Lackawanna Leather Co.

National Labor Relations Board - Board Decisions

Nov 5, 1975

221 N.L.R.B. 355 (N.L.R.B. 1975)

LACKAWANNA LEATHER COMPANY 355
Lackawanna Leather Company and Local 525, Meat,
Food and Allied Workers Union , Amalgamated
Meat Cutters & Butcher Workmen of North
America, AFL-CIO. Case 11-CA-5817
November 5, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
JENKINS AND PENELLO
On June 30, 1975, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. 'Thereafter, the General Counsel
filed exceptions and a supporting brief, and Respon-
dent filed a brief in support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board,has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Lackawanna
Leather Company, Conover, North Carolina, its
officers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
Meat, Food and Allied Workers Union, Amalgamated
Meat Cutters & Butcher Workmen of North America,
AFL-CIO (the Union), against Lackawanna Leather
Company (the Respondent). Based on these charges the
Regional Director for Region 11 of the National Labor
Relations Board (the Board) on October 18 issued a
complaint alleging that Respondent had engaged in unfair
labor practices in violation of Section 8(a)(1) and (3) of the
National Labor Relations Act, as amended (the Act). On
October 29 Respondent answered the complaint, admitting
various allegations, including jurisdiction, but denying it
had engaged in unfair labor practices as alleged.
The case was brought on for hearing before me at
Newton, North Carolina, on April 16, 17, and 18, 1975. At
the hearing Respondent orally amended its answer to
admit that the Union is a labor organization within the
meaning of the Act.
In advance of the hearing Respondent had filed a three-
part motion seeking discovery of (a) prehearing statements
made by witnesses to be called by the General Counsel, (b)
all evidence respecting the availability of the alleged
discriminatee for employment since the time of his
termination, and (c) information respecting prior charges
filed by the alleged discriminatee with the Board together
with the results and adjudications of such charges. At the
time the hearing opened these matters were undisposed of.
I denied parts (a) and (b) of Respondent's motion but
granted part (c) because it appeared that the alleged
discriminatee would be a witness and prior charges by him
arguably could bear on credibility, and because charges
and the dispositions thereof are public documents. Subse-
quently, counsel for the General Counsel advised the
parties that no such charges filed by the alleged discrimina-
tee existed. Respondent's counsel accepted that representa-
tion. -
Based on the entire record, including my observation of
the witnesses and consideration of the briefs of the General
Counsel and Respondent, I make the following:
1 The General Counsel has excepted to certain credibility findings made
by the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A 3, 1951) We have
carefully exanune'd the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: This
case involves three separate instances of claimed threats,
coercion, and restraint of employees and also an alleged
suspension and discharge of an employee. As set out more
fully hereinafter I find that the discharged employee was
discriminatedagainst in the suspension as well as the
discharge and that Respondent threatened, coerced, and
restrained its employees as alleged,
The case arises from unfair labor practice charges filed
August 2, 19741 (and amended October 11), by Local 525,
1 All dates herein are in 1974 unless otherwise indicated.
FINDINGS OF FACT
I. THE EMPLOYER INVOLVED
Respondent is a New Jersey corporation with its
principal office at Wharton, New Jersey. It is engaged in
the processing and distribution of 'leather products,
particularly cowhides, for use in the furniture industry. It
maintains production facilities at Wharton, New Jersey;
Omaha, Nebraska; and Conover, North Carolina. Only the
Conover facility is directly involved in the present case.
The complaint alleges, the answer admits, and I find that
during the 12 months preceding the issuance of the
complaint Respondent received at its Conover plant
directly from, points outside North Carolina materials
valued at over $50,000 and during the same period shipped
from that plant directly to points outside North Carolina
products valued at over $50,000. I find Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
221 NLRB No. 63
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Conover plant, which has been in operation about 4
years, is under the direct supervision of Plant Manager
Irving (Bud) Brewington. The number of production
employees varies from about 10 to 14.
II. THE LABOR ORGANIZATION INVOLVED
the 10 production employees employed at that time and
obtained employee signatures on them. In the last week of
April he delivered the signed authorization, cards to union
representatives in Asheville. Throughout, Hibbs acted as
the spokesman of the Conover employees'in dealing with
the Union.
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
The Union is affiliated with the same International as the
union which has represented Respondent's New Jersey
employees since 1950 and its Omaha employees since 1965
or 1966. Respondent and that union are currently parties
to a collective-bargaining agreement covering those em-
ployees for a 3-year term expiring June 15, 1975. There has
never been a strike at either of those plants.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. The, organizing activity
a. The Christmas party
A few days before Christmas 1973, Plant Manager
Brewington had all of the Conover employees come into
the plant office for a small holiday party. On that occasion
employee Phillip Hibbs, who worked' as a spray painter
and is the alleged discriminatee in the present matter,
asked Brewington whether the New Jersey plant had a
union. According to Hibbs, Brewington answered that
there was a union at the New Jersey plant but that they did
not need unions in the south. When Hibbs commented that
he thought they did need unions, Brewington said that if he
knew of anybody that tried to organize or join a union he
would fire them and close the plant down and lay
everybody off if he had to. This account by Hibbs, which I
credit, is corroborated by fellow employees Walter Coulder
and Donald Ray Workman.
Brewington denied ever saying he would fire anybody
that had anything to do with the Union or who tried to
start a union. He claimed to be indifferent to unionism. In
testifying about the Christmas party, however, he said he
did not remember Hibbs asking him about the Union but
that the discussion could have come up. Betty Goforth,
employed by Respondent as a leather inspector, testified
that she also was at the Christmas party ,and she did not
hear Brewington say he would not have a union in the
plant. But it is not apparent from her testimony that she.
heard everything that was said at the party. In these
circumstances I do not credit Brewmgton's denial.
b. Hibbs organizes the employees
In April 1974 Hibbs began promoting the Union among
the Conover employees. He got in touch with the union
office in-Asheville, North Carolina, which mailed him a
supply of authorization cards. He circulated these among
2 According to Hibbs, Dimm asked each employee individually whether
they wanted the Union and the reasons why. In this he is contradicted by
the testimony of Dmnn and also by the testimony of fellow employees Wade
c. The May 6 meeting
On or, about May 6, after the employees had signed the
authorization cards, a group of them headed by Hibbs
asked to see Brewington. In the meeting that followed
Hibbs told him that the employees wanted a union and had
executed the authorization cards. Contrary to the position
he had taken at the Christmas party, Brewington told the
employees they would have no trouble out of him, that he
could run the shop cheaper with the Union.
d. The May 8 meeting
On May 8, Respondent's president, Roger Dinim; its
vice president of production, Richard Moultin; its vice
president of sales, Peter- Goode; and Plant Manager
Brewington met with the employees at the Conover plant.
Hibbs again acted as the employee spokesman.
Dimm apparently opened the meeting with the remark
that he understood the employees wanted a union. He said
he did not believe they really knew that they wanted a
union. At this, Hibbs, whom I credit, spoke up and said
that they did want a union. He said Dimm could poll the
employees right then. But Dimm said it would not be
necessary.2 Dimm and ' Moultin went on the explain to
those present the differences in benefits under the union
contract in New Jersey and those then enjoyed at the
Conover plant. According to Wade Cape, whom I credit,
Hibbs asked Dimm if he was 'going to oppose the ' Union
and Dimm said no, that he really was not going to be
against it, that it was up to the employees. Moultin said
that Respondent was not scared of the Union because they
had dealt with it before.
Hibbs asked if Respondent was going to recognize the
Union at the Conover plant. Dimm replied that they were
undecided, that he was going to talk it over with Moultm
and Goode and then would, give his answer by contacting
Steve Coil, vice president of the 'Union's International in
Chicago with whom Dimm had dealt in the past.
Following the meeting Dimm did confer with Moultin
and Goode. According to him they decided that the Union
did not enjoy majority support and that a Board election
was the preferable, procedure for resolving the matter.
Subsequently he telephoned Coil and advised him of this
position. According to Dimin, Coil suggested that the
Union could establish its majority status by pulling all 'of
the employees out on a strike. Dimm told Coil, however,
that it would make no difference to him. In effect he
insisted on the Board election method. According to
Donald Ray Workman, one of the Conover employees, it
was this position which Dimm took in talking with Coil
which precipitated the union decision to call a strike.'
Cape and Betty Goforth. In view of this contradictory testimony I do not
credit that portion of Hibbs' account.
LACKAWANNA LEATHER COMPANY 357
2. The strike
On May 13, the Conover employees went out on a strike
which lasted, until July 10. A picket line was set up under
the supervision of Hibbs. He was also responsible for
seeing that the picket line was kept manned, and that
substitutes were available to replace those who for some
reason had to leave the picket line. He continued to act as
coordinator between those engaged in strike activity and
the Union's office in Asheville. This included distributing
strike benefits checks to those entitled to them.
Some time in May, while the strike was in progress,
nonstriking employee Phillip Cline heard Brewington say
that, if he had anything to do with it, the ones that were on
strike would not come back in. On June 24 Brewington
further demonstrated his (and Respondent's) antipathy
toward the Union by sending each employee (including
Hibbs) a letter reading,
The enclosed information about the Butcher's union
will interest you. They probably haven't told you about
the facts these papers reveal, but you should know
about them.
Antiunion campaign literature entitled "Meat Cutters'
Coloring Book" depicting various union officials in
unflattering terms was enclosed with the letter.
During the strike the Union filed unfair labor practice
charges against Respondent (Case 11-CA-5740). These
charges are not the subject of the present proceeding. In
the meantime , the Board processed a petition for an
election at the Conover plant and in due course an election
was held . The -Union won the election .3 After the election,
but before the strike ended, the Union made an uncondi-
tional offer for the strikers to return to work. After
receiving this -offer Dimm on July 8 telephoned Coil saying
that since the election had been held there was no point in
the employees standing on the picket line, that Respondent
and the Union should get together and work out an
arrangement. Coil put Dimm in - touch with Emmanuel
Coutlakis , a union representative in Asheville, with the
result that on July 9 Respondent and the Union agreed
that the charges in Case 11-CA-5740 would be dropped
and the employees would return to work the following day
(July 10) with the same benefits they had enjoyed before
the strike . Coutlakis and Dimm brought Hibbs into these
discussions . The employees did return to work the' next
day. A settlement agreement in Case 1 l-CA--5740 contain-
ing a nonadmission clause was entered into between the
parties on July 25 and approved by the Regional Director
on July 29. At the time of the hearing herein the parties
had commenced negotiations for a collective -bargaining
agreement applicable to the Conover employees.
B. The New Reprimand Policy
Prior to the strike no regular system, existed for the
supervision and disciplining of Conover' employees. Brew-
ington, who was intimately familar with all operations in
the plant and who had virtually absolute authority in day-
to-day operations, ran the plant according to his personal
discretion subject only to intermittent, although frequent,
visits from Dimm, the company president. The record does
not indicate that in exercising this authority Brewington
followed an established pattern or scheme. On the
contrary, his testimony indicates that he controlled the
staff, including the imposition of discipline, in accordance
with his ad hoc judgment. I find that prior to the strike no
system for discipline existed. Discipline was administered
by Brewington as an exercise of personal authority in
accordance with what he thought at the time was proper.
This is not to suggest that he exercised his authority in an
arbitrary, capricious, or inequitable manner, but only that
no set pattern was followed.
The Conover situation contrasted with that at the other
plants where discipline was administered in accordance
with an established system provided in the collective-
bargaining agreement. There, discipline for inefficiency,
absenteeism, or poor workmanship was administered in the
form of written reprimands, three such reprimands within a
year resulting in discharge.
When Dimm met with the Conover employees on May 8,
prior to the strike, he asked them what they wanted. They
told him they wanted a contract like the one in New Jersey.
During the strike he determined to install a written
reprimand policy at Conover. On the evening of July 9,
after he had settled the strike with Coil, but before the
strikers returned to work, he directed Brewington to put
into effect the same disciplinary procedures as provided in
the New Jersey collective-bargaining agreement.
According to Brewington he followed through on these
instructions on July 17, not by deliberately copying the
New Jersey contract, but by using it as a model. On that
day he met with the employees in two groups, primarily for
the purpose of going over the methods and requirements of
their various jobs, but also to announce the new system of
written reprimands. Employee Walter Coulder objected on
the ground that he had understood they were to return to
work on the same basis as existed before the strike. He
inquired why Brewington had not put the plan into
operation before the strike. Brewington merely replied that
it was company policy.
In his testimony Brewington vacillated as to when the
new policy was put into effect. At times he indicated it was
near the beginning or during the strike, at other times after
the strike. He seemed certain it was in effect by July 17. Of
course it could have no application to the strikers prior to
their return to work.
The new policy was, "Any employee who during the
course of a year period receives three (3) written notices in
relation to inefficiency, poor workmanship, absenteeism,
etc., shall be immediately discharged on receipt of the third
(3rd) notice."
Brewington was unclear as to whether the new policy
was immediately posted for the information of employees.
I find it was not immediately posted. The first action under
the new, policy occurred on July 22 when Hibbs received
the first reprimand for poor workmanship. Thereafter other
written reprimands were issued-On August 14 Brewington
distributed copies of the new policy, (in the language
quoted above) to each employee. On August 16, the day
3 The election resulted in the certification of the Union around the
beginning of August.
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after Hibbs' termination, according to the credited testimo-
ny of Wade Cape, the terms of the new policy were finally
posted near the timeclock.
The General Counsel contends that the new disciplinary
policy was an unfair labor practice. The allegation of the
complaint is couched in terms which suggest that the new
policy was a detriment to the employees. Thus the
complaint alleges that Respondent "summarily imposed
upon its employees a severe reprimand policy because of
their support of the Union" (emphasis supplied). I think
that the timing of, the new policy warrants the inference
that it was motivated by the union activities, particularly
the strike. My difficulty stems from the fact that there is no
basis for finding greater severity after the strike than
before. Thus, after the new disciplinary policy was put into
effect it was applied on a number of occasions. But 'this
only establishes a difference in that the reprimands were in
writing . There is nothing to establish that absent the new
policy Brewington would not have disciplined employees
orally. Under the old system he had what appeared to be
unrestricted authority to act at will in disciplining,
including discharge on the first offense. I do not mean to
imply that he acted without justification, but the record
suggests that during the days of his unharnessed authority
the employees may well have been no better off, and may
have been even worse off, than after the new system of
written reprimands was instituted. In fact, both Brewing-
ton and Dimm testified without contradiction that the
formal procedures of The new written reprimand policy
were more lenient than the prestrike situation when
Brewington could do anything he wanted, could suspend,
layoff, or fire an employee without notice.
But although not more ' severe, the new system was
different from the old. And even though it tracked a
portion of the union contract at other plants, and the
Conover employees had indicated to Dimm on May 8 that
they desired a similar contract , the unilateral implementa-
tion of new 'employment conditions was plainly at odds
with the more recent strike settlement understanding, as
Coulder pointed out to Brewington on July 17. In view of
the whole situation, particularly the timing of the changes
after the strike and the evidence of Respondent's antiunion
attitude as shown by Brewington's' comments at the
Christmas party during the strike, and the antiunion
literature he distributed' to employees during the strike, I
find that the announcement and implementation of the
written reprimand system, whether an advantage or
disadvantage to the employees, interfered with their
Section 7 rights and therefore violated Section 8(a)(1) of
the Act. Mississippi Tank Company, Inc., 194 NLRB 923,
925 (1972); see also N.L.R.B. v. Lester Brothers, Inc., 301
F.2d 62, 67 (C.A. 4, 1962).
C. The 3-Day Suspension and the Threat
Brewington laid off Hibbs for the working days of
August 1, 2, and 5. The layoff came about in the following
manner. In late July Hibbs, whose job it was to spray paint
hides with a prescribed color and later, after the hides were
further processed by other employees, spray them with a
clear finish coat, painted some hides on which oil had
dripped. The next step in processing involved rubbing
them, a task performed by Donald Ray Workman. When
he rubbed the hides the paint came off'where the oil had
dripped. Workman called this to Hibbs' attention who in
turn called Brewington . Brewington examined the hides
and, according to Workman whom I credit, he said to let
them go. Brewington generally denied telling any employee
that the defective hides would go through. But in this
matter I credit Workman, who appeared to be forthright
and specifically recalled the incident.
The matter did not end there. A couple of days later, on
or about, July 31, Brewington asked Hibbs to leave his
work area and again 'examined the hides with the oil spots.
Brewington asked him if he remembered them. Hibbs
agreed they were the ones with the oil spots that they had
discussed at Workman 's table . He asked Brewingtonif he
was giving him a warning and Brewington replied that he
was, telling Hibbs to come to the office.'In the office he
handed him a written warning, which had already been
made up, based on his painting the hides with the oil
Spots .4 The written warning suspended Hibbs for the 3
days as noted above. According to his testimony, Hibbs,
upon receiving the suspension said , "Bud, you're out to get
me aren't you?" Brewington replied, "Yes,, you've caused
too much trouble around here already." Hibbs then said he
would bring the matter to the attention-of the Union and
the Labor Board, to which Brewington replied, "Go ahead,
it's your prerogative.,-The Union can't help you and the
Labor Board doesn't mean anything."
Brewington denied making the, threat that be was out to
get Hibbs. In view of his remarks at the Christmas party,
his remarks made during the strike to the effect that, if he
had anything to do with it those on strike would not come
back in, and the antiunion literature disseminated during
the strike, I credit the version of Hibbs.
As to the 3 -daysuspension, Brewington contended it was
given because of poor work. When it was called to his
attention on cross -examination that the , suspension did not
appear to be pursuant to the new reprimand policy nor in
accordance with the New Jersey union contract, he
explained, "No formal policy that I would have except
where I considered it necessary , to bring it to his attention
that we were getting trouble-I mean that, we were
beginning to get to the end of, the way. Now, that is the
only reason for it." On September 25, considerably after
the fact and pursuant to a request , from Respondent's
counsel, Brewington prepared some notes of extra costs
sustained as a result of imperfect work performed by
Hibbs. There is no reason to question that Respondent did
incur additional costs because of employees' mistakes,
including those made by Hibbs. In fact, Hibbs admitted
that on returning to work after the 57-day down period of
the strike he did not perform as well as earlier.
Respondent's position apparently was not that' Hibbs
was responsible for the oil spots but rather than he should
have discovered them and not painted, over them, and that
to do so was either carelessness or poor judgment: In either
4 The written warning was not introduced into evidence but the sense of
Hibbs' testimony is that the warning dealt with the set of hides with the oil
spots.
LACKAWANNA LEATHER COMPANY 359
case the problem was not attributable to poor painting.
There is credible evidence to establish, and I find, that at
about that time another tenant in the building, in
connection with installing machinery on the floor above
the, plant, drilled holes through the concrete flooring.
Cooling oil used in this drilling dripped down to Respon-
dent's premises below. I find it was oil from this source that
dropped on the hides which Hibbs painted. I further find
that it was not his fault they were so spotted. No effort was
made to show that" damages for the oil spots were not
recovered from those responsible for the oil dripping. In
these circumstances a 3-day suspension seems excessively
severe for a result of which Hibbs was either unaware or
which was the product of poor judgment.
Considering the animus shown in other parts of the
record, together with the admission by Brewington to
Hibbs that he was out to get him, and the fact that 2 weeks
later Hibbs was discriminatorily terminated, I find that the
3-day suspension was imposed on him because of his
leadership in the union activity at the Conover plant.
Accordingly, I find that, in-admitting that he was out to get
Hibbs, Brewington violated Section 8(a)(1) of the Act and
that in imposing the 3-day suspension he violated Section
8(a)(3) and (1) of the Act.
D. The Termination of Phillip Hibbs
Hibbs' employment with Respondent was terminated on
August 15 . The General Counsel contends he was
discharged for discriminatory reasons. The Respondent
claims he voluntarily quit . I find his separation was
involuntary.
1. Hibbs' competence
Hibbs began working for Respondent at the end of
October or the first of November 1973, continuing as an
employee until August 15, 1974. He worked as a spray
painter. He had no' prior experience in this work, but he
learned on the job at the Conover plant. Before April
(when the organizing began) he enjoyed a good relation-
ship with Brewington. Prior to the strike he had received no
complaints about the quality of his work. In fact he was
good enough so that Brewington and John Houser had him
perform special work for their personal use .5
When Hibbs returned after the strike he admittedly had
lost some of his touch' as a spray painter. The record
contains evidence of poststrike reprimands to several
employees for various reasons. Certain of these were issued
to Hibbs for allegedly defective work. The evidence
regarding the reprimands relates to the issues involving
Respondent's reprimand policy. They are not material to
the alleged discrimination against Hibbs, except insofar as
they throw light on Respondent's motivation, because
Respondent does not contend that his termination resulted
from his defective work. Respondent's position is that
Hibbs voluntarily quit.
5 The record shows that John Houser' is one of the older employees at
Conover. He is at least a leadman and may be a supervisor. It is unnecessary
2. The Cline reprimand
As already noted, following the strike Brewington issued
reprimands to a number of employees. Those receiving
them included Phillip Cline, John Houser's son-in-law. On
August 14 Cline received a "second" written reprimand on
the ground that he had made out his timework record
incorrectly and falsely. At the end of the written reprimand
Brewington noted that three warning slips mean immediate
discharge. When Hibbs heard about the, warning to Cline
he sua sponte intervened by discussing' the matter with
Houser. Houser then told Brewington about Hibbs'
intervention„ Brewington immediately reprimanded Hibbs
for interfering. He and Houser came to Hibbs' work
station. Brewington asked Hibbs, "What's this I heard
about you interfering with someone's business?" When
Hibbs asked what he was talking about, Brewington said,
"Didn't you talk to John Houser about Cline's hour-time?"
Hibbs admitted he had. Brewington then told him that, if
he went out of his work area or talked to another
employee, he would fire him.
Brewington also gave Hibbs a written warning dated
August 14 on the same matter which reads as follows:
Subject: Employee Continues to Interfere in Things
that do not Concern Him.
I have already talked to Phillip in the past about
staying on his job and minding his own business. He is
agitating, on the job, about things that-do not concern
him.
Bud Brewington
According to Hibbs prior to August 14 there had been
no restriction on his movement in the plant although he
understood. that he was expected to remain in his work
area in order to perform his job. It does not, appear,
however, that on August 14 he was out of his proper work
area in connection with the Cline incident., He had talked
to John Houser in the paintroom where he had gone to
obtain a supply of paint, a task which he normally
performed several times a day. The record does not
establish that he remained in the paintroom an inordinate-
ly long time. The thrust of Brewington's reprimand both
orally and in writing was not that Hibbs neglected his
duties or interfered with others working, but that he was
meddling, in matters which did not concern him. Thus,
Brewington himself admitted that he issued the reprimand
to Hibbs for agitating on the job in relation to the
reprimand issued to Cline.
This incident is of significance because of Hibbs'
position as the central figure in unionizing the Conover
plant. He not only distributed and received back all of the
authorization cards, managed the picketing during the
strike, and acted as the employees' spokesman in dealing
with union officials in Asheville, but he also was,the group
spokesman in talking to, Brewington on May 6 and to
Dimm on May 8. He held no official position with the
Union but in the Conover plant he was the logical person
to decide, and accordingly I make no finding, as to whether Houser is a
supervisor within the meaning of the Act.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to speak out on behalf of any employee with a grievance.
That is obviously what he did on behalf of Cline on August
14 when he spoke with Houser. This was protected activity
whether Houser be considered a fellow employee or a
supervisor.
3. The August 15 conversation between
Brewington and Hibbs
Brewington testified that during the morning of August
15 her conversed with Hibbs at his work station. Hibbs
complained that the Union had' not treated him right or
lived up to its promises. According to Brewington Hibbs
said he had a job in Asheville as a physical education
teacher; that he might even have as a student the son of
Emmanuel Coutlakis, one of the union officials; that he
knew he had been keeping things upset at the Conover
plant and he would take the Asheville job to get out of
their 'hair if the Company would give him 2 weeks' pay.
Brewington indicated that, if it was up to him he would not
do it, but that Dimm was coming down from New Jersey
that day and if he wanted to do it, it was his money.
Hibbs contradicted Brewington's version of this conver-,
sation . According to him Brewington spent a good bit of
that morning at ` Hibbs' work station finding fault on
inconsequential matter of routine. Around mid-morning he
said to Hibbs, "School will be starting soon, are you going
to be going or are you going to get ajob somewhere else?"
To this Hibbs answered, "I don't know what I'm going to
do; but if I decide to do anything I will give him [sic ] a 2-
week notice." Brewington then walked away and a few
minutes later ,returned, commenting that he remembered
when his own sons were in college he had trouble with
them . Hibbs testified that because Brewmgton had been
picking on him all morning he then said, off the top of his
head, "I may get a job in Asheville." Brewington then
walked away saying that Dimm would be down later.
Hibbs denied that he at any time gave a 2-week notice or at
any time stated that he had another job or a job offer to
teach in Asheville. He testified he had no other job and had
not applied for one. Hibbs also denied saying that he
planned to leave in a couple of weeks and that if
Brewington would pay him 2-week termination pay he
would leave immediately.
I credit Brewington's version of their-conversation rather
than Hibbs' because it is consistent with Dimm 's testimony
about a second conversation with Hibbs that same
morning.
4. The August 15 conversation between Dinun
and Hibbs
Around '10:30 in the morning Dimm arrived from New
Jersey. Brewington immediately informed him of the
conversation in which Hibbs had said he had a teaching
job in Asheville and if the Company would pay him for 2
weeks he would leave immediately. Dimin told Brewington
it, had never been the company practice to pay for 2 weeks
when an employee gave ' notice. On the contrary, the
practice had been to require an employee who gave notice
to leave immediately.
Dimm then went out to Hibbs' work, station and
according to him stated to Hibbs, "I understand from Mr.
Brewington that you have a teaching job in Asheville and
you are going to leave." According to hun Hibbs replied,
"Yes, that's- right. Did Brewington tell you that I would
leave now if you gave; me 2-weeks pay?" Dimm, confirmed
that Brewington had told him that but he advised Hibbs
that was not the company policy, that he could leave
immediately and that the Company did not give 2 weeks'
pay. Hibbs said he was entitled to 2 weeks' pay under the
laws of North Carolina. Dimm replied he was not familiar
with that law but if Hibbs was entitled to it he would get
his 2, weeks' pay. Dimm then returned to the plant office
and gave instructions to prepare Hibbs' final paycheck.
Hibbs also gave a contradictory account of this conver-
sation. According to him Dimm came to his work station
and said he had heard Hibbs had a job in Asheville and
might be leaving. Hibbs said, "When I decide what I'll do,
I'll give you a 2-weeks notice." Dimm rejected this
possibility and told him he was fired saying, "If you have a
job somewhere else, you're not going, to stay here."
According to Hibbs he then said, "If,I'm fired, I'm fired;
give me my money." Dimm -then returned to the office.
The essential conflict between these two versions is
whether Hibbs only indicated that he might give a 2-week
notice in the future as he testified or whether as Dimm
testified he gave an immediate notice conditioned on his
receipt of 2 weeks' pay. On this conflict I credit Dimm's
version because his account is consistent with, Brewington's
account of the prior conversation and also is consistent
with his report later that day to the employees respecting
the, circumstances of Hibbs' departure.
I find, nevertheless, that Hibbs believed he was fired.
Just moments after Dimm had left to return to the office,
Hibbs also left his work station to go to the office for his
terminal pay. On his way he passed two other employees,
Wade Cape and Walter Coulder. He said to them, "They
did it. They fired me."
5. The August 15 conversation in the office
On returning to the office Dimm reported to Brewington
that Hibbs had quit. He gave instructions for his terminal
paycheck to be prepared as of 11 a.m., although the
working day was not over and August 15 was not a normal
payday. A few moments later Hibbs followed him into the
office where he was handed his final paycheck' and also a
report form for unemployment compensation on which it
was noted that he had voluntarily quit. Hibbs protested,
"No, I didn't voluntarily quit; you fired me." He threw the
form on the floor and walked out.
6., Hibbs' willingness to work
Dimm admitted it is contrary to company policy for an
employee to work out a notice. This is consistent with the
experience of Donald Ray Workman who during an earlier
period had worked for Respondent and had left under
circumstances similar to Hibbs. Workman had given a. 2-
week notice but was told by Brewington that he didn't
want anybody out there that was going to quit. He made
Workman leave immediately. Nothing in the record
LACKAWANNA LEATHER COMPANY 361
indicates that this admitted policy was publicized to the
employees or that Hibbs even knew of it.
On cross-examination by the General Counsel Dimm
explained Hibbs' termination in these words, "He was
going to quit anyhow and all I did was say you can leave
now; we dust don't have a policy-we don't want people
around the plant who have other things on their minds
about another job; we want them -paying particular
attention to their own work."
The Administrative Law Judge then asked Dimm
whether Hibbs was willing to work during the 2-week
notice period. Dimm testified as follows, "Was he willing
to work? He said that I will work 2 weeks providing that
you keep it quiet around here but he also said I don't know
how you are going to keep it quiet around here that I'm
going to leave. And I said that is academic anyhow, our
policy is to have you leave now, since you have given us
notice."
On these facts it is clear that Hibbs intended to end his
employment relationship with Respondent 2 weeks in the
future and he was willing to work during those 2 weeks. If
he had worked he would have been paid for them. He was,
however, also willing to leave immediately provided he did
not lose his pay for the 2 weeks. But company policy did
not allow for either option. The testimony of both
Brewington and Dimm show that, if management learned
of any plans of an employee to sever his employment in the
future, management severed the employee immediately. So
in the case of Hibbs, Dimm took the decisive action to
sever him immediately in the middle of the day and before
the end of a pay period even though Hibbs was willing to
continue the employment relationship for another 2 weeks.
In the circumstances it cannot be said that the employee
terminated the employment. It clearly was the employer
that did so in accordance with long-established policy.
After his termination Hibbs did not apply for unemploy-
ment compensation . In the circumstances present here this
fact provides no basis for inferring that he voluntarily quit.
To have contested Respondent's position that he voluntari-
ly quit would have involved him in an unwanted contest.
Secondly, he obtained other employment within a week
and a half of his discharge by Respondent.
7. Respondent's motive in discharging Hibbs
Considering the entire record I find that Hibbs was
discharged for discriminatory reasons. The only nondiscri-
minatory basis for discharge that is available to Respon-
dent is its inequitable and negative policy of promptly
cashiering any employee considering other employment.
No evidence establishes that this policy had any factual
relation to Hibbs' efficiency or the efficiency of other
employees, or that it actually related in any way to the
productive process at the Conover plant. To recite that
supervision desires employees to pay particular attention to
their own work and does not want people around who have
other things on their minds about another job only
elucidates the policy . Factually it remains a bald assertion.
It affords no evidentiary basis for inferring unsatisfactory
performance by employees after they have given notice.
Absent such evidence I think application of the policy in
the circumstances here is suspect . In a word, this
management policy is a singularly unpersuasive reason for
terminating an employee where, as here, strong evidence of
discrimination exists. Hibbs' precipitous discharge must be
considered in light of Brewington 's antiunion statements at
the Christmas party in response to Hibbs' prounion
statements; the fact that Hibbs thereafter was the principal
organizer of the Union and the employee spokesman to
management in demanding union recognition ; the fact that
management refused to recognize the Union as a result of
those demands and that the employees, including Hibbs,
then went on strike in support thereof ; Brewington's
antiunion statements and literature during the strike; and
finally the independent unfair labor practices found
including the poststrike change in the reprimand policy,
Brewington 's admission that he was out to get Hibbs, the 3-
day suspension of Hibbs, the August 14 reprimand for
taking up the cause of Cline and the cancellation of all
prior reprimands coincident with Hibbs' departure (dealt
with in the next section hereof). With this context no other
conclusion is possible but that Hibbs was discharged in
order to discourage membership in and support of the
Union. Accordingly, I find that, in discharging Hibbs,
Respondent has engaged in unfair labor practices prohibit-
ed by Section 8(a)(3) and (1) of the Act.
E. Cancellation of Past Reprimands
A few minutes after Hibbs had left on August 15, all the
remaining employees were called into the plant office
where Dimm asked Brewington to tell them what had
happened . Brewington then stated to those present that
Hibbs had tried to bribe the Company out of 2 or 3 weeks'
pay by saying if they would give him pay for that time he
would get out of their hair and forget about the whole
matter.6 Duran stated that Hibbs had told them he had
employment elsewhere, that he would leave immediately if
they would give him 2 weeks' pay. Dimm also stated that
he told Hibbs that was not their policy and he could leave
right away.
Dimm testified the reason the employees were called
together on this occasion was because Hibbs had been
their spokesman for the Union.
Following this report to the employees respecting Hibbs,
a general discussion developed regarding the Company's
reprimand policy. Walter Coulder asked Dimm what he
would do about the reprimands already received by
employees. Dimm replied, "Well, if this will clear the air,
any of you people who have any reprimands against them
now, they are washed out and ' we will start the system
anew, or afresh right now."
This cancellation of all prior written reprimands,
coincident with the forced departure of the leading
unionist, could only be construed by the employees as an
inducement to them to 'refrain from supporting the Union.
This was a clear interference with employees' Section 7
rights in violation of Section 8(a)(1) of the Act.
6 1 base this fording on the credited testimony of Walter Coulder.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce. They are unfair labor practices within the
meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the
Act.
CONCLUSIONS OF LAW
(1950), with interest thereon at 6 percent per annum
calculated according to the formula set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). I do not
recommend his reinstatement because he indicated his
intention to leave Respondent's employment 2 weeks in the
future. I also recommend that Respondent preserve and,
upon request, make available to Board agents all pertinent
records and data necessary in analyzing and determining
whatever backpay may be due. I further recommend that
Respondent post appropriate notices at its premises.
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 recommend-
ed:
1. Respondent is an employer within-the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent threatened, coerced, and restrained
employees in the exercise of rights guaranteed in Section 7
of the Act, and thereby committed, and is committing,
unfair labor practices within the meaning of Section 8(a)(1)
of the Act by the following:
(a) Summarily imposing on its Conover employees a
policy of written reprimands on and after July 10, 1974.
(b) On July 31, 1974, through Plant Manager Irving
Brewington , threatening an employee that he was out to
get him.
(c) On August 15, 1974, canceling all prior written
reprimands to employees.
4. Respondent discriminated in regard to hire or tenure
of employment of Phillip Hibbs thereby discouraging
membership in the Union, and in so doing committed and
is committing unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act by the following:
(a) On July 31, 1974, suspending his employment for the
3 days of August 1, 2, and 5, 1974.
(b) Discharging him on August 15, 1974, and thereafter
failing to reinstate him.
5. The unfair labor practices found above 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
policies of the Act. I recommend that Respondent be
ordered to make Phillip Hibbs whole for any loss of
earnings suffered by reason of Respondent's discrimination
by paying him a sum of money equal to that which he
would have earned in wages for August 1, 2, and 5, 1974,
and for the 2 weeks following August 15, 1974, less his net
earnings during such period, to be computed in the manner
set forth in F. W. Woolworth Company, 90 NLRB 289
ORDER?
Respondent, Lackawanna Leather Company, Conover,
North Carolina, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Imposing on employees a written reprimand policy
because they support a union.
(b) Threatening "to get" employees who engage in union
or concerted activity.
(c) Canceling reprimands to induce employees to refrain
from union activity.
(d) Reprimanding, suspending, laying off, discharging, or
otherwise discriminating against employees because they
engage in union or other protected activity.
(e) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights to self-
organization, to form labor organizations, to join or assist
Local 525, Meat, Food and Allied Workers Union,
Amalgamated Meat Cutters & Butcher Workmen of North
America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing and to engage in 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, except to the extent
that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment as authorized in Section 8(a)(3) of the Act as
modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Make Phillip Hibbs whole for any loss of earnings,in
the manner set forth in the section herein entitled "The
Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, all records necessary to analyze the
amount of backpay due under the terms hereof.
(c),Post at its Conover, North Carolina, premises copies
of the attached notice marked "Appendix." s Copies of said
notice, on forms provided by the Regional Director for
Region 11, after being duly signed by Respondent's
7 In the event no exceptions are filed as provided by Sec 102.46 of the its findings, conclusions, and Order, and all objections thereto shall be
Rules and Regulations of the National Labor Relations Board, the findings, deemed waived for all purposes.
conclusions, and recommended Order herein shall, as provided in Sec 8 In the event that the Board's Order is enforced by a Judgment of a
102.48 of the Rules and Regulations, be adopted by the Board and become United States Court of Appeals, the words in the notice reading "Posted by
LACKAWANNA LEATHER COMPANY 363
authorized representative, shall be posted by Respondent
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 ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 11, in
writing , within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in Which all Sides Had a Chance to give
evidence, the National Labor Relations Board has Found
that we Violated the National Labor Relations Act and has
ordered us to post this Notice.
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 collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains, or coerces employees with respect to these
rights.
WE WILL NOT impose on employees a written
reprimand policy because they support a union.
WE WILL NOT threaten "to get" employees who
engage in union or concerted activity.
WE WILL NOT cancel reprimands to induce employ-
ees to refrain from union activity.
WE WILL NOT reprimand, suspend, layoff, discharge,
or otherwise discriminate against employees because
they engage in union or other protected activity.
WE WILL pay Phillip Hibbs for earnings he lost
because of our discrimination.
LACKAWANNA LEATHER
COMPANY