knott and Jessie understood that if
they were going to be off they were to call Respondent to report such
absence , it should be noted that employees Vick and Barnett did not think
this had to be done Clearly, the employees were under no certain view of
what their responsibilities in calling in were
20 For the reasons stated in my dissent in GTE Lenkurt, Incorporated, 204
NLRB No 75, I would also find that Respondent violated Sec 8(a)(1) of the
Act on July 10 when its plant manager , Ted Davis, refused to allow James
Wood, an off-duty employee of Respondent, to handbill employees and talk
to them in Respondent 's parking lot at its Northbrook plant
DECISION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Administrative Law Judge: Upon
a charge filed by the above-named Union on August 27,
1973, a complaint, dated October 18, 1973, was issued
alleging that Fiberfil, Division of Dart Industries, herein
called the Company, has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the National Labor Relations Act, as amended.
In substance, the complaint, as amended on November 19,
1973, alleges that the Respondent on August 13, 1973,
unlawfully discharged employee Darrell B. Grubb and in
mid-April 1973, promoted employee William Richard
Temme to the position of group leader on the condition
that Temme does not get involved in the Union and that he
refrains from giving support to the Union, and thereafter
demoted Temme from that position, and, by reason of such
discriminations and other conduct set forth in the
complaint, Respondent also has interfered with, restrained,
and coerced employees in the exercise of the rights
guaranteed in Section 7 of the Act. Respondent's answer to
the complaint denies that it has engaged in the alleged
unfair labor practices. A hearing in this proceeding was
held in Evansville, Indiana, on December 18 and 19, 1973.
The parties were given leave to file briefs with the
Administrative Law Judge and briefs have been received
from General Counsel and Respondent.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The Company, a Delaware corporation, maintains places
of business at Evansville, Indiana, where it is engaged in
the manufacture, sale, and distribution of plastics and
related products. During 1973, which period is representa-
tive of its operations, in the course and conduct of its
business, the Company (a) purchased and caused to be
delivered through channels of interstate commerce to its
Evansville plants goods and materials valued in excess of
$50,000 and (b) manufactured, sold, and shipped through
channels of interstate commerce from its Evansville,
Indiana, facilities products valued in excess of $50,000
directly to customers located in States other than the State
of Indiana. Respondent admits, and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
District 153 of the International Association of Machin-
ists and Aerospace Workers, AFL-CIO, herein called the
Union , is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Company operates two plants in Evansville, Indiana
FIBERFIL, DIVISION OF DART INDUSTRIES 1091
which are approximately 4-1/2 miles apart. One is called
the Northbrook plant and the other Plant No. 1. Except for
one incident discussed below, all transactions with which
this case is concerned occurred at Plant No. 1. At the latter
facility the Company manufactures reinforced thermoplas-
tic injection molding compounds. Toxic chemicals are used
in the manufacture of these products and employees from
time to time have become ill from exposure to the
chemicals.
The events herein arise from the Union's effort to
organize the employees at the Company's two plants. In
March 1973 the employees at Plant No. 1 were informed
that their work schedule would be altered because the
Company was changing from three 8-hour shifts to four 12-
hour shifts . Because he believed that the employees'
earnings would be substantially reduced by this change,
following the meeting where the announcement was made,
Darrell B. Grubb invited employees who were interested in
union representation to meet at an inn located close to
Plant No. 1. About 14 or 15 employees attended the initial
meeting and also present at the invitation of Grubb was
Union Representative Robert Ellsperman. At this meeting
employees signed union authorization cards and a cam-
paign to enlist employee support was begun. Subsequently,
on May 16, 1973, the Union filed a petition for certifica-
tion as representative and pursuant to a stipulation for
certification upon consent election which was approved on
June 29, 1973, an election was conducted on July 19 and
20, 1973, among the employees in both plants. The results
were 73 ballots cast for the Union and 73 ballots cast
against the Union and I ballot was challenged. Ultimately
the challenge was overruled and the ballot was opened on
December 19, 1973. The ballot was a vote against the
Union. Thus, the Union lost the election by 74 votes to 73.
Grubb was not only instrumental in initiating the
organizational drive but also was very active during the
campaign. Among other things, he distributed authoriza-
tion cards to employees and passed out handbills at the
Company's premises approximately eight times. On five of
these occasions Grubb delivered handbills to Company
President Dr. Kiyo Hatton. Grubb also acted as an
observer for the Union during the election. Grubb's union
sympathies and activities were well known to company
management . During the preceding year he actively had
supported an organizational drive conducted by the UAW.
In that instance an election was held in June 1972 and
Grubb served as the observer for the UAW.
The Company was opposed to the Union and conducted
a vigorous campaign to defeat the Union in the election.
Among other things, about a month before the election
Personnel Manager Joan Murray interviewed the employ-
ees individually. According to Grubb's uncontradicted
testimony, his meeting with Miss Murray took place in the
office of General Foreman Richard Smallwood. "She
wanted to know if I had any complaints and I explained to
her [about] a few things that the company had promised us
and reneged on and she said she didn't know about those
things, that she wasn 't there at that time . She thought we
could work our problems out better without a Union. I told
her that I didn't think so and that was the general line of
conversation. Then she gave me a book of company
procedures and such." This testimony does not support the
allegation of the complaint that Joan Murray "solicited
and offered to adjust grievances from its employees if they
refrained from becoming or remaining members of the
Union or giving any assistance or support to it, or in order
to induce them to do so ." As there is no other evidence in
support of that allegation of the complaint I shall
recommend its dismissal.
During her interviews with the employees Miss Murray
handed to each a 52-page booklet entitled, "Employee
Handbook." It describes the Company, its operations,
employee benefits, rules governing employee conduct, and
other subjects having to do with the relationship between
the employees and the Company. No evidence was offered
as to why the Company chose to distribute this handbook
to the employees shortly before the 1973 election, when a
similar handbook had been given to them in 1972 while
another organizational campaign was in progress . Howev-
er, the booklet reflects clearly the Company's hostility to
the organization of its employees. On page 27, under the
heading, "Company Belief," is written:
We sincerely believe that the best interests of all
employees will be served by operating this plant
without a union. We believe that the interests of
employees and management are the same and that a
union tends to split them apart. We further believe that
there will be much better employee relations, higher
morale, and a friendlier working atmosphere without a
union.
There is then printed under the heading, "Advantages to
the Employee by not Having a Union," six numbered
items. The next page is headed "Fiberfil Employees Enjoy
the Best of Benefits-Without a Union ." There follows
eight numbered examples. After the examples is printed:
"No one has to be a union member in order to work here
and the law of the United States says that an employee has
just as much right not to join a union as he or she does to
join." On page 50 of the booklet is the heading, "Our
Written Guarantee to You." In summary, the Company on
that page promises the employees that it will be a
considerate and beneficent employer and "You are not
now, and never will be, forced to pay tribute to any outside
organization in money , time, or loss of personal freedom,
to enjoy these and the many other progressive benefits of
Fiberfil."
A. The Discharge of Darrell B. Grubb
Except for a short layoff, Grubb worked for the
Company as a machinist continuously from September
1967 until he was discharged on August 13, 1973. There is
no contention that Grubb was an unsatisfactory employee
and Respondent 's asserted reason for his discharge is that
he was absent from work on 3 consecutive days without
calling in which violated an established rule of the
Company that is automatically and uniformly applied.
Immediately following, the election which was held on
July 19 and 20 where the vote was 73-73 with I challenged
ballot, Grubb went on his scheduled vacation which ended
on August 6. Grubb, whom I find was generally a truthful
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
witness , testified that on August 6, 1973, at approximately
6:30 a.m., he telephoned the Company and informed his
group leader, Ollie Jessie, that he was very sick, would not
be in to work, and was going to the doctor. Jessie said that
he would report Grubb's absence.' Grubb visited his
physician, Dr. Chas. E. Moehlenkamp, who advised Grubb
that he should return home, go to bed, and remain away
from work until August 13. Dr. Moehlenkamp gave Grubb
a written prescription form intended for delivery to the
Company which states that Grubb was suffering from
acute viral gastroenteritis and that he may return to work
on August 13, 1973.
Grubb next telephoned the Company in the late
afternoon on Sunday, August 12. He spoke to General
Foreman Smallwood, informed Smallwood he was feeling
better, was prepared to return to work the next morning,
and wished to know his work schedule. Smallwood replied
that he should report to the personnel office. The next
morning Grubb telephoned Personnel Manager Joan
Murray who told him that he had been terminated.
Production Superintendent Charles Mohle testified that
on August 6 Foreman Smallwood informed him that
Grubb had called in and had advised group leader Ollie
Jessie that Grubb would not be in that day, he was sick and
was going to the doctor. Grubb was absent on August 7.
He was not scheduled to work on August 8 and 9. On
August 10 Foreman Smallwood again advised Mohle that
Grubb was not in and that this was the second day Grubb
had missed work without calling. Mohle telephoned the
Company's labor counsel, Herschel Phillips, who is located
in Los Angeles. Motile explained that the reason for the
call to Phillips was that "we knew that Mr. Grubb was a
leader of the Union activities and didn't want to break any
rules trying to bend over backwards for the guy and
wanted to make sure that things were done in the proper
order, that we would ... ask Mr. Phillips if we could go
ahead and proceed in the normal course of our company
policy."
At the time Mohle spoke with Phillips there had been
prepared an instrument headed "Warning Notice" which
was dated August 10, 1973, and was directed to Darrell
Grubb. The notice reads, "INFRACTION On this date
(8/10/73) Darrel [sic] Grubb failed to report intended
absence from work. This is the third such infraction in less
than 1-1/2 months. Darrel [sic] was informed by me on
July 4, 1973, of his failure to report intended absence on
July 1, 1973. Darrel [sic] was also absent on August 7,
1973, and failed to report. Any further violation of this
policy cannot be tolerated and will result in termination."
The notice is signed by Supervisor Richard E. Smallwood.
According to Mohle, in his conversation with Phillips,
"Mr. Phillips okayed the sending of this letter to inform
Mr. Grubb that he had been absent on these days
mentioned here and that any further violation would result
in termination." Mohle also testified that Phillips had
advised him not to terminate Grubb until after Grubb had
been absent for 3 full working days without calling in.
Although Grubb's home is located no more than two
blocks from the plant and although in the past there had
been occasions when the Company sent someone to
Grubb's home to ask him to do overtime work, Mohle
testified that on August 10 he gave no consideration to
delivering the warning notice to Grubb, but instead about
4 p.m. personally mailed the warning notice to Grubb from
a branch post office which was located about 12 blocks
from the plant. The letter was mailed special delivery,
certified mail, return receipt requested , and in accordance
with the instructions of the sender the mail carrier was
required to deliver the letter only to the addressee. Grubb
did not actually receive the letter until August 14, although
on August 11 he found a notice on the knob of his door
that there was a special delivery letter waiting for him at
the post office.
On Saturday, August 11, Smallwood recommended to
Mohle that Grubb should be terminated because that was
the third consecutive day Grubb was absent without
calling in . However, in compliance with the instructions
from Phillips, the termination papers were not prepared
until the next day, August 12. It is noted that the personnel
status from which reflects Grubb's discharge states,
"Would not rehire due to absentee problems." Mohle
testified that this disqualification for future employment
was based only on the unreported absences of August 7,
10, 11, and 12 and not because of any history of
absenteeism on the part of Grubb. It is noted that Grubb
who had worked 6 years for the Company, was terminated
without any effort being made to ascertain why he had not
called in-assuming there was such requirement-after his
call of August 6, or to ascertain whether there were any
extenuating circumstances explaining his failure to call in
and that for this single offense Grubb was declared
ineligible for future employment with the Company.
The alleged rule which purportedly was applied to
Grubb was a principal area of litigation in this case. The
Company's manual for its management employees de-
scribes its absentee policy, as follows:
It is recognized that both planned and unplanned
absences from work will occur and it is intended that
each absence be given fair and equitable treatment.
• # i i i
An employee who is unavoidably absent from work
(unplanned) notify his supervisor on the first date of
absence or earlier if possible, in order to be ex-
cused... .
An employee who is absent for three days without
notifying his supervisor will be terminated. Exceptions
may be granted only in unusual circumstances by the
chief executive of the employee' s organizational unit at
the location.
1 Jessie testified that Grubb telephoned about 8 a.m. on August 6 and implication from Jessie 's testimony , I find that Grubb did not tell Jessie he
said that he was sick , that he had to go to the doctor and "he wouldn ' t be in expected to be absent only on the day he called, August 6 . but informed
that day " Jessie replied that he would inform Foreman Smallwood I Jessie that because of his illness he would not report for work and in the
believe that neither Jessie nor Grubb has such perfect memory that either conversation did not indicate how long he would be absent
recalls the precise words used in their conversation . Contrary to the
FIBERFIL, DIVISION OF DART INDUSTRIES 1093
In the late 1960s a handbook of 25 pages containing the
Company's rules was distributed to employees. In relevent
part, it provides: "If you know you will be absent on a
certain day, give your supervisor as much advance notice
as possible so plans can be made to cover your duties. An
absence of three days without notifying the company is
considered a resignation without notice"
This manual was superseded in 1972 by another
employee handbook. The pertinent provisions regarding
absences read as follows: "If you must be absent for good
cause, tell your Foreman before your shift starts. If you are
calling in , talk directly to your Foreman to explain the
situations. Call in and report for each shift you must miss
as long as you are off." 2
The 1972 handbook was replaced in 1973 by a similar
manual . With respect to the same subject the latter
provides: "If you must be absent for good cause, tell your
Foreman before your shift starts.... If you are calling in,
talk directly to your Foreman to explain the situations.
Call in and report for each shift you must miss as long as
you are off."
Neither the 1972 nor the 1973 employee handbooks call
for the automatic termination of employees for 3 consecu-
tive days of unreported absence. The earlier handbook,
which was distributed in the 1960s, provides that an
absence of 3 days without notifying the Company is
considered a resignation without notice. A policy of this
nature is not uncommon in industrial plants in order to
remove from payroll the names of `employees who have
quit. However, that provision would not be applicable to
Grubb who before the first day of his absence telephoned
the Company and advised his group leader that he was
going to be absent because of illness and was going to
consult his physician. In the circumstances, a further
absence of 3 days would not be considered as a quitting
under the Company's rule as written in the earliest of its
three employee handbooks.
As the written rules of the Company do not support the
policy which is asserted as a defense to the discharge of
Grubb, Respondent sought to prove that those rules have
been expanded by custom and practice. Despite the
changes reflected in the several employees' handbooks,
Production Superintendent Mohle testified that the policy
as to reporting absences was explained to him when he was
hired in 1963 and has not changed in the more than 10
intervening years. Mohle and other management personnel
were called as witnesses by Respondent and testified that
they conduct orientation programs for new employees on
an individual basis during which each employee is
instructed regarding the Company's absentee rules.
Precisely what each employee may have been told vaned
depending upon which supervisor conducted the orienta-
tion session . Since the alleged rule was not read to the
employees but was recited extemporaneously with at most
2 Respondent does not contend that there is any objection to reporting a
contemplated absence to a lead operator
3 The August 10, 1973, warning notice to Grubb states, " Darrel [sic I was
informed by me on July 4, 1973, of his failure to report intended absence of
July 1, 1973 " A memorandum assertedly given to Mohle by Foreman
Smallwood on July 4, 1973, states, "1 told Darrel [sic I Grubb he had to call
in when he was off from work . He had been off from work June 29,
June 30 and July I, 1973 He called the 29th & 30th of June But not July 1,
the assistance of only sketchy notes, undoubtedly the
description of the rule varied as it was articulated to
different employees even when done by the same supervi-
sor. Construing the supervisors' testimony most favorably
to Respondent, employees were told that they must call in
with respect to each day of absence, unless they inform the
Company in advance how long they were going to remain
away from work, and any employee who is absent for 3 or
more consecutive days without at anytime calling in will be
terminated. The rule as explicated by Respondent's
witnesses does not provide that an employee who called in
to report that he will be absent because of illness but
without specifying the anticipated length of his absence
will be terminated if he omits to call in during the
succeeding 3 workdays.
Six employees called by General Counsel testified
regarding their understanding of the absentee rule. Their
testimony indicates varying understandings of the applica-
ble rule. There is uniform agreement that an employee who
is absent at least 3 consecutive days is required to bring a
doctor's certificate with him when he returns to work. Also,
their testimony indicates that they understand that when
they are going to be absent because of illness they should
notify the Company at the beginning of their absence, but
there is no requirement to notify the Company on each
successive day of their absence, if they are hospitalized or
under a physician's care.
Respondent offered into evidence personnel records
relating to employees who were discharged for failing to
notify the Company of their absences for at least 3
consecutive workdays and who were terminated. The
circumstances of the various cases differ. However, they
are consistent with a policy of treating unexplained
absences which extend for at least 3 days as constituting
voluntary quits. Production Superintendent Mohle testified
that he knows of no case, including those referred to in the
exhibits offered in evidence in this proceeding, similar to
Grubb's where an employee on the first day of his absence
reported that he was sick and that he was about to consult
a doctor and nevertheless was terminated when he later
sought to return to work.
Upon consideration of all the evidence regarding the
Company's absentee rule I find, contrary to Respondent,
that there was in effect no rule, either in writing, or
promulgated orally, or established by custom or practice,
which automatically called for Grubb's discharge because
of his failure to inform the Company on August 7, 10, and
11 that he would be absent because of illness when he had
informed the Company on August 6 that he was ill and was
going to consult his physician. I find the Company's
asserted reason for Grubb's discharge is specious .3
The evidence regarding the attempt to warn Grubb
about his impending infraction of the 3-day rule is so
contrived that, instead of lending credibility to the
1973 " However, Smallwood testified that on July 4, "I told Darrell, I said
I know you got a Doctor' s statement , you are to call, you didn' t call in
yesterday' " Thus, even on that occasion , accepting as true Smallwood's
testimony, Smallwood did not articulate the supposed rule to Grubb that he
would be subject to automatic discharge if he should be absent for 3
consecutive days without calling in regardless of whether he informs the
Company at the beginning of his absence period that he was ill
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's defense, it bolsters General Counsel' s assertion
that the Company sought to use Grubb' s absences from
work in August 1973 to conceal its underlying unlawful
motive for discharging him.
The warning notice initially was prepared in longhand by
Foreman Smallwood. He gave the instrument to Prod-
uction Superintendent Mohle who caused it to be typed
and who mailed it at 4 p.m. on August 10. According to
Smallwood, the reason for the warning notice was to give
Grubb an opportunity to call in before the expiration of 3
days and thereby avoid being discharged under the
Company's rule. Mohle also testified that the purpose of
the notice was to give Grubb an opportunity to correct his
dereliction and avoid an infraction of the 3-day rule which
would lead to his discharge. This was in line with Mohle's
testimony that he was leaning over backwards to show
consideration to Grubb. According to Mohle, he would
have telephoned Grubb but was unable to do so because
Grubb's number was unlisted. Mohle also testified that had
he been able to telephone Grubb the written warning
would have been unnecessary, and further that had he
been advised by Grubb in such telephone conversation
that Grubb was still ill that would have constituted
adequate notice to the Company and Grubb then would
not have been in violation of the 3-day rule. Mohle was
unable to offer any explanation as to why the warning
notice had not been delivered directly to Grubb's home
which was located 10 blocks closer to the plant than the
post office. As in the case of a telephone call, if the notice
had been delivered to Grubb at his home Grubb would
have been able to inform the messenger then and there as
to his situation, whether he was too ill to return to work or
whether he was quitting his employment. In that case too
there would have been no reason for the application of the
so-called 3-day rule.4 Mohle testified that the reason the
notice was sent to Grubb by certified mail was that
"according to Mr. Herschel Phillips, we had to have some
verification that we did attempt to let the man know that
he was about to become terminated, because of infraction
of the rules." Mohle further testified that sending a
warning notice such as was sent to Grubb was unusual.
It is the Company's position that Grubb was discharged
by reason of the automatic application of its so-called 3
days' unreported absence rule. However, the Company was
unable to prove that any such rule ever existed. It is not
contained in the management manual nor in any of the
three versions of the employee handbook. The attempted
explication by various management personnel of a policy
established, not in writing, but by oral communication to
the employees was unsuccessful. None of Company's
witnesses articulated a rule that covered Grubb's situation.
Also, the understanding that the various employees called
as witnesses by General Counsel had of the Company's
4 As it happened Grubb was not at home on August 10. However, as no
attempt had been made to communicate directly with Grubb the Company
did not know that it could not reach him at home.
5 As of the time Grubb was discharged the results of the July 1973
election had not yet been determined . The vote was 73 to 73 and the
outcome of the election depended on the resolution of a challenged ballot.
In the circumstances, the Company's desire to get nd of Grubb probably
was equally strong whether or not the election would be won by the Union.
In the first instance, Grubb's discharge would reflect the Company's desire
to retaliate against him for instigating and supporting the union campaign,
absentee rule was substantially at variance with Respon-
dent's contentions here . Moreover, Mohle testified that so
far as he knows there never was a case such as Grubb's
where an employee informed the Company that he was ill,
that he was visiting the doctor and more than 3 days later
when he sought to return to work was advised that he had
been terminated . Finally, the elaborate and useless effort
by the Company to send a warning to Grubb, which in
itself was an admittedly unusual procedure, tends further
to indicate that the Company believed it necessary to erect
some facade that might lend an appearance of reasonable-
ness to the peremptory discharge of an employee with 6
years of continuous service . Contrary to Respondent, I
find that Grubb was discharged not for the reason asserted
by Respondent , but because of his activities on behalf of
the Union .5 Such discriminatory discharge discourages
membership in the Union and therefore constitutes a
violation of Section 8(aX3) of the Act. Furthermore, such
discharge coerces, restrains , and interferes with employees'
rights to engage in self-organizational activities and other
concerted activities guaranteed in Section 7 and thereby
violates Section 8(a)(1) of the Act.
B. Other Alleged Violations
William R. Temme testified that in mid-April 1973
Foreman Smallwood in the presence of Shift Foreman
George William Jones offered Temme the opportunity to
try out as a lead operator "as long as [Temme ] wasn't
involved in a union." Both Smallwood and Jones denied
that any such incriminatory remark was made. I credit
these denials and find that General Counsel has not proved
a violation of the Act by reason of anything said to Temme
or done at the time he was given a chance to try out for
lead operator or by reason of the fact that ultimately he
was not selected for the position.
Darrell Grubb testified that in June 1973 he initiated a
conversation with Personnel Manager Peak , who was the
predecessor of Joan Murray, about the Union's campaign.
According to Grubb, in that conversation Peak said that if
the Union comes in and the Company can no longer be
competitive it will have to shut down. All too often only a
fine line separates an unlawful threat from permissible
prophecy. In the circumstances here, where the conversa-
tion was initiated by Grubb, where it was of a friendly
nature, and where the Company is not accused of making
any other threats to shut down its plant or to engage in
other reprisals against employees for their union activities,
I find that Peak's remark to Grubb was not coercive. B. F.
Goodrich Footwear Company, 201 NLRB 353; Birdsall
Construction Company, 198 NLRB No. 20.
The final incident occurred at the Northbrook plant
about 5:30 p.m., on July 10. James E. Wood, an employee
and in the latter instance, in addition to the same desire . there would be the
hope that by terminating him the Company would avoid a repetition of a
third organizational campaign . The discharge of the leader in the union
movement is a powerful means of combating employee organization
because a threat then hangs over the remaining employees that if they
support a union they also would be subject to peremptory removal from
their jobs. Such threat is a forceful constraint on the exercise by employees
of their statutory rights to engage in self-organizational activities . The fears
generated in employees by the discharge of coworkers are pervasive.
difficult to extinguish, and quick to reappear under only slight stimulus.
FIBERFIL, DIVISION OF DART INDUSTRIES
of Plant No . 1, entered upon its parking lot to handbill
employees and to talk to employees about the Union.
According to Wood , Plant Manager Ted Davis came to
him and informed him that he was not allowed to handbill
on company property. Wood then left and went to the
entrance of the property where he continued handbilling.
Davis testified that he merely was enforcing a rule which
prohibits off-duty employees from entering upon company
premises . In accordance with the Board 's holding in GTE
Lenkurt, Incorporated, 204 NLRB No. 75, I find that the
foregoing incident does not constitute a violation of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above, occurring in connection with its operations • de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully discharged its
employee, Darrell B . Grubb , on August 13, 1973, I shall
recommend that Respondent offer him immediate and full
reinstatement to his former job or, if that job no longer
exists , to a substantially equivalent position , without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him by
payment to him of a sum of money equal to that which he
normally would have earned from the aforesaid date of his
termination to the date of Respondent's offer of reinstate-
ment, less his net earnings during such period. The
1095
backpay provided for herein shall be computed on the
basis of calendar quarters, in accordance with the method
prescribed in F. W. Woolworth Company, 90 NLRB 289.
Interest at the rate of 6 percent per annum shall be added
to such net backpay and shall be computed in the manner
set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Respondent's unlawful discharge of Darrell B. Grubb
goes to the very heart of the Act and indicates a purpose to
defeat self-organization of employees. The unfair labor
practices committed by Respondent are potentially related
to other unfair labor practices proscribed by the Act, and
the danger of their commission in the future is to be
anticipated from Respondent's conduct in the past. The
preventive purposes of the Act will be thwarted unless the
recommended Order herein is coextensive with the threat.
Accordingly, in order to make effective the interdependent
guarantees of Section 7 and thus effectuate the policies of
the Act, an order requiring Respondent to cease and desist
from in any manner infringing upon the rights of
employees guaranteed in the Act is deemed necessary.
N.L.R.B. v. Express Publishing Company, 312 U.S. 426;
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4, 1941).
Upon the basis of the foregoing findings of fact and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By discriminatorily discharging Darrell B. Grubb on
August 13, 1973, thereby discouraging membership in the
Union, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
2. By reason of the foregoing conduct Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act
and thereby has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]