Leon Ferenbach, Inc.

National Labor Relations Board - Board Decisions

Sep 19, 1974

213 N.L.R.B. 373 (N.L.R.B. 1974)

LEON FERENBACH, INC.
Leon Ferenbach, Inc. and United Textile Workers of
America, AFL-CIO. Cases 10-CA-10181, 10209,
10209-2, and 10209-6
September 19, 1974
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On February 10, 1974, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
As more fully detailed in his Decision, the Adminis-
trative Law Judge found that Respondent had violat-
ed Section 8(a)(1) of the Act by coercive
interrogation, by threats to close the plant and dis-
charge prounion employees, by creating the impres-
sion of surveillance, and by asking employees to
report the union activity of their fellow employees.
We agree; indeed, these findings are supported at
least in part by testimony from the Respondent's own
witnesses.
The Administrative Law Judge also found that the
Respondent had violated Section 8(a)(3) by discharg-
ing seven prounion employees and that its discharge
of two other employees had not violated the Act. We
also agree with these findings. However, the Adminis-
trative Law Judge's Decision in some respects tends
to cloud the central issues by zealous attention to
detail at some cost to the clarity of presentation. It is
necessary in many cases to rely on precision in detail,
inconsistencies, shifting and pretextual defenses, and
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
The Respondent also excepted to the Administrative Law Judge's attribu-
tion of certain testimony to Superintendent Seehorn in the subsection of his
Decision entitled "Clara Ingram ." In fact, the testimony was offered by
Larimer, the department supervisor. Although the Administrative Law Judge
discredited the testimony , in part because of his general opinion of the value
of Seehorn's testimony, the testimony was not to firsthand knowledge and
the Administrative Law Judge did not specifically rely on his evaluation of
Seehorn's credibility in reaching his conclusion in that subsection.
373
inference to determine whether or not a discharge has
been aimed at discouraging union activity and mem-
bership. This task is more difficult because , as experi-
ence has taught us, there are few employees for whom
some plausible surface reason for discharge is not
present or cannot be established. The issue, however,
is not whether there may be a simultaneous legitimate
basis for discharge, but whether or not discriminatory
motivation has played some part-whether but for
the employee's union or concerted activities his in-
fraction, whether real or not, would have been met by
the same disciplinary action by the employer. We be-
lieve that motivation has been established by this rec-
ord.
It is unnecessary here to recite the facts of this case;
that has been done by the Administrative Law Judge.
It is sufficient to note that Arnold Johnson and Lon-
nie Hopson, the head mechanic in Department 555
and his assistant, were principals in bringing the
union organizing campaign to the Respondent's
plant. Hopson initiated the campaign by soliciting
signatures on authorization cards. That solicitation
triggered an immediate investigation by the
Respondent's supervisors, coercive interrogation of
Hopson, and shortly the discovery that Hopson, de-
spite his original denials, was the man they sought.
Unaware that Johnson was also a principal in the
organizing campaign, the Respondent initially turned
to him to find out whether Hopson was involved, and
then with the request that he report anything he could
learn about the organizing campaign. Within a few
days Respondent learned of Johnson's involvement.
In fact there is no real question in any of the dis-
charges here about the Respondent's knowledge of
union activities.
Respondent's discovery of the campaign and
Hopson's role not only sparked the violations of Sec-
tion 8(a)(1) which amply demonstrate Respondent's
union animus, but more specifically resulted in
Hopson's interrogation and immediate restriction to
his department 2 and the imposition of additional du-
ties? It is with this backdrop of unlawful antiunion
2 The Administrative Law Judge inconsistently found that Hopson's work
took him all over the plant and also that he never had occasion in his work
to leave his department . The record establishes that his work did on occasion
require him to leave the department . We see no need to resolve that conflict,
although it appears most likely that the Administrative Law Judge intended
to hold that Hopson had no occasion to leave the plant.
J Respondent contends that Hopson was not restricted and that he was
only required to notify his supervisor, and that Hopson 's conflicting testimo-
ny on this point should discredit him. However, that distinction , in the eyes
of an employee who was not required to do either before, is largely academic;
it is only reasonable to suppose that an employee whose movements have
been restricted may nonetheless move about in a manner which would other-
wise violate the restrictions upon receiving permission from a supervisor. Nor
would we be inclined to conclude that an employee who has been told to
"notify" a supervisor if he leaves the work area must assume that requirement
was to be interpreted literally and absolutely ; leaving his supervisor with no
Continued
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity and hostility towards the Union which was ill
concealed, if concealed at all, that we must examine
the discharges of Hopson and Johnson.
Johnson was a trusted employee whose loyalty and
competence had never been questioned. He was the
man to whom Respondent turned when it first learned
about union organizing activity. But far from being a
source from which the Respondent could learn the
details of union plans, the success of its organizing
campaign, and the identity of prounion employees,
the Respondent learned that Johnson, like Hopson,
who had already felt the impact of Respondent's dis-
pleasure, had been instrumental in initiating the orga-
nizing campaign. At the hearing and in its brief,
Respondent asserted that Johnson's incompetence
was responsible for serious reductions in production
in his department. Whatever the merits of that argu-
ment, and they are few,4 it is not relevant here; for
those "deficiencies" were discovered after Johnson's
discharge.
Respondent in defense of its discharge of Johnson
asserts that he, assisted by Hopson, was directed to
change the gears in a machine and that he did not do
so,5 although reporting that he had. For this dere-
liction of duty, and apparently in part because of
Johnson's bad or negative attitude, Johnson was dis-
charged. An attitude Respondent's superintendent,
Seehorn, first noticed "simultaneous with [Johnson's
and Hopson's] involvement in the union movement."
Hopson, because he had only assisted in the gear
change, was reprimanded.
Johnson and Hopson credibly testified that they
had changed the gears as ordered, faithfully following
instructions given to them in writing which indicated
what changes to make. However, when they asked to
see the card to prove they had followed instructions,
they were told it had been lost. Johnson testified that
Seehorn said that he knew what they had on their
minds, to get it off their minds, and the Company was
going to try a little pressure 6 Behind the claim to
discretion to order the employee to remain in his work area . We conclude
that any discrepancies in Hopson 's testimony about whether he was re-
stricted, or only to notify his supervisor if he left his immediate work area,
have little bearing on this credibility.
4 It is revealing that both Superintendent Seehorn and Department Super-
visor, Larimer initially cited a lack of operators , not incompetent mainte-
nance, as the reason that machines were not in production.
5 In significant part this assertion is based on the claim that the grease was
black and new grease is dark orange . Other testimony asserted a black
graphite product was used , or a bluish-purple grease. Johnson's replacement,
and the present maintenance supervisor, testified he had never seen dark
orange or brown grease used in the plant.
6 Respondent excepts, inter alia, on the ground that this testimony by
Johnson was not supported by Hopson. Hopson, however, did remember
Seehom saying that he had tried pressure before and that it did not work.
The force of Respondent 's argument based on this testimony is weakened
further by Superintendent Seehorn's testimony that he told them they had
something on their minds besides work, Assistant Superintendent Ward's
testimony, twice repeated , that Seehorn told Johnson he had his mind on
postdischarge proof of incompetence, negligence, and
even sabotage, the denial by some, but not all,7 of
Respondent's witnesses that the question of the gear-
change card and the instructions it contained were
never raised, or that they could not remember it being
raised, Respondent's defense must and does rest on its
assertion that the gears had not been changed at all.
"Johnson simply got caught telling the Company
one thing when the opposite was found to be true." It
"was the culmination of a series of incidents." Or, as
was asserted on the stand by Seehorn, Johnson was
discharged "for flagrantly and willingly setting up the
machine wrong."
Johnson's discharge notice states that production
time was lost "having to redo a job that should have
been done properly to begin with." Hopson's repri-
mand states that the gear change was "improperly
executed ." Neither document suggests that no work at
all was done. Nor is it likely that an employee who
willfully ignored an assigned task and then reported
its completion would be discharged for the much less
compelling reason that he had made a mistake. Simi-
larly an untrained assistant might be reprimanded for
a mistake made while assisting a skilled mechanic
whose instructions he necessarily followed,8 but even
an untrained assistant must know the difference be-
tween doing some work and doing none, and it is
difficult to credit the assertion that Hopson would
have been let off with a mere reprimand had Respon-
dent concluded that Hopson and Johnson had simply
not bothered to make the change. In the face of con-
temporary evidence and credited testimony to the
contrary, we are not willing to conclude that Johnson,
an admittedly skilled, if allegedly hostile, mechanic,
and Hopson, who is not demonstrably completely de-
void of commonsense, simplemindedly did no work at
all in the fatuous expectation that no one would no-
tice. We do not believe it. Nor can we attach much
weight to the series of incidencts that this "mistake"
allegedly culminated. Despite Respondent's reliance
on alleged reports by Johnson of work not actually
done,' and testimony concerning Johnson's failure,
something besides work, and similar testimony by Department Supervisor
Larimer.
7 Larimer testified Seehorn asked Johnson for the card and Johnson
claimed he had lost it.
8 The Board does not substitute its judgment for the business judgment of
an employer-save to the extent that finding discrimination in dissimilar
treatment might be thought to be substitution . Nonetheless if a mistake was
involved here the reprimand in the circumstances seems draconian.
9 Compare the testimony of Assistant Superintendent Ward, that he talked
daily to Johnson about the cause of the breakdowns , never challenged
Johnson's claims that the machines were in good condition , and only learned
of their deplorable state from Johnson's replacement , with that of Johnson's
immediate superior , Department Supervisor Larimer, who testified to numer-
ous spot checks on Johnson' s work which showed the work had not been
done and that machines had dummy and broken parts . From this, if true, it
could only be concluded that both Larimer and Respondent are exceedingly
tolerant . Larimer for not discharging or at least reporting Johnson long since,
LEON FERENBACH, INC.
despite earlier reports to the contrary, to see that a
gear was available when needed, this is part and par-
cel of Johnson's "negative attitude," first noticed by
Seehorn "simultaneous with . . . the union move-
ment." It cannot be supported by testimony concern-
ing Respondent's alleged discovery of the virtually
complete breakdown of the machines Johnson was
charged with maintaining, that was discovered later.
Its assertion in Respondent's brief as a basis for his
discharge is necessarily a pretext. Nor is the testimony
supporting that contention particularly satisfactory.
Respondent's witnesses testified that the machines
had been given high grades by employees whose job
it was to see that they were properly maintained. Re-
spondent, having raised that issue, explains it away by
asserting that the "checkers" had been deceived by
the use of dummy and broken parts. If so, what were
they checking? Apparently, to see if the machine was
there. And why would anyone go to the trouble of
constructing and installing dummy parts?
For the foregoing reasons, particularly in view of
Respondent's knowledge of Johnson's union activities
and sympathy; the shifting and pretextual reasons
given for Johnson's discharge; the evidence of union
animus; the admission that Johnson's "negative" atti-
tude was linked to his involvement with the Union;
and Respondent's failure in the light of the credited
testimony to establish that Johnson had not changed
the gears; we find, as did the Administrative Law
Judge, that his discharge violated the Act.
The facts surrounding Hopson's discharge have a
familiar ring. They differ more in detail than in import
from the facts surrounding Johnson's discharge. As in
Johnson's case, little would be served by recounting
in endless detail everything that allegedly led up to his
discharge; that has been done. But perhaps the great-
est burden that a successful defense of the discharges
of Johnson and Hopson would have to overcome is
the virtually inexplicable difference in Respondent's
alleged reaction to what to a normal eye would appear
to be grave offenses 10 warranting immediate dis-
charge and its precipitate discharge of other employ-
ees for relatively minor infractions in violation of an
alleged no-solicitation rule.
According to Respondent, Hopson refused to per-
form paperwork allegedly required of all the other
mechanics; but this did not merit discharge. Hopson
just spent his time walking around among the ma-
chines, loafing. Hopson spent hours performing a 20-
and the Respondent for not discharging Latimer for his failure to take that
action, particularly since he had the answer all along to the problem which
was perplexing the Respondent all the way back to its New York office.
Compare Larimer's testimony in this respect with his initial attribution of
production difficulties to a lack of operators, as noted earlier.
10 Hopson's version, of course, differs.
375
or 30-minute job. Sometimes Hopson would make the
repair; sometimes he would not. Lewis, vice president
and general manager, testified Hopson was not doing
anything; "he was getting 8 hours pay for no work."
Hopson was counseled, eventually receiving a disci-
plinary suspension." But if an employee accustomed
to talking on the job discussed the Union, discharge
followed swiftly. Lest employees misconstrue the mes-
sage , Respondent carefully set forth on the discharge
notice that the discharge was, at least in part, for
promising more money if the Union came in, or for
conducting union activity during "working hours." 12
In any event, we are left with the precipitating inci-
dent for which Hopson was discharged. That cause
was Hopson's report that he had changed gears in a
machine and that it was ready for production, but had
not greased it; a fault Respondent likened to changing
oil in a car without bothering to put new oil in.
Garst, now Respondent's maintenance supervisor
and the superior of Hopson and the other mechanics
in the department at the time, testified that he as-
signed Hopson the job of changing the gears. Accord-
ing to Garst, Hopson reported that the machine was
ready to run samples, distinguishing that from being
ready for production. That that was Garst's interpre-
tation of what Hopson meant rather than a recital of
what Hopson said is evident from Garst' s earlier testi-
mony that Hopson reported that the machine was
ready except for one gear and that he replied that the
gear was not necessary because it was only to be used
to run a few samples." When specifically asked
whether "what Mr. Hopson reported on that day was
that the gear change had been accomplished," Garst
agreed that was correct.
Hopson's version differs from that of Garst only in
detail. Hopson testified that when told to make the
gear change he replied that the machine was not ready
for production because there were parts missing. He
was told to make the change anyway because the parts
had been ordered. Hopson concededly completed the
gear change as instructed, but he testified that he did
not grease it because it was the end of his shift and he
had been told that the machine would not be going
into production for several weeks. He also testified
that any attempt to run it with the missing parts would
cause it to fly apart. Hopson vigorously denied telling
anyone that the machine was ready for production,
asserting that he had merely reported that the gears
"Respondent 's brief asserts this indulgence was to avoid the filing of
charges with the Board.
12 A phrase-working hours-the Board has held sufficient to invalidate
a no-solicitation rule unless it is properly clarified to the employees. Essex
International, Inc., 211 NLRB No. 112, Members Fanning and Jenkins dis-
senting on other grounds.
13 As will become evident, this supports Hopson's version , at least to the
extent that he did not think that the machine was to be run immediately and
that there was no need to grease it immediately.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been changed. Hopson testified that he had made
a similar protest when notified of his discharge for
reporting the machine ready for production without
greasing it. He was not given a copy of the discharge
notice later introduced at the hearing.
Garst at the hearing specifically, if not directly,
equated a report that a gear change had been made
with a more specific report that the machine was
ready for production. In fact Garst later agreed that
Hopson said only that he had made the change. Had
Respondent cared whether Hopson was at fault, this
would have been apparent to the Respondent. Despite
the urgency of placing the machine in production
which Respondent's discipline suggests, in the fact of
Hopson's claim that the machine was not to be run
immediately, there is no testimony that the machine
in fact was used the next day subject only to being
greased. Garst testified that it could have been, that
it was ready but for the grease, and that it was proba-
bly used within a week, but readily stated that he did
not know.
It is evident that Hopson's claim that he did not
report the machine ready for production is true. It is
only slightly less apparent that Hopson's testimony
that he did not think the machine was to be run imme-
diately-and there is no evidence that it was run-is
true. To reach that second conclusion, as the first, we
do not even need to rely on Hopson's testimony that
parts were missing and that the machine could not be
used for any purpose. Garst himself testified that the
machine was missing one gear and could not be used
for production. Garst also testified that it was after
the gear change that he allegedly told Hopson, and we
must conclude that it was for the first time, that the
machine was not being readied for production, but to
run samples and that the gear was not needed.
The immediate cause of Hopson's discharge ac-
cording to the Respondent was the fact that "he re-
ported the machine ready for production," although
he had not greased it. Garst, who testified that he
assigned the job to Hopson, received Hopson's report,
checked and found the machine had not been greased,
and reported the omission, also testified to facts which
conclusively prove that the charge was not true.
Garst's testimony instead establishes that Hopson's
rebuttal to the charge was correct; Hopson had not
reported the machine ready for production, only that
he had changed the gears, and did believe that the
machine was not to be run immediately.
There is only one reasonable conclusion which can
be drawn from the discharge of Hopson, who had
been identified as a principal union adherent and be-
come the target of his employer's special attention, in
a context of other unfair labor practices and hostility
towards the union , when the charge precipitating his
discharge has been conclusively demonstrated to be
false, and when the falsity of that charge was known
to the employer or at most was a matter of indiffer-
ence. We find, as did the Administrative Law Judge,
that Hopson was discharged in violation of the Act. 14
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent Leon Ferenbach, Inc., John-
son City, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Ad-
ministrative Law Judge's recommended Order.
14 We do not adopt the Administrative Law Judge's conclusion that the
defenses the Respondent urged at the hearing were intended only to confuse.
However , the Administrative Law Judge did not have the benefit of the more
than 100-page brief which the Respondent filed with the Board in support
of its exceptions . In that connection, we draw Respondent 's attention to Sec.
102.46 of the Board's Rules and Regulations and note that the requirements
of that section are not well served by wholesale exceptions to long portions
of an Administrative Law Judge's Decision.
Respondent is, as it urges , entitled to litigate at the compliance stage of this
proceeding the issue of whether or not any of the employees engaged in
misconduct after discharge which makes them unsuitable for further employ-
ment since litigation of that issue was not allowed at the hearing.
DECISION
THOMAS A. Ricci, Administrative Law Judge: A hearing
in this proceeding was held on 6 hearing days between
October 16 and 31, 1973, at Johnson City, Tennessee, on
complaint of the General Counsel against Leon Ferenbach,
Inc., herein called the Respondent or the Company. Upon
separate and amended charges filed between May 24 and
June 19, 1973, the complaint was issued on August 2, 1973,
alleging nine unlawful discharges by the Respondent in vio-
lation of Section 8(a)(3) of the Act. A brief was later filed
by the General Counsel.
Upon the entire record and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Leon Ferenbach, a Tennessee corporation, operates two
plants at Johnson City, Tennessee, where it is engaged in the
processing and sale of texturized yarn. During the past cal-
endar year, a representative period, from these two plants
the Respondent sold and shipped finished products valued
in excess of $50,000 directly to customers located outside
the State. I find that the Respondent is engaged in com-
merce within the meaning of the Act.
LEON FERENBACH, INC. 377
II. THE LABOR ORGANIZATION INVOLVED happened to Leon Ferenbach; that if the Union came in
I find that United Textile Workers of America, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Union activity first started in these two plants of the
Company in Johnson City on March 19, 1973, and took its
usual course-a petition was filed on April 11, a Board
hearing was held on May 8, a Direction of Election issued
on May 23, and the election took place on June 21 and 22.
Nine prounion employees were discharged-one in April,
seven in May and one on June 16. The complaint alleges
that in each of these instances the Respondent's motivation
was to put a stop to the union campaign and that therefore
all nine were violations of Section 8(a)(3) of the Act. The
Respondent denies any illegal purpose in the discharges and
offered affirmative evidence to prove just cause instead in
each of the nine cases.
Whenever an issue is raised as to the true motivation in
discharges, the matter becomes one of inference, the charge
of illegality proved or not proved depending upon a due
consideration of all the relevant factors. Three very perti-
nent facts are clear on this record, (1) the Respondent was
opposed to the idea of its employees being represented by
the Union; (2) it knew who the activists were; and (3) the
two principal defense witnesses-Neville Lewis, vice presi-
dent and manager, and Jim Seehorn, superintendent in
charge of all operations, who together assumed the major
burden of testifying as to the asserted reasons for the dis-
charges-gave unconvincing testimony and are largely dis-
credited on the record in its entirety.
1. The Respondent was opposed to having a union in the
plant. There is no contradiction of testimony by Lonnie
Hopson, then an employee, that on about April 1, Swayer,
who held the general manager's post before Lewis, spoke to
400 to 500 employees at a meeting in the plant, and in
formal delivery said that the Company would discharge any
employee "caught passing out any Union literature or pass-
ing out any cards or getting people to sign the cards at break
tables, restrooms, or anywhere in the plant during an 8-hour
shift-during their 8-hour shift."
Another witness, Barbara Beaver, also without contradic-
tion, recalled a meeting of her shift group, about eight em-
ployees, where the plant superintendent, Seehorn, told them
"the Union was trying to force their way in there, and that
he didn't think that we needed a Union that would be a
middleman; that we was always free to come and ask them
questions and work things out with them." Seehorn then
asked each of the employees present three separate ques-
tions: ". . . have you made an approach to sign a Union
card, have you signed a Union card, and how was your
approach?" I find that by all of this unlawful interrogation
of employees the Respondent violated Section 8(a)(1) of the
Act.
Jerry Arnold, a former employee, again without contra-
diction, testified that a week or two after the union cam-
paign started, his supervisor, Jim Campbell, told him and
another employee ". . . it would be the worst thing that ever
they might close down the plant or move to another city."
I find that this threat to close the plant in retaliation against
union activity was a further violation of Section 8(a)(1).
Hopson also testified that early in May Clifford Cutshaw,
another supervisor, said to him and another rank-and-filer:
"you know I'm supposed to fire anybody that I hear talking
Union or have anything to do with the Union . . . if they're
just whispering, and I catch it, I'm supposed to fire them."
This testimony too stands uncontradicted. By this statement
of the supervisor the Respondent again violated Section
8(a)(1).
And the Respondent discharged Robert Elrod, an em-
ployee of 10 years' standing, with whom no one had ever
found fault, for telling others they might obtain a raise if
they were represented by the Union. The manager of the
entire operation characterized this as a demoralizing thing
to do. (See Elrod case below).
2. The Respondent knew who the openly active prounion
employees were. Prime instigators of the union movement
were Lonnie Hopson and Arnold Johnson, 2 of the 12 or
so maintenance mechanics who worked in Dept. 555, where
there were 12 machines. They first met with union officials
on March 19, and that same night started obtaining signa-
tures in large numbers in and about the two plants. Immedi-
ately the next day-on the 20th-Seehorn went to Hopson's
work place and asked was he the one who had distributed
the union cards, and Hopson said no. With this Seehorn
returned to his supervisors to check again whether Hopson
had been correctly identified. To be certain about it, super-
visors brought a certain employee from another section into
Dept. 555, so he could look at Hopson again. And again
Seehorn came to Hopson; now he asked to be looked
straight in the eye so he could 10 times ask the same ques-
tion-had Hopson passed out the union cards? Hopson
answered "no" 10 times. The next day Seehorn was back in
Dept. 555 and told Hopson he knew him to be the culprit
and that therefore from that moment on he should never
leave his work place-not even to go to the bathroom-
without express permission from a supervisor. Seehorn's
testimony as to these three talks with Hopson is typical of
his testimony generally. He started by denying any refer-
ence to the Union in the first two talks, and said that when
he learned of the widespread literature, he did not ask any-
one, he never saw any of it. In his first version he also said
he only asked the man once to look him in the eye. As his
story continued, it changed. Before he was through the su-
perintendent admitted he certainly knew that first night it
was union literature and union cards that were involved, he
knew from the beginning it was Hopson who had been
reported, "maybe" he did start the talk by directly speaking
of the "union" activities, and even that he could not deny-
after evading a direct answer-that he had asked the same
pounding interrogation question as many as 10 times. I find
the superintendent's interrogation of Hopson instituted a
direct threat of reprisal for his union activity, in direct viola-
tion of Section 8(a)(1). Hopson was later discharged, and
that matter is considered below.
For the moment, reference to these early activities by the
superintendent serve to indicate the intensity of the
Respondent's determination to learn all it could about who
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the unioneers might be, the extent to which it was willing lo
restrain and coerce its employees without regard to the pros-
criptions of the statute, and the failure of credibility or
worth of Seehorn's testimony in this case.
Seehorn said that the report reaching him that first day
had it that two men had been doing the soliciting. When
Hopson first denied his participation Seehorn talked to Ar-
nold Johnson, the other machine repairman. Johnson had
obtained many of the cards himself. Again there is some
variance between Johnson's and Seehorn's versions of their
talk at that time, but the record shows clearly what Seehorn
did. He told Johnson he doubted that "Bill [Hopson] would
do this on his own; he must have someone else telling him
what to do," and asked did Johnson know anything about
it. Johnson also denied. The next day the superintendent
called Johnson into an office, where, from the employee's
testimony: "He stated that at this time that he had a lot of
confidence in me, that he had counted on me to help in
other things that came up in the plant, that they had other
problems. And Mr. Swayer had stated to him that I could
be trusted and that I would help them with this matter, and
that he wanted me to find out who had gotten this Union
thing started, who was participating in it, how far along it
had gotten, and that I could report anything I found out
back to his office." Johnson replied he could not help then,
but that if he could later he would; he never did. A few days
later, still according to Johnson, another supervisor named
Ralph White asked him how the union was "getting along
... I know you're involved in it and now so does the
Company."
On his interrogation of Johnson, Seehorn's testimony is
of like character as his story about the Hopson talks. He
stated that he only asked whether there was a union move-
ment and whether Hopson was involved. But the truth is he
already knew the answers to both those questions. Seehorn
then admitted asking did Johnson himself have "any griev-
ances, if things were going-if there was anything that had
happened or was happening that had caused him to become
upset or to cause the people to become upset," and saying,
"if Bill is in this, he isn't in it by himself; he's-there's
someone else in it with him;" and then, on cross- examina-
tion, Seehorn admitted asking did Johnson think a union
was necessary, and telling him he [Seehorn] would "appreci-
ate" it if the man would keep the superintendent informed
of the continuing union activities. No question of credibility
at this point. Seehorn asked his old employee to spy on
others and report to management. I find that by interrogat-
ing Johnson about the union activities, and by asking him
to survey the union activities of other employees and in-
forming the company about them, Seehorn again violated
Section 8(a)(1) of the Act.
Kenneth Arnold, also a former employee, testified with-
out contradiction that Bob Bacon, his supervisor, said to
him sometime in mid-April that "Mr. Lewis, the new plant
manager, was taking down names for later use . . . was
taking down names of all the people wearing Union badges
... that's general knowledge." Bacon's statement was in-
tended to create the impression the company was survey-
ing union activities, and therefore a violation of Section
8(a)(1).
Clearly management was engaged in a studied program
to learn the identity of all the Union's protagonists. Actual-
ly, on this total record, it cannot be said the Respondent
really disputes the General Counsel's contention that man-
agement knew of the union activities of each and every one
of the nine discharged persons named in the complaint. All
of the defense testimony is deliberately phrased in generali-
ties, evasions, arguments, oblique assertions, even inconsis-
tant positions, so that it is not possible to state with certaint
exactly what the defense contentions are as to many of th
discharged persons. Indeed the defense portion of this rec-
ord reads like a comprehensive indictment of the lives of the
dischargees, reflections upon their general competence and
moral character. No brief was filed to specify just what it
was that each employee did to deserve discharge. Even dis-
charge notices, later presented as contemporaneous compa-
ny records, were denied the employees when they asked for
them at the moment of dismissal. It is not possible to state
on this record that the Respondent defends on the ground
it did not know these persons were active on behalf of the
Union. In this respect-and others-the defense was delib-
erately made to confuse.
3. It has at times been said-both in Board and court
decisions-that the question of motivation in disputed dis-
charges under Section 8(a)(3) of this Act turns upon credi-
bility. Employee A, an old and long-respected person,
becomes an outstanding organizer, management knows it,
and the employer is both antagonistic to the union and in
fact commits unfair labor practices to combat the union's
campaign generally. One day A is absent without excuse
and is summarily fired. His employer says he acted solely
because of the unexcused absence, but the evidence strongly
indicates union animus against A instead. When the Board
finds a violation of Section 8(a)(3) in such a case, is it
because it believes the employer, or his acting agent, to be
untruthful, simply discrediting him? Or is it a matter weigh-
ing the total reasonable probabilities in the light of all the
relevant considerations in the circumstances and conclud-
ing that the complaint allegation is proved by a preponder-
ance of the substantial evidence upon the record as a
whole? ' This thought comes uppermost in this case because
the Respondent's witnesses, all but one management repre-
sentatives, talked at such great length, were led and prompt-
ed by counsel for the Respondent as to what to agree to or
what to repeat to such an extent, and gave one another the
lie so badly, that the entire defense falls under a shadow;
this regardless of whether the weakened credibility be
deemed determinative or only one aspect of the issues pre-
sented.
A very substantial portion of the testimony from the
mouths of company witnesses was agreement with, or repe-
tition of, extensive statements of fact articulated by compa-
ny counsel in the form of questions. Repeated rulings on
objections by the General Counsel, and admonitions by the
presiding officer, were ignored again and again by counsel.
The record transcript is 1,400 pages long, and the instances
of such leading questions are countless. Only a few can be
repeated here for illustration.
1 N.L.R.B. v. Glenn Raven Silk Mills, Inc ., 203 F.2d 946 (C.A. 4).
LEON FERENBACH, INC. 379
Q. Did you talk individually with operators, that is
call them into the office as a group or singularly and
talk to them about attendance, or was this other people
under you?
s
Q. Well, now, a brand new man comes in off the
street; he's never seen any mechanical structure in his
life. Now, he would not be given a check list to go
around to oil something, would he?
Q. All right. And what was the reason these 6-
these 4 to 2 machines were down during this period of
time; were there mechanical problems, or were some of
those machines down and not running simply because
you did not have enough operators?
A. We didn't have the people to run them.
Q. Was it a combination of the two, mechanical and
the people?
A. Yes sir.
[If the machines were down for lack of personnel, the
defense is weakened; if they were down because of mechan-
ical difficulties, the defense is better served. Here was coun-
sel for the Company rearranging his witness' direct and
clear answer in order to change it.]
Q. Did you observe him walking around in some
fashion in the department a good period of the time?
case was that of Arnold Johnson, 1 of 12 machine repair-
men. He was an hourly paid employee, working for $2.81
per hour. There was always a supervisor or two over him
and the other mechanics on each of the three shifts he ever
worked. To give credence to its assertion, advanced after the
man had been discharged, that the company held him per-
sonally responsible for complete deterioration of all the
machines and losses running into many thousands of dol-
lars, Manager Lewis called Johnson a supervisor during his
testimony. "His job description said he was a supervisor."
The job description was not produced, and Lewis well knew
Johnson was never a supervisor. In fact, in the fact of his
testimony, the Respondent explicitly disavowed any con-
tention that the discharge was permissable on the ground
that the man was a supervisor. Despite this position, the
leading questions continued:
Q. Did Mr . Johnson have the responsibility for di-
recting the work of these mechanics in this department?
A. Yes.
Q. Did he have the direct responsibility for stocking
an inventory of parts for the maintenance of these ma-
chines?
A. Yes.
Q. Did he have any limitation put on him in that
regard with respect to the parts of that order?
A. No.
Q. All right. Was it Mr. Johnson's responsibility for
keeping up the inventory of these parts and keeping the
parts in the inventory in appropriate places so they
could be utilized?
A. Yes.
* * s
Q. Did you in the course of contact with Mr. John-
son have occasion to tell things to him or indicate to
him that you were concerned about the way he was
performing his job?
A. Yes, we discussed that; yes.
Q. All right. Tell me the first occasion you had some
discussion with Mr . Johnson that you recall at this
point where you indicated that you might be displeased
to some extent with the nature of some job that he had
been assigned?
Q. Did Mr. Johnson direct the work of the mechan-
ics under him day-to-day?
A. He was supposed to.
Did he make the day-to-day assignments as to which
mechanics would work on which job and so forth?
A. Yes.
To justify the discharge of a woman for poor production
one supervisor was saying that certain individual produc-
tion records had been stolen from his office . The witness,
despite repeated questioning , could not recall when the doc-
uments had been stolen . At that point, counsel virtually put
a date into his mouth : "Q. Now, is it your testimony that
the date the records disappeared was the-was somewhere
around May 13?"
Perhaps the most litigated discharge involved in the entire
Many pages later in the transcript came the testimony of
Dan Ward, Johnson's supervisor. The way he describes the
mechanic's duties came as follows: "I had to more or less
rely on Arnold Johnson to do the mechanical work."
Testimony elicited by the kind of questioning illustrated
here, and the record is replete with repetition of like leading
questions, is of very little persuasion.
Again and again the witnesses, when asked a direct and
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
clear question by either lawyer prefixed their answers with
explanations of what in their view was the significance of
the fact , how it should be viewed in passing judgment in the
end, and why they did what they did. Their testimony con-
sists more of argument on the merits of the various affirma-
tive defenses than it does of factual responses. And
repeatedly after the company agent dressed up the plain
factual responses with collateral coloring, company counsel
repeated the summary, rephrased so as to alter the facts as
he viewed them , and then again drew a simple affirmation
from the witness . A certain amount of defense enthusiasm
is to be expected from any person accused of wrongdoing,
but virtual refusal to answer a direct question , which the
witnesses continued to do throughout the record , greatly
impairs their credibility.
On a number of major defense assertions the witnesses
spoke of the volume of business, the date of recorded events,
spectacularly mounting costs at certain specified times-all
matters normally reflected in business records . They spoke
in generalities, conclusions, descriptive phrases , but pro-
duced no records in support. A constant phrase was "it's a
matter of record," or "the record shows it ," or "I looked at
the record last night," words aimed at changing the charac-
ter of purely self-serving declarations . Failure to present
records which undoubtedly were available and could prove
critical conclusionary assertions casts a further serious
doubt upon the testimony of any witness. In one particular
example of this character of the defense testimony appears
what is perhaps the most fatal wound in the testimony of
both Manager Lewis and Superintendent Seehorn , the men
who said they made most of the discharge decisions.
The union campaign was sparked in Dept. 555 in late
March, by Johnson and Hopson , the two mechanics, and a
woman named Boyd; the Company knew this . Johnson had
worked 4 years, was well liked, and considered an excellent
and very competent mechanic by Seehorn and others in
supervision . Hopson, too, like Johnson, had never been rep-
rimanded at all. Johnson was fired on April 23, Hopson on
May 31, and Boyd on May 5. Significantly , the Union's
petition was filed on April 11, the Direction of Election
issued on May 23, and the election was scheduled for June
21. What with the unlawful interrogation of Hopson about
his union activities , the further questioning of Johnson and
his failure to cooperate with Seehorn 's invitation to spy and
report on the union campaign , a problem to the Respondent
at the hearing was how to dispel the virtually compelled
inference of illegal motive arising from the otherwise inex-
plicable timing of the events . Its explanation was that John-
son was responsible for all of the mechanics in Dept. 555,
during all of the three shifts , and for the work of all the 12
mechanics there , and that for a long time before the union
activities the operations of Dept. 555 had been so ineffi-
cient, so poor, causing such enormous financial losses that
something had to be done about it. The affirmative defense
is that as Johnson and Hopson were personally responsible
for the no longer tolerable conditions in that department,
they had to be released.
Vice President Lewis testified first . He said he was hired
by the Ferenbach Company on January 1, 1973, and report-
ed to its main office in New York City, where he stayed until
February 1, when he went to Johnson City to take charge.
January was a period of instruction and indoctrination for
him; he learned about the business and its problems. ".. .
in particular getting production up in this one particular
department which was down drastically. . . . The 555 de-
partment . . . with this over $1 million investment, was
running less than 50 percent capacity...." Lewis even
said Mr . Ferenbach , the president , told him in New York
that the problem in Department 555 "was one of the top
priority items."
Superintendent Seehorn followed Lewis to the stand.
Asked about production efficiency in Dept . 555, he said that
during 1972 , it had been excellent, had produced at 85-
percent to 95-percent efficiency , although 85 percent is all
that can really be expected. He continued "we started hav-
ing problems in February, late February. . . . we just
couldn ' t get the production ." As he continued to testify,
Seehorn was asked again : "Did you testify that production
was 85 percent in February?" He answered "Up until late
February , yes, sir." No question here of the witness having
misspoken ; he knew the department was perfect until late
February, he held firm to his statement . As the hearing went
on counsel for the Respondent suggested the witness might
want to change his testimony : "I want you to try to remem-
ber as best you can-do you remember whether it was
January or February or any specific date that this curve
started downward from 85 percent? A. As I remember it, it
was late February." The witness' testimony continued into
the following morning . Now he tried to change his testimo-
ny: "I testified yesterday in late February , but I 'm a month
off; it was in late January when our production started
going down . . . I looked up the records last night."
Seehorn was the superintendent in charge of everything,
including production , on the spot in Johnson City; he knew
how things were going there . His attempt the next day to
retract his four-times repeated clear statement on direct
examination that nothing was wrong with Dept . 555 until
late February, was worthless. He gave the lie to Lewis, as
clearly as could possibly be. And from Lewis this business
of learning way back in January in New York about the
critical situation in Dept. 555 was no passing detail; he
belabored the matter as the basis of the Respondent's prin-
cipal defense. He stands completely discredited. And if he
cannot be believed in so important an aspect of the case, can
he be believed as to any other unsupported general asser-
tions that may serve the Respondent 's interests?
The Discharges
1. Johnson and Hopson
In the light of the total record the discharge of both these
men must be considered together . One reason is because
they were principal unioneers late in March-Hopson ob-
taining about 83 authorization cards right away and John-
son about 75, and both thereafter distributing union leaflets
at the plant entrances-and the Company committed direct
unfair labor practices against each of them at the beginning
with an eye to forcing them to stop all this . These were the
repetitive and coercive interrogations of both men on
March 20 and 21, and the request to Johnson that he be-
came a company stooge-which he refused to do . The other
LEON FERENBACH, INC. 381
reason for joining the two discharges is that although the
firings came a month apart and were timed with two differ-
ent incidents, the affirmative defense as to each merges the
same overall factual assertions blaming them jointly for the
claimed general breakdown of Dept. 555. Here and there
throughout their long testimony the company witnesses
seemed to be saying it was the individual incidents-one in
April and one in May-that caused the discharges. But in
much of their testimony they also insisted the discharges
were justified because both men just fell down on their jobs
starting at the very time of the union movement, deteriorat-
ed completely in sharp contrast to their past competence,
and were together responsible for the terrible conditions of
this Dept. 555.
A number of days before Thursday, April 18, Johnson,
with Hopson assisting him, changed the gears on one of the
machines in the department because it was to be used on a
different kind of yam. This was a normal chore, required
maybe four times each week all along, and always done in
accordance with precise instructions specified in a gear
change card given to Johnson, or whatever mechanic, by a
supervisor. The machine had been out of production for
several weeks, and on Thursday, when it was started up, it
was discovered that some of the gears in the machine were
the wrong ones. Changes were made in the morning and by
I p.m. everything was straightened out. The next morning,
Friday, Johnson and Hopson were called into an office by
Superintendent Seehom, for a confrontation about this
matter; present also were Dan Ward and Joe Larimer, the
two supervisors over that shift who had passed the gear
change order to Johnson by giving him the instruction card.
There is conflict in an important respect as to what was said
in that room that day; there is very little conflict about
another very revealing part of that conversation.
Johnson first said that when the error was discovered on
Thursday he asked to be shown the gear change card, which
he had signed and returned to the office for filing, as he
always did, and that the supervisor said to him it was lost.
A look at the master control books showed the wrong gears
had been placed in the machine for the yarn indicated and
the correct ones were then installed. In the office Friday
morning, still according to Johnson, Seehorn told him it had
been an inexcusable mistake and he would have to be repri-
manded, but when Johnson asked for a copy of the repri-
mand, again an established procedure in the plant, the
superintendent answered "he would do this at his conve-
nience, and when he did I would get a copy...." Seehorn
also said, as Johnson testified: "I know what you guys have
got on your minds; you're going to get this crap off your
mind and get it back on your job." "We've tried talking; it
hasn 't done any good, so we're going to try a little pressure."
Hopson's version is that Johnson denied having himself
made any mistake on the gears and that he, Hopson, an-
swered Seehorn by saying to Seehorn that he always re-
ceived a paper from Joe Larimer or Dan Ward about the
changes to be made and "I said, `when I get this paper we
always make the gear changes.' I said, `if the mistake's made
... Joe Larimer's the one that made the mistake.' I said,
`It's either him or Dan Ward."' He also testified they, he
and Johnson, asked to see the gear change sheet, but "they
[the supervisors on Friday morning] said they had lost it.
And I told them that I usually made a copy of this myself,
and he asked me if I had a copy of this particular one, and
I said, `no,' and he said, `well, you can't prove it,' and I said,
`no."' "I was saying we had the right one, and he was saying
that I couldn't prove it because I didn't have a copy of the
sheet." Hopson also recalled Seehorn saying to both men
". . . he'd tried pressure before, and this didn't work. So he
said now we're going to try something else or something."
There is no way of intelligibly reporting with any exact-
ness the testimony of the three company representatives,
either as to what wrong the men had committed and that
was discussed in the office the next day, or the reason why
Johnson was discharged the following Monday. They
seemed to be saying the mechanics simply had not changed
any gears at all, which must mean they had totally ignored
the instructions contained on the gear change card. But if
this is what happened, as Seehorn said he charged the men
in the office, how explain his opening testimony that
Johnson's first response was he made a mistake? Continu-
ing with Seehorn's testimony: "I got this same response .. .
that they just made a mistake." "Q. Did Mr. Johnson deny
that they had made a mistake? A. No, sir. Q. What did he
admit; something in regard to that? A. He admitted they
had made a mistake." This was incoherence from the wit-
ness. Johnson could only "admit" having made a mistake,
if Seehorn had charged him with making a mistake. But the
idea of a mistake bears no relationship to the concept of the
men having paid no attention at all and totally ignored the
gear change instruction. From Larimer's testimony: "A:
Arnold admitted making the mistake. Q: Well, what mis-
take did he admit making? A: The gear change mistake,
putting the wrong gears in."
Ward's testimony reveals the same internal inconsistency.
He said he reported to Seehorn that no gears had been
changed at all, but he also testified: "Arnold Johnson had
admitted to me that he made the wrong gear change." This
must mean that Ward knew on Thursday the gears had been
changed but incorrect ones put in. His testimony also shows
that the subject of discussion the next day was wrong gears
and not disregard of instructions at all. "Q. There was some
question about a mistake being made; right? A. Yes." The
witness made no effort to reconcile all this testimony about
mistakes being discussed on Friday with his, and Seehorn's,
simultaneous insistence that all they talked about was the
men had ignored instructions completely.
In the middle of all of this confused talking, both witness-
es kept repeating Johnson's error had been that on Wednes-
day he had told his supervisor the machine was ready for
production, when in fact it was not. Johnson denied telling
anyone the machine was ready. To prove the machine was
not ready, the company witnesses described how dirty the
gears were. Now they left behind entirely the business of the
gear change and departed from the entire subject of both
complaint and confrontation in the office. This last idea
also clashes with Ward's further testimony that only a day
earlier he had ordered the cleaning crew to clean the ma-
chine. How does Johnson then become responsible for the
dirt? According to the witnesses, he was in charge of the
cleaning crew also, he was accountable for their competence
and attention to duty, because he was-but the witnesses
stopped short of calling him a supervisor. These conclu-
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sionary statements thrown into the testimony making John-
son responsible with whatever else was wrong, or not ready
with that machine that day, did not help the defense, for the
Respondent insisted throughout Johnson was never a super-
visor.
These were not credible witnesses . Out of the confusion
emerges another deadly flaw in their stories . Ward corrobo-
rated Seehorn that there was never a mention of the gear
change card in that room on Friday. Larimer, Johnson's
immediate supervisor , the man who handed Johnson the
gear change card, followed Ward to the stand. From
Larimer 's testimony : "He [Johnson ] said he made the
change. . . . He [Seehorn] asked Arnold if he had made the
gear change where was his setup . . . the card I gave him."
Larimer recalled clearly the supervisor, Ward, was right
there while Seehorn talked in this way. Larimer also said
that in response to the superintendent 's challenge to John-
son to produce the card, "He [Johnson] said he had lost it."
At least three or four times in his testimony Larimer repeat-
ed there was talk about the gear change card in that room
that day. Again, with the Respondent's own witness-a
member of management-giving the lie to Seehorn and
Ward, I cannot credit their testimony at all about the con-
frontation that day.
When Johnson asked for a copy of what Seehorn then
said was a reprimand, the superintendent said he had yet to
prepare it. He even said, according to Ward, he had to
investigate the matter . There was nothing to investigate.
Seehorn knew then all he could ever learn about that inci-
dent. Johnson returned to his work, completed his shift, and
came in as usual Monday , only to be discharged.
After over 100 pages of direct testimony about endless
faults in Johnson and Hopson , Seehorn was asked the direct
question : "Why was Johnson fired?" His answer reads:
"Arnold was fired for his-wait a minute ; let me think just
how it was-for flagrantly and willingly setting up the ma-
chine wrong, he-and costing us about 5 and a half hours
production, and the pay for 5 to 6 people for 3 hours." What
the record transcript does not reflect is the considerable
time the witness sat silent , just thinking after saying he had
to "think," before stating his reason . For the least, his de-
meanor at that point and his limited answer effectively un-
dermine most of what was generalized by him and the other
witnesses as to these two men 's work performance.
When Johnson was discharged, Hopson was repri-
manded; he asked for a copy of the document but was
refused. Produced at the hearing, it says he acted with John-
son in making the gear change and the reprimand was giv-
ing "Due to this change being improperly executed." If only
because of this document I must reject the totality of the
defense testimony? In the face of their own statement
signed by each, and recorded at the time of the event, that
the mechanics had made a mistake in replacing gears, Lar-
imer and Ward swore at the hearing that none of the old
2 The discharge notice which was read to Johnson , but not given to him,
the day he was discharged , was also produced at the hearing ; it too proves
that the gears in question at that time had been changed , even if, as later
claimed , incorrectly. It reads, in part , he was discharged because "the correct
gears were not in the machine . . . five hours production [were lost] having
to redo a job that should have been done correctly to begin with."
gears had been touched.
Early in May, Hopson was given a written list of work
duties; it itemizes each and every one of the various adjust-
ments , recordings , measurements , changes , and corrections
which the mechanics always make in this department on all
the machines. He was also ordered to make daily reports in
writing as to all of these chores; some of this paper work but
not all of it had been done in the past. He protested to more
than one supervisor, when told he was not doing all this, that
it was not possible to do so much in a single shift. He
explained that some of it could not be done at all unless the
machines were stopped. Notwithstanding his protest, again
and again he was told it had to be done, all of it, on each
and every single 8-hour shift. The record shows clearly such
work assignments had never before been imposed upon
anyone. The supervisors said at the hearing it was justified
because the department was in too low production.
On May 25, after several warnings that he was failing for
not keeping up with all this every day, Hopson was given
another reprimand and suspended for 3 days in punish-
ment. On the last day of May he made a routine change of
gears on one of the machines; the next day he was dis-
charged.
I find that by discharging Arnold Johnson on April 23
and Lonnie Hopson on June 1, 1973, the Respondent violat-
ed Section 8(a)(3) and (1) of the Act.
I credit Hopson's testimony that the added duties
charged to him beginning in May were beyond the capacity
of any one mechanic-especially one like himself with only
6 months' experience on these machines-to perform.
There is explanation for this program of making it impossi-
ble for him to fulfill the assignment. It appears in what
Superintendent Seehorn told both Johnson and Hopson
that Friday morning when he had them in his office about
the earlier gear change incident. Johnson testified, it will be
recalled, that Seehorn said he knew what the men had in
mind and "you're going to get this crap off your mind and
get it back on the job . . . We've tried talking; it hasn't done
any good, so we're going to try a little pressure." As Hopson
recalled it, Seehorn said "he'd tried pressure before, and this
didn't work. So he said we're going to try something else or
something." The testimony of the supervisors is not really
different. Ward quoted Seehorn as saying: ". . . you've got
your mind on something besides your work and you'd better
get it off. . . ." and Seehorn admitted he told the men "it
looks like you've got something on your mind besides doing
your work," and that the men "just grinned." If the men did
grin it was because they understood what he was talking
about, for each knew what had already been tried by See-
horn to get that "something" out of their minds and it was
their prounion activities. There is no suggestion anywhere
on this record that that "something" else might be anything
other than union activity. Johnson had been probed by
Seehorn, and the request that he report on the union activi-
ties of others was as much an invitation that he come to the
company's side to combat the union. He refused and started
handbilling the plant for the Union instead; this means that
therefore other means had to be found to curb him. Seehorn
thought about it over the weekend-he did not investigate
because there was nothing to investigate at all-and he
decided to fire him on Monday.
LEON FERENBACH, INC.
Hopson had been subjected to Seehorn's repeated inter-
rogations, coercive if ever an interrogation was coercive. He
too had ignored the clear threat implicit in the
superintendent's words. As to him also other efforts had
been made to discourage him, but again without success. On
March 21, the day after Hopson persisted 10 times in deny-
ing the superintendent's attempts to draw an admission of
his widespread card solicitation, Seehorn was back at him
again . This time Seehorn said now that it was clear the man
was the organizer he would be restricted to his immediate
place of work, he could not leave his place without permis-
sion of his supervisor to go anywhere-"either to go to the
bathroom or to go to the lunch period or anywhere else
outside my department." Hopson's work had always re-
quired him to move about the plant to both work and obtain
parts; and of course, like everyone else, he too had been free
to go for a coke, or a smoke, to say nothing of the bathroom.
Starting that same afternoon, March 21, Hopson received
five personal visits from the vice president, Mr. Lewis, span-
ning a period of a week or two. And in every one of these
personal talks the purpose, according to Lewis, was to dis-
cuss the restrictive limitations placed upon Hopson.
Hopson's version of these talks is different. He testified
Lewis first came to him on March 21 and asked him to look
over a new machine. As they talked about that, Lewis found
occasion to say he had heard from the foremen, Hopson's
work was very good, and that he had "been cooperative in
every way." Lewis also told him "to report to his office; that
his office was opened at any time I had any problems or
anything." Lewis' office was in the other plant, maybe a
mile away; Hopson's work never took him out of his own
department. Hopson continued that Lewis came back about
a week or two later; now the employee was wearing a union
badge. Lewis said "it looks like you're pretty strong for the
Union." and when Hopson said yes, he was, Lewis contin-
ued: "the Company knows best for its employees, not the
Union. . . . I would suggest that you take it off. . . . I can't
make you take it off, but I would suggest that you would."
Before leaving Lewis repeated "his door was always opened
if I thought . . . or would reconsider and come over." ".. .
he made one statement ; he said that he wasn't a preacher,
but he could say that what I was doing was a sin , and that
I could go to hell for doing this."
Hopson continued to testify that the next day Lewis came
again and called him into a private office, wanting to talk
to him "man to man." Lewis showed Hopson a written
statement about restrictions imposed upon him; he did not
give the statement to Hopson but told him he was not to go
"to the bathroom . . . to the lunch period without permis-
sion, and that I couldn't take a break without permission."
Again he told Hopson he was doing a good job, but that he
"could be replaced if this continued." Lewis also here asked
had he thought of what they had previously discussed, and
Hopson answered he had but "was still working for the
Union." Their last talk came a few days later, again in a
private office; Hopson asked could he have a witness pre-
sent , but Lewis said no. Now Lewis accused Hopson of
violating the restrictions, leaving the department without
permission. Hopson said he had done so only once, to ob-
tain a part he had to have quickly from the next department.
Hopson also argued he must be privileged to go to the
383
bathroom when necessary, had even done so and would
continue to do that. Again Lewis said he would be fired if
he did not adhere strictly to the restrictions imposed.
Lewis' explanation of all this is that it was Hopson who
asked to talk to him and that all he ever spoke about with
the man was the matter of the restrictions against leaving his
post. The witness could not be stopped from expanding at
length, before any definitive response could be drawn from
him, about how all that was involved were rules that had
always been in effect, how the department was badly in
need of discipline, and of how his sole concern was morale,
rapport with human beings. When finally he started talking
of his first personal chat with Hopson, he began with some-
thing that was absolutely not true. He said Hopson "had
been given a written outline of where his work area was, and
he came to me with a grievance." On this question of Hop-
son, or anyone else, being restricted in work areas, nothing
was ever put in writing before April 10, 3 weeks after Lewis'
first talk with Hopson-this on the testimony of Seehorn,
who instructed a supervisor to write it, Ward, the supervisor
who wrote it, and the document itself, dated April 10, put
in evidence by the Respondent. Lewis continued that he
kept coming back to Hopson four or five times, always to
explain again the necessity of the restrictions, to convince
him he was not being picked upon, to report formally to the
mechanic the results of his-Lewis'-investigation else-
where of Hopson's complaints. Lewis even said two of the
conferences between him and the man-in a private of-
fice-were essentially on the subject of whether or not Hop-
son could or could not go to the bathroom on his own. In
the end, Lewis admitted he did tell the man that he could
be replaced, he did say to him that the union badge could
be "a disturbing force in the department," he should be
reasonable, and the Company did not need a union.
I credit Hopson as to all these visits he had from the
overall manager; the fact of all this solicitation to him to
cease his union activities gives clear meaning to Seehorn's
words, towards the end of April, that he would now resort
to other pressures to put a stop to the union campaign.
No one had ever found fault with either Johnson or Hop-
son before they started this union business; they had always
been highly regarded. Immediately after both were gone the
efficiency of the entire Department 555 in which they were
only 2 of 12 mechanics, is said to have risen to excellent
production. The idea that there was need to get rid of them
even before March was completely scuttled by the superin-
tendent himself. There may have been cause for concern in
Department 555 in the spring of 1973, for the record is
replete with evidence of major production problems result-
ing from other causes-changes in type of yarn made, diffi-
culty in obtaining capable employees, high rate of turnover,
etc. No amount of exaggeration over the alleged delinquen-
cy, indolence, total incompetence, or disregard to duty on
the part of these particular two men-and the record must
be read to be believed in this respect-all unsupported by
any objective proof, can alter the true nature of the affirma-
tive defense. It is simply that everything was fine until they
started organizing the employees, and everything was fine
immediately after they had been discharged. Given the very
poor credibility of the defense witnesses, this general asser-
tion is unconvincing. Rather, the affirmative evidence of
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempts , without success, at prevailing upon them to cease
their union activities , rationally explains the unprecedented
treatment accorded both men when they were discharged.
A final comment about the testimony is warranted. The
supervisors testified that after Johnson was dismissed, it
was discovered that all the machines in Department 555
were so run down , broken , parts missing , that all had to be
virtually rebuilt. The story of deteriorations as described by
the witnesses is so extreme that it is absolutely impossible
to believe no one noticed the condition before the dis-
charges, as the witnesses also said . This body of testimony
also illustrates once again the irrelevancy of much of what
is said to be affirmative defense . Nothing that is discovered
later, even assuming a quantum of credibility in these wit-
nesses , could have been a contributing cause in the dismiss-
al. And there is a discharge reprimand related to Hopson in
evidence . It is said to have been prepared by the Company
when he was released on June 1; he asked for a copy but
it was denied him . A very detailed statement of fact, at-
tached to it, reads like an employer respondent 's brief filed
after hearing on a complaint . It even contains a statement
that "attached" to the reprimand there were "copies" of
work performed by other employees "in the prescribed
manner," i.e., unlike Hopson 's alleged "improper" manner.
Regardless of whether this so-called record of the Respon-
dent be deemed pretrial or posttrial brief , it remains nothing
more than conclusionary assertion, unsupported by ade-
quate evidentiary proof.
2. Nellie West
Nellie West worked 4 years as a machine operator, always
performing satisfactorily ; she was never criticized , but rath-
er complimented by her supervisors. She handbilled on be-
half of the Union , she distributed some union cards and got
them back signed,and she wore a union badge at work. On
May 19 she was discharged . The separation notice reads:
"Discharged for conducting union activity during working
hours in interference with work of other employees."
West testified , without contradiction and quite in keeping
with the recitals of other employee -witnesses , that through-
out her employment there were never any rules in these
plants prohibiting employees from talking among them-
selves while at work . "We have lag time when we stand
between our machines when a part is run good, and we
stand there and talk ." West recalled she gave four or five
other employees union cards at their request , "in the bath-
room and at lunchtime and before worktime." She also said
some of the employees returned the cards to her when she
was at her machine. ". . . we talked about the Union; ev-
erybody was talking about the Union ." She insisted clearly,
both to the personnel director when discharged and at the
hearing, she did not interfere with anyone's work duties.
Not only was there no established rule against union
solicitation during hours in this plant, but no one ever told
this woman she should not do it until after the event and as
the reason for her summary discharge . An employer may
well discharge employees who do not do their assigned work
and talk instead-regardless of what subject may interest
them . But it is quite something else to fault a girl for doing
what she always did-and what, clearly, others still contin-
ue to do-merely because now she talked union instead of,
perhaps, cooking or domestic relations. There is no persua-
sive evidence to offset her statement that she did not inter-
fere with anyone's work, and I believe her.
The only witness who attempted to contradict West was
Lewis, and again he had no knowledge himself about her
activities. He said a supervisor reported to him what he had
heard. He said he talked to Emma Pierce, another employ-
ee, and that Pierce had told him "she was not only being
bothered in her rest area in the restroom, but also on her job
on several occasions, and that she was being pressured to
sign a card." ". .. she didn't want to be badgered." Lewis
even said that for a month he had been hearing of employ-
ees not wanting to be "bothered" by others to sign union
cards. These words were ambiguous; Lewis was as much
saying the employees were opposed to the Union as he was
saying they were reporting work interference. Perhaps from
another witness, one more credible generally than Lewis in
this entire record, such ambivalent hearsay might have some
weight. From him it cannot offset the credibility of the girl.
I find the Respondent discharged Nellie West to curb her
union activities, and not to enforce disciplinary work rules,
and that by such discharge it violated Section 8(a)(3) of the
Act.
3. Janice Smith
Smith worked as a machine operator and was openly
active for the Union; she went to meetings, distributed au-
thorization cards inside the plant, handbilled at the gates,
and wore a badge to work. On May 2 she was 4 months'
pregnant and stayed off ill that day; her sister called in to
the plant on her behalf and was told Janice would have to
have a doctor 's certificate for the absence . She went to her
doctor's office in a nearby town 15 miles away on Thursday,
May 3, to ask for a certificate of some kind to cover her in
disposition the day before. The receptionist said the doctor
was too busy to see her and gave her a form certificate
bearing the doctor's stamped signature instead. The recep-
tionist wrote Smith's name and the date on the note and
Smith filled in her address. Smith said she had arranged for
this doctor to look after her because she could not afford the
costlier local man. She handed in the note and the next day,
Friday, Parsons, her superior, asked where had she obtained
the paper; she answered from the receptionist because she
had not seen the doctor. With this Smith went to talk to
Seehorn.
The lady was fired the following Wednesday, May 9.
Again the company witness testifying in support of the affir-
mative defense of discharge for cause was Seehorn. And
again his total story defies logical comprehension. About
her Friday talk in Seehorn's office, Smith recalled she told
him she had not seen the doctor at all and that the recep-
tionist had given her the note; she said at the hearing this
was not an infrequent practice and she had done this before
herself. In fact, she also said she had on occasion been out
ill with no statement at all, and no one had complained. "I
couldn't afford to go to a doctor every time I had a bel-
lyache" Smith recalled Seehorn saying he did not believe
her, he would investigate the matter himself. She was also
wearing a union badge and in the conversation Seehorn
LEON FERENBACH , INC. 385
asked her did she feel she was being mistreated in the plant.
Seehorn said the reason for the discharge was "dishones-
ty." On May 8, the day before the discharge , Smith had been
the only witness at the Board hearing in the representation
case called by the Union . To cover the 1-week gap between
May 2 and 9 , Seehorn said : "We investigated the thing daily
from its inception ." He said he had his secretary call the
doctor's office and that the secretary was told by a recep-
tionist , or some woman , that the statement had not been
issued there . He continued he then sent Supervisor Parsons
the 15 miles to be more certain , and that Parsons had report-
ed he had talked to the ladies there and had learned Smith
had not been given any statement . And then, to be still more
certain , according to Seehorn , he went himself and talked
to the doctor , asking-had he personally seen Mrs. Smith?
had the note been issued from that office ? could it be used
as a legitimate excuse for absenteeism? He added the doctor
answered "no" to everything , and even called the three
ladies who worked there to ask had they seen Smith , and all
answered "no."
I do not believe any part of Seehorn 's story. He admitted
the Company frequently permits absences with no doctor
certificate at all, and only spot checks about 10 percent of
the certificate that are brought in. He is in charge of over
700 employees and took the time during working hours to
send a supervisor , and then go himself , 15 miles away over
a 1-day absence by a woman he knew to be pregnant and
to have been out sick for this reason 8 or 10 days only a
month or so before . Such enormous concern over so rela-
tively insignificant an absence is unreasonable on its face,
and the story is all hearsay.
Betty Mooney, the receptionist , was brought to the hear-
ing by the General Counsel , and testified she did give the
signed doctor's statement to Smith . But most significant of
all, in the face of his admission the lady told him , from the
start , she had not seen the doctor , Seehorn said more than
once he wanted to check whether the doctor had seen her,
and went there to ask him exactly that question . Company
counsel asked: ". . . do you know of any rule forbidding the
acceptances of excuses issued by doctors' secretaries? A.
Yes, sir ; we wouldn 't accept one if we knew it was by a
secretary and didn ' t have the approval of the doctor; .. .
not unless the doctor would substantiate the fact that he had
examined the person ,.. . ." I must discredit this man if
only because in his own admission he had nor reason to
check with the doctor at all.
I find , on the total record , that the Respondent dis-
charged Smith in retaliation for her prounion activities and
thereby violated Section 8(a)(3) of the Act.
4. Robert Elrod
Elrod was a machine mechanic whose work normally
took him to many places in the plant to obtain parts and to
fix things ; his superior was C . L. Johnson. During the 10
years of his employment he was only once reprimanded.
May 17 was payday and Elrod 's paycheck showed a merit
raise ; it was the first such individual raise he had received
in 5 years . An employee named Hicks , who had not received
any raise , asked him had anyone received a raise , and Elrod
said he had, and showed Hicks the check stub to prove it.
He also told Hicks "I'd get more money if the Union would
come into the plant ." Elrod , perhaps the most credible wit-
ness throughout the entire hearing, also recalled that two
others had asked him the same question , and that he may
have shown his check stub to them also. He said he was
"proud" of having received the raise . The next day he was
sent to the personnel office and summarily fired . The dis-
missal notice , in part at least , gives the reason as "Promising
to get them [other employees ] more money if a union was
voted in ." I find the Respondent discharged Elrod because
he encouraged others to form a union in order to put a stop
to the union movement in the plant and in violation of
Section 8 (a)(3), as alleged in the complaint.
The discharge slip has a longer statement as the reason:
"Off his own job without permission and interfering with
the work of another employee . Causing dissension among
other employees by showing check stub and promising to
get them more money if a union was voted in." The only
witness who testified for the Respondent about this dis-
charge was Manager Lewis, who had no personal knowl-
edge about the man ; everything he said he heard from
others, and is therefore of little value in contradiction of
Elrod's testimony . But the totality even of Lewis' statements
leaves no doubt it was the fact of the employee suggesting
to others a union might increase chances for raises that he
resented , and not work interference , which he at one point
said was the reason for the discharge . ". . . pay is a personal
matter . . . . It should be considered personal and kept that
way." Lewis said he talked to the employee Hicks, who was
not called to testify, and said in his "grievance " the man
complained "he was bothering him on his job and showing
him his checkstub and telling him that he gotten this raise,
and when the Union came in he would get another one."
Lewis added that this created "a morale problem" in the
plant . And when Smith, assistant to the personnel director,
called Elrod to tell him what he had done wrong and to
discharge him, he used the same revealing words: "We had
an investigation around, and that you showed your check
stub and said you would get more money if the Union come
in.,,
The finding of illegal motivation here is supported by the
following uncontradicted testimony by Elrod which I credit.
He went to union meetings , he distributed union cards and
returned them signed to the Union , and he gave out hand-
bills outside the plant . After he started wearing a union
button , Johnson, his supervisor , called him into an office to
ask why did he want the Union , and when he replied it was
for better working conditions , the foreman said "we're
trying to do the best we can" and I cannot force you to take
the badge off; I can 't even tell you to take the badge off."
Elrod answered he would continue to wear the badge.
A week later again the supervisor called him into the
office and again asked why did he want the Union. On May
8 Elrod was present at the representation case Board hear-
ing with a union group . He was fired on May 18.
Elrod spoke to Hicks about his raise while he was on a
smoke break, but the employees are always free to talk while
at work even near the machines . There was no rule against
chit-chat about any subject , certainly no restrictive rule was
ever published or posted in these plants. Indeed many wit-
nesses testified that they were free to go for a coke, or to
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bring a sandwich to their place of work , or go to the bath-
room at will, and to talk with others anytime , so long as it
did not interfere with actual work . There is no probative
evidence here to offset Elrod 's statement that he did not
interfere with anyone 's work.
And finally there is a practice of reprimands in these
plants . One witness after another told of a first reprimand,
a second with perhaps a few days layoff , and a third bring-
ing discharge . Any number of documents offered by the
Respondent in evidence only serve to help prove this fact.
Lewis attempted to wash away the entire practice simply by
saying the system also conceived an element of discretion
in management , the privilege of applying it only when the
boss felt like doing so. An employer is always free to take
immediate or drastic action to maintain discipline-past
practice or no past practice . But this does not mean the past
practice must be totally ignored . Elrod had not been repri-
manded in 5 years , he was a respected and competent work-
man, and his offense-if offense it can be called-was
minor indeed.
5. Helen Boyd
The incident which led to the discharge of Helen Boyd
presents no substantial issue of fact. She was a very compe-
tent operator , had never done anything wrong or been crit-
icized , and the Respondent knew she was among the more
active in favor of the Union. Her activities in contacting the
Union and setting up meetings were extensive , she plastered
the walls and work carts with union stickers , and often
distributed literature at the entrances . There is also some
persuasion in the contention that the fact she alone was not
called to a meeting of her shift employees when Seehorn
interrogated the operators and others about their union ac-
tivities , indicates the Company knew all about her.
One night she was asked to accept assignment of a trainee
to work with or near her, under an established system
whereby the experienced operator was paid 20 cents per
hour extra for that added function . She refused , was sent
home , and then discharged. Whether this was an order or
a request by management , it is a fact others were being told
to do the same thing and did it , but Boyd refused. If the
incident be viewed in isolation , it could hardly be said an
employer may not rationally dismiss an employee for such
failure to cooperate with a request . If it be fair to look
outside the incident in one direction and see indications of
another motivation , an illegal one , justice demands that the
outside look sweep in all directions and appraise other rele-
vant factors also.
There is no evidence of direct animus against her person-
ally. It would strain logic a bit to say, as the General Coun-
sel suggests in his brief , that because management did not
interrogate her, it showed its intent to get rid of her; some-
where here the negative is built into the positive. A year
before she had asked a supervisor who it was that had once
started an ancient and unsuccessful union movement in this
plant , but that was long ago . The real evidence that might
weigh in the balance in favor of the inference of illegal
motivation in this discharge would have to be the general
antiunion attitude of the Company and the fact it did vio-
late the statute as to other employees-or Section 8(a)(1)
and (3).
There are other facts . These two plants of the Respondent
have a tremendous turnover , and in the spring of 1973 suf-
fered from a great shortage of operators , Dept . 555 includ-
ed. Both employee and supervisory witnesses agreed that a
hectic training program was carried on during this period,
with new hirees spending weeks on learning machines and
a good many coming "off the street" to be put right in the
department, with the hope they would learn with guidance
by experienced operators . Many of the new people quit, and
no doubt some must have failed to qualify at all. Whatever
the extent of the shortage , it was there . Boyd knew this, she
knew others were accepting the trainees, and she knew it
was in the Company's interest for her to cooperate . She had
refused more than once before her last night , once saying
the Company was trying to replace prounion operators, and
once because she simply did not feel like it . The discharge
was not completely a surprise , for she was told before her
final refusal that she would be dismissed if she persisted in
her position . Boyd was a very poor witness , argumentative,
evasive , given to interspersing her factual replies with em-
bellishments and protestations . Her total testimony war-
rants a conclusion that the foreman that night made clear
to her , before she was sent home , that she still had the choice
of accepting the trainee . All she had to do was say yes, and
she would have stayed right on the job . An employer de-
termined upon getting rid of a woman does not give her a
way out. It has been said of old that union activities do not
insulate individual employees from the normal vicissitudes
of life, or privilege them to enjoy special treatment at the
hands of the employer . T'ne evidence does not suffice to
carry the affirmative burden of proving unlawful motiva-
tion in the case of Boyd , and I shall therefore dismiss the
complaint as to her.
6. Clara Ingram
Ingram started with the Company on February 26, 1973,
and was discharged 3 months later , on May 22. A machine
operator in Department 555, she went through a 6-week
training period and then continued as a full-time regular
operator . Her work was entirely satisfactory until the begin-
ning of May. She signed a union card early in the organiza-
tional campaign but only started going to meetings at the
end of April; she went to maybe 15 meetings , and on May
3 first began to distribute handbills at the plant gate. She
wore a union badge, the supervisors saw her distribute
union literature , and indeed the very day before her dismiss-
al she was seen , with some other employees , in the company
of out-of-town union officials socializing at the same hotel
where company officers usually stayed.
Two company witnesses testified about this woman-
Seehorn , the superintendent, and Lones , a low supervisor
over her . Both conceded she started doing very well, in fact
was a "hundred percent operator ," and that no one had
found any fault with her throughout March and April. See-
horn said he heard from others that her production sudden-
ly fell off very badly in May ; he said he saw her production
records to that effect but no record was produced at the
hearing . Lones said he spoke to Ingram several times that
month , that she at times improved, only to start doing poor-
LEON FERENBACH, INC. 387
ly all over again. Against these two, Ingram herself insisted
her work did not fall off, that she always worked as hard as
she did at the start.
The issue presented in this woman's discharge compares
very much with that of several of the other discharges in this
case . Her work performance is perfectly acceptable to the
moment of her open activities in support of the union move-
ment; immediately she becomes incompetent. In quick suc-
cession she receives three written reprimands-on May 7,
10 and 22, when she is dismissed. Other than a reasonable
assumption that, as she worked very well for 2 months it is
very likely she continued to deliver equally satisfactory per-
formance the third month, there is no objective basis for
deciding whether she produced adequately or inadequately
during May. The supervisors' conclusionary statements that
she changed, and became incompetent, are purely self-serv-
ing and not reliable as proof at all. Lones, one of her imme-
diate supervisors, said he used to watch her "for 30 minutes
at a time," and that "she would stay on the machine for 10
minutes , go get her a drink of water, go back and work
about 10 minutes, go to the bathroom and stay about 10
minutes." If this were anywhere near the truth, the lady
would have been fired on the spot. It must also be remem-
bered this was Superintendent Seehorn testifying again,
whose testimony generally in the whole case leaves much to
be desired. This time, to explain away his failure to support
general opinion statements with normal records, he says
they had been stolen from his office. And in extensive cross-
examination of Ingram, company counsel repeatedly him-
self suggested the idea she had stolen her own production
record from the office files . There is absolutely no proof of
such conduct by this woman. Seehorn could not remember
when the critical theft took place, nor even what month.
This was one of the places in the record transcript where
after pages of evasion and vacillation by the witness, the
date May 13 was fed to the witness by the lawyer.
Ingram greatly resented the repeated criticisms of her
work; she even strained after each to outdo herself with
outstanding performance. She only learned of the second
reprimand from another employee , and in anger did go into
the office where she read what it said. The supervisors re-
fused to give her a copy of the reprimands. She testified she
asked Supervisor Lones why the sudden reprimand on May
7, and that Lones answered: ". . . it's not me . . . it's the
higher-ups that's making me do it." Lones denied having
said this. But Ingram also recalled talking and complaining
to Cutshaw, another of her supervisors in Dept. 555., when
she refused to sign the May 10 reprimand. He told her,
according to her testimony, "I know why they're giving you
so much trouble . . . it's that badge you're wearing." The
Respondent chose not to call Cutshaw as a witness, and I
credit Ingram.3
I find the Respondent discharged Ingram because of her
union activities and thereby violated Section 8(a)(3) of the
3 Cutshaw is the supervisor who told the witness Hopson he-Cutshaw-
was "supposed to fire anybody" having anything to do with the Union.
Cutshaw also said that day, according to Hopson, that he would refuse to
testify for the Company, that "... if they [the Company] brought him up,
if they took him to court , that he would not testify for the Company; that
he would tell the truth."
Act. The timing of the events, the precipitous reprimands-
two of them only 3 days apart despite admission she in fact
improved after the first, the failure to produce any probative
evidence of her alleged sudden change of work perfor-
mance , the foreman's admission to her that her wearing a
union badge lay at the bottom of the reprimands, and the
Respondent's clear union animus revealed so clearly
throughout this record, fully support the complaint allega-
tion as to this woman.
7. Jackie Cole
Cole was a shipping clerk. In his case there is no reason
to infer that the Company knew of his prounion tendencies,
for he was discharged when he was seen with his hand
touching union stickers on the wall in a toilet room in one
of the plants. Management thought he had put them there-
"defaced" the property-and therefore certainly believed
he favored the Union. Did he put them there-as the Com-
pany charged-or was he only supporting himself-as he
said-when he stood in front of the wall urinal going about
his proper business?
To make more just the discharge which immediately fol-
lowed, Seehorn and Lewis spoke at great length about how
only a week earlier the walls of that room had been virtually
covered by countless union stickers, how they had to be
scraped off and the room repainted all over. I do not know
how much of this general coloring in justification can be
believed, for in this instance too these two men volunteered
a great deal of talk, not really necessary to the case, in which
they once again contradicted one another. Lewis said the
decision to discharge Cole was "mine alone after conversa-
tions with everybody." Seehorn said it was he who decided
upon the discharge within 30 minutes of the incident, that
he so told Cole right away, and that the only person in
management he spoke to about it was O'Dell, Cole's super-
visor in the other building; he explicitly said he did not
speak to Lewis about it at all. In this hearing Seehorn and
Lewis were unable to keep any of their stories straight.
Be that as it may, I do believe the witness Wilcox, an
employee in that area, who said he saw Cole go into the
bathroom, followed him quickly, and saw union stickers on
the walls of two of the booths. He said he had been asked
to keep an eye on the room, and had seen it entirely clear
of stickers only about 30 minutes before Cole's arrival.
The stickers were there when Wilcox told Seehorn about
it; Cole did have his hands on the wall close to the stickers
when Seehorn came into the room; and the General Coun-
sel concedes in his brief there were good-faith grounds for
suspicion of Cole at that moment. And Cole himself was not
very convincing; his explanation of why he had to go into
two booths instead of one seems strained-especially with
the union stickers in fact appearing on the walls of both
those two booths. As stated above, the evidence in support
of the complaint must be substantial, it must weigh posi-
tively in favor of a finding of illegality. I think the burden
has not been satisfied here, and shall therefore dismiss the
complaint as to Cole.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. Jones
Like Jackie Cole, Sam Jones also was fired in direct retali-
ation for his prounion activities . A good employee for 16
months, never criticized or reprimanded about anything by
management, he took to distributing union literature after
working hours outside the plant entrances . One day, May
23, he overstepped the private property line; he walked from
the sidewalk perhaps 25 feet over an open truck area to
reach the loading dock, where he handed a leaflet to a
driver, not an employee of the Respondent, who was mak-
ing a delivery there. Ted Gitlin, a foreman, saw him and told
him to leave, he might be arrested were he seen there. Jones
just walked back to the sidewalk, continued to distribute the
leaflets, and never stepped on company property again. He
was called to the office 2 days later and discharged, the
personnel man telling him it was for "distributing literature
on company property and interfering with the work of
others." The trespassing part-so few harmless steps-
could hardly be likened to what was considered Cole's of-
fense of again putting stickers on the wall just after the
bathroom had been repainted. In fact, Vice President Lewis,
who again conducted an "investigation" into this matter,
conceded that stepping on company property was not so
serious as to merit discharge, certainly not without a repri-
mand first.
At the hearing Lewis said he was as much disturbed by
the work stoppage caused by Jones. As with the other dis-
charges , he saw nothing himself, repeating only what he said
he heard from others. He stressed the assertion three of the
Respondent's own employees had stopped work in conse-
quence of Jones' activities at the dock. There are two wit-
nesses who saw what happened-Gitlin, the foreman, and
Miller, a company employee working on the dock.
Jones testified that some men were working and others
standing about near two trucks then backed at the dock, but
that whatever they were doing had nothing to do with him.
He never stepped up on the dock and did no more than talk
to one man while giving him a leaflet. The two trucks, one
apparently being unloaded and the other loaded, were from
other companies called Thurston and ETWNC; there were,
therefore, some of Respondent's employees there and em-
ployees attached to the trucks. William Miller, a shipping
and receiving employee of the Respondent, recalled that
when he saw Jones at the sidewalk and then come to the
dock to give that leaflet , he, Miller , was on duty with Bow-
man and Tester, also of the Respondent. They were sup-
posed to unload the first truck but "might have goofed off
5 or 10 minutes before we started unloading it." After the
men began to unload Thurston, the ETWNC truck arrived
and a foreman named Riley told the men to stop that and
go to unload the second truck instead. At this point, still
according to Miller, Gitlin appeared and wanted to know
who had told the men to stop unloading the first truck. In
the resultant confusion , "we was just standing there waiting
to get the real order which one to unload first . . . One tells
you to do something, and then the other one tells you to do
something."
Gitlin said that when he stepped out to the dock "ev-
erybody was stopped right there . . . not any work at all
there . . . they were just stopped; everything was stopped
right there." All this, according to Gitlin, while Jones was
the only man standing down off the dock and all the men-
Respondent's and others-were up on the dock.
Confusion and delay at that moment there may have
been , but I do not accept Gitlin's exaggerated conclusions
that everybody was stopped, and that everything that hap-
pened was caused by Jones. Just before stepping out to the
platform, Gitlin overheard two Thurston drivers on the tele-
phone calling their home office and saying "we're going to
have to drop the trailers and take a break now because
there's a delay in being unloaded." Gitlin' s suggested impli-
cation from this is that Jones' brief talk in giving one man
a leaflet caused such disruption of all work that the Thur-
ston men had to give such a message to their superiors; it
would strain credulity too greatly to make such an infer-
ence . There is perfect explanation for that call. Foreman
Riley had just decided the ETWNC truck should be unload-
ed first, and the Thurston one should wait. I do not deem
Gitlin's testimony sufficient to prove Jones interfered with
the work of anyone.
He was engaged in pure union activity; he did no more
than step briefly on company property, he did not cause any
work stoppage, and the Respondent had by this time al-
ready evidenced its determination to stop the union move-
ment even to the extent of resorting to illegal discharges. I
find on the entire record that Jones was discharged because
of his union activities, and thereby the Respondent violated
Section 8(a)(3) of the Act. Burnup and Sims, Inc., 379 U.S.
21 (1964).
THE REMEDY
The Respondent having committed unfair labor practic-
es, it must be ordered to cease and desist from such conduct
and to take appropriate action designed to effectuate the
policies of the Act. The Respondent must offer immediate
and full reinstatement to the seven employees here found to
have been unlawfully discharged, and if their former jobs no
longer exist , to reinstate them to substantially equivalent
positions , without prejudice to their seniority or other rights
and privileges. It must also make them whole for any loss
of earnings suffered in consequence of the illegal discharges.
F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
CONCLUSIONS OF LAW
1. By discharging Arnold Johnson, Lonnie Hopson, Jan-
ice Smith, Nellie West, Robert Elrod, Sam Jones and Clara
Ingram for engaging in union activities the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(3) of the Act.
2. By the foregoing conduct, coercively interrogating em-
ployees concerning their union activities, threatening to
close its plant, threatening to discharge employees, fostering
the impressions that it is surveying the employees' union
activities, and asking employees to report to management
the union activities of other employees, the Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor
LEON FERENBACH, INC. 389
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
The Respondent , Leon Ferenbach , Inc., Johnson City,
Tennessee , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discharging or in any other manner discriminating
against its employees because of their union activities.
(b) Coercively interrogating employees concerning their
union activities , threatening to close its plant , threatening to
discharge employees , fostering the impression that it is sur-
veying the employees ' union activities, or asking employees
to report to management the union activities of other em-
ployees.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights to self-
organization , to form , join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing , and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection , or to refrain from any and all such activities.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Arnold Johnson , Lonnie Hopson, Janice Smith,
Nellie West , Robert Elrod , Sam Jones , and Clara Ingram
immediate and full reinstatement to their former positions
or, if such positions no longer exist , to substantially equiva-
lent positions , without prejudice to their seniority or other
rights and privileges.
(b) Notify immediately the above -named employees, if
presently serving in the Armed Forces of the United States,
of their rights to full reinstatement , upon application, after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Make each of the seven above-named employees
whole for any loss of pay or any benefit they may have
suffered by reason of the Respondent 's discrimination
against them.
(d) Preserve and, upon request , make available to the
Board or its agents, for examination and copying , all payroll
records, social security payment records , timecards , person-
nel records and reports , and all other records necessary to
analyze the amount of backpay due under the terms of this
Order.
(e) Post at its two plants in Johnson City, Tennessee,
copies of the attached notice marked "Appendix." 5 Copies
4In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes.
5 In the event that the Board's Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
of said notice, on forms provided by the Regional Director
for Region 10, after being duly signed by the Respondent's
representative, shall be posted by the Respondent immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(f) Notify the Regional Director for Region 10, in writ-
ing, within 20 days from the receipt of this Decision, what
steps the Respondent has taken to comply herewith.
IT IS HEREBY ORDERED that the complaint be, and it hereby
is, dismissed to the extent that it alleges illegal discharge of
Helen Boyd and Jackie Cole.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found , after a
trial , that we violated the Federal law by discharging em-
ployees because they joined or tried to form a union:
WE WILL NOT discharge or discriminate against any
employees for supporting United Textile Workers of
America , AFL-CIO, or any other labor organization.
WE WILL offer Arnold Johnson , Lonnie Hopson, Jan-
ice Smith , Nellie West , Robert Elrod , Sam Jones, and
Clara Ingram immediate and full reinstatement to their
former positions , or, if such positions no longer exist,
to substantially equivalent positions.
WE WILL pay each of these seven employees for any
earnings they lost as a result of our discrimination
against them , plus 6-percent interest.
WE WILL NOT coercively interrogate our employees
concerning their union activities , threaten to close the
plant , threaten to discharge employees , create the im-
pression we are surveilling their union activities, or ask
employees to report to the company the union activities
of other employees.
WE WILL NOT, in any other manner , interfere with,
restrain , or coerce our employees in the exercise of their
right to self-organization , to form labor organizations,
to join or assist United Textile Workers of America,
AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities , except to
the extent that such right may be affected by an agree-
ment requiring membership in a labor organization, as
authorized in Section 8(a)(3) of the Act.
LEON FERENBACH, INC.
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Employer) anyone.
This notice must remain posted for 60 consecutive days
Dated By from the date of posting and must not be altered, defaced,
(Representative) (Title) or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office, Peachtree Building , Room 701, 730
This is an official notice and must not be defaced by Peachtree Street, N.E. Atlanta , Georgia 30308 , Telephone
404-526-5760.