Miami Rivet Co.

National Labor Relations Board - Board Decisions

Jun 16, 1964

147 N.L.R.B. 470 (N.L.R.B. 1964)

470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miami Rivet Company and United Steelworkers of America,
AFL-CIO. Case No. 12-CA-f2572. June 16, 1964
DECISION AND ORDER
On May 2, 1963, Trial Examiner A. Norman Somers issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had refused to honor the certification issued by the Re-
gional Director for the Twelfth Region on January 11, 1963, to
United Steelworkers of America, AFL-CIO, in Case No. 12-RC-1525,
and that its refusal to bargain with the certified representative vio-
lated Section 8(a) (5) and (1) of the Act.
Respondent filed timely exceptions to the Intermediate Report,
contesting the validity of the certification on the ground that the
challenge to the ballot of Elmer Russell had been improperly over-
ruled by the regional Director, and his action sustained by the Board,
without Respondent having pan opportunity in a hearing to present
evidence that Russell's employment had been terminated before the
date of the election. Thereafter, the Board issued an order remand-
ing the proceeding to the same Trial Examiner to take evidence con-
cerning Russell 's employment status, and to make such findings,
conclusions , and recommendations as were warranted. After holding
a hearing pursuant to the order of remand, Trial Examiner Somers
issued his Supplemental Decision, dated February 26, 1964, finding
that Russell's employment had not been terminated on or before the
election, that he was eligible to vote in the- election, and, the certifi-
cation being valid, that Respondent had refused to bargain collec-
tively with the Charging Union in violation of Section 8 (a) (5) and
(1) of the Act. He recommended that Respondent cease from engag-
ing in these unfair labor practices and take certain affirmative action,
as set forth in the attached Intermediate Report and Supplemental
Decision. Thereafter, the Respondent filed exceptions to the Supple-
mental Decision and a supporting brief.
. Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made at
the hearings and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Intermediate Report of May 2, 1963, his Supplemental
Decision of February 26, 1964, the exceptions and briefs, and the
147 NLRB No. 58.
MIAMI RIVET COMPANY 471
entire record in the case, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order the Order recom-
mended by the Trial Examiner, and orders that Respondent, Miami
Rivet Company, its officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recommended Order of
May 2, 1963.
' We need not decide in this case whether the Trial Examiner is correct in stating as an
abstract proposition of law that an employee ' s services can be terminated only when he is
so notified . We are fully convinced from the record here , however, that Respondent's
alleged intention to terminate Russell after his heart attack was not effectuated until
Russell was so informed almost 2 weeks after the election . The Trial Examiner did not
believe Respondent 's explanations as to why it decided to discharge Russell after his heart
attack and before the election , or as to how it had put such alleged decision into effect.
We agree with the Trial Examiner that Respondent 's explanations are not worthy of
credence.
INTERMEDIATE REPORT AND RECOMMENDED ORDER'
STATEMENT AND FINDINGS
On January 11, 1963 , in Case No . 12-RC-1525 , on the basis of the results of an
election duly conducted September 13, 1962 , the Regional Director , acting pursuant
to,authority duly delegated under Section 102.67 of the Board's Rules and Regula-
tions, as amended , certified the Charging Party (the Petitioning Union in said
proceeding ) as the exclusive bargaining representative of the employees in the unit
described in the Recommended Order below . In that proceeding , the Regional
Director acting pursuant to said delegated authority , ruled adversely to Respondent's
contention concerning the propriety of the conduct of the election and concerning
the eligibility of one of two voters whose ballots had been unsuccessfully challenged?
Disagreeing therewith , Respondent disputes the validity of the certification . To test
that issue, Respondent , as it concedes , has refused and continues to refuse to bargain
with the Union in respect to the employees in the unit embodied in the certification,
though requested to do so.
All else is not dispute , and is hereby found , namely, that Respondent is engaged
in commerce to an extent meeting the Board 's jurisdictional standards ( purchasing
and receiving materials directly from out of the State in amounts exceeding $50,000
a year); that the Union is a labor organization ; and that the unit in question, is
appropriate.
As to the matter in dispute , at the heaving before Trial Examiner A . Norman
Somers, Respondent proffered evidence in support of the objections which it had
presented first to the Regional Director and then , on exceptions to the Regional
Director 's Supplemental Decision , to the Board (supra, footnote 2). I permitted
Respondent to make its offer of proof but excluded the evidence under . the doctrine
that the issues litigated in the representation proceeding are not subject to relitiga-
tion in the complaint proceeding predicated upon it.
'Chronology ( all In 1963 ) : charge January 25; complaint February 19; hearing in
Miami, Florida, April 1 ; order correcting record April 18 ; brief of Respondent received
April 29 and duly considered.
2 Respondent challenged one ballot , the Union the other. The Regional Director over-
ruled both challenges and directed that both ballots be opened and counted . Respondent's
quarrel was with the ruling on the 'ballot it challenged . It filed its exceptions thereto with
the Board, which were denied as "rais[ing] no substantial question warranting review."
Board Rules and Regulations , Series 8, as amended , Sec. 102 . 69(e).
3 Pittsburgh Plate Glass Company v . N.L.R.B., 313 U.S. 146, 1.57-158; N.L.R.B. v.
West Kentucky Coal Company, 152 F. 2d 198 , 200-201 ( C.A. 6), cert. denied 328 U.S.
866; Atkinson Dredging Company, 141 NLRB 1316, and cases cited at footnote 3.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A qualification of the rule embodied in prevailing doctrine, supra, footnote 3,
is in respect to newly discovered evidence. Respondent claimed it had such evidence
in respect to the two challenged ballots in the representation proceeding (supra,
footnote 2). But, as appears below, the evidence was neither new nor material,
and, in one instance , not even competent .4 Respondent stresses that it was not
given a formal hearing in respect to the matters embodied in the Regional Director's
Supplemental Decision, etc., of October 31, 1962. But that fact was stated by
Respondent in the exceptions thereto which it filed with the Board, and in these
exceptions, denied by the Board, Respondent included the very request for a hearing
that Respondent made before me. Hence the matter of whether a formal hearing
should be held on the objections as raised had already been passed upon by the
Board in the proceeding in which the certification issued. In sum, no showing has
been made which lessens the conclusiveness upon me in this complaint proceeding
of the certification issued in the representation proceeding. It is accordingly found
that the Union was duly designated as collective-bargaining representative by a
majority of the employees in the unit described in the certification, and, in accord-
ance with the certification, is the exclusive collective-bargaining representative of
all the employees in the unit in question, within the meaning of Section 9(a) of
the Act.
Hence, by its admitted refusal to bargain with the Union so certified, Respondent
has engaged in and is engaging in an unfair labor practice within the meaning of
Section 8(a) (5), and, derivatively, also 8 (a)( I) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing and the record in this and the representation pro-
ceeding, I, pursuant to Section 10(c) of the Act, hereby recommend that the Re-
spondent, Miami Rivet Company, its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with United Steelworkers of America, AFL-
CIO, as the duly certified exclusive bargaining representative of its employees in the
following unit:
All production and maintenance employees at Employer 's Miami, Florida, plant,
including plant clerical employees. shipping and receiving employees , inspectors,
and truckdrivers , but excluding office clerical employees , professional and tech-
nical employees , watchmen , guards, and supervisors as defined in the Act.
' Of the two challenged ballots when opened, one was for the Union and the other for
"neither." The final tally then gave the Union a majority of one, and on the basis of it,
the certification issued . At the hearing before me, Respondent offered to show: (1) that
Elmer Russell , whose ballot it had challenged, had been lawfully discharged and therefore
that his ballot should not have been counted ; and (2 ) that Lyle Callahan, whose ballot
the Union had challenged , voted for "neither." On this premise, Respondent contended
that if the ballot in favor of the Union , thus inferentially cast by Russell, were eliminated,
the Union did not have a majority.
As to (1), the basis therefor was a charge filed by the Union on September 24, 1962,
alleging that Russell had been unlawfully discharged on September 14, 1962, and.that the
Regional Director had refused to issue a complaint thereon and his dismissal of the
charge was sustained by the General Counsel on appeal. In the Supplemental Decision,
Order, and Direction to Open Challenged Ballots, issued by the Regional Director on
October 31, 1962, the Regional Director expressly referred to his dismissal of that charge
on October 26, and so did the Respondent in the exceptions it filed thereto before the
Board . So that fact is hardly "new." On the matter of materiality, the date of the dis-
charge, as stated in the charge, was September 14, 1962, and hence on its face it had no
bearing on Russell's eligibility to vote on September 13. This undermined the premise on
which Respondent claimed significance for item (2). Further in respect to (2), the testi-
mony of Callahan concerning how he voted was inadmissible, first because under the
policy in respect to elections conducted by secret ballot, the only competent evidence con-
cerning the nature of the vote is the ballots themselves, and these have been intermingled
(the proffered testimony concerning how Callahan voted would have invaded the secrecy
not only of his ballot but Russell's) ; and secondly, because the information on which
Respondent relied for its offer of proof, namely, what Callahan told Respondent about how
he voted, was as available to Respondent throughout all stages of the representation pro-
ceeding (from the time the ballots were counted to the time the certification was issued)
as it was when it made the proffer.
MIAMI RIVET COMPANY 473
(b) Interfering with the efforts of United Steelworkers of America, AFL-CIO, to
negotiate for or represent the employees in the said appropriate unit as the exclusive
bargaining agent.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the said certified union as the exclusive
representative of the employees in the unit described above, with respect to grievances,
labor disputes, rates of pay, wages, hours of employment, and other conditions of
work, and, if an agreement is reached, embody it in a signed contract.
(b) Post at its plant in Miami, Florida, copies of the attached notice marked
"Appendix." 5 Copies of said notice, to be furnished by the Regional Director for
the Twelfth Region, shall, after being duly signed by the Respondent's representative,
be posted by it immediately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or covered by any other
material.
(c) Notify the Regional Director, in writing, within 20 days of the receipt of
this Recommended Order, what steps it has taken to comply therewith .6
s Should this Recommended Order be adopted by the Board, the words "a Decision and
Order" shall replace "the Recommended Order of a Trial Examiner" In the notice.
Should the Board's Order, in turn, be enforced by a decree of a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order"
shall replace "a Decision and Order."
9 Should this Recommended Order be adopted by the Board, this provision shall read
instead: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL bargain collectively , upon request, with United Steelworkers of
America, AFL-CIO, as the exclusive bargaining representative of all employees
in the bargaining unit described below concerning grievances , labor disputes,
wages, rates of pay, hours of employment , and other conditions of work, and,
if an understanding is reached , embody it in a signed agreement. The bargain-
ing unit is:
All production and maintenance employees at Employer 's Miami, Florida,
plant, including plant clerical employees , shipping and receiving employees,
inspectors , and truckdrivers , but excluding office clerical employees , profes-
sional and technical employees , watchmen , guards, and supervisors as de-
fined in the Act.
WE WILL NOT interfere with the efforts of United Steelworkers of America,
AFL-CIO, to negotiate for or represent the employees in the said appropriate
unit as the exclusive bargaining agent.
MIAMI RIVET COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Ross
Building, 112 East Cass Street, Tampa 2, Florida, Telephone No. 223-4623, if they
have any question concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This matter was heard before Trial Examiner A. Norman Somers on October 17,
18, 21, and 22, 1963, in Miami, Florida, on remand from the Board to determine
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the voting eligibility of Earl Russell in Case No. 12-RC-1525, in which the Board
issued the certification underlying the 8(a) (5) complaint issued by the General
Counsel in this proceeding.'
All parties were represented by counsel, were permitted to present evidence and to
examine and cross-examine witnesses. Due to the unavailability of one of Respond-
ent's witnesses at the hearing, two affidavits relating to Russell that he had given
in the representation proceeding were admitted into the record in this proceeding,
as in the nature of a deposition?
The parties waived oral argument and the Respondent and the Charging Union
have filed briefs, which have been duly considered. Upon the entire record (as cor-
rected on notice to and consent of the parties), my observation of those who testi-
fied at the hearing, and study of the affidavits of the witness received in lieu of testi-
mony, I hereby make the following:
I The choice on the ballot was between the Charging Union (which was the petitioner),
another union, and "neither." Respondent challenged the eligibility of Russell, claiming
he had lost his eligibility sometime after his illness started, which was July 18. 1962.
The Charging Union challenged Lyle Callahan, who was Russell's foreman at the time of
his attack, and had been put to work on Russell's machines after this. The tally after
the election showed the result to be inconclusive. Following an investigation on objec-
tions to election filed by Respondent, the Regional Director, on October 31, 1962, issued
his Supplemental Decision, Order, and Direction to Open Challenged Ballots, in which he
overruled the Charging Union's challenge of Callahan and Respondent's challenge of
Russell , and ordered both ballots be opened . Respondent filed exceptions, which the
Board denied as "rais [ing] no substantial issues warranting review." The challenged
ballots were thereupon opened. One was for the Charging Union, the other for neither.
The final tally was 27 for the Charging Union, 25 for "neither," and 1 for the rival
union. On the basis of the above, the Regional Director, on January 11, 1963, issued the
certification to the Charging Union as the exclusive bargaining representative of the
employees in the unit there involved.
Respondent refused to bargain with the certified Union, and the General Counsel issued
the complaint in this proceeding, alleging it had thereby violated Section 8(a) (5)
and (1) of the Act. This came on. for hearing before me on April 3, 1963. At that hear-
ing, Respondent offered proof that the vote for "neither" was cast by Callahan, from
which it would follow that had its challenge of Russell been sustained the Union would
not have had a majority. Respondent also offered testimony in support of the statements
in the affidavits it filed in the representation proceeding, relative to Russell. I rejected
this on the ground that I was bound by the Board's certification. The refusal to bargain
with the certified Union being admitted, I issued my Intermediate Report on May 2, 1963,
finding Respondent to have violated )8(a) (5) and (1), as alleged, and recommending it be
ordered to bargain with the Union on request. On exceptions by Respondent, the Board
on September 9, 1963, issued an order , stating that it "was desirable to have additional
information concerning the employment status of Russell ," and remanding the matter to
me to take evidence thereon and to make such findings, conclusions , and recommendations
as are warranted by the evidence as a whole.
2 The witness was George Lazar. vice president of Respondent during the events here
in issue. Some time before the remanded hearing , Lazar quit Respondent for personal
reasons unconnected with his relations to it and left Miami, with no information as to his
whereabouts. On the third day of the hearing, Respondent's counsel reported he had
traced Lazar to Philadelphia, and that his employer there had made arrangements for
him to fly in that day to Miami in order to testify. The hearing was accordingly con-
tinued to the next day, in order to take Lazar's testimony (and also that of June V.
Holmes, Respondent's treasurer, who was having car trouble on her way back from vaca-
tion). On the last day, Respondent, on completion of its case, reported a wire from
Lazar's employer stating that all arrangements for his flight had been canceled "due to
personal problems." Counsel requested the hearing be left open pending efforts again to
locate Lazar and make him available as a witness . I stated that was not a valid basis
for keeping a hearing open, but suggested that subject to consent of all parties, I would
include Lazar's affidavits in the record in the manner of a deposition. The General
Counsel and the Charging Union consented on the understanding that they were not
stipulating to the truth of the statements in the affidavits but were merely waiving objec-
tion to competency, the weight to be subject to evalualon like all other testimony. Re-
spondent assented, subject to no adverse inference being drawn from Lazar's failure to
testify in person, which I stated would have to await study of the record as a whole and
the briefs of counsel. Upon such consideration, I conclude that no weight should be given
to Lazar's absence from the hearing in evaluating his testimony or in the resolution of
the issues , and none has been.
MIAMI RIVET COMPANY
FINDINGS OF FACT
1. THE ISSUE
475
Earl Russell, employed by Respondent on and off since 1958, and continuously
since November 1961, sustained a heart attack on July 18, 1962? On September 24,.
which was 39 days after the eligibility date and 11 days after the election, Russell
reported for work, stating his doctor cleared him for return to full duty. Respondent
then told him he was discharged. It is conceded that this was the first time Respond-
ent so informed him.
The evidence indicates that Respondent's practice is to carry an employee on sick
leave until his recovery and return for work, the sole exception occurring in 1958,
when one Earl Gunther, then suffering from a heart attack and other ailments, was
notified of his discharge shortly after the attack and while he was in the hospital.
The General Counsel and the Charging Union contend that Russell was an employee
on sick leave status from July 18, when he became ill, until September 24, when told
he was discharged. Respondent contends that it terminated Russell's sick leave
status on July 23 in a conversation in the office that day between Respondent's two
top executives.
H. THE EVIDENCE
(1)
The decision of July 23 is claimed to have been made in a conversation between
Robert Zankl and George Lazar, president and vice president of Respondent, re-
spectively. The testimony concerning it is that of Zankl as ,given at the remanded
hearing and of Lazar in his affidavit received in lieu of a deposition (supra, foot-
note 2). Their testimony is substantially to the effect that on July 23, on President
Zankl's return from a 5-week vacation overseas, he was going over with Lazar the
occurrences during his absence. Lazar, in the course of it, mentioned that Russell
had had a heart attack on his way home from a fishing trip. Zankl asked whether
it was "serious," and Lazar said, "Elmer had almost died." Zankl testified that out
of fear that Russell would "kill" or "injure" himself in his kind of work (he was
a header operating four machines) and out of concern over Respondent's "insurance
experience," he told Lazar he did not "want [Russell] back in the plant anymore"
and for Lazar "to tell him so"; that Lazar said "he couldn't tell him on his death
bed"; and that Zankl, according to his own testimony, replied, "I don't care very
much when you tell him but tell him."
(2)
Russell's doctor released him from the hospital on August 7, about 3 weeks after
his attack. On Sunday, July 28, Callahan, who was Russell's foreman at the' time
of the attack, visited Russell at the hospital, inquiring about his health, and al-
though this was 5 days after the alleged decision on July 23, he did not tell Russell
he was discharged, for he had not been informed of it. Callahan told Herbert
McCann, one of three headers with Russell on the night shift supervised by Callahan,
that "I need someone like him back here on the header machine." Explaining this
last is that Russell's incapacitation left four machines to be attended to. The task
fell to Callahan. During the payroll week in which Callahan made his own visit to
Russell (ending August 1), Callahan began to "punch a clock," about which he was
not happy.4 Charles Vargo, floor superintendent over all the foremen, had the
additional task of acting as night-shift foreman in Callahan's place until Russell's
machines could be operated again. Vargo testified it would take a good 6 months
to train even a competent learner in that job. (Callahan was restored to his fore-
man's position on January 2, 1963, at which time also, Superintendent Vargo was
relieved of the extra burden of being direct foreman of the headers.)
(3)
A little over 2 weeks after his discharge from the hospital in August, Russell, ac-
companied by his wife , went to Respondent 's office to pick up his check under the
group disability insurance policy, Miss Holmes, treasurer of Respondent and in
charge of insurance matters, having told Mrs. Russell on the telephone the previous
day that it was ready . Miss Holmes greeted them in the office , giving no intimation
3 The year in every instance is 1962 unless otherwise indicated.
6 His being put on the machines was the basis of Respondent's successful contention be-
fore the Regional Director that Callahan was no longer a supervisor but a "leadman" and
eligible to vote. See infra, footnote 13.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they were ,no longer covered for future disability, as they would not have been
if Russell's employment had already been terminated. In her monthly reports to the
insurance company, Miss Holmes specifies the employees added to or dropped from
the payroll the preceding month, so that they may be respectively included in or
dropped from coverage (and Respondent correspondingly charged or relieved of
charges for that month's premiums). The August report, sent by Miss Holmes pre-
ceding that talk, and the September report sent by her after the visit, did not include
Russell among the terminated employees, and Respondent paid the premiums for
Russell's coverage for each of those months. (The first such notification came in
October, after Respondent gave Russell his first notification of discharge.)
(4)
In that same visit, President Zankl, from his office across the ball, beckoned
Russell to come in. He put the receiver down, walked over, shook Russell's hand,
asked him to describe his illness , and say how he was. Russell testified that Zankl
then asked him when he "would be able to return to work," to which he replied in
about 3 or 4 weeks, and that Zankl responded he "would be glad when [Russell]
would be able to return as [he] was needed in the plant." Zankl testified that after
he acknowledged the introduction to the wife, Russell said, "I can come back to
work in four weeks and I said, `Oh,' and then I had to get back to my telephone,
so I said, `Well, see you later,' . .. and I went back and I picked up the
telephone."
Russell's estimate of the time of his return would normally be responsive to a
question on that score, and I find it was in response to Zankl's question. And while
Zankl's comment about Russell's being "needed" at the plant accords with the objec-
tive situation, as previously recited, I make no finding concerning whether he said it,
since Zankl's own version of the conversation shows that although he was thereby
put on notice that Lazar had not carried out the instruction he testified he gave him
on July 23, and now in a position himself to inform Russell he was no longer em-
ployed by Respondent, he did not do so.
On his way out Russell came by the shop. He was greeted warmly by Lazar,
Superintendent Vargo, and various foremen who were not in supervision over Rus-
sell. All of them, as Russell testified, said they hoped to see him back. The various
foremen corroborated that this encounter with Russell and his wife occurred, and
while they testified they did not recall expressing the hope he would be back, they
would naturally do so, since,. as is conceded, they had not been told of any dis-
charge or of any variance from the normal sick leave practice in respect to Russell.
Vargo testified he "may".have said what Russell attributed to him. Since he had
an interest in Russell 's return, as previously described, and he had concededly not
been informed to the contrary, he would naturally express a hope to that effect,
and it is found that he did.
Lazar's affidavits do not specifically advert to that encounter, so no finding is
made in respect to whether he joined in the expression of hope to see Russell back.
As significant as what he might have said on that visit is how he and Zankl responded
to Russell's efforts a few days later to advance the date of his return. This is de-
scribed in the next item.
(5)
About August 27, Russell, anxious to get back on active status because of financial
need, called Superintendent Vargo. He said his doctor had cleared him for light
work and that he wanted to come back to the job. Russell testified that Vargo replied
"he knew of no reason why it couldn't be worked out and that [Russell] was to
report the following Thursday." The next day, however, Vargo told him on the
telephone "not to report to work [because] Lazar had received a letter from the
doctor stating that it was too early for [him] to return," and that he could see the
letter and talk to Lazar if he wished. Russell saw Lazar the next day, who showed
him the doctor's letter as follows:
MR. GEORGE LAZAR,
Vice President, Miami Rivet Company,
5667 NW. 35th Court, Miami, Florida.
AUGUST 28, 1962.
DEAR MR. LAZAR: In response to your question as to whether it would be safe
to allow a man who had a posterior wall infarction to work in a factory where
there are high speed machines and the heat sometimes becomes intense; beside
other tensions that accompany the work, let me say, in my opinion, it would
be hazardous to allow such an individual to return to such work at such an
early date.
MIAMI RIVET COMPANY 477
I feel that it takes at least six (6) weeks to heal an infarction and that another
month should be taken for recuperation and rehabilitation.
Hoping this general statement will help you in making a decision.
Iam,
Yours sincerely,
(S) Samuel Kaplan, M.D.,
SAMUEL KAPLAN, M.D.
Vargo and Lazar gave substantially the same versions as Russell of their respec-
tive conversations with him, except that Vargo denied that in the first conversation
he told Russell to report to work on Thursday. He testified, "I think I told him that
I'd have to check with Mr. Lazar," and that he then informed Lazar, and "George
told me to call him back and that he wanted to see him the next day."
Lazar in his affidavit states that after Vargo spoke to him he told President Zankl,
"Rusty wants to come back Thursday but [he was] having him come in for a talk
with [him] tomorrow instead," that he asked Zankl if he "should tell him tomorrow
he is fired," saying "it seemed such a short a time for Russell to be out of the hospi-
tal and that if he is really still sick [he] would hate to tell him that he was fired,"
whereupon "Zankl again told me he didn't care how I handled the matter, I could do
what I wanted to do about it, but as far as he was concerned Rusty had been termi-
nated." Further according to Lazar, he decided to "check with our company doctor
to see if he thought Rusty was well," that Dr. Kaplan said he thought Russell could
not be well in so short a period and "could keel over tomorrow," and "the most
strenuous thing Rusty could do was to lick envelopes." Accordingly, Lazar relates,
"I had our doctor write this letter, so I could give Rusty some excuse to keep him
from coming to work without telling him he was fired," his purpose being "to ease
him off for another month before telling him." Lazar further recites that when
he showed Russell the letter the next day, "Rusty said that was funny because his
doctor said he could come to work if he didn't lift over 20 pounds," that he asked
Russell if he told his doctor what the work entailed, and when Russell said no, he sug-
gested he "go back and check with his own doctor," which Russell said he would do.
Assuming its materiality, Lazar's statement that Russell was in fact discharged
and that he was deterred from telling him so because of apprehensions over the effect
of such a disclosure upon him is appraised against the following: (1) Dr. Kaplan's
letter on its face and Lazar's discussion with Russell- show the subject to be not
whether Russell was to return but when, Respondent having an interest of its own in
preventing Russell's returning before it was physically safe for him to do so. (2) Re-
spondent earlier demonstrated its capacity to master its apprehensions about im-
mediately informing a heart-stricken employee of his discharge. It did so with Earl
Gunther who, in 1958, was laid low with a heart attack and several physical ailments.
Soon rafter his attack and while he was still in the hospital, it told him through his
wife he had been discharged. If there is anything in the aftermath on Gunther
that came to Respondent's -attention to have accounted for more tender sensibilities
toward Russell, the record does not show it. (3) Whatever inhibitions Lazar had
about telling Russell he was discharged he could hardly have had in telling Vargo
about it. Yet there could hardly have been a more natural person to whom to tell it
on that-occasion if any such thing had happened. It is thus hardly important whether
Vargo did or did not tell Russell he could report on Thursday.5
(6)
On September 4, when school began, Russell, being in need of funds, asked Miss
Holmes, treasurer of Respondent, for a,loan of $30. She said she thought it could
be arranged, but suggested he talk to Lazar. Russell did so and asked for it as an
advance on his check from the insurance company. Lazar, as his affidavit relates, in-
formed Russell Respondent "does not loan money to employees [sic] over a week's
salary" and since he was not working, he would lend it to him personally, for which
he got Russell's IOU. Zankl testified Lazar reported this to him, but he attached no
significance to it.
s Vargo's stated purpose in consulting Lazar would indicate he did tell Russell. Vargo
testified that after Russell said he had been cleared by the doctor for "light work," he
went to Lazar because "there is a few places in our shop for light duty-work," which
indicates a purpose to ascertain what light work ' to put Russell to on Thursday, not
whether he could report at all.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(7)
On September 10, Zankl met with his entire managerial staff. At that meeting the
staff received the first intimation of any question about Russell's continuing employee
status. Its nature came to light during Foreman Harold Rubine's cross-examination.
He testified that in response to something Lazar said, Zankl said Russell "no longer
works for us." Superintendent Vargo, who followed Rubine, testified Zankl had
then been calling off the names of the employees for an opinion from :the staff as
to how each was likely to vote, and Lazar brought up Russell's name, to which Zankl
replied, "We didn't have to worry about how [Russell] voted, because he was dis-
charged, or words to that effect." Zankl in his version, added, "I was annoyed with
Lazar [for not having yet executed the asserted instruction to break the news to
Russell of his discharge] and I told him so." None of the others who testified about
that meeting (and this included Foreman Victor Levitti, as well as Vargo and Rubine)
mentioned Lazar or any one else being called on the carpet. The probabilities weigh
heavily against it. Having as recently as August 28 uttered no protest to Lazar's
proposals not to inform Russell of the alleged discharge until his recovery, he. hardly
had more cause to be "annoyed" with Lazar on September 10 than on August 28; for
the prognosis of Respondent's doctor would reasonably give rise to the same ap-
prehensions about breaking the news to Russell on September 10 that it was supposed
to have inspired in Lazar on August 28, when Zankl gave Lazar carte blanche on
"how [he] handled the matter." Zankl had no cause to be "annoyed" with Lazar for
another reason. His statement was in response to Lazar's raising a question about
Russell, premised on his 'being one of the employees whose vote too should be
considered in this canvass. Lazar could hardly have been one to raise that question
if he as is contended, knew then what the rest in the group, apart from Zankl, are
conceded not to have known. And if he knew no more about the decision than the
others, as now reasonably appears, there could hardly have been such a decision.
The sense of Zankl's "doesn't work [for] us" expression is that in his opinion Russell's
employee status had undergone an attrition due to his inactivity on the job since his
illness, not that Respondent had affirmatively discharged him. This is confirmed by
what is next to be related.°
(8)
On September 12, the day before the election, a conference, was held with a field
examiner in the Board's Regional Office, attended by Russell, as the then scheduled
observer for the Charging Union, Oakley Mills, representative of the Charging
Union, and counsel for Respondent. In contrast with the list produced by Re-
spondent at the outset of the proceeding on July 26 for checking the Union's
"showing of interest," in which Russell's name was included, the eligibility list this
time did not include Russell? Respondent's counsel challenged Russell's standing
as an observer on the ground of his inactive status. Representative Mills said this
was no reason for excluding him from the voting eligibility list, since where the
inactivity was due to illness , 'an employee is still eligible to vote.
Russell's testimony was that Respondent's counsel replied "he did not know what
the reason was, but that he would call his secretary and try to get some information
on it." Counsel testified his reply to Mills was that "as a rule of eligibility [he]
9 Bearing on Zankl's use of the expression "worry" in reference to how Russell would
vote is the following: (1) Zankl admitted that in his small establishment, the super-
visory staff would know the nature of the employees' organizational preferences; (2) in
the 6 weeks before his attack, Russell and one other employee had distributed the cards on
behalf of the Charging Union and Russell had been in contact with its International
representative; (3) Russell's earlier linkage with the same union appeared in a charge
filed in October 1961, alleging that Respondent terminated Russell's employment because
of activity on the Union's behalf (the matter having been apparently disposed of in-
formally by the Union's withdrawal of the charge in November 1961, on Russell's re-
instatement that month) ; (4) as to the kind of vote Zankl would deem a cause for
"worry," Miss Holmes, treasurer of Respondent testified that she "assume[d]" that Zankl
"would prefer not to have it," i.e., the Charging Union. (The rival union, as appears
from the single vote cast for it in the election, was then only nominally in the picture,
supra, footnote 1.)
7 The Charging Union filed the 9(c) petition in the representation case on July 20.
Notice thereof was mailed to Respondent on July 23, and Respondent received it on
July 24. The list of employees to verify Union's "showing of interest" was sent by
President Zankl on July 25 to Respondent's counsel, who transmitted it to the Board on
July 26. The list is entitled "Employees as of July 18, 1962." Evidence later discussed
shows its intended currency as of the date it was prepared and transmitted-July 25.
MIAMI RIVET COMPANY 479
agreed that a man who was on sick leave was eligible to vote," and that while he
stood by the list as submitted, he "would confer further on the matter with the
company." This rather indicates that the only thing Respondent up to then claimed
even to its counsel in respect to Russell was an attrition in his employee status due
to his absence from the job, for had it claimed it had itself discharged him, its
counsel would have had an immediate answer to Mill's protest and given it, instead
of conceding the "rule of eligibility" and the need to inquire further in the light
of it .8 Counsel's further testimony strongly suggests that in the interval between
the September 12 conference and the balloting the next morning, his client had
given him no information to explain the omission other than what he had at the
conference. Counsel testified:
I don't recall frankly, whether I attempted to call the company,at that time or
not, but in any event, if I did, I didn't get any results.
It must be said, with every deference, that if counsel cannot recollect whether he
performed the single not that the sense of that discussion and his own admitted
statement called for, he is hardly in a position to claim a particular superiority of
memory over Russell, concerning what Mills said to him or he to Mills. It would
seem further that the above statement puts Respondent in this dilemma: if counsel
called Respondent and got no "results," it would mean that it then had no more
information to give him about Russell than it had already given him; on the other
hand, if at that crucial time and in that crucial situation, counsel did not call Re-
spondent for further "results" the reasonable explanation for his inaction would be
that he was satisfied that he already had all the "results" his client could give him.
At any rate, if by the next morning, when the balloting took place, counsel had
gotten any further "results" from Respondent in regard to Russell, it is not indicated
by anything the record shows him to have said as Respondent's spokesman in making
the challenge .9
(9)
The account of the discharge as given by Russell and corroborated by Lazar
shows that Lazar on September 24 did not know why Russell was being discharged,
and leaves one less than persuaded that even then he was more positive about a firm
decision to discharge Russell than he was when he put his question to Zankl at the
'There Is no conflict between Russell's testimony that counsel said he would ask his
secretary and counsel's testimony that he said "the company." Counsel's secretary had
gotten up the list from the names supplied her on the telephone by Respondent. He would
naturally want to know from her if the omission was her Inadvertence, and if not, then
from the Company the reason for the exclusion.
P Zankl testified that after the ballots were cast, company counsel said Callahan's ballot
should be opened, and that the Union's representative answered Russell's ballot too
should be opened, whereupon Zankl asked, "How can a man vote when he doesn't work
for us?"; that the union representative then said, "You can't fire a man when he is sick"
to which Zankl replied, "I did it," and that this statement of his was greeted by the
union representative and his own counsel In silence. This Is the only testimony that at
any time before September 24, anyone on behalf of Respondent had claimed to have dis-
charged Russell before that date. Bearing on Zankl's testimony that he did so on that
occasion are the items: (1) if such had been his position, company counsel would have
been informed of it between the previous day's conference and at the beginning of the
balloting when counsel made the challenge, and counsel would have stated it; (2) the
testimony is Inconsistent with the concession that Russell was not notified before Septem-
ber 24 that he was on other than sick leave; (3) the natural reaction to such a statement
would have been an expression of surprise on the part of the Union's representative and
a request for particulars concerning where and how it took place Instead of the total
silence he claims; and (4) the quality of Zankl's reliability, as discussed in ensuing
contexts.
The Charging Union and the General Counsel rely on two additional alleged actions of
Zankl the morning of the election in implied recognition of Russell's employment status.
Russell testified that Zankl suggested he "relieve" the headers in the plant while they
voted, and Edward Sheehan testified that Zankl that same morning asked Russell when
he expected to be back. I discount these for the following reasons: (1) Zankl's testimony
as transcribed, refers to the "release" of the headers, i.e., notification of when to leave
the shop, and indicates he suggested Russell after the union representative protested
Zankl's doing so because he "could tell them how to vote" ; (2) Russell was not asked
about the statement to him as attributed by Sheehan to Zankl, and I therefore discount
It as lacking the requisite corroboration.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors ' meeting. Russell on September 24 reported to Lazar that his doctor
had cleared him for return to full duty , whereupon Lazar said , "You no longer
work here ." Russell asked him why, and Lazar replied he would ask Zankl,
whereon, as related by Lazar, "Bob Zankl came walking out of the office and
I started toward him and Rusty followed me . I told Zankl that Rusty wants to
come back to work and he said no, and I turned to Rusty, and said no, you are
not on the payroll."
(10)
The first indication that the discharge had an earlier vintage than September 24
came from Respondent on the next day. On September 25, Russell being now
out of a job and needing the information for unemployment insurance purposes,
asked Lazar as of what date he had been terminated , and Lazar replied, "July 23."
(11)
All the documentation in support of Respondent 's assertion that the discharge
occurred earlier than when it told Russell about it is of a . vintage after the .election,
when Russell 's ballot acquired its crucial character . It is largely devoted to ex-
plaining the sequence of prior actions and writings inconsistent with the claim that
Russell 's sick leave status terminated before September 24. It consists , aside from
the affidavits of Zankl and Lazar , whose purport has been previously covered, of
the following : (a) a letter , dated September 26, 1962, to Zankl from Charles J.
Kinsey, Jr., insurance agent for Respondent 's group disability policy, confirming
that Zankl , in a conversation with him the last week in July , told him he was "ter-
minating" Russell 's employment and asked whether this would affect Russell's claim
for benefit based on his incapacitation of July 18, and that he informed Zankl it
would not , because the incapacitation preceded the termination, but added that
it would terminate all future coverage ; (b) a monthly report sent by Miss Holmes,
treasurer of Respondent , on October 9, to the insurance company, notifying it for
the first time that Russell had been terminated , and claiming a "back credit" of
$40.92 for the premiums paid for his coverage for August and September ; and (c)
an affidavit signed by Miss Holmes on October 10 for use in the representation
proceeding to the effect that Zankl told her Russell "no longer works here" when
she showed him the employee list sent out by Zankl on July 25, and attributing her
subsequent failures to report Russell's termination to the insurance company to a
"mistake" on her part . At the remanded hearing, these witnesses testified in sup-
port of the above . We discuss each in turn.
(12)
The Kinsey letter: Insurance Agent Kinsey testified that he had the conversation
with Zankl the last week in July, as recited in his September 26 letter, during "a peri-
odic service call that I make to all customers ." On cross, he testified as to how he
came to write it: Zankl , who is also his neighbor , paid Kinsey a "social" visit at his
home about September 24 (which would be the day Russell was first told he was dis-
charged ); he asked Zankl about "things at the plant ," and Zankl replied "he was
having a problem about a matter pertaining to the union . . . pertaining to his
termination of an employee," that from Zankl 's recital of the details, he recalled
Zankl's having spoken to him the last week in July in the manner recited in his
September 26 letter , and he so reminded Zankl , whereupon at Zankl 's request he sent
him a letter to that effect on September 26.
Pertinent to the testimony is the following : ( 1) Kinsey, on cross, testified that
when he reminded Zankl of the July conversation , "he was surprised . be-
cause apparently he had no recollection of even discussing it with me ," which would
hardly have been likely if they had had a conversation bearing so crucially on an
item to which Zankl ascribes his decision and to which he claims he steadfastly
adhered , from the start; (2 ) Kinsey gave his first version of the talk after being
informed of the pending litigation and .of the interest in it of Zankl , in the light of
which his own recollection would have tended to be colored by a natural motive
to try to be helpful to a friend and "customer," whose patronage was a source of his
income; (3) although Kinsey testified the talk occurred during a "periodic serv-
ice call ," he could not say when before or since the alleged conversation he had
made another such service call, and though he testified he remembered that visit
to have been the last week in July because "the lady that I handle group insurance
matters with, was leaving on her vacation . . . the next day or two, and she wanted
me to meet the young lady who would handle the group insurance affairs during
MIAMI RIVET COMPANY 481
her absence," Miss Holmes, who would have had a like special reason to recall that
visit if Kinsey made it, could not recall either way whether Kinsey was at the office
or had spoken to her that week; and (4) the fair sense of Zankl's purpose even under
this version was whether he could avoid having Russell's illness of July 18 charged
to his experience rating if he should terminate him now. That such thoughts as
Zankl might have had on the matter were tentative at best would seem indicated
by the logic of the situation, for he could hardly have already made a firm decision
on a ground concerning which, as appears from the nature of the inquiry, he did
not feel he as yet had the requisite information. It is confirmed further by the
manner in which Kinsey, on cross, quoted Zankl as putting the inquiry to him-
"What happens to the coverage on an employee if his employment is terminated,"
and his answer to Zankl-"if his employment is terminated.. [Emphasis sup-
plied.] Kinsey's answer that a termination now would still leave Russell covered
for the illness occurring July 18 dispelled that kind of motivation in Zankl for dis-
charging Russell if he had it; and the claim that Zankl was motivated also by
forebodings about how Respondent's future experience would be affected by Russell
is negated by. the fact that Respondent continued paying for such future coverage
for Russell in August and September. This brings us to Miss Holmes.
(13)
Treasurer Holmes' explanation for including Russell in the first employee list in
the representation proceeding and for continuing the insurance payments for Russell
after the alleged termination: Miss Holmes testified she prepared the employee list
forwarded by Zankl to counsel on July 25 for transmittal in the representation pro-
ceeding, and showed it to him that day (i.e., the middle of that calendar week);
that when Zankl came to Russell's name, he said, "This man doesn't work for us
any more"; that she responded "He is on the payroll" as of the date appearing at the
top-July 18, whereupon Zankl let it stay.
As to why she did not mention his termination in the reports sent the insurance
company the 2 months after this conversation, Miss Holmes attributed the August
omission to a mistake caused by her prevacation haste (her last day on the job being
July 27), and the September omission to a mistake caused by the way matters had
piled up before her return on August 22, and to her own postvacation slackness.
Miss Holmes characterized her self-ascribed slipups as "incompetence"-a harsh
judgment and an incongruous one, as one observed this well-spoken, even-tempered
woman accustomed to high responsibility. (In addition to being an officer, she
is in charge of the clerical force. )
To accent her self-imputed postvacation proneness to error, Miss Holmes claimed
that her October report to the carrier contained the name of another employee, Gilbert
Trim, in respect to whom she made a like mistake. It should here be mentioned
that the October report names nine employees in the "additions" and "terminations"
column. Except for Trim and Russell, the "effective date" given for the "addition"
or "termination" of each such employee is in September, which is the month preced-
ing the report. However, the "effective date" for Russell's termination is given as
"7/25/62" and the one for Trim "8/13/62."
Unlike the October report, the September report was not produced. The question
then is whether .the October report supports Miss Holmes' statement that she made an
error as to Trim of the kind she imputes to herself regarding Russell. The following
appears: the "back credit" in the October report claimed in respect to Russell is
$40.92, or 2 full months' premiums at $20.46 each. The claim in respect to Trim is
for $8.40; had Trim's August termination not been reported in September, the pre-
mium for his coverage for that month too would have been paid, as was Russell's; in
that case, the back credit claimed for Trim in the October report would have been
$20.46, not $8.40, which is a fraction of a month's premium; such a claim would
reasonably be for a refund of some part of the premium prepaid for Trim the begin-
ning of August, that is, for some part of that month in which Trim, by reason of his
intervening termination, ceased to be covered.
So if there was any slipup in respect to Trim, it was hardly comparable to what
Miss Holmes 'attributed to herself as to Russell . It was not such in kind, for the
reasonable inference is that it did not involve prepayment of the premium for a
month subsequent to the termination. Nor was it such in degree, for assuming even
a like error in respect to Trim, it did not occur on 2 successive months. The above
apart, there is no showing that in the case of Trim there were the particular reasons,
756-236-65-vol . 147-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to focus her attention on his termination, as there were with Russell , if the latter had
in fact been terminated . This is so in respect to the report filed in August and the
one in September.
Concerning the report sent in August , Miss Holmes testified that she normally
prepares these reports the beginning of the month , but she prepared the one for August
before leaving on her vacation . Since, as earlier stated , her last day at work was
Friday, July 27, she would have wanted to have her data for the August report
brought up to as current a basis as possible , which would mean including all the
pertinent items up to July 27. Had Zankl, in looking over the employee list on
July 25, told Miss Holmes that Russell was terminated , he would have had particular
cause to tell her the reason , since her duties encompass the matter here advanced as
the reason for the decision-Russell's insurance coverage . Had Zankl made that
kind of decision at all, the reason claimed to have motivated him would have been
one to impel him at once to cross the hall to Miss Holmes ' office to make sure she
inform the insurance carrier of Russell's termination in the next report, or if it
slipped his mind July 23 and 24, then on July 25, when he is supposed to have told her
Russell "doesn 't work for us any more," or if not that day, then at the latest, when
he is supposed to have consulted Agent Kinsey on that very subject on the premise
of his having discharged Russell , Kinsey specifically attributing his recollection to
the fact that Miss Holmes, who was then about to go on vacation , wanted him to meet
her understudy on insurance matters. Yet Miss Holmes testified that the one and
only time Russell 's termination was ever mentioned to her was when Zankl made his
"doesn 't work for us" comment on Russellon July 25, giving her no reason therefor
at that time or at any time since.
As for the September report : Miss Holmes testified that when she saw Russell
and his wife a day or two after her return the latter part of August, she regarded
Holmes as terminated , although she did not tell him so. Since she so regarded him,
she had good reason to think of Russell when she prepared her report early in
September . During that visit in August, Miss Holmes gave Russell the insurance
benefit check of which she herself notified Mrs . Russell the day before. She had
further reason to think of his status on September 4, when Russell first asked her for
the loan , for which she referred him to Lazar. The premise of his request to her was
a view of his status inconsistent with what she is supposed to have understood it to
be as a result of what Zankl said to her on July 25. Apart from the bearing that her
failure to communicate her understanding to Russell has on what Zankl reasonably
conveyed to her on July 25, the time of Russell 's coming to her, namely , the first
workday of that month , was such that she could hardly in September have again
slipped up on reporting Russell 's termination , if she had been informed it occurred.
In accentuation of the disinterested character of her October report, Miss Holmes
testified that she initiated the "back credit" claim as to Russell on her own; that she
herself discovered her slipup with no reminder about him from anyone . This rather
raises the question of how that could be so since, under that version, nothing occurred
in October, now the third month after the termination , comparable to the events
occurring hard upon the alleged termination , which were calculated to bring it to the
forefront of her attention , if such a termination had occurred.
Regarding the appearance of Russell 's name on the July employee list, at the con-
clusion of her testimony , Miss Holmes ascribed to herself still another mistake. The
list is entitled "Employees as of July 18 , 1962," and since that was Russell 's last day
on the job before his attack that explained his being on the list. This raised the
question of why that same list included Lyle Callahan , since, on July 18, he was
Russell 's foreman on weekly salary , and his hourly pay status, resulting from his
having to work on Russell 's machines after the latter's attack , was shown by Re-
spondent's records (produced the preceding day) to have begun the week ending
August 1 (beginning July 26 ). Miss Holmes admitted that that being so, for her to
have included Callahan was a "mistake ." Counsel for Respondent permitted her
testimony to end with that concession, without seeking any explanation from her, say-
ing, "The witness doesn't know the answer." After a recess, Respondent specially
recalled Zankl.
The "answer" ventured by Zankl involved Miss Holmes . So it seemed rather
strange she would not "know" it too . She was not called to corroborate him. Her
difficulty would have been over which of his rapidly shifting "answers" to support:
first , that the list Miss Holmes gave him for transmittal had two "mistakes," one in
omitting Callahan , the other in including Russell , and that he asked her to correct each
error, but that she corrected only the first by adding Callahan; then (when shown
Callahan 's name does not appear to be inserted ) that Miss Holmes typed up a new
list: then (when reminded that his and Miss Holmes ' prior testimony negated the
MIAMI RIVET COMPANY 483
suggestion that there ever was more than one list gotten up between the first one in
July and the second in September) that he now "guess[ed] [his] secretary typed up
the new list," because "Miss Holmes didn't follow my instructions" (as neither would
his secretary appear to have done, if one of them was that Russell be excluded).
Since Callahan's descent from foreman's status occurred some time after Russell's
attack Zankl's self-ascribed insistence on including Callahan in the list sent out by him
on July 25 rather demonstrates it was intended to be current as of a date no earlier
than July 25, and hence discredits the explanation for Russell's appearance on it on
the ground that it purports to be "as of July 18, 1962." Strangely, however, Zankl,
at this hearing, reconfirmed the testimony he had given in the representation hearing
that Callahan was demoted from foreman to employee ("set-up" man) before July 18.
Reminded that the records he produced the preceding day show Callahan to have
been changed from weekly salary to hourly pay no earlier than the week ending
August 1, he now insisted that even while on weekly salary, Callahan was part-time
foreman and part-time setup man, and that was why he had Callahan's name added
to the July 18 list of employees. Asked when this dual status began, he said it was
the week before Callahan was put on a straight hourly basis, which would still make
it the week ending July 25, the day he mailed the employee list for transmittal to the
Board.'°
M. ULTIMATE FINDINGS AND CONCLUSIONS
(A)
Respondent concedes, as the threshold proposition, that an employee who is in-
active on sick leave is presumed to continue in that status until recovery and that the
party seeking to overcome that presumption must make an affirmative showing that
the employee has resigned or that the employer has earlier discharged him. Sylvania
Electric Products, Inc., 119 NLRB 824, 832; Foley Manufacturing Company, 115
NLRB 1205; Wright Manufacturing Company and Universal Manufacturing Com-
pany, 106 NLRB 1234; Solar Electric Corporation, 80 NLRB 43. That presumption
has not been overcome here , first because even if Respondent on July 23, had decided
to discharge Russell as claimed , the decision did not materialize into an actual dis-
charge until Respondent effectuated it by acting to communicate it to Russell; and
secondly the assertion that Respondent had so decided before then is roundly
discredited by the record.
(B)
Respondent 's position that a decision to discharge is effective before it is com-
municated to the employee assumes the capacity of one of two parties to a relation-
ship to change it by his mere decision without notification to the party affected.
Fundamental law opposes that assumption . The common law on this specific subject
is exemplified by In re Public Ledger, 63 F. Supp. 1008, 1015 (E.D. Pa.), wherein
Judge Ganey , citing precedents, held that "in order that there be a discharge by the
employer, there must be some affirmative action taken by the employer" and "there
must be some communication of that intent by word or act to the employee." It
is exemplified more pointedly in Barnett Jos. Mayer & Bros., 205 Pac . 396, 398
(Wash.), where comparable to the situation here, the employing corporation had
voted to discharge the employee , but the official instructed to do so failed to com-
municate the decision to the employee . The court held the discharge thereby failed
of effectuation , explaining that in addition to the decision , "some further affirmative
act on the part of the corporation was necessary to accomplish [the employee's]
discharge."
The Board applies a like standard. In Otarion Listener Corp. and its Subsidiary
Audio Electronics Co., 124 NLRB 880, it rejected a plea for a reverse application of
the proposition Respondent urges here . The ballot of an employee on sick leave was
challenged on the ground that she did not intend to return to work, but had not so
informed the employer because she wanted to protect her fringe benefits . The Board,
overruling the challenge, stated:
10 In actual fact, Callahan was not put on the machines earlier than the first week he
is shown to have been carried on the hourly payroll. This cogently appears from the
testimony of Superintendent Vargo, who would have occasion to remember it, because, as
earlier related, Callahan's being put on the machines entailed his assuming Callahan's
foremanship burdens in addition to his regular duties as superintendent . Vargo testified
Callahan was put at Russell's machines "a couple of weeks later, maybe three" after
Russell's attack of July 18.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has held that the fact that an employee intends to quit after the
election and does so, is no basis for finding him ineligible to vote.' The test for
determining eligibility is the individual's actual status on the eligibility date and
the election date.2 Thus, where, as here, an individual is an employee on sick
leave on these critical dates and neither the employee involved nor the employer
has taken any action to terminate the employee relationship prior to the election,
the individual is eligible to vote.
1 Personal Products Corporation, 114 NLRB 959, 961.
2 See Sylvania Electric Products, Inc., 119 NLRB 825, 832.
To similar effect is Wright Manufacturing Company and Universal Manufacturing
Company, 106 NLRB 1234.
Underlying that principle is a recognition that not all decisions that are made
are acted upon. To hold that the decision alone changes the relationship could work
harm at both ends. On the one hand, if the change is adverse to the other party, then
its accomplishment by a mere decision without regard 'to whether it has been com-
municated would permit the frustration of a reasonable expectation on which im-
portant reliance is normally placed. One in Russell's position, for example, at best to
him, has meanwhile lost valuable time he could have used exploring the field for other
opportunities; and, at worst, the belief that his job is waiting ,for him could cause
him to turn down an offer from a plant needing a man with his kind of experience
to his irretrievable loss when finally told that his employer, without his knowledge,
had erased the factual premise which induced his decision. On the other side of the
coin, if the decision should be for the benefit of the other party, then unless the
decider is allowed some margin of retraction before he communicates it, he can be
held to a decision he now recants even before he has :given the other party cause to rely
on it. A working society can hardly operate on that basis. The development of our
law dealing with industrial life is based upon a recognition of the need, on the one
hand, to enable people to act in reliance on reasonable expectations, and, on the other,
the need for persons in business life to be free to reach decisions without being com-
mitted to them until they have acted to communicate them to the party affected.
This is what underlies the aspects of our law relating to offer and acceptance, rescis-
sion, acceleration of debt on default of installment, etc., where the mere decision does
not commit either the decider or the other party until the one in a position to alter
the legal relation communicates his decision to the other. There are homelier illus-
trations: a defaulting tenant is still a tenant until the notice of eviction; and even
a raucous nightclub patron is still a guest until told, in substance, that nothing would
grace his presence more than his removal thereof.
The above underscores the fallacy in Respondent's assumption that there is any
legal effect in Zankl's telling Lazar, as it claims he did, that "as far as he was con-
cerned," Russell was through, at the same time that in answer to Lazar's repeating
his aversions to so informing Russell, he still left it to Lazar's discretion to deter-
mine the manner and the timing of doing so. Even if Zankl and Respondent were
to be deemed one and the same for all purposes, he was still not the only one "con-
cerned," for also concerned was Russell. Until notified, Russell continued in the
reasonable expectation that the relationship had undergone no change and that his
return merely awaited his recovery." But Zankl was not the only one concerned
even within Respondent's own decisional framework. Whatever his decision, once
he delegated its execution to Lazar, then Respondent assumed the consequences of
Lazar's failure to execute it, whatever Russell's status "as far as [Zankl] was con-
cerned." Giving special point to this is Zankl's own explanation that "I delegate the
authority to hire and fire . . . to the men in charge of production, which in this
11 Respondent cites Cone Mills Corporation (Tabardrey Plant), 107 NLRB 866, where
the Board, on certain facts peculiar to that situation, held, by a divided vote, that an em-
ployee was terminated during his absence while ill, despite failure to notify him to that
effect. There under the existing practice, sick leave terminated by itself in 30 days, unless
renewed on the employee's application therefor for another 30 days. The employee had
permitted a 30-day period to expire without applying for or obtaining a renewal. So his
employment expired under the existing rule relating to sick leave in consequence of his
own failure to take the requisite action to extend it. Regardless of whether the majority
or the dissent was correct on whether the normal presumption of continuity of the rela-
tion applied even under those facts, it is manifest that there was a unanimity of view,
that where those peculiar facts are absent, the presumption still applies that the relation-
ship coninues until either side affirmatively acts to break it. The later decisions , previ-
ously cited, demonstrate it.
1IIAMI RIVET COMPANY 485
case was George Lazar. That is his job." [Emphasis supplied.] Since Lazar con-
cededly did not exercise his "delegate[d] authority to . . . fire" no firing occurred
until he did execute it.
Even more irrelevant are the subjective considerations which Respondent advances
as the reason for Lazar's not executing his delegation. The assumption is that if
the subjective reason for nonexecution is a sympathetic one, it has the legal equiv-
alence of actual execution, with every legal advantage that flows from it. To accept
that assumption would be to embrace a legal result which I doubt even Respondent
would support. The compassion to which Respondent attributes Lazar's inhibition
in respect to Russell could equally inhibit him in a case where, by way of example,
Zankl should instruct him to fire an employee still working but who, in Zankl's
opinion, has outlived his usefulness. It would hardly be claimed that in such an
instance, the discharge would become operative on Zankl's instructions even be-
fore Lazar notified the employee he was no longer wanted. The result here is no
different than if Zankl, upon deciding to discharge an employee, whether it be Rus-
sell on sick leave or the unwanted one in our hypothetical case, instead of instructing
his subaltern to communicate the decision, had himself decided to do so, and then
refrained because of the same inhibititions that Respondent ascribes to Lazar. Until
Zankl stiffened his heart and communicated his decision to the employee, no dis-
charge would have been effectuated. And when he delegated that authority to
another, the decision remained unexecuted until the person delegated mastered his
compassion and followed the hardened course Respondent pursued in respect to a
former employee. Respondent had the right to lay compassion aside and discharge
Russell as summarily as ithad Gunther. It had the choice of being a compassionate
employer or an uncompassionate ex-employer. In Gunther's case, it chose the latter;
in Russell's (if we accept Respondent's version of events), the former. But it could
not have it both ways. It could not don the honorific robes of restraining com-
passion, and then claim the legal advantages of the unrestraining coarser raiment.
Even compassion can lead to binding commitments, as the law dealing with charitable
pledges is a witness.
The conclusion is that even if the decision had been reached by Zankl and Lazar
to discharge Russell as claimed, the decision was not effectuated until Russell was
notified of it on September 24.
(C)
Still another consideration operates against the legal proposition on which Respond-
ent here relies. A decision before it is communicated is normally made in the inner
councils of the deciding party. The party affected is thus not in a position to dispute.
on a direct basis at least, the testimony of any discussion claimed to have fructified
in a decision, since he was not there. If the relationship could be held to be effec-
tively altered by a decision before it is communicated, there would be every
temptation belatedly, in quest of the legal advantage now to be derived, to claim
such a decision on the basis of self-serving versions of an inner circle conversation,
unwitnessed by the party affected or even by a disinterested. neutral. The matter of
outright falsification aside, the sense of a conversation, now "exposed to the sport
of fugitive and biased recollection." 12 can be colored by self-interest, and what
was at most a tentative thought can, in memory now conditioned by self-interest
or bias, become endowed with the sharpened contours of an actual decision.
This last could hardly have been better exemplified here. Formidably arrayed
against Respondent's testimony that a decision to discharge Russell was made on
July 23 was the opposing testimony of its every objectively verifiable act of omission
and commission since then, until the actual notification. This is so from any angle
that one views it: whether it be: (a) toward the employee affected, in the conceded
failure to inform him of it, here aggravated further by Respondent's admitted inter-
vening contacts with him on the premise, implicit in some instances and express
in others, that he was expected back; or (b) toward the insurance carrier, by includ-
ing Russell among the employees covered for 2 successive months after the claimed
decision to terminate; or (c) wit-bin its managerial setup in not communicating it to
the supervisors and most notably to Superintendent Vargo, who was affected in a
way that would normally have impelled Zankl or Lazar to inform him of such a
decision if it had been made; or (d) as between the top officials themselves, since a
top executive who has given a command to terminate an employee is hardly likely
to show the kind of tolerance that Zankl did toward Lazar's inaction without taking
action himself, particularly in a situation as naturally calling for it as when Russell,
on his first visit to the office in August, told Zankl he expected to be back in 4 weeks;
12 Art Metals Construction Company v . N.L.R.B., 110 F. 2d 148, 150 (C.A. 2).
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or (e) toward its own attorney , who is shown to have been uninformed of Russell's
discharge even up to the crucial stage of the conference the day before the election
and indeed the very morning of the election ; or (f) the Board itself, in including
Russell in the list of employees sent out July 25.13
With dogged tenacity, Respondent has taken the items in that self-refuting phalanx
singly, and has sought to explain each away on that basis, the assumption being
that if it had a plausible explanation for each separately, it would wipe the slate
clean, and dispense with having to deal with the additional matter of the kind of
credence merited by an assertion opposed by such a staggering sequence in conflict
with the asserted decision, that call for explanation.
As it happens, not a single explanation offered held up. Every item that Respond-
ent undertook to explain achieved stronger evidentiary force from the discredited
character of the explanation, whether it be the July 23 talk between Zankl and Lazar,
where the assertion that the decision to discharge Russell was then made is con-
tradicted both by the admitted discretion given to Lazar to handle it his own way
despite his expressed aversion to informing Russell, by Lazar's demonstrated igno-
rance of such a decision when he raised the question of Russell 's likely vote during
Zankl's canvass of the subject at the supervisors ' meeting, and by Zankl's seeking
information from his insurance agent after the asserted decision on a subject
which he claims induced it even before he had the information , and where the
information given was calculated to dispel the motivation suggested by the nature
of this inquiry; whether it be the compassion to which Respondent ascribes Lazar's
failure to notify Russell of the decision, in contrast with the immediate notice given
to another employee under circumstances no less calculated to evoke the same kind
of compassion ; whether it be the explanation for Russell 's name appearing on the
first employee list mailed by Respondent on July 25 based on the list's bearing the
date of July 18; or the explanation for Respondent's continuing to pay the premiums
for his future coverage after such decision . There was not a witness to these as-
sorted explanations who escaped being discredited on all three scores of discredita-
tion, on the score of the testimony being at odds within itself , at odds with the testi-
mony of the other explainers, and at odds with the overwhelming probabilities
presented by admitted facts.
Zankl, however, merits special mention . That witness underwent a palpable
change between the start of his testimony , when he detailed his alleged talk with Lazar
on July 23, and the end of his testimony, when he undertook to "answer" why
Callahan was included in an employee list claimed to be current as of a date no later
than the one appearing on it . When, during his initial appearance , he recited the
July 23 conversation, he had the uncertain demeanor of a troubled person. As now
appears, it was over an effort to endow what may have been some expression of con-
cern over how Russell 's illness might affect Respondent 's insurance experience with
the dimensions of an actual decision to discharge . On his recall at the end of the
case , he reeled off his previously described succession of shifting versions in the man-
ner of one who has made peace with the process of improvising , as each item in his
explanation was exposed.
For its bearing on the reliability of Zankl's recollection under pressure of self-
interest , his testimony at the hearing in the representation proceeding is also relevant.
It has been mentioned that in the hearing in this proceeding , it came to light from
Respondent's own records that Callahan , Russell's foreman on July 18, who was
thereafter assigned to Russell 's machines , became an hourly paid or rank-and-file em-
ployee for the first time the week ending August 1. At the representation hearing on
August 9, 1962, first the representative of the Charging Union and then the Hearing
Officer told Zankl it was their understanding that Callahan ceased being a foreman
on July 26 (the first day of that , week ending August 1) and asked whether that was
,"correct." In each instance , he answered it was "incorrect ," that Callahan ceased
being a foreman "before that," saying to the Hearing Officer , "I believe it was
July 14th, if my memory serves me correctly."
13 In the hearing in the representation case , held on August 9, we note that Respondent,
during a session normally devoted to general matters, such as deciding on the voting unit.
i.e., the class of employees included or excluded from the voting unit, successfully urged
a departure from that procedure by having the eligibility of specific persons determined
in advance . It is there that it successfully urged the inclusion of Callahan in the unit,
claiming his demotion to rank-and -file status . At the same time , although Russell's
name appeared on the employee list it submitted on July 25, Respondent did not urge the
exclusion of Russell , which , in view of its stated purpose in pressing for the variance
from normal procedure , is what it is reasonably to be expected it would have done had it
thought it made the decision it later claimed.
MIAMI RIVET COMPANY 487
Zankl 's memory did not then so serve him on another item , raised by the Hearing
Officer . The Hearing Officer asked him if he had "a reasonable expectancy of return-
ing Mr. Lyle Callahan to his position of foreman in the very near future." Zankl's
answer was an unqualified "no." But it is manifest from Superintendent Vargo's
testimony in this proceeding that Callahan 's assignment to the machines , with its
attendant supervisory dislocation in a manner detrimental to him no less than to
Callahan , was temporary and awaited Callahan 's being taken off Russell 's machines
once they could again be operated without Callahan. The reasonable expectation as
of that time was that it would be by Russell when he recovered. As it turned out, it
was the trainee, who was finally broken in by January 2, 1963, whereupon Callahan
returned as foreman.14 Whether the determination concerning Callahan's eligibility
would still have been the same cannot now be known. But Respondent knew these
items were material , since whether Russell ceased being -a foreman when Respondent's
records show this happened or when Zankl testified it did spelled the difference be-
tween whether the step was taken before or after Respondent received notice of
the representation petition-a matter whose materiality would have been underscored
by disclosure , additionally , of the contingent basis for the measure . Zankl 's answer
thus contributed to a decision concerning Callahan's eligibility, which had it gone the
other way, could have avoided the expense and delay involved in this supplementary
proceeding relating to Russell, for with Callahan's ballot uncounted, the Union's
majority would not have depended on Russell's vote.15 The demonstrated tendency
of Zankl's memory not "to serve [him] correctly" when to the advantage of Respond-
ent's position even concerning virtually contemporary events legitimately bears on
the reliability of his memory concerning matters of earlier vintage, where the version
is advanced for the first time under spur of a motive to exclude a vote which has turned
out to be crucial to the outcome.16
The conclusion is that Respondent made no decision to discharge Russell on
July 23 or at any time preceding the notification to him , and the assertion that Zankl
so stated to Lazar on July 23 and to Miss Holmes and Insurance Agent Kinsey later
that week is rejected as opposed to the clear weight of the evidence.
On the basis of the foregoing and the entire record , I hereby state the following:
SUPPLEMENTAL CONCLUSIONS OF LAW
1. At all times here material and specifically on August 16, 1962 , the payroll
eligibility date , and September 13, 1962 , the date of the election , Elmer Russell was
an employee in the unit there involved , on sick leave status and eligible to vote.
2. Respondent at no time prior to September 24, 1962, took the requisite action to
terminate that status and had not in fact reached a decision to terminate it.
3. Russell validly voted in said election and his vote was validly counted.
4. The Charging Union polled a majority of the votes validly cast in that election,
and the ensuing certification to the Union as exclusive representative of the employees
in the bargaining unit there involved was validly issued.
5. Under said certification, the Charging Union has at all times since January 11,
1963 , been the exclusive collective -bargaining representative of the employees in said
bargaining unit.
6. I reaffirm the conclusion stated in my Intermediate Report of May 2, 1963,
that by its admitted refusal to bargain collectively with the Charging Union as the
duly certified representative of the employees in the unit here involved , Respondent
14 Zankl testified the trainee was put on about 3 weeks after Russell's attack, which
would bring it to August 8. His assertion, undocumented by records he could easily have
produced, is unsupported by any mention of that fact by Respondent in the representation
hearing held the next day, and Respondent's suggestion that the trainee was a permanent
replacement for Russell is refuted by Superintendent Vargo's testimony citing instances
of a practice normally to replace employees only temporarily during sick leave ; by the
failure to tell Vargo the trainee was a permanent replacement for Russell , else he would
have known of Russell's discharge during his conversations with him in late August re-
garding his desire to advance his return; and by his testimony concerning the length of
the training period , under which Russell ' s return offered a nearer and more certain solu-
tion to the managerial dislocation ensuing from his illness than trying to break in an as
yet unproven trainee.
15 Its majority would then have been 26 against the combined vote of 25 for the other
2 choices . Supra, footnote 1.
16 Zankl testified that the canvass he made of the prospective vote at the supervisors'
meeting on September 10 indicated a result less favorable to the Charging Union than
the one it achieved.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and is engaging in an unfair labor practice within the meaning of Sec-
tion 8 (a)(5) and ( 1) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing and the entire record in this and the representation
proceeding , I reaffirm my Recommended Order issued May 2 , 1963, that Respondent
bargain collectively with the Charging Union on request , and post appropriate notices,
as therein stated.
Leonard Refineries , Inc. and Local 7-540, Oil, Chemical and
Atomic Workers International Union , AFL-CIO. Case No.
7-CA-41363(3). June 17, 1964
DECISION AND ORDER
On March 17, 1964, Trial Examiner John P. von Rohr issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices, but that these did
not warrant remedial action, that the Respondent had not engaged
in other unfair labor practices as alleged in the complaint, and recom-
mending that the complaint be dismissed in its entirety, as set forth
in the attached Decision. Thereafter, the General Counsel filed ex-
ceptions to the Trial Examiner's Decision and a supporting brief, and
the Respondent filed a brief in answer to the General Counsel's
exceptions and brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's Decision and the
exceptions and briefs, and hereby adopts the Trial Examiner's
findings,' conclusions, and recommendations with the following
modifications.
The Trial Examiner found that Respondent violated Section
8 (a) (1) of the Act by Chief Operator Miller's remark to employees
Ropp, Batchelder, and Davenport that if the Union won the election
the annual Christmas bonus would not be paid. Nevertheless, because
he viewed this as an isolated incident and because Chief Operator
Miller is now deceased, the Trial Examiner was of the opinion that
a remedial order would serve no useful purpose and recommended that
the complaint be dismissed in its entirety.
' In the absence of exceptions thereto, the Board adopts pro forma the Trial Examiner's
dismissal of the complaint insofar as it alleged threats of adverse change in seniority
standing if the Union were selected as the collective -bargaining agent.
147 NLRB No. 66.