Fixtures Mfg. Corp.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 778 (N.L.R.B. 1980)

77X DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fixtures Manufacturing Corporation and United
Steelworkers of America, AFL-CIO-CLC. Case
17-CA-8171
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALIE
On June 12, 1979, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, a and counsel for
the General Counsel filed cross-exceptions and sup-
porting brief.
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, as modified herein, and to adopt his recom-
mended Order, as modified herein.
The General Counsel excepts to the failure of
the Administrative Law Judge to find that Estel
Jay Halterman, Jr., was unlawfully discharged. We
find merit in this exception.
The Administrative Law Judge found that, be-
cause of his union activities, Halterman was given a
polygraph test on March 3, 1978. We agree. The
Administrative Law Judge then found, however,
that the polygraph test implicated Halterman in the
thefts which had been taking place at Respondent's
Kansas City facility, and, thus, that Respondent
lawfully discharged Halterman on March 6, 1978,
as a result of the polygraph findings. In doing so
the Administrative Law Judge has failed to consid-
er that the discharge was the direct product of Re-
spondent's unlawfully motivated actions in subject-
ing Halterman to the polygraph examination.
The grounds upon which Respondent relied in
discharging Halterman were obtained by Respond-
ent during a polygraph examination which was un-
dertaken because of Halterman's union activities.
Thus, if Respondent had not unlawfully subjected
Halterman to the test, it would not have had a
basis for discharging him, and, we must assume, he
would have continued in Respondent's employ.
i Respondent has excepted to ce rlan credihility finidinlgs made h tIhe
Admillistrat'c I aw Judge. It is he Board's established policy not to
overrule all aidlnaiiistrative law judge's reolutlil, wilt respect I t redi-
bilily unless he clear prepltnderance o all 1of the relesant citlenice coil-
vinces us hat the rsolulinls are inciorrect Standard Drv Wiull Prlduwlls,
/n.., 9 N RB 544 (1950)). erd. 5 18 2d tI2 (3d Cir 1951I We hase
carefully examined the record and find n ba h;li flor retsCI. t g its flidings
251 NLRB No. 107
Failure to find the violation here would permit Re-
spondent to act unlawfully and then avoid remedial
measures merely because it learned somthing which
under other circumstances might constitute cause
for discharge. Therefore, since the discharge of
Halterman is a direct product of Respondent's un-
lawful action of subjecting Halterman to a poly-
graph test because of his union activities, we find
the discharge violated Section 8(a)(3) and (1) of the
Act.
AMENI)II) RI MIlI)Y
2
We have found the discharge of employee Hal-
terman violative of Section 8(a)(3) and (1) of the
Act. The appropriate remedy for such a violation
ordinarily would include restoration of the saturu
quo ante in the form of reinstatement and backpay
for the unlawfully discharged employee. At the
hearing, however, Respondent argued that, if Hal-
terman's discharge is found to be violative of the
Act, Halterman has forfeited his right to reinstate-
ment because a polygraph operator's report impli-
cated him in the theft of Respondent's property.
To be sure, an employee can be deemed to lose
the right he might otherwise have to reinstatement
because of some misconduct rendering that em-
ployee unsuitable for rehire.: The burden of sub-
stantiating the facts rendering such employee unfit
for reinstatement is on the party seeking to block
reinstatement. Thus, while the Board does not con-
done theft or other serious misconduct on the part
of employees, it requires actual proof of such mis-
conduct before it will consider deny'ing reilstate-
ment to an employee who has been unlaw'fully dis-
charged.
In asserting that Halterman should not be rein-
stated, Respondent relies essentially on the results
of polygraph tests. 4 Without deciding whether in
other contexts an employer may rely on the results
of polygraph tests, we are unwilling to find here
C(oulsel fir te Geincral Cowuscl has xcplctd t Ibe aisece l t ill tel
I)cision's tI(ltiet a prosistlMI for literest t o he bactpa5 If Williinl
l.inddse, as well as the resloratlion of eniorit or itlicr rights ad pri%
leges upionl his rsinstatencril Wve as e icluded such prrtl,,inri ill the
amended notice Il accordanlce s ih Ilh{IAtit 1'1id. Ir., 242 N Rl)
1357 (1979). ure ha'e also substituted lie narro injutictC llanguage, "ifl
any like ior related maniner," for the hrtader "il any ltller mannier lan-
guage recomnicnded by the AdmTitisratise l.ass Judge in his Order
: See. e g Southern itrws ( i.puntl. 124 NRI 749 (11959) Rt/r
lstlre Milh,. /it., 122 NI R 929 (1959): Johin 1- ( us(/ (/tpanvtr. 152
NJ-RI) 929 (196sq); and Quei .,luo Spplice. Inc, 2t), NI R13 527 19731
I4 in the course o f Ihe so-called pretest ihlelsltes Collducted prior to hii,
pol?gr;aph cianllllatiln, Ilalicrrllall adlitttd appripriailng sonlt nriin)or
itctins rolt Respidclt ai returned table top/colrer di ider ad lie
damlaged base tIat llatched. scress, Iltts, hI,. ptCCils. ailltd smllall piece
if upholstery nlalcrial Ilovs, r. enlpliosee NMlder adnmitcd siiilar
coitlucl ill it liretest ilersic e ad lMoulder ;as rlno discharged b Re
sptonde Il. hit,t t is ot clear hat lalteritatii vI lid Ia c beell unflit toII
Ci(ittrlt It Respolldt, lt's etlplos ilhstl lte additll iollal lpillliti ;1s ItI 1Hal1
terilli
'
s terniCI1 otf'ereld Ie plsgraphl lcratlir
_ _..
FIXtURt-S MANI.FACTtRIN(G C()R()ORATION 77Q')
that such polygraph tests constitute sufficiently
probative evidence of theft or other misconduct for
the Board to rely on them in determining whether
an employee has lost his right to reinstatement.'
Moreover, Respondent has not demonstrated that it
would have discharged Halterman without the re-
sults of the unlawfully administered polygraph test.
In these circumstances, we shall order that Halter-
man be reinstated with backpay. Therefore, in ad-
dition to the remedial actions recommended by the
Administrative Law Judge, we shall order that Re-
spondent offer Estel Jay Halterman, Jr., immediate
and full reinstatement to his former job or, if his
job no longer exists, to a substantially equivalent
position, without prejudice to his seniority or any
other rights and privileges previously enjoyed, and
make him whole for any loss of pay which he may
have suffered by payment to him of a sum of
money equal to that which he normally would
have earned as wages from March 6, 1978, to the
date of such offer of reinstatement, less his net
earnings during said period, said backpay and inter-
est thereon to be computed in the manner pre-
scribed in F. W Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231
NLRB 651 (1977). a
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, as modi-
fied below, and hereby orders that the Respondent,
Fixtures Manufacturing Corporation, Kansas City,
Missouri, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(d):
"(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraph 2(a):
"(a) Offer to William Lindsey and Estel Jay Hal-
terman, Jr., immediate and full reinstatement to
their former positions or, if those positions no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges previously enjoyed, and make them
whole for any loss of earnings in the manner set
forth in the section of this Decision entitled 'The
Remedy,' as amended by the Board's Decision and
Order."
: See Rig ";" (rorpiorut i. 22 NL. Ri 1349 ( I976
ii Scc gerncrlly . rI P/l,,umh,,bm d Ilcou g (C,. 1 N.RB 7lr 106,2)
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
Noric. TO EMPI OYt.S
POSITE) BY ORDER OI: THE
NATIONAI. LABOR REI.ATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any' or all
such activities.
WE Wvli.. Nor discharge employees for en-
gaging in union activities.
WE Wll I. NOT threaten to lay off employees
if they select a union to represent them, nor
will we carry out such a threat.
WF. Wll.l NOT interrogate employees about
union activities.
WIE WI.Ll NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE WILL offer William Linsey and Estel
Jay Halterman, Jr., immediate and full rein-
statement to their former jobs or, if those jobs
no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or
other rights and privileges previously enjoyed,
and make then whole for any loss of earnings
they may have suffered because of the discrim-
ination practiced against them, plus interest.
FIXTURES MANUFACTURING CORPO-
RATION
DECISION
JANMES M. FITZPArRICK, Administrative Law Judge:
This proceeding began with unfair labor practice charges
filed March 13, 178,L by United Steelworkers of Amer-
ica, AFL-CIO-CLC (the Union), against Fixtures Manu-
A I ll daie, hercin are In 1978 untle.s oltherkile indicated
780 DECISIONS OF NATIONAL LAB()OR RELATIONS BOARD
facturing Corporation 2 (Respondent). A complaint based
on these charges issued April 21 alleging that Respond-
ent had engaged in unfair labor practices proscribed by
Section 8(a)(l) and (3) of the National Labor Relations
Act, as amended (the Act). More specifically, the com-
plaint alleges that Respondent committed independent
violations of Section 8(a)(1) of the Act by interrogating
an employee respecting union activities on February 21
and on March 3, and by threatening employees on
March 10 that they would be laid off if they selected the
Union to represent them. 3 The complaint also alleges
that Respondent unlawfully discriminated against em-
ployees because of union activities by discharging Wil-
liam Lindsey on March 3 and Estel Jay Halterman, Jr.,
on March 6. On May 5 Respondent answered, admitting
jurisdictional allegations but denying the interrogations
and the threat and denying that the terminations were
unlawful. The issues were heard before me at Kansas
City, Kansas, on August 31 and September 1.
Based on the entire record, including my observation
of the witnesses and consideration of the briefs filed by
the General Counsel 4 and Respondent, I make the fol-
lowing:
FINDINGS OF FACT
I. THE EMPLOYER
Respondent, a Missouri corporation, is engaged ill
Kansas City, Missouri, in the manufacture and distribu-
tion of commercial furniture. It annually purchases di-
rectly from sources outside Missouri goods and services
valued in excess of $50,000. Respondent is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
Respondent's principal officers are Norman Polsky,
president, Bobbie Snyder, plant manager, and Max Point-
er, controller.
It employs about 100 employees in three locations.
One building contains the corporate offices and the ship-
ping and assembly department where about 20 employees
work. An adjoining building houses the production de-
partment. The warehouse is in a third building farther
away.
II. THE UNION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE AI.LEGED UNFAIR l.ABOR PRACTICES
A. The Theft Problem
For about a year prior to the events involved in this
case incidents of theft of company and employee proper-
ty occurred with increased frequency. Finally, when a
woman employee had $30 stolen from her purse, man-
2 Respondent's name appears as corrected at the hearing
An additional allegation of unlawful inlerrogation of an employee's
father was deleted from the complaint by amendment at the hearing.
4 No consideration has been given to a copy of a ubpenu duc(s teurnm
appended to the General Counsel's brief The original subpenla as nei-
ther offered nor received as part of the record in this case. See Rules arid
Regulations and Statements of Procedure, Series 8. Sec 102.38.
agement decided something had to be done to stem the
tide. On February 17 Polsky, Snyder, and Pointer jointly
decided to require suspect employees to take polygraph
tests. The three most suspected, based on rumors and
their opportunity to steal, were Branson, Ralph Moulder,
and William Lindsey. Each of the three was asked to
agree to the tests as an alternative to immediate dis-
charge. Branson resigned rather than take the tests. The
other two agreed. Pointer arranged with Paul Gearhart
of Central Security Co. of America, Inc., to administer
the tests.
B. Polygraph Tests otn February 21
On Tuesday, February 21, Gearhart administered poly-
graph tests to Lindsey, Moulder, and Billie Wiley, ' for
the purpose of testing their veracity respecting thefts.
Gearhart, whom I credit, testified that his questions re-
lated only to those topics and did not involve union ac-
tivities.
Lindsey testified that, in addition to asking him ques-
tions about thefts, Gearhart asked whether he knew of
any union trying to get into the company, and that he
(Lindsey) denied such knowledge. Between Gearhart
and Lindsey, I credit Gearhart. The February 21 tests
predated any of the union activities. The record as a
whole indicates that Gearhart's independent company
was engaged in connection with the theft problem and
only for that problem. Gearhart, an experienced profes-
sional in security work, testified that his notes respecting
each test were complete and did not reflect any question
regarding union activities. Finally, he testified credibly
that he would not have asked a question as to union ac-
tivities because he knew it would have been improper.
Following the tests Gearhart on February 21 reported
orally to Pointer on the results. He told Pointer that
Lindsey did not appear to be involved in the stealing.
The following day, Wednesday, February 22, he pre-
pared written reports on each of the subject employees
which were mailed to Pointer at his home. Pointer ad-
mitted he received the Lindsey report as early as the
evening of Friday, February 24, but not later than
Monday, February 27. He read the report when he re-
ceived it. The following morning at the plant he showed
it to Snyder and they then conferred with Polsky regard-
ing it.
The report on Lindsey confirmed that he was not in-
volved in the thefts but indicated he had knowledge of
others stealing which he did not disclose. The report
concluded:
After reviewing all charts, it is the opinion of this
examiner that Mr. William Lindsey was not truthful
on General Series Relevant Question 5.
The report gave that question and answer as follows:
I Allhough Respondent', presidClit. Norman Polsky. testified that the
third employee suspccted of theflt ais ralnlsorl. he did not lake thce test,
and Io explanlation appears i the record ais to h by Wilty * as substlituted
as the third subject for tests
FIXTURES MANUFACTURING CORPORATION 781
Other than what you have already told me, do you
know for sure of other employees stealing?
ANSWER: NO-DECEPTIO IVDICA. TED.
C. Union Activities
Respondent has always operated nonunion. Manage-
ment admittedly is opposed to having a union represent
its employees. From time to time various unions have at-
tempted to organize the employees but none has been
successful.
Respondent's supervisors are under instructions to
report to higher management any information they re-
ceive respecting union activities among the employees.
Respondent's union animus, however, is considerably
stronger than such instructions alone would indicate.
Thus, subsequent to the discharge of Lindsey, Polsky, in
a discussion with Lindsey's father, expressed the hope
that the son would not be so foolish as to go to the
Labor Board respecting his discharge. In addition, as
found hereinafter, Respondent engaged in independent
violations of Section 8(a)( ) which indicate significant
union animus. On March 3 in terminating Lindsey,
I'olsky interrogated him respecting his union activities,
and in the course of a speech to all employees on March
10, the tone of which was antiunion, Polsky threatened
to lay off junior employees if the Union were chosen.
Organizing by the Union began in the following
manner. In a meeting in mid-February at Armco Steel,
Union Staff Representative Glenn Obermeier asked those
present whether any smaller concerns in the area would
be likely subjects for organizing. One Jesse Vasquez, an
ex-employee of Respondent, having learned of Ober-
meier's interest in smaller companies, suggested to Hal-
terman on February 25 that they arrange a meeting with
Obermeier. Halterman agreed. Vasquez then arranged
for Obermeier to call Halterman the following day and
set up a meeting for March I at a motel. Obermeier
asked him to contact as many fellow employees as he felt
he could trust to act as an organizing committee.
Between the time he spoke with Vasquez and Ober-
meier and the March I date, Halterman spoke with a
number of employees in the plant, including employees
in the shipping and assembly department where he
worked, in an effort to develop an organizing committee.
Among others, he spoke with Gary Griddine at his work
station telling him he had talked with a union representa-
tive and asking him if he would be on the committee and
attend the March I meeting. Griddine expressed interest
but said he would be unable to attend the meeting.
During this conversation other employees were in the
area, including Supervisor Mike Ziehmer and employee
Gary Pointer, son of Max Pointer.
Halterman also asked Ralph Moulder, Jr., to be on the
committee and to attend the meeting. Gary Pointer and
Ziehmer were also in the vicinity during this conversa-
lion. Moulder then talked with other employees in ship-
ping and assembly.
During the day of March 1 Halterman spoke with
Lindsey in the production building, asking him to attend
the meeting that evening. Lindsey agreed to go. During
this conversation a supervisor named Dixon stood a few
feet away. That same day Moulder also spoke to Lindsey
respecting the Union. Lindsey himself spoke with Dennis
Street in the production building.
That evening Halterman, Lindsey and Vasquez met
with Obermeier at the Ramada Inn. They generally dis-
cussed the subject of organizing Respondent's employees.
Both Halterman and Lindsey signed union authorization
cards for Obermeier.
The following day, March 2, while at the plant, Hal-
terman reported to Moulder about the meeting. Moulder
continued to talk with other employees, including a lead-
man named McHugh, about the advantage of organizing
a union. According to Moulder, there was constant talk
about the Union among the employees generally.
D. Company Knowledge of Union Activity
It is undisputed that responsible company officials
knew there was union activity among the employees on
March I. Respondent's night supervisor, Capehart, wrote
a note dated March 1, which apparently referred to a
union meeting, and left the note for Plant Manager
Snyder. Snyder saw it on the morning of March 2 and
delivered it to Pointer or to Polsky.
The note itself was not produced. In testifying about
it, none of the three officials satisfactorily explained what
happened to it. Snyder testified the note indicated there
was union activity in the plant. Polsky testified that Ca-
pehart told him an employee had informed him of the
union activity. Polsky also testified that he learned of the
union meeting as of March I but then refused to reveal
the identity of his informant. He admitted, however, that
supervisors were directed to report union activity and
that management had a good grapevine.
The question here is the extent of company knowledge
of union activity, more particularly, whether manage-
ment knew the two alleged discriminatees were in-
volved. In the circumstances failure to produce or to ex-
plain satisfactorily the fate of the mysterious note which
was in the control of company officials on March 2 war-
rants the inference it would have been unfavorable to
Respondent. International Union, United Automobile.
Aerospace and Agricultural Implement Workers of America
[Gyrodyne Co. of America] v. .L.R.B., 459 F.2d 1329
(D.C. Cir. 1972). Polsky testified he gave no significance
to the note. But this does not square with his antiunion
policy. Moreover, neither he nor Snyder was credible
with respect to other pertinent aspects of the case. I
simply do not believe intelligent witnesses who swear to
tell the whole truth then deliberately do not. Relying on
the inference noted above and my assessment of the
credibility of Polsky and Snyder, I find that as of March
2 top management knew that Lindsey and Halterman
met with Obermeier the night of March I and were ac-
tively organizing for the Union. The finding of company
knowledge of their involvement is further supported by
the circumstances including the active organizing in the
shops from February 27 through March 1, the proximity
of the controller's son and of supervisors during the
number of such employee discussions, the small number
of employees (about 20) in the assembly and shipping de-
partment where Halterman worked and which is close to
the management offices, and the fact that Lindsey and
782 DECISIONS OF NATIONAL I. LABOR REI.A'IONS BOARI)
Halterman (as well as Ralph Moulder) spoke to other
employees about organizing. Wiese Plow Welding Co.,
Inc., 123 NLRB 616, 618 (1959).
E. Termination of Lindsey
Respondent terminated Lindsey on March 3. The Gen-
eral Counsel and the Union contend he was terminated
because of his union activities. Polsky testified he was
discharged because the polygraph tests indicated he
knew of others who were implicated in thefts and re-
fused to cooperate in the investigation.
On Friday, March 3, Snyder gave Lindsey an ultima-
tum to either resign or be fired because of what was re-
ported about his polygraph tests. Lindsey, pursuant to
the Company's open door policy, asked to talk to
Polsky. Polsky told him that he was being terminated be-
cause he would not cooperate in the investigation re-
specting the thefts, that he could resign and receive a
good reference plus his vacation pay, or he could be
fired and receive a poor recommendation, no vacation
pay, and Respondent's opposition if he applied for an un-
employment compensation. Polsky then asked him if he
knew of other employees who were implicated in the
thefts. Lindsey admitted that he did. Polsky also asked
him if he knew about the Union, and he admitted he did.
Polsky did not offer to let him stay if he cooperated.
Thus, he was being terminated whether or not he then
cooperated because he had already failed to cooperate
during the tests. Snyder testified that in a conversation
with Lindsey after his termination Lindsey told him he
could not rat on his fellow employees.
At the time he terminated him Polsky also asked Lind-
sey if he knew about the Union. Lindsey admitted that
he did. Polsky denied this interrogation. I do not credit
his denial because, as noted earlier herein, I do not con-
sider him an honest witness. I find the interrogation vio-
lated Section 8(a)(l) of the Act.
F. The Polygraph Tests of Halterman on March 6
Halterman, who was hired November 29, 1976,
worked as a chair assembler and did other work includ-
ing the boxing of chairs. According to Polsky he was im-
plicated in the thefts by another employee (whom Polsky
refused to identify) and he was also suspect because for
several months prior to Christmas 1977 he had had
access to the premises at night. On March 2 Polsky de-
cided to require him to take the polygraph tests. Polsky's
refusal to identify the employee who fingered Halterman
is suspicious. Also, absent some believable explanation as
to why the decision was made on March 2, the inference
is compelling that but for his union activities he would
not have been given the test. Even so, if the tests were
valid, which they apparently were, then cause existed for
his termination.
Following Polsky's decision to require the tests Snyder
sent Halterman to see Polsky who gave him an ultima-
tum to either take the test or resign. Halterman protested
that the tests were not being given to all employees, but
he then decided to submit to the tests rather than resign.
Gearhart administered the tests to him on Friday, March
3.
Following the tests, the results were reported orally
by Gearhart to Pointer. Gearhart later sent Pointer a
written report of the results on Monday, March 6. Both
the oral and written reports indicated that Halterman
was implicated in the thefts. I do not credit the testimo-
ny of Halterman that at the conclusion of the tests Gear-
hart told him they showed he was innocent.
On the morning of March 6, Plant Manager Snyder,
together with Pointer, discharged Halterman for being
implicated in the thefts. Later that afternoon in response
to the appeals of Halterman's parents, Polsky rescinded
the discharge and allowed him to resign.
G. Company Meetings With Employees
Respondent follows the practice of holding monthly
meetings of employees. On March 6 Polsky called a reg-
ular monthly meeting and addressed the employees for
approximately 45 minutes on the subject of stealing.
On March 10 Polsky called a special meeting of the
employees and addressed them chiefly on the sub-
ject of a union. He testified concerning this speech
as follows:
I said that there were rumors that there is union ac-
tivity and I still didn't know if they were positive, if
they were true or false, but it does give us an op-
portunity to refresh the advantages of Fixtures and
the advantages and disadvantages of a union. Then
I went into the supposed advantages of a union, and
the only one they have, really, is seniority. Then I
went on to say, "If we were union, and if we had to
lay off 20 percent of the people here, then I would
have to, under seniority, lay off these people," and I
turned the sheet over and I read off the names,
going backward, of about a dozen people....
He also referred to the polygraph tests and to rumors re-
specting the circumstances of the separation of those em-
ployees who recently had left.
More specifically, in his discussion of unionism Polsky
listed things that a union could do and things a union
could not do. He alluded to the possibility of bombings.
He suggested that, if the employees did not know what
was on the authorization cards they had signed, they
should ask for their return. Ralph Moulder testified cre-
dibly that Polsky flatly stated that if the Union came in
he would have to layoff 20 percent of the employees and
he then read the seniority list of the least senior people.
Moulder testified he offered no reason why a layoff
would be necessary.
I find that the employees could reasonably understand
that Polsky was threatening a layoff of 20 percent of the
staff if a union came in. In not spelling out any nondiscri-
minatory reason for such a layoff and considering the
overall antiunion context of the speech, his statement
could only be understood by the employees as a threat of
layoff if they exercised their rights to select a union. This
was coercion within the meaning of Section 8(a)(1) of
the Act.
FIXTURES MANUFACTURING CORPORATION 783
H. Discussion of the Issues of Discrimination
This is a case in which if no cause were shown for the
discharges findings of unlawful discrimination would be
amply supported by the record. The circumstance of
timing is very substantial evidence. Union animus is
plain. Company knowledge of the organizing activity of
Lindsey and Halterman is properly inferrable in the cir-
cumstances.
Respondent, however, had cause for the discharges,
and in fact discharged others for the same asserted
reason. It had been experiencing a serious theft problem
for a year and had taken various steps to control the
problem including special fencing, a guard service, and,
beginning in February 1978, the administering of poly-
graph tests to suspected employees and the mailing of
strongly worded letters to the homes of all employees.
The polygraph tests, which I find were honestly and
professionally administered, seriously implicated Halter-
man and Respondent had adequate grounds for his dis-
charge. It is obvious that Halterman would have been
discharged even if there had been no union activity.
Where cause of this substance is shown, a finding of dis-
crimination is not warranted even if the employer is
looking for an excuse to rid itself of union supporters.
Klate Holt Co., 161 NLRB 1606, 1612 (1966); Rosso and
Mastracco, Inc., d/b/a Giant Open Air Market, 231
NLRB 945 (1977); Fikse Bros., Inc., 236 NLRB 1351
(1978). Accordingly, I find the discharge of Halterman
was not a violation of Section 8(a)(3) of the Act.
Lindsey was also implicated by the polygraph tests in
that he appeared to have knowledge relating to the thefts
which he was unwilling to divulge. This posed for him a
dilemma of loyalty to his fellow employees on the one
hand or to his employer on the other. In the matter of
thefts his employer was entitled to his unconditional loy-
alty and was entitled to terminate him for withholding it.
The question is whether that was the reason Lindsey
was terminated. I find it was not because there is no be-
lievable explanation in the record for the delay in dis-
charging him once Gearhart delivered his written report.
Only after Polsky learned on March 2 that the union
meeting was held the night before was action taken.
Lindsey was fired the next day. Thus, although cause ex-
isted for the discharge of Lindsey as with Halterman, in
the case of Lindsey it does not appear to be a "but for"
cause in view of the delay. See The Princeton Inn Compa-
ny, d/b/a Princeton Inn, 174 NLRB 1193, 1198 (1969).
Rather, the union activity appears to be the circumstance
which triggered his termination. The Youngstown Osteo-
pathic Hospital Association, 224 NLRB 574, 575 (1976).
This was unlawful discrimination which necessarily dis-
couraged membership in the Union. Accordingly, I find
the discharge of Lindsey violated Section 8(a)(3) of the
Act.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth in
section 111, above, occurring in connection with the op-
erations described in section 1, above, have a close and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCI USIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent interfered with, restrained, and coerced
employees in the exercise of their rights guaranteed in
Section 7 of the Act and committed unfair labor prac-
tices within the meaning of Section 8(a)( ) of the Act by:
(a) On March 3, 1978, interrogating employee William
Lindsey about union activities.
(b) On March 10, 1978, threatening the assembled em-
ployees with a layoff of the dozen employees with the
least seniority if the employees selected the Union to rep-
resent them.
4. By discharging William Lindsey on March 3, 1978,
and thereafter failing and refusing to reinstate him, Re-
spondent discriminated against him in regard to his
tenure of employment to discourage membership in the
Union, thereby committing unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
5. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices I recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the poli-
cies of the Act.
Respondent's unfair labor practices include a threat of
layoff if employees select a union to represent them,
which threat, if carried out, would also be an unfair
labor practice. There is some risk, in view of Respond-
ent's other unfair labor practices and its union animus,
that it might make good on that threat. In order to pre-
vent such further unfair labor practice and pursuant to
Section 10(a) of the Act, the recommended Order will be
broad enough to forestall the act as well as the threat.
I further recommend that Respondent be ordered to
offer William Lindsey immediate and full reinstatement
to his former position or, if that position is not available,
to a substantially equivalent position, without prejudice
to his seniority or other benefits and privileges, and that
he be made whole for any loss of earnings incurred as a
result of being discharged on March 3, 1978, with back-
pay to be computed in the manner prescribed in F W.
Woolworth Company, 90 NLRB 289 (1950), and with in-
terest as prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).6 further recommend that Respond-
ent be required to preserve and make available to Board
agents, upon request, all pertinent records and data nec-
essary in analyzing and determining whatever backpay
may be due.
h See. generally. Ii Plunmbing & Iauing Co. 118 NI RB 71h, (1t 6 2)
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I also recommend that Respondent be required to post
appropriate notices at its facilities in Kansas City, Mis-
souri.
Upon the foregoing findings of fact, conclusions of
law, and the entire record in this case, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER7
The Respondent, Fixtures Manufacturing Corporation,
Kansas City, Missouri, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Dischargiug employees for engaging in union activ-
ities.
(b) Threatening employees with layoff, or laying them
off, if they select a union to represent them.
(c) Interrogating employees about union activities.
(d) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights to
self-organization, to form labor organizations, to join or
assist a labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, or to refrain from
any or all such activities.
7 n he event no execeptions are filed as provided by Sec. 10246 Iof
the Rules and Regulations of ihe National Labor Relations Hoard, the
findings, conclusions, arid recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, he adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to William Lindsey immediate and full rein-
statement to his former position or, if that position is not
available, to a substantially equivalent position, without
prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings in the
manner set forth in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other re-
cords necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its premises in Kansas City, Missouri,
copies of the attached notice marked "Appendix." 8
Copies of said notice, on forms provided by the Regional
Director for Region 17, after being duly signed by Re-
spondent's authorized representative, shall be posted by
it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps have been taken to comply herewith.
IT IS FURTHER ORD)ERED that allegations in the com-
plaint of unfair labor practices not specifically found
herein are hereby dismissed.
8 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."