J.P. Stevens & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 6, 1979

240 N.L.R.B. 579 (N.L.R.B. 1979)

J. P. STEVENS & CO-. INC. 579
J. P. Stevens & Co., Inc. and its wholly owned subsid-
iary Stevens Elastomeric & Plastic Products, Inc.
and United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO. Case I --CA 11775
February 6. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MFMBERS JENKINS
AND TRUESDALE
On May 9, 1978. Administrative Law Judge John
M. Dyer issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel and the
Charging Party filed cross-exceptions with support-
ing briefs.
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, findings.' and
conclusions of the Administrative Law Judge insofar
as consistent herewith.
We agree with the Administrative Law Judge's
findings and conclusions that Respondent dis-
charged employees Kenneth Cross and Gary Wal-
lace in violation of Section 8(a)( I)2 and (3) of the Act
because of their role in initiating an OSHA inspec-
tion and their involvement in union activities.3 and
that Respondent further violated Section 8(a)( ) of
the Act by unlawfully interrogating an employee
about his union activities and by creating the impres-
sion that such activities were under Respondent's
surveillance. 4
Respondent has excepted to certain credihilili findings lmade bh Ilh
Administrative Law Judge. It is the Board's established plc not t oer-
rule an Administrative Law Judge's resolution, with respect to credihlx
unless the clear preponderance of all of the relevant eidence conllntces u,
that the resolutions are incorrect Standar d Drli ' ll P,,,,l tl. Il, 91
NLRB 544 (1950). enfd 188 F.2d 362 3d (r 1951). We have c.lrefulls
examined the record and find no hasis for reversing his filidiigs
r The Administrative Law Judge failed It include in his (nclui.,iss if
Law his findings that Respondent also sk olated Sec Sial I) of the Ai hs
discharging Cross and Wallace We herebs correcl hat inadILete.lt mitis-
sion.
IWhile we have not acquiesced in the First Circuit's po)Imiii i (in It<.l'
Furniture. Inc v. V L R B. 550 F.2d 1292 (Ist ('ir 19771) er (;/h,ih Il.,si,.
ta/. 234 NLRB 62 (19781 ). we find that the record eidence cleirl ctlabh-
lishes that, but for Cross' and W'llace's part n stigating the ()5t1, Ix\Ces-
ligation and;or their inxolvement in union alclitles. the\ ould niut ha.c
been discharged.
4Respondent contends that the unfair labor practices inloling the inlter-
rogatlion and impression of surselllance which were first .llcgcd .and
amended into the complaint at the hearing are lime-harred h Sec Ilh), of
the Act. We find no merit n this cInIention as the riiinal l11nel. filcdl
charge properly forms a basis for this aImendent to the coiplaillt icmlz,
240 NLRB No. 75
We disagree. however. with the Administrative
Law Judge's failure to find that Respondent unlaw-
fully imposed and enforced a no-solicitation rule. It
is uncontested that in early February 1976 Respon-
dent instructed its casting crew, which included
Cross and Wallace, to cease talking to other employ-
ees. The Administrative Law Judge found, and we
agree, that the no-talking rule as enforced only
against Cross and Wallace and was so enforced to
inhibit and harass them because of their status as
principal union proponents. The Administrative Law
Judge dismissed this allegation of the complaint be-
cause he found no evidence that Respondent had a
no-solicitation rule. We do not agree with the Ad-
ministrative Law Judge's finding that Respondent's
promulgation and enforcement of a no-talking rule
does not establish the existence of an unlawful no-
solicitation rule. It is clear that Respondent instruct-
ed its casting crew to cease talking to other employ-
ees. It is also clear that, because of their involvement
in union activities, it applied the rule only to Cross
and Wallace. We find that such promulgation and
enforcement of a no-talking rule, even if not pub-
lished in an employee handbook, constitute a clear
violation of Section 8(a)(I) of the Act.5
The Administrative Law Judge also found that Re-
spondent issued disciplinary warnings to Cross and
Wallace on February 6, 19, and 26 and May 5, 1976,
because of their involvement in union and other pro-
tected concerted activity. However, he failed to find
that these disciplinary warnings were unlawful and
failed to provide a remedy for such conduct. The
General Counsel filed exceptions to the Administra-
tive Law Judge's failure to find that the disciplinary
warnings violated Section 8(a)(l) and (3) of the Act.
We find merit in this exception and accordingly find
that the disciplinary warnings issued to Cross and
Wallace on February 6. 19, and 26 and MaŽy 5, 1976,
violated Section 8(a)(l) and (3) of the Act.
In its exceptions, the Charging Party requests that
the Administrative Law Judge's recommended Order
be modified to require Respondent to post the notice
at all of its New England plants: to read the notice at
(;t, ( . 209 Nl.RB 686. 687 (1974). In addition. t is well estihished Ihat
ince liirsdltiolll has been properli invoked the Board mal consider other
"unfair labor practices which are related to those alleged in the charge.
[or arel of the same class of violations as those set up in the charge . "
National Licorice Company v. N L.R.B.. 309 LI.S. 350. 369 (1940): N.L.R
v. Fant Milling Compant. 360 U.S. 301. 307 308 (11959): and Star Epanson
Induslries (orporarion. 164 NLRB 563, 564-565 (1967). enfd. 409 F.2d ISO
() i' (r 1969) he unlawful conduct alleged in the amendent to the
cltlpl.ill "relied and , of the same Slas of .iolationl as the inl;.ss
.
f
conduct ailled i the riginal charge.
lilt Bttll fitllim 224 \l.RB 13r85. 140' (I1' 7 6}; (Iil,,i
1.h l ( , , t,ita.n, 236 NILRB 1 17 19 781: and Plaiti F[.l Pr',ti
(q,. 238 NI RB 135 (1978).
'(ross alo rceved a dsciplinar, v.iarinc on Aprl 2. 197, I lie icorn-
pl.in/t did 1llO h le?. ad thec eccptiot dt 1l co iend, that this d,ciph-
nilr 'k.itrilmlni Sit unli.,fullx ril-ibitcd
J. P. STEVENS & CO..INC. 79
t_ _ A..., ._
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all of its New England plants; and to mail the notice
to all of the employees employed at its New iEngland
plants. The General Counsel, however, requests that
the Administrative Law Judge's recommended Order
be expanded to contain a nationwide cease-and-de-
sist provision and a requirement that the notice be
posted at all of Respondent's plants nationwide. Re-
spondent, on the other hand, contends that it has not
violated the Act and, therefore, that the complaint
should be dismissed in its entirety.
We have carefully considered the entire record and
the positions of all the parties and, in view of our
statutory mandate to fashion remedies that "will ef-
fectuate the policies of the Act," we find that our
customary cease-and-desist order is insufficient in
the circumstances here to remedy fully Respondent's
unlawful conduct. In J. P. Stevens & Co., Inc. v.
N.L.R.B. 380 F.2d 292, 304 (2d Cir. 1967). cert. de-
nied 389 U.S. 1005. the court found that the
Company's policies were not determined at individ-
ual plant levels alone." Later, in yet another case in-
volving Respondent, the same court found that the
"lengthy history of litigation in the federal courts
. . .has earned the Company its reputation as the
'most notorious recidivist' in the field of latbor law"
and has created the impression that "the Company
has engaged in a 'program of experimentation with
disobedience of the law.' " (Citations omitted.) 7
We fully agree with these observations its the num-
erous occasions in which Respondent has appeared
before this agency and the various Federal courts
clearly demonstrate Respondent's corporatewide
proclivity to avoid its statutory obligations.8 In the
instant case, we note that J. P. Stevens & Co.. Inc..
and its wholly owned subsidiary Stevens Elastomeric
& Plastic Products, Inc., constitute a single employer
with J. P. Stevens exercising control of the personnel
policies and labor relations.9 Therefore, in the con-
text of J. P. Stevens' control of labor relations and its
tendency to commit similar violations throughout its
corporate structure, we find a corporatewide remedy
is necessary. Accordingly, we shall expand the scope
of the Administrative Law Judge's recommended
cease-and-desist provisions to include all of
Respondent's plants and facilities nationwide. Addi-
tionally, we shall order that Respondent mail the no-
tice herein to all of its employees, read the notice to
all of its employees, and include the notice in appro-
priate company publications, such as employee
newsletters.' °
N 1. RB. v J P. Se'n, & (',. I, . 563 1 2d 8. 13.22 2d (lr 19771
See J P Slevens & Co.. Inc., 239 NLRB 738 (1978) and c;ics vcted
Iherein
RespondenI did not cOnis1 the dninilati.ti\ c I i ludc. . fdl. l ll . uI
this regard
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
J. P. Stevens & Co., Inc. and its wholly owned sub-
sidiary Stevens Elastomeric & Plastics Products, Inc.,
its officers, agents, successors, and assigns, shall:
I. ('ease and desist from:
(a) ischarging employees at any of its corporate
facilities because they engage in union activities or
other protected concerted activities such as filing
complaints with the Occupational Safety & Health
Administration.
(b) Issuing disciplinary warnings to employees at
any of its corporate facilities because they have en-
gaged in union activities or other protected concerted
activities.
(c) Interrogating employees at any of its corporate
facilities about their union activities and creating the
impression that such activities are under Respon-
dent's surveillance.
(d) Imposing or enforcing a no-solicitation rule at
any of its corporate facilities because its employees
are engaging in union activities.
(e) In any other manner interfering with, restrain-
ing, or coercing employees employed at any of its
corporate facilities in the exercise of their rights un-
der Section 7 of the Act to engage in concerted activ-
ities for their mutual aid and protection, or to refrain
from such activity.
2. Take the following affirmative action which we
deem necessary to effectuate the policies of the Act:
(a) Offer Kenneth Cross and Gary Wallace imme-
diate and full reinstatement to their former jobs or, if
such jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed. and
make them whole for any loss of pay they may have
suffered as a result of the discrimination against
them. The backpay shall be computed in the manner
set forth in F W. Woolworth Company, 90 NLRB 289
(1950). with interest thereon to be computed in the
manner prescribed in Florida Steel Corporation, 231
NLRB 651 (1977).1
(b) Preserve and, upon request, make available to
the Board or its agents. for examination and copying,
all payroll records, social security payment records,
timecards. personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) xpunge and remove from its record the un-
J I' .wt,,i & ( ,,. l , iip.w: t.od Sa , I ( j,/t ,,i.p 233 NL.RB
4Y 1 ( 1 ?): - and I,ti S,, ( t/rato n. 231 N.RiB 651 (19771
Sc. Lcnc ilk. /N, I 'umh //,/i i l ie rm k, ( , 18 NIRiB 71¢ (1962}.
J. P. STEVEN~S & CO., INC. 581
lawful disciplinary warnings issued to Kenneth (Cross
and Gary Wallace on Februar 6. 19, and 26 and
May 5. 1976, because of their involvelment in union
and other protected concerted activities.
(d) Post in conspicuous places in each of
Respondent's corporate facilities, including all places
where notices to employees are customarily posted.
for 60 consecutive days, copies of the attached notice
marked "Appendix A." 12 Copies of said notice, on
forms provided by the Regional Director for Region
i. shall be signed on behalf of Respondent bh its
president, the chairman of its board of directors. and.
in addition, by each of the other members of the
board of directors and by the highest managerial of-
ficial of the plant in which the notice is posted. Rea-
sonable steps shall he taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(e) Reproduce and mail to the home of each of its
employees at all of its facilities a cops of the afore-
said signed notice, together with a letter attached
hereto marked "Appendix B." Said letter shall be re-
produced on the Company's regular business statio-
nery and signed by the highest official of the
recipient's plant. Respondent shall provide the Re-
gional Director for Region I with proof of such mail-
ing. In addition, Respondent shall include a facsimile
of the notice, together with Appendix B. in any ap-
propriate company publications, such as employee
newsletters.
(f) At such reasonable time after the entry of this
Order, as the Board may request, convene during
working time by departments and shifts all its em-
ployees in each of its plants, and, at its option. either
have the notice read by the highest managerial offi-
cial in the plant or provide facilities and permit a
Board agent to read the notice to the said employees.
In the event Respondent chooses to have the notice
read by its official, the Board shall be afforded a
reasonable opportunity to provide for the attendance
of a Board agent.
(g) Notify the Regional Director for Region I. in
writing, within 20 days from the date of this Order.
what steps the Respondent has taken to comply
herewith.
I2 In the eent that this Order is enforced hN a jud~gmenl I .i I riiied
Stutes C(ourt of Appeals. the words In the notce re.adill "Pocd h ()rdcr
of the National abor Relat;l ns Board" sh;ll read "Po,.ted Pursul.nl I .t
Judgment of the nted States (Court f ppealk nforcil lln i ()rder ofr le
National l.abor Relations Board
APPENDIX A
No i 1(l to) F.ltl (o es
Posr iH) BY ORDIR 01: 11iL
N I()ON XI. H()OR Rt I NS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
has aga;in found that we violated the National Labor
Relations Act. We intend to abide by the following:
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for purposes of collective
bargaining or other mutual aid or protection
To refrain from any or all these things.
Wi Aiin l ol discharge employees em-
ployed at any of our corporate facilities because
they engage in union activities or other protect-
ed concerted activities for their mutual aid and
protection.
Wi WILL. NOI issue disciplinary warnings to
employees at any of our corporate facilities be-
cause they have engaged in union or other con-
certed activities for their mutual aid and protec-
tion.
Wi. wltl I ol interrogate our employees at any
of our corporate facilities about their union ac-
tivities or create an impression that we keep
such activities under surveillance.
Wt- v alI. ,o impose or enforce a no-solicita-
tion rule at any of our facilities because our em-
ployees are engaging in union activities.
Wi. cwiin ot in any other manner interfere
with, restrain. or coerce employees employed at
any of our corporate facilities in the exercise of
the rights guaranteed in the National Labor Re-
lations Act.
Wi Alt I. offer Kenneth Cross and Gary Wal-
lace immediate and full reinstatement to their
former jobs or. if such jobs no longer exist. to
substantially equivalent positions without preju-
dice to their seniority or other rights and privi-
leges previousl enjoyed.
WtI 'in L make Kenneth Cross and Gary Wal-
lace whole for an, loss of earnings theN mav
ha'te suffered because of our discrimination
against them. plus interest.
Â¥'I Alln expunge and rermove from our rec-
ords the unlawful disciplinars warnings issued
to Kenneth ('ross and G;ars Wallace because of
J. P. STEVENS & CO.. INC.
_ _ ., . F . _
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their involvement in union or other protected
concerted activities.
WL W'IIl send to all of our employees at each
of our corporate facilities a copy of this notice,
with an explanatory letter: wrt wnl. read this no-
tice to all of our employees at each of our corpo-
rate facilities; and we will include a copy of this
notice in appropriate company publications,
such as employee newsletters.
Our employees are free to become or remain mem-
bers of United Rubber, Cork, Linoleum and Plastic
Workers of America, AFL-CIO, or any other union,
or to refrain from doing so.
J P. STEVFNS & Co. jNC(. ANI) Its WHO()lI\.
OWNED SB:HSIDIARY SENs EASlI()OIIRI( &
Pi.Asrl( PROI)(U1S. IN(C
APPENDIX B
Dear Stevens Employees,
This letter, and the enclosed notice, is being sent to
all J. P. Stevens employees to inform you of a recent
decision by the National Labor Relations Board' re-
lating to J. P. Stevens & Co., Inc. and its wholly
owned subsidiary Stevens Elastomeric & Plastic
Products Inc., plant in Northampton, Massachusetts.
In 1976, the United Rubber, Cork, Linol.um and
Plastic Workers of America, AFL--CIO. was engaged
in an attempt to organize the Company's Northamp-
ton plant. After a hearing, the Labor Board found
that the Company violated the law by unlawfully is-
suing disciplinary warnings to two employees be-
cause of their part in initiating an Occupational
Health & Safety Agency inspection and because of
their involvement in union activities and that the
Company further violated the law by later discharg-
ing these two employees because of their involve-
ment in such activities. In addition, the Labor Board
found that the Company violated the law (I) by
questioning an employee about union activities. (2)
by creating the impression that such activities were
under surveillance by the Company, and (3) by im-
posing and enforcing a "no-talking" rule among em-
ployees because of their involvement in union activi-
ties.
As you can see from the enclosed notice, the C(om-
pany has promised to offer the two discharged em-
ployees immediate and full reinstatement without
any loss of seniority or other privileges and to reim-
burse them for the pay they lost, plus interest. In
addition, the Company has removed from its files all
records regarding the unlawful disciplinary warnings
1Should the Bard's Order he enforccd. ;dd here -. ppro, ed h .I
United States ( ourt of Appeals."
given to the two employees. The Company has fur-
ther promised that, in the future, we will comply in
good faith with the Nation's labor laws at each of our
plants and facilities: that we will not question em-
ployees about their union activities or give the im-
pression that such activities are under surveillance:
and that we will not impose or enforce a no-solicita-
tion rule to prevent our employees from engaging in
union activities. Therefore, anything that you have
heard which would indicate that the Company does
not intend to comply in good faith and fully abide by
the nation's labor laws, at any of its plants, is com-
pletely erroneous.
Sincerely yours,
(Plant Manager)
DECISION
STAIEMENT OF THE CASE
JOHN M. DYER. Administrative Law Judge: The Charging
Party, United Rubber, Cork, Linoleum and Plastic Work-
ers of America, AFL-CIO, on May 14, 1976,' filed a
charge against Stevens Elastomeric and Plastic Products,
Inc., herein called Stevens Elastomeric. and an amended
charge against Stevens Elastomeric and J. P. Stevens &
Co., Inc., herein called Stevens and together referred to as
Respondent, on April 13. 1977, alleging that Respondent
violated Section 8(a)(1) and (3) of the Act. The Regional
Director issued a complaint on May 23, 1977, which al-
leged that Respondent discriminatorily promulgated and
enforced a rule against solicitation at the Easthampton,
Massachusetts, plant of Stevens Elastomeric and issued
warnings to employees Gary Wallace and Kenneth Cross
and discharged them in May 1976 in violation of Section
8(a)(3) and (1) of the Act. Respondent's answer denied the
commission of any unfair labor practices or that Stevens
and Stevens Elastomeric constitute a single employer, and
admits the service and commerce allegations of the com-
plaint and that various warnings were issued to Wallace
and Cross and that they were discharged but denies the
promulgation or enforcement of a rule against solicitation.
All parties were afforded full opportunity to appear, to
examine and cross-examine witnesses, and to argue orally
at the hearing held in Northampton. Massachusetts, on
June 27 and 28 and August 1-5, 1977. Briefs from each of
the parties have been received and considered.
The principal question in this case is whether Cross and
Wallace were discriminatorily discharged. Considering all
the facts and background in the matter, I have concluded
that they were discriminatorily discharged and will accord-
ingly order their reinstatement. Additionally, an allegation
of an 8(a)(I) violation was found hut the allegation con-
cerning a discriminatory no-solicitation rule was not
proven and is dismissed.
I lirsc .t.;ttcd otheril. , Ithe er\enls herein cciurled during the firis half
,f ] t)7(
J. P. STEVENS & CO.. INC. 583
On the entire record in this case. including the exhibits
and testimony, the contradictions of testimony. and on mn
evaluation of the reliahility of the witnesses based on the
evidence and their demeanor. I make the following:
FININiNS O()I F (
I ( OMMER(: I-INDl)lN(iS AN) I NION S51I AIS
Stevens is a Delaware corporation with its principal of-
fice in New York City and at plants located in a number of
States i:; engaged in the manufacture. sale, and distribution
of textile products.
Stevens Elastomeric is a Delaware corporation with its
principal office located in Easthampton Massachusetts,
and is engaged at its Massachusetts plants in the manufac-
ture. sale, and distribution of rubber, plastic, and related
products. Stevens Elastomeric products shipped to points
located outside the Commonwealth of Massachusetts were
valued annuall. in excess of $50.000.
Stevens and Stevens Elastomeric admit, and I find, that
they are and have been engaged in commerce within the
meaning of the Act.
Respondent admits, and I find. United Rubber, C'ork.
Linoleum and Plastic Workers of America. AlI. ('1. is a
labor organization within the meaning of the Act.
II 111 N1 AIR LABOR PRA4t ( t:S
A. Bacground band Lndisputed Fatci
Stevens Elastomeric was initiall a division of Stevens.
Several years ago Stevens established Stevens Elastomeric
as a separate corporation which is wholly owned b Ste-
vens. It was stipulated that a member of Stevens' Board of
Directors. Stevens' general counsel and one of Stevens'
vice presidents constitute the three-member board of Ste-
vens Elastomeric. It was also stipulated that Stevens and
Stevens Elastomeric share many common personnel rela-
tions policies including those related to termination. job
posting. insurance. vacations. pensions, seniority. funeral
pay. jury duty pay, shift transfers and promotions. Stevens'
Industrial Relations Manager also has corporate responsi-
bilities for Stevens Elastomeric. and Stevens also plays a
significant role in Stevens' Elastomeric's major expendi-
tures and acquisitions.
Additionally. it was shown that paw raises are an-
nounced throughout all Stevens divisions and subsidiaries
on a uniform basis. The supervisors personnel manual has
a cover which identifies it as the manual for Stevens Fabric
and contains the policies for Stevens Elastomeric. A large
number of these policies are consistent throughout all Ste-
vens subsidiaries and divisions.
Stevens' annual report filed with the Security Exchange
Commission states that Stevens has 85 manufacturing
plants in the United States including plants in South C'aro-
lina. North Carolina. Georgia. Virginia. Alabama. Califor-
nia. Connecticut. Florida, Massachusetts. and Tennessee.
and that in all of its plants including its subsidiaries. Ste-
vens employs some 45,.800 emploNees.
Stevens Elastomeric has three plants in the Easthamp-
ton-Northampton area with one personnel manager. Rob-
ert Martin, acting for the three plants. Each of the plants
has a manager and usually a superintendent. At the plant
involved here, the plant manager was Robert Mungall and
Hloward Rice was the plant superintendent. The plant
managers at each of the three plants. as well as Personnel
Manager Robert Martin, report to the vice president of
Stevens Elastomeric who. in turn, reports to the president
of the division who is also a vice president of Stevens. Mar-
tin also has reporting responsibility to the division person-
nel director of United Elastic. When something more im-
portant happens. Martin reports to the personnel director
of Stev ens.
Although initially disputing the single-emplo er entit in
its answer and at the hearing. Respondent did not pursue
this point in its brief. The question was raised primaril in
regard to Stevens being named as a respondent on the sinl-
gle-emploer basis in the amended charge and the com-
plaint.
On the basis of the control both inherent and exercised
by Stevens over Stevens Elastomeric. the common direc-
tion of essential personnel policies with only a modicum of
local discretion. I find that the personnel policies as such
are directed centrall and that Stevens and Stevens Elas-
tomeric are a single employer. On this basis, Respondent's
10(b) objections to the amendment and the complaint con-
cerning Stevens' inclusion must fail.
There have been previous unsuccessful attempts to orga-
nize the Stevens Elastomeric plants. The latest organiza-
tional attempt was begun by the United Rubber Workers
in January 1976. with employee Roger Bruce of the Polar-
oid department taking the initial leadership. Bruce testified
that after giving out cards to some people whom he fell
sure of. and not seeing any momentum and feeling that the
organizational attempt would not get anywhere, he aban-
doned the effort. lie initially gave authorization cards to
Ken ('ross. Mar! Wallace. and her husband. Gar, Wal-
lace. When Bruce abandoned his efforts for the Union.
(Gary and Mary Wallace and Ken Cross were left as the
onls union proponents active in the plant.
It was stipulated b the parties that sometime in Januarx
Respondent learned that Gar Wallace and Ken Cross
were supporters of the Union and that a union campaign
was being conducted at that time. Supervisor Howard Rice
admitted that he knew that Wallace and Cross were in on
union actitiies from the start and when Bruce abandoned
his efforts. only tile Wallaces and Cross were left.
Mars Wallace worked in the Polaroid department and
apparently her principal job was buffing Polaroid pins
which was done b holding Polaroid pins next to a buffing
wheel s that the wheel would remove the excess plastic.
Her work position and that of Mary O'Brien. at the begin-
nine of February. were located very close to the break
room. People passing by. either going to or from the break
room. might stop and talk for a short time with either
O'Brien. Wallace or both. It was further stipulated that
Mars O'Brien left Respondent's employment on Februar'
6 for pregnanc leave and did not thereafter return to Re-
spondent.
Ken Cross and G(ar\ Wallace were molders in the cast-
ing department which produced plastic sheets and plastic
J. P. STEVENS & CO.. INC 583
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584 DECISIONS OF NATIONAL L.ABOR RELATIONS BOARD
rods. Plastic rods are poured usually in a gang mold and.
because of the method of pouring plastic into the mold and
the air turbulence that results, improperly made rods are
not necessarily the fault of the molders and no records of
improper rods are kept. Plastic sheets are made in two dif-
ferent ways, either pouring on a flat table or pouring in a
mold where key stock determines the depth of the mold. In
addition to molders Cross and Wallace in early Fehruar
were assistant molder Kessler and another employee
named Richardson who was sometimes classified ias an as-
sistant molder. Richard Kleszczynski, who had been an
assistant molder in the department was, at the beginning of
February, on furlough and was called back to work in the
Polaroid department around mid-February and shortly
thereafter returned to the casting department.
Vic Yarra was the foreman of the casting department al
various times and apparently was the foreman during most
of February. Sometime in either Maich or April until April
22, Yarra was made a technician and worked on some of
the machinery they were having problems with and gave
up his foreman duties. At that time his supervisory duties
were assumed by Superintendent Howard Rice. It is not
clear at what times or for how long Yarra was a technician.
In the period of January through May, there were ap-
proximately 76 employees at this Easthampton plant. Per-
sonnel Director Martin's office was located at another
plant several miles away. At various times the casting de-
partment had one or two shifts, depending on product
need and Respondent's plans. In February and March. or-
ders were slow and Respondent had reduced it': capacity
and its employee complement in the casting department.
B. The WBarnings and Discharge.
Gary Wallace worked for Respondent from September
1972 until he was discharged on May 6. During that time.
he had progressed from assistant molder to molder. assuml-
ing that position in May 1974. Ken ('ross began with Re-
spondent in June 1973 and was a molder from August 1974
until he was terminated on May 10.
Cross, Gary Wallace, and Kessler testified that on Feb-
ruary 6, Vic Yarra called them together in the casting de-
partment with employee John Richardson and said there
would be a policy established concerning not talking to
employees in other departments and disturbing their work.
particularly the employees in the Polaroid department be-
cause that department was some 40,000 pins behind in its
work. According to them, Yarra said that a notice to this
effect would be posted in the department shortly and that
Superintendent Rice would be around to explain this new
policy.
Vic Yarra testified that one day during the first week in
February he saw Wallace and Cross talking to Mary Wal-
lace and Mary O'Brien in the Polaroid department for 5
minutes or more. In his initial testimony. Yarra said he told
them he was going to give them verbal warnings and had
Superintendent Rice prepare the warnings. Later during his
testimony. Yarra said he called ('ross and Wallace into the
office and told them they should not have been talking to
the Polaroid employees and said he was giving them a writ-
ten warning. He said he then went to his boss. Superinten-
dent Rice, and had Rice prepare the written warnings be-
cause he was too busy to do so.
Yarra admitted that he knew Cross and Wallace. as well
as Mary Wallace. were engaged in union activities and
might have suspected that the conversations might have
been about the nion since this occurred at the height of
union activities. Around the time of these alleged warnings,
Yarra said he called the casting department employees to-
gether including Wallace, Cross, Kessler and Kleszczynski.
but not Richardson, and told them they should not be talk-
ing to employees who were at work in the Polaroid depart-
ment. Yarra said he did not have any problem with Rich-
ardson going to the Polaroid department and therefore did
not include Richardson in the meeting. He added that
there was really no problem with either Kleszczynski or
Kessler going and talking to Polaroid employees, that only
Cross and Wallace were doing so.
Cross and Wallace denied that they were either warned
or called into Yarra's office or any office in the beginning
of February and told that they were being given either ver-
bal or written warnings or shown such concerning being in
another department talking to employees nor were they
told such warnings would be put into their personnel files.
Cross and Wallace insisted that the only time anything was
said was in the meeting Yarra called and that Kessler and
Richardson had been there but Kleszczynski was then on
layoff. T'he two asserted warnings are dated 2-6 1976 and
are on a memorandum form addressed to the personnel
manager. the subject stated as Gary Wallace and Ken
Cross and signed "H. Rice." The body of the memoran-
dum states that on that day Yarra told the individual
(Cross or Wallace) he was not to go in another area and
bother employees when they are supposed to be working
and are not on break. Rice later admitted that contrary to
company policy, employees were not always told that a
warning memorandum was being placed in their personnel
files.
As to the conflict between Yarra and Cross and Wallace
as to whether he called them into the office and issued such
warnings to them. I believe that he did not do so and credit
the testimony of Cross and Wallace. If Yarra had taken the
time to call them into his office to warn them, it would not
have taken that much additional time to prepare the warn-
ings. It appears illogical that he would not have done so
but then would have taken the additional time to go see
Rice and have Rice (his superior) prepare such warnings
when Rice was not present on the grounds that Yarra was
too busy to do so. Additionally, if Yarra had given such
strict warnings to Wallace and Cross. he would probably
have said something about it in the meeting where Kessler
and Richardson were present, but nothing along this line
was said. These memo warnings appear to be an after-
thought. and I do not credit that Yarra warned Cross or
Wallace as he claimed, but believe that he later construed
the talk to the department as a warning to Cross and Wal-
lace and a subsequent memo was prepared.
Mary Wallace testified that her husband. Gary. told her
of Yarra's announcement of a rule against talking because.
as (Gary Wallace testified, he stopped talking to his wife
while at work and would just give her a brief greeting in
passing by her work station on the way to or from the
break room.
J. P. STEVENS & CO., INC. 585
It was agreed that no publication of such a rule was
made nor was anything stated to the casting department
employees by Rice after Yarra's statement. According to
the employees who testified, talking between employees in
different departments continued unabated.
On February 18. Cross, having observed that nothing
had been done to implement Yarra's announced rule and
that other employees appeared to be talking interdepart-
mentally with no restrictions, stopped by Mary Wallace's
work area and talked with her for 3 to 5 minutes while
coming from a break. In this conversation, he told her his
wife was pregnant and they also talked about howling.
Yarra walked by and said. "Kenny. you're not supposed to
be out here," and Cross left within 30 seconds. Nothing
more happened that day. On the following day. Cross was
called to the office where Howard Rice and Vic Yarra
handed him a written warning. 'This document recited that
on February 5 Yarra had spoken to Cross about going into
other departments and talking to employees while they
were supposed to be working and that a warning had been
placed in Cross' file. It continued that Yarra and LeBrec-
que spotted Cross talking to Mary Wallace. who was sup-
posed to be working. and that Yarra spoke to Cross again
and this written warning was being given to Cross and
Cross refused to sign it.
Yarra and Rice told Cross they were giving him the writ-
ten warning because he had been talking to Mary Wallace
and that was against company policy. Cross replied that
Yarra had said a policy would be posted and Martin would
be around to talk to them about it but nothing had hap-
pened and that he had talked to other employees who said
they never heard of such rule and therefore he considered
that no such policy existed. He added that he had never
heard of anybody else getting a warning for talking and
that Yarra had not given him a warning previously, that all
Yarra did was to give the casting employees general infor-
mation about a new policy but had not told the group of
employees this talk was a warning. Cross asked if he could
see the policy that he was accused of breaking. and Yarra
and Rice informed him that the policy book was not avail-
able to him.
Cross told Wallace and the others in the casting depart-
ment about receiving this warning. Mary Wallace said she
heard that Cross had received a warning from casting de-
partment employee Kessler. Employee Kleszczynski testi-
fied he learned of Cross' warning from Mary Wallace.
Mary Wallace told quality control employees L nda
Champagne and Barbara Moffett that Cross had received a
warning for talking to her.
Champagne and Moffett discussed this warning and. in
view of the previous information about the imposition of a
no-interdepartmental talking rule, were upset about it.
They saw Howard Rice and asked him about the new rule.
Rice said they were not supposed to talk out of their de-
partment and if they had not been talking out of their de-
partment it really did not concern them but pertained to
people who were lingering around after breaktime. He said
Respondent wanted to get production up. Champagne and
Moffett decided that they were not going to do much in-
terdepartmental talking but just confine it to business mat-
ters, but they noticed other employees were talking interde-
partmentally and nothing was being done and they decided
to continue interdepartmental talking about things other
than business.
In the interim, being incensed over what he considered
discrimination to him by being singled out for this warning
when nobody else was given such even though other em-
ploees were still talking interdepartmentally,. Cross on a
number of occasions shouted at employees and supervisors
who engaged in interdepartmental talking on what ap-
peared to him to be obviously personal matters and not
business. In his shouts at others, Cross used crude and vul-
gar language which, according to testimony. was normal
plant language.
On February 26. Cross was called to the office where
Personnel Manager Martin, Plant Manager Mungall. Su-
perintendent Rice. and Supervisor Yarra were present and
Cross was handed another written warning, This warning
cited him for disruptive actions and foul and abusive lan-
guage to Superintendent Rice and Supervisors LeBrecque
and Yarra on various dates including February 19, 23. and
25. This warning stated that such would not be tolerated
further and that this was a final warning. Cross refused to
sign the warning.
Cross told Rice. Mungall. Martin. and Yarra that he felt
he was being discriminated against since no other depart-
ment in the entire plant had been told about this no-talking
policy and nobody else had been reprimanded for it. He
said that in yelling at other people who were doing it, he
was calling the attention of the supervisors to the fact that
they were allowing it to go on and enforcing the rule only
against him. They asked if he had any other complaints.
and Cross said that employees were not wearing safety
glasses, that employees and foremen were smoking in the
departments and that employees were not getting the uni-
forms they needed. He also said they were not getting the
needed leather gloves and mentioned other safety and
health problems relating to moca. He added that all plant
employees were supposed to go by one vacation policy but
an exception was made for Supervisor LeBrecque's wife
and asked whV. At that point. Plant Manager Mungall.
using a vulgar epithet, told Cross to mind his own business
and ended the meeting,
Thereafter, Cross stopped making comments to other
employees and supervisors concerning their interdepart-
mental personal talking but both Cross and Wallace con-
tinued to observe the large amount of interdepartmental
personal talking that persisted.
On March 3. the Company held a meeting of employees
from several departments including casting, and Personnel
Manager Martin and Plant Manager Mungall were pres-
ent. During this meeting, Cross and Wallace complained
about the lack of uniforms and gloves, and the problems
with moca fumes. Mungall said it was Respondent's policy
to Issue uniforms every 6 months and said they were steal-
ing cotton gloves from the Polaroid department. Either
Cross or Wallace said the) were getting the soiled gloves
which the Polaroid people could not use and which the)
used when calibrating machines but they still needed the
heavy leather gloves for protection in moving moca. The)
also complained about the vacation periods, with Mungall
J. P. STEVENS & CO..IC. 5
._ _ .. ... .. _ .
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replying that it was company policy to have a single vaca-
tion period around July 4. Wallace asked to see the compa-
ny policy book and Martin replied that such was not
shown to hourly employees. When Wallace asked how they
knew that was the policy if they could not see the book,
Martin said "You don't." and that ended the discussion.
Another meeting of employees from casting and some
other departments took place in early April. and the same
questions concerning uniforms and gloves were raised
again by Wallace and Cross. Another meeting was held on
April 22 in Howard Rice's office with Rice, Yarra. and the
employees of the casting department. Rice and Yarra an-
nounced that Respondent was making changes in the cast-
ing department. that Yarra again was the foreman of the
department and they were going to recall an employee
from layoff and would go two-man crews, with one crew
making sheets and the other rods, and a memo would be
put out on it the next day. As the molders. Cross and Wal-
lace were to handle the hot moca while John Richardson
would be filling the melter with the moca powder. Wallace
complained that the method of handling the moca was not
safe. that he had just finished reading an article about
OSHA standards and they were not being followed at the
plant. Rice said that the OSHA rules were not in effect and
that the moca handling procedures were safe and that
moca was not dangerous. Wallace asked if that meant they
could lick it off the floor and Rice said yes. It was at this
meeting, or sometime shortly before it, that the molders
were toid that they would have to calibrate the machines
daily, in the mornings and possibly again in the evenings.
This was a new requirement which took considerable time
of the molders. As they were leaving the meeting, after
uniforms and gloves had again been mentioned, Cross said
something to the effect that they were Just going to have to
call someone else in on this. After work that day. GarN
Wallace called OSHA and lodged a complaint about the
procedures followed in the casting and Polaroid depart-
ments in dealing with moca. On May 3, he received a letter
from OSHA acknowledging his complaint and stating that
appropriate action would be taken.
On April 28. Cross received a warning for improperly
calibrating a sheet which was later rejected. ('ross acknowl-
edged receiving this warning and that he made a mistake
on calibrating the mold. Cross testified that besides this
particular warning, he had never been shown any warnings
concerning production or poor workmanship. He said that
at one time the employees were told about low production
but did not receive a warning. He denied ever being shown
a warning concerning the making of eight bad sheets.
In regard to the April 28 warning to C('ross and the May
5 warning which Wallace received, to be discussed rl/ra,
Supervisor Yarra testified that when he was again made a
supervisor in April. he started making notes of errors on
production records. It was stipulated that the only time
where a molder was identified with an error in the produc-
tion records from 1972 to 1977. was the calibration of
Cross and the alleged May 4 key stock error of Wallace.
On the morning of May 4, Wallace was working on the
sheet molds and had a number of machines to calibrate.
While he was doing so, his molder assistants, as they nor-
mally did, collected the key stock and put it in the molds.
After the sheets were poured, they discovered that the key
stock was ten-thousandths too small and that the sheets
would be undersized. Quality control was asked to check
the sheets and opined that they would be undersized. Su-
pervision decided to go ahead and cure them overnight and
see if by some possible chance they might not cure under-
sized. The key stock was immediately changed. Wallace
stated that nothing was said to him about the error at that
time. Supervisor Yarra said he told Wallace at the time of
the discover) of the wrong key stock that Wallace would
be written up for it. In view of what occurred later in re-
gard to Wallace's anger at the prospect of being given a
warning for this error of the assistant molders, I find that
Yarra's testimony is erroneous.
On May 5, the casting department employees started
work as usual around 6:30 a.m. and supervision reported at
their regular time between 6:30 and 7. Around 8 a.m., Vic
Yarra came out of the office and started covering up the
moca and urethane spills on the casting department floor
with paper and, when asked what was going on, informed
the employees that an OSHA inspector was in the office.
At that point. Cross said it was about time, that he had
called them a month previously.
The OSHA inspector began her inspection in the casting
department. Wallace and Cross had already filled the moca
pots with the hot liquid moca and had performed some of
the other actions in which they felt they were receiving
excessive moca fumes. The inspector gave them inhalation
devices and took air samples, pictures, etc. during the
course of the da. Wallace and Cross decided that for the
inspector to get a true picture of their normal daily activi-
ties, it would be necessary to prepare another moca mix-
ture and put it in the machine and did so. Superintendent
Rice and Personnel Manager Martin. who were with the
inspector during most of the day, complained that Wallace
and ('ross were not performing their normal functions even
though they had been told to do so b the inspector.
Despite the exertions of foreman Yarra in covering up
the spills on the floor. Yarra testified that he did not know
an OSIIA inspector had come to the plant and said he
thought it was Respondent's insurance agent. Testimony
revealed that the insurance agent is a man who comes to
the plant once or twice a year. Confusing him with the
female OSHA inspector would appear to be somewhat dif-
ficult, and detracts further from Yarra's credibility.
Imiediately after the OSHA inspector left, Gary Wal-
lace was called to the office by Rice and Yarra. They told
Wallace they were giving him a verbal warning because of
the two rejected undersized sheets made the day before.
Wallace objected, saying he was not responsible for the
error made by the molder assistants, Kessler and
Kleszczvnski. Rice and Yarra told him that as the molder
lie was responsible for the assistants and they were giving
the warning to him and not to them. Wallace asked if they
were giving a warning to the molder assistants and he said
they evaded answering the question. Wallace argued that
the memo given him on April 22 when changes were made
in the casting room did not make him responsible for the
molder assistants. just that he was responsible for produc-
tion. ie asked how he w'as supposed to watch them and do
his job of calibrating the machines at the same time and
J. P. STEVENS & CO., INC. 587
asked why Vic Yarra could not have been watching and
checking on them. Rice said no, that it was Wallace's re-
sponsibility and he should know what he was doing and
what the assistants were doing. Wallace, who had gotten
angry by this time, called them a couple of "turkeys" and
said they did not have to punish him, that God would pun-
ish those who deserve it. Wallace refused to sign the warn-
ing and wrote on it that they were discriminating against
him and as he was getting ready to leave, said to Rice and
Yarra that "the only reason you're screwing me is because
you can't screw your wives." When nothing further was
said, he left.
Both Wallace and Cross worked the next day. May 6.
Around 2:30 p m., Wallace was called to the office where
Martin, Mungall, Rice, and Yarra were present. Martin
said they were going to terminate him and Wallace asked
why, that he was a good worker. Martin said "It's not be-
cause of your work, it's because you don't respect the Com-
pany and its supervisors," referring to Wallace's comment
of the previous day. Wallace asked for his checks and his
dismissal slip and was told he would be given a check for I
week and would have to pick up the other check later. He
told them he had been the one who called OSHA.
After leaving the office, Wallace went towards his wife's
workbench, gave out a loud yell and told her that he had
been discharged. Testimony indicates that he did not ap-
pear downhearted nor did his wife. Wallace stated that the
Company had laid off a lot of employees and said he had
hoped to get laid off because he had some work to do on a
piece of land where he and his wife intended to build their
home, but that he did not want to get fired,
Plant Superintendent Rice admitted he was upset over
someone calling in an OSHA inspector and was curious to
know who had done so. He asked the inspector and was
told that the information would not be given out. He testi-
fied that at the time he had no idea of who had called
OSHA. Additionally. he said he had no idea of who carried
the molten moca in April and May even though he had
previously been the casting department foreman and was
so again while Yarra was a technician and in the April 22
meeting had specified it was Wallace's and Cross' job.
Rice's testimony was also evasive when he was asked what
the duties of the molders and the assistant molders were.
Despite the fact that Wallace and Cross had complained
many times about the moca and moca fumes. the uniforms,
etc. and the fact that the OSHA inspector was monitoring
the moca and the fumes, Rice testified that he had no idea
who could have called in the OSHA inspector and would
not have suspected either Cross or Wallace. When added
to this that Mary Wallace worked in Polaroid and the
OSHA inspector was working on moca in both the Polar-
oid and casting departments, it strains credulity that this
did not occur to Rice. Assistant molder Kessler testified
that he had heard Wallace and Cross complain about the
uniforms, gloves, moca, ventilation, etc. a number of times
and that the rumor in the Plant had it that either Ken
Cross or Gary Wallace had called OSHA for the inspec-
tion.
Rice testified that Wallace was an excellent worker and
recalled giving him no prior performance warnings. He ac-
knowledged that Wallace was called into the office imme-
diately after the OSHA inspector left, stating that there had
been no time to give Wallace the warning earlier. Accord-
ing to Rice and Yarra. they were both shocked over
Wallace's statement to them and after sitting for a mo-
ment., Rice said, according to Yarra, that he was going to
call Personnel.
Kleszczynski and Kessler, the assistant molders, testified
that the molders do not usually check the key stock, that
the assistant molders check it and put it in the mold.
Kleszczynski. who is now a molder, testified that he was
not told that he is responsible for the assistant molders.
Kessler testified that no one checks the key stock but the
assistant molders. According to company records, both
Kleszczynski and Kessler were given warnings on May 6,
the day after Wallace was called to the office. Kleszczynski
and Kessler state that neither one of them saw the warning
nor were they told a warning would be put in their files,
nor were they given an oral warning about the key stock.
A meeting of Mungall, Martin, Rice. and Yarra was held
the morning of May 6, and Wallace's statement was re-
viewed as well as his personnel file and the group decided
that Wallace should be fired for insubordination. Yarra
testified that the OSHA inspection of the previous day was
not discussed in this meeting and that he signed Wallace's
termination slip which was prepared by Howard Rice.
Later, when shown Wallace's and Cross' termination slips,
Yarra admitted he had prepared both of them. In the meet-
ing they did discuss all the problems they were having with
Gary Wallace before they reached the decision to dis-
charge him, according to Yarra. Asked what he considered
the extreme misconduct of the Wallace termination slip,
Yarra said he considered it misconduct when an employee
keeps raving and hollering all the time. When reminded the
slip dealt with Wallace and not Cross, Yarra said he knew
it and also considered it misconduct by putting on Mickey
Mouse hats and raising cain through the department and
running around and hollering and raising hell. Asked spe-
cifically what they' were doing. Yarra said they were just
doing it in general, that they would holler at anybody going
by in different parts of the shop. Reminded again that he
was discussing the termination of Wallace and not Cross.
Yarra said that Wallace would holler too but that he did
not recall what he hollered about. Asked about the insub-
ordination noted on Wallace's termination slip, Yarra said
he figured a person is insubordinate when he did not do
what he was told. Asked to what he was referring, Yarra
answered that when he put something on a worksheet, he
expected a person to do what he had been told and this was
the insubordination he had reference to.
On redirect examination, despite the above testimony.
Yarra again said that the only reason for Wallace's dis-
charge was Wallace's remark of May 5 and that he consid-
ered the remark to be insulting to his wife since his wife did
not work in the plant and that this was infringing on his
private life and he would not tolerate anybody talking
about his private life.
The remark quoted supra would appear to be an insult to
Rice and Yarra in alleging they were harming Wallace,
because they were impotent, but does not appear to he
directed towards either Rice's or Yarra's wife. However,
according to Respondent. if Wallace had not made this one
J. P. STEVENS & CO..INC. 7. _ .. ...
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
remark, he would still be working at the plant.
After Wallace told his wife of his discharge, he went to
pick up his clothes in the washroom. Either there or outside
the washroom, Wallace told Cross of his discharge and that
he was going to work on his land. Cross told him to do
himself a favor and he sure to go to the Labor Board.
Wallace said he would.
Lynda Champagne testified that shortly after Wallace
was discharged, she heard Supervisor Vic Yarra say he was
glad they got rid of one of the troublemakers and if they
could get rid of the other one, everything would go back to
normal.
When asked on cross-examination how she knew Yarra
was referring to Wallace, she said that everybody knew
Yarra was talking about Wallace, that Wallace had just
been let go and everybody knew it was because of the
Union. She continued that it was obvious to the employees
that the Company was trying to get rid of the two guys who
were for the Union. Asked what made it obvious, she said
the little things they were writing them up for, such as
talking to Mary Wallace. She acknowledged that Cross
could have been written up for yelling at supervisors.
When we consider that Yarra participated in the deci-
sion to terminate Wallace, wrote the termination slip and
his definitions of the termination slip language. it is appar-
ent that Wallace's remark was only one facet of what the
participants considered in terminating Wallace. Certainly.
the OSHA inspection, the immediate calling in of Wallace
after the inspection for an apparently specious warning
and Yarra's later statement overheard by Champagne.
clarify what was considered in terminating Wallace. The
subsequent action taken by Respondent against Cross is
illuminated by this same statement.
Near the end of the shift after Cross had cleaned up, he
approached Yarra and asked what he was going to do with
Wallace fired, that he could not run the job by himself.
Yarra told him not to worry, that he would fill in until
Wallace was replaced. Cross asked why people from other
departments were doing the inventory, that the overtime
was supposed to be allotted by seniority. Yarra said that he
had nothing to do with it, but that Wallace and Cross had
screwed up the inventory the last time and were not being
given the overtime this time. According to Cross. Yarra
said that LeBrecque was the one deciding who got the
overtime. Yarra testified he told Cross that Mungall and
Rice were appointing the inventory staff. Inexplicably,
however, Yarra testified that Cross then said, "That g-
d-LeBrecque," and left, going towards the cafeteria.
There would be no reason for Cross to become angry con-
cerning LeBrecque unless Yarra had said that the overtime
was being decided by LeBrecque who was a foreman in a
different department. In any event, Yarra testified that
someone using such language concerning LeBrecque did
not bother him, that he did not think about it or report it
but went on home. Cross testified he told Yarra that he did
not want to hear of this type of thing (awarding overtime
not by seniority) happening again.
Cross went towards the timeclock and met Maryann
Emery. Although Cross states the conversation with Emery
took place earlier, she and others place the conversation
near quitting time at the timeclock. In either event, the
testimony is fairly consistent that Emery told Cross, "Of all
the people I thought would get fired, I thought you would
be first," referring to Wallace's discharge earlier that day.
She did not remember what Cross said. He testified he told
her he had fooled her. She asked what was going on about
the OSHA inspector and he told her about the problems
with moca and other plant safety problems. Cross stated
that LeBrecque walked by while he was telling Emery that
if they did not straighten things out, somebody out there
would die.
Emery's testimony was not consistent, Although origi-
nally stating that Cross was facing LeBrecque when this
statement was made and not remembering much else about
the context of the statemant, she later changed her testi-
mony several times in describing how the conversation
took place. During her original testimony, she said that
both she and Cross were upset and she saw LeBrecque
later that night and mentioned how Cross was upset and
LeBrecque told her that Cross had threatened Howard
Rice or someone's family. During cross-examination, she
said Cross could have said something about having to
straighten up things in the plant while discussing moca and
safety. She said she was facing Cross when LeBrecque
came out of the office behind Cross and walked by and as
he did so, Cross glanced at him and LeBrecque turned his
head as well. During the remainder of her cross-examina-
tion, she became more unsure of what occurred but admit-
ted that Cross said something to the effect that he was
upset with the Company. She said everybody knew Cross
and Wallace were for the Union and felt the Company was
constantly watching them on everything they did and they
were getting warnings.
At that time, the casting department was running a 4-
day week and on the following day (Friday) only some of
the supervisors reported to work. Yarra said that the next
morning he had a conversation with Rice in which Rice
told him they had trouble with Ken Cross the previous
night and were going to fire him and he reported to Rice
his conversation with Cross the previous evening. Yarra
said that in this 7:30 a.m. conversation, he decided Cross
should be fired. Yarra discussed Cross' discharge with Rice
and Mungall and was not sure whether Martin was pres-
ent. They discussed the problems they had been having
with Cross but, according to Yarra. the reason for the dis-
charge was the threat to LeBrecque.
Cross was reached at home and was told to report to the
office on Monday morning rather than to his job. Accord-
ing to Cross, at the 8:30 a.m., May 10 meeting, Martin,
Rice, and Mungall were present and Martin led off by say-
ing Cross knew why he was there, that they were going to
have to let him go. They had hoped he would grow up but
evidently he had not but had threatened a foreman and
was being discharged. Cross testified he thought he was
being discharged for telling Yarra that he did not want to
hear about lesser seniority people being given overtime. He
stated he was sure he was going to get discharged at some
point, that everybody in the shop thought so and the only
question was when.
Personnel Manager Martin embellished his testimony as
to the reasons for Cross' discharge. He said Cross had gone
to l.eBrecque and said that if they did not cut out that
J. P. STEVENS & CO., INC. 589
"s--" around here, someone around here was going to die.
He stated, although he was not present, that Cross was
looking at LeBrecque when the statement was made and
Respondent felt it was a direct threat against LeBrecque's
life. Martin said he learned of the threat the same day it
occurred. that Rice learned of it and called him. He stated
that obviously Rice and Mungall had talked to LeBrecque
about it but he did not do so until later and that LeBrecque
was very upset and very scared and that he tried to calm
LeBrecque. Martin said he discussed this threat and the
situation with both the divisional personnel manager and
Stevens' director of industrial relations. Cross was not
asked by Martin for his version of what happened.
Martin was unsure of how often he had gone from his
office to the plant or how many telephone calls had been
made concerning the Wallace and Cross discharges. He
testified that the OSHA inspector was at the plant on 2
consecutive days and stated what impact that had on his
work as a result of the inspector's presence. It was subse-
quently shown that the OSHA inspector's visits had been
about a week apart which meant that Martin's testimony
based on his erroneous premise was itself erroneous.
Martin was also a rather evasive witness. He acknowl-
edged that any incident concerning the Union was to be
reported to him in the personnel department. As his testi-
mony continued, Martin further embellished on Le-
Brecque's fear and finally stated that Cross and Wallace
had received warning upon warning covering many differ-
ent items, "and probably, truthfully, should have been
fired quite some time ago." He was asked by General
Counsel whether he had not stated at one time that Wal-
lace was an excellent worker. His rambling answer tried to
evade the point concerning his previous testimony as to
when he felt Wallace should have been earlier discharged.
He stated that Wallace had made a mistake in using key
stock in February. It was pointed out that the key stock
incident occurred on May 4, not in February. Martin then
said that Wallace had been doing a good job but started
messing up when the warnings started, When confronted
with the alleged warnings to Wallace which were the dis-
puted warning on February 5 concerning talking out of the
department and the key stock warning of May 5, Martin
was unable to specify when Wallace should previously
have been discharged. Any other warnings in the personnel
files were those which had been given to all of the employ-
ees in that department. Martin continued to talk about all
the warnings, despite being shown a paucity of them for
Wallace.
Asked when Cross should have been fired, a cue-type
objection by Respondent's counsel elicited the comment
from Martin that he had only made that comment in re-
gard to Gary Wallace and not to Cross. The record was
then read back to him establishing that his comment was
made about both men. Martin then retreated into saying
that Cross had many, many warnings.
Martin showed that his testimony was unreliable by
making claims with no foundation and coloring his testi-
mony in an attempt to make Respondent's point that it felt
it had sufficient reasons for discharging Cross and Wal-
lace. Despite the painting of great fear by LeBrecque. it
was stipulated that LeBrecque had been present at the
hearing for several days and was not called by Respondent.
Respondent offered no explanation as to why LeBrecque
was not called. General Counsel seeks the inference that
LeBrecque was not called because he would not substanti-
ate Respondent's defense about the alleged threat being
made to him by Cross.
When this lack of testimony is juxtaposed with Emery's
testimony that Cross was talking to her about safety condi-
tions in the plant and that if such were not improved,
somebody might die, corroborated by Cross' testimony and
compared against the inflated verbosity of Martin, I must
conclude that no threat was made by Cross to LeBrecque.
but that Respondent seized on an out-of-context statement
and used it as the reason for the discharge of Cross.
In considering the discharge of Wallace, it is necessary
to note that language in the plant does not conform to the
norms expected of Sunday school teachers or pupils. For
instance. Yarra said he was not offended by language he
said Wallace used in calling him and Rice "turkey b-s"
and admitted that such was common shop language. In-
deed, there was other testimony concerning remarks made
about sexual matters by supervisors to female employees
and among all employees and supervisors. Rice posed for a
picture at a Christmas parts wearing a device which can
only be described as completely sexual in nature. That
these two supervisors who were immersed in foul language
and sexual comments in the plant could have been offend-
ed by Wallace's insult to their sexual prowess, to the extent
they attempted to portray, is unbelievable.
It is clear from the context of the discharges and from
some of the admissions that Respondent was aware of the
union activities of Wallace and Cross and Mary Wallace
and that special attention was being given to them in an
attempt at inhibiting their normal plant activities, includ-
ing talking to other persons. It is clear that Rice was of-
fended by the OSHA inspection and that Rice and Martin
were offended by Cross' and Wallace's attempt to make
the inspection one which would be more truly representa-
tive of all of their activities during the day and that this was
the final item which goaded Respondent into discharging
Wallace and Cross. The testimony of some Respondent
witnesses showed that it was anticipated by plant employ-
ees that Wallace and Cross would be discharged because of
their union activities and the manner in which Cross and
Wallace were being harassed.
Respondent seeks to forestall reinstatement for Wallace
on what it terms Wallace's wishing to get discharged and
by some testimony concerning some purported sabotage at
the plant. As mentioned above, Wallace stated he would
not have been unhappy to have been laid off since he could
have done some work on his land, but that he did not want
to be discharged. His behavior upon being discharged, in
view of the harassment which had preceded it, may be lik-
ened to the relief felt when the other shoe is dropped. In
this same area, Lynda Champagne testified that Mary Wal-
lace was not upset concerning her husband's discharge but
said they had Respondent right where they wanted it.
Mary, Wallace testified that what she said was that Respon-
dent had no reason for discharging her husband.
Barbara Moffett testified for Respondent that she vague-
ly: remembered something being said about a bolt put into
. P. STEVENS & CO..INC.
_ .. .. .
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a machine wrong and Mary Wallace telling her and Lynda
Champagne not to say anything about it. Champagne testi-
fied that sometime in February, Mary Wallace had said
something about her husband putting something into a ma-
chine to jam it, but not to say anything, that Gary would
get into trouble. Mary Wallace denied ever saying any such
thing to them. Respondent produced some testimony from
David Korash, a plant maintenance man, concerning what
he felt were unusual happenings with machines in the cast-
ing department, but none of his testimony had anything to
do with a bolt or a screw. Korash testified about heaters
not properly functioning when they should have been, lines
clogging up, etc. and pump castings being broken. None of
his testimony was substantiated by records, and none of it
indicated who, if anybody, would have done anything to
cause such events. He testified that some of the machine
parts were old, that sometimes they break and clog and
things do happen. Korash then testified that he did not
bring any of his information to Respondent's attention un-
til the next to the last day of this proceeding where he was
testifying in surrebuttal.
This "sabotage" testimony of Respondent does not es-
tablish that Wallace or Cross did anything to the machin-
ery or attempted in any way to sabotage Respondent's
plant. Wallace and Cross testified specifically that they
never did so. This evidence must be discarded as it does
not prove anything except one man's suspicions, and this
individual admitted that he did not like either Cross or
Wallace. It was evident from his testimony that he was
biased against them.
It is clear from the above evidence that Respondent dis-
charged Wallace and Cross for their part in union activities
and initiating the OSHA inspection. Accordingly, I con-
clude and find that Respondent discharged Gary Wallace
and Ken Cross in violation of Section 8(a)(1) and (3) of the
Act and accordingly will recommend that they be rein-
stated and made whole.
C. The 8(a)(1) Allegations
During the proceeding, the complaint was amended to
allege that Respondent, through Plant Superintendent
Howard Rice, interrogated an employee and created an
impression of surveillance.
Richard Kleszczynski testified that he attended some of
the union meetings and attended a meeting held at the
Northampton Hilton Hotel on a Sunday morning. On the
following Monday morning, Superintendent Howard Rice
asked if he had gone to a breakfast meeting the previous
morning. Kleszczynski responded that no, he had gone to a
union meeting and all they had was dirty water. Rice did
not deny making the statement.
Respondent took the position that it was an innocuous
statement which had no clear meaning and therefore could
not be an 8(a)(1) violation. A statement without context
normally has little meaning. Placing this statement in the
context that union meetings were held on Sunday morn-
ings at the local hotel, that Respondent was aware of the
union meetings and the activities of the principal union
adherents and that it was clear to Kleszczynski what was
meant by Rice's question, I find that this statement was an
indication to Kleszczynski that Respondent knew or sus-
pected that he had attended a union meeting the previous
morning and was an invasion of his Section 7 rights by
questioning him about it. I therefore find that Respondent,
by Howard Rice, violated Section 8(a)(1) of the Act as
alleged.
The complaint also alleges that Respondent instituted an
unlawful no-solicitation rule on February 6 when the cast-
ing department employees were told not to talk to employ-
ees in other departments. Yarra's testimony demonstrated
that this rule was meant to inhibit only Cross and Wallace
since Yarra did not believe that the other casting depart-
ment employees talked to Polaroid department employees.
This inhibitory rule was harassment to the principal union
proponents and the apparent source of Cross' February 19
warning. This intentional harassment helps to demonstrate
the validity of the 8(a)(3) and (I) findings but does not
constitute an unlawful no-solicitation rule within the
meaning of that phrase as the Board regularly uses it.
Respondent denied it had a no-solicitation rule and none
was established by the evidence produced. Therefore I will
dismiss this allegation of the complaint.
D. Conclusions
The language used by Cross must be considered in its
context in the same manner that the language used by Wal-
lace must be considered in the overall context of the situa-
tions in which these employees found themselves.
Here, we have two of the three active union proponents
in the plant being given instructions not to talk with em-
ployees in other departments and in particular with
Wallace's wife, who is the third active union proponent.
While these instructions were made clear to Cross, Wal-
lace, and the others in the casting department, the supervis-
or who gave the instructions felt that only Cross and Wal-
lace were involved in such talking. Despite this order, other
employees were allowed to talk freely interdepartmentally
and nothing was said or done except on the occasion when
Cross was talking briefly to Mary Wallace and immedi-
ately received a written warning. The apparent unfairness
of this action provoked Cross into pointing out to supervi-
sion, sometimes in vulgar terms, the discrimination being
visited on him and his having received a warning while
others were allowed freely to talk about personal matters.
Again, Respondent gave Cross a warning for his state-
ments, terming it a final warning. Thus Cross and Wallace
were effectively stopped from even talking about personal
matters in other departments while the remainder of the
approximately 70 employees were allowed to pursue their
normal course of conduct.
Next, after the many complaints concerning working
and health conditions in the plant, when Wallace instigated
the visit of the OSHA inspector, Wallace, who was known
to ne an excellent worker, was given a warning for a work
error performed by the two assistant molders. This unprec-
edented warning, when Wallace had barely enough time
for his own duties and in the absence of any contempora-
neous warning to the two assistant molders, was calculated
to provoke an angry response to the basic unfairness of it.
Respondent, by Rice and Yarra, was retaliating for the
J. P. STEVENS & CO.. INC 591
OSHA inspection and certainly they could have antici-
pated an angry response to their action. They knew Wal-
lace was angry after receiving this warning. If Respondent
had intended to give Wallace a warning for the assistant
molders' mistake on the key stock, there was sufficient time
either the previous day or in the morning of May 6 for the
warning to he given before the OSHA inspector arrived.
Wallace was at work at 6:30 a.m. and supervision was there
before 7 o'clock. Quality control would have made its final
decision prior to that time and there would have been an
hour in which a warning could be given. It appears there
was no thought of such until the OSHA inspector arrived.
Respondent's intention was made clear by Yarra's state-
ment, overhead by Lynda Champagne, that Respondent
had rid itself of one of the troublemakers and everything
would be fine if they could get rid of the other one. This.
Respondent managed very quickly.
Respondent's actions in this case must be placed in the
full context and not made a question as to whether isolated
words or phrases justify discharge. The question is not
whether Wallace's words in and of themselves were so of-
fensive or the disputed meaning of what Cross said was a
threat, but rather what significance whose words had in the
full setting of Respondent's harassment of the prounion
employees.
Certainly, Respondent's reputation regarding its efforts
to keep its plants from being organized b unions was
known by plant employees. The manner in which Respon-
dent watched Cross and Wallace and issued the warnings
to them was known to plant employees who could see that
Cross and Wallace would soon be gone and knew Respon-
dent intended to rid itself of the two for their union activi-
ties.
E. Remnldices
The Charging Party. noting Respondent's histor' before
the National Labor Relations Board and circuit courts, in-
cluding contempt citations, requests that in addition to
normal remedies it be ordered that notices signed b Re-
spondent be posted concerning the violations found herein.
and read in all of Respondent's plants and mailed to all of
Respondent's employees throughout the Stevens system.
Alternately, it is requested that such posting and mailing
be ordered to cover Respondent's plants throughout New
England and a public reading of the notices be performed
in the New England plants.
These requests are based primarily on the fact that Ste-
vens controls the labor relations in all of its plants and in
the plants of its subsidiaries and divisions and that this
control is present in the instant case. By my finding that
Respondent is a single entity, this point has validity.
Noting the testimony that Cross and Wallace at one time
had distributed union literature at the other plants in the
Northampton area, it appears that in this community the
knowledge that Cross and Wallace the active union mem-
bers, were discharged, would be known not only through-
out the plant where they worked, but in the other plants
which were covered by the same personnel manager and
were located short distances away. Therefore I will order
that the notices be posted in the three plants in the North-
ampton area and that. additionally. in view of the Stevens
central control of labor relations and on the basis that the
discharge of these two individuals is again a part of Ste-
vens' desire to rid itself of active union proponents and
forestall union organization. I will additionally order that
signed copies of the notice be mailed to each of the em-
ployees of these three plants bh Stevens.
III liTH FFFI:( I OF I l I YIAIR ABOR PR-II(I:S I Po()
( ()MM ER(I
The activities of Respondent set forth in section II,
above, and therein found to constitute unfair labor prac-
tices in violation of Section 8(a)( I ) and (3) of the Act, oc-
curring in connection with Respondent's business opera-
tions as set forth in section I above, have a close, intimate.
and substantial relationship to trade, traffic. and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
D, 1H R M[ D)
Having found that Respondent engaged in the unfair
labor practices set forth above I recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent discharged Gar Wal-
lace on Mas 6, 1976. and Ken Cross on May 10. I recom-
mend that Respondent offer them immediate and full rein-
statement to their former positions or, if such positions
have been abolished or changed in the Respondent's oper-
ations, then to an substantially similar positions, without
prejudice to their seniorits or other rights and privileges
and that Respondent make them whole for any loss of pas
they may have suffered by reason of Respondent's discrim-
inatorv actions by payment to them of a sum equal to that
which each would have normally received as wages from
the dates of their terminations until Respondent offers
them reinstatement, less any net earnings in the interim.
Backpay is to be computed on a quarterly basis in the
manner prescribed in F. I'. Woolworh C(ompan), 90 NLRB
289 (1950), and Florida Steel Corporatrion, 231 NLRB 651
(1977). 2 I further recommend that Respondent make avail-
able to the Board, upon request, payroll and other records
in order to facilitate checking the amounts of backpay due
them and other rights they might be entitled to receive.
('ON( I SIONS Ii LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Respondent violated Section 8(a)(3) and (I) of the Act
by its discriminators terminations of Gar Wallace and
See. g' l't'. Iw, /I/ ;l ' i Ilclt,'l~*' ( ,',. I lS NI RB 'I, i 19(2"
J. P. STEVENS & CO.. INC 59'~~~~~~~~~~~~~.._ i.. . I . _
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ken (ross because they engaged in union and concerted
activities among themselves and with other employees for
the purpose of mutual aid and protection.
3. Respondent further violated Section 8(a)(1) of the Act
by unlawfully interrogating an employee about his union
activities and by creating the impression that such activities
were under Respondent's surveillance.
[Recommended Order omitted from publication.]