Nachman Corp.

National Labor Relations Board - Board Decisions

Sep 11, 1963

144 N.L.R.B. 473 (N.L.R.B. 1963)

NACHMAN CORPORATION 473
proceeding simply because it contains a checkoff provision which fails
to spell out the requirements of the proviso to Section 302(c) (4) of
the Act, unless the checkoff provision is either unlawful on its face
or has otherwise been determined to be illegal in an unfair labor prac-
tice proceeding or in a proceeding initiated by the Attorney General.lo
As the checkoff provision in the instant case is not defective in the re-
spects stated, we hold that it does not render inoperative the contract
as a bar."
In view of our findings herein, we shall dismiss the petition herein."
[The Board dismissed the petition.]
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
"We reiterate our holding in Paragon that no testimony and no evidence will be ad-
missible in a representation proceeding where the testimony or evidence is only relevant
to the question of the practice under a contract urged as a bar to the proceeding
"To the extent that Keystone Coat, Apron & Towel Supply Company, et al, supra, is
inconsistent herewith, it is hereby overruled.
12 Member Leedom agrees with his colleagues that under the rule of the Paragon case
the checkoff clause in this contract does not remove the contract as a bar. Although
Member Leedom dissented in the Paragon case, and in subsequent cases applying the
Paragon rule, he now deems himself bound by the majority decision in Paragon, and
accordingly concurs in the dismissal of this petition.
Nachman Corporation and Domingo Perdomo and Joseph E.
Richardson and Willie Mae Harrison and George D. Thomas
and Marguerite Hawkins and Robert L. Scott and John Clark
and Donald Milbourne and Helena Pagan and United Steel-
workers of America , AFL-CIO. Cases Nos. 4-CA-20730-1, 4-CA-
2720-2, 4-CA-2720-3, 4-CA-2720-4, 4-CA-27f0-5, 4-CA-2720-6,
4-CA-0720-7, 4-CA-2720-8, 4-CA-2720-10, and 4-CA-2720-11.
September 11, 1963
DECISION AND ORDER
On March 26, 1963, Trial Examiner James V. Constantine issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter the General Counsel and the Respond-
ent filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
144 NLRB No. 55.
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner with the following additions and
modifications.
1. In February 1958, United Steelworkers of America, AFL-CIO,
herein called the Union, became the collective-bargaining representa-
tive of Respondent's production and maintenance employees and
continued as such representative until it was decertified on Febru-
ary 14,1962, following an election which it lost.
Because of economic conditions, Respondent began laying off
employees in 1961 and continued such layoffs in 1962. From Febru-
ary 14, 1962, the date of the decertification, to November 1962, Re-
spondent laid off 49 employees, including 9 of the alleged discrimi-
natees. The General Counsel does not contend that these layoffs were
discriminatory. However, beginning late in February 1962, Respond-
ent began recalling laid-off employees and hiring new ones. Of the
49 employees laid off as described, only 14 were not recalled. Among
these 14 were 9 of the 11 alleged discriminatees?
The General Counsel alleges that these nine, plus the two others
who were not working on February 14, were not recalled to employ-
ment for discriminatory reasons. These 11 employees constituted
all the existing union officers or representatives who campaigned ac-
tively for the Union before the decertification election 4 This marked
I Respondent has excepted to the Trial Examiner's ruling refusing to require the General
Counsel to produce pretrial statements of certain witnesses for the General Counsel pur-
suant to Section 102 118 of the Board's Rules and Regulations Respondent first requested
these statements after the witnesses had been examined, cross-examined, and excused.
The purpose of the rule requiring the production of pretrial statements by witnesses for
the General Counsel is to aid respondents in cross-examination of such witnesses Accord-
ingly, the proper time for requesting statements is at the close of direct examination.
A request made after a witness has been excused is too late. Arkansas Louisiana Gas
Company, 142 NLRB 1083; Walsh-Lumpkin Wholesale Drug Company, 129 NLRB 294.
Respondent has also excepted to the Trial Examiner's ruling permitting the General
Counsel to amend the complaint to state that employees Milbourne, Allen, and Clark had
been discriminatorily denied reemployment on March 27, 1962, rather than on March 12,
1962, the date stated in the complaint The General Counsel's motion was based on in.
formation contained in General Counsel's Exhibit No 5, which he received from Respond-
ent on the first day of the hearing We find no prejudice to Respondent in the Trial
Examiner's ruling. Respondent's responsibility for unfair labor practices is determined by
the proof and not by allegations in the complaint. Moreover, Respondent did not move
for a continuance to permit it to adduce additional evidence to meet the amendment.
Respondent has excepted to the blanket resolutions of credibility made by the Trial
Examiner Although it would have been better practice to explain in each case of conflict
why he credited one set of witnesses rather than another, we find that the Trial Examiner's
mode of treatment was not prejudicial As we indicate infra, our finding of discrimina.
tion is based on inferences drawn from facts which to a large extent are not seriously
contradicted.
3 Two of the discriminatees were not working on February 14. One, Marguerite
Hawkins, had previously been laid off, the other, Helena Pagan, was on maternity leave.
4 Although not employed on February 14, both Hawkins and Pagan campaigned for the
Union prior to the decertification election The only high union official who did not
NACHMAN CORPORATION 475
disproportion of known active union proponents and leaders among
employees not recalled after layoff creates a strong inference that the
failure to recall was motivated by discriminatory reasons.5 Respond-
ent offers a. number of arguments to rebut this inference.
It contends that seven of the alleged discriminatees were not re-
called because of the caliber of their work, one for having previously
embarrassed the plant manager, and three because their jobs had been
abolished. As to the seven, the Trial Examiner found that Respond-
ent did have cause for discharging them, but he also found this was
not in fact the reason why they were not recalled. He pointed out
that all were long-time employees; the alleged causes had existed for
substantial periods of time without action by Respondent; in the case
of two employees not recalled because of alleged excessive absenteeism
Respondent had actually approved or given prior permission for such
absenteeism, and when they were laid off several employees were told
that they would be recalled. As to the one employee not recalled for
having purportedly embarrassed the plant manager, the explanation
is patently frivolous and in any event insufficient as a matter of law.'
As to the three employees not recalled because their jobs had allegedly
been abolished, each of them had performed more than one job in the
plant and following their layoffs Respondent hired numerous new em-
ployees "off the street" to perform jobs that these three individuals
had performed or were capable of performing and yet were never
offered the opportunity to do, although Respondent admittedly was
satisfied with their past work performance.
Respondent also contends in an effort to rebut the inference of dis-
criminatory motivation that it still employs 13 former union officers
and 37 other employees who presumably voted for the Union in the
decertification election. But as to the former officers, still employed,
there is no evidence that these were active in behalf of the Union dur-
ing the campaign preceding the decertification election. In fact a
number of them opposed the Union or were neutral. Of the
rank-and-file adherents of the Union still employed none of them was
actively participate in the election campaign was the president, who resigned his office
shortly before the election. He was not laid off and has continued his employment with
Respondent.
8 N L R B. v W. C Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 275-276
(C.A 5), cert denied 344 U.S. 865; N.L.R.B. v. Wilson Line, Inc, 122 F. 2d 809, 812
(C A. 3) ; Syracuse Tank & Manufacturing Company, Inc, 133 NLRB 513, 525, and cases
cited in footnote 15 thereof.
9 Although Willie Mae Harrison was an admittedly satisfactory worker, the plant man-
ager claimed she was not recalled from layoff because, prior to a union meeting about a
year previously, he had said something to her which he could not recall, and at the meet-
ing had asked her to verify this statement and she had denied he had said it. Harrison
had never been reprimanded or criticized for this alleged embarrassment to the plant
manager. In any event, Harrison's alleged conduct was protected concerted activity.
She could not be discharged for her failure to corroborate the plant manager at a meeting
with the Union The Bettcher Manufacturing Corporation, 76 NLRB 526, 527. Accord-
ingly, we do not adopt the Trial Examiner's finding that good cause existed for her
discharge
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a leader in behalf of the Union even if they could be identified as being
for the Union. In the circumstances of this case, the fact that Re-
spondent retained some union adherents does not exculpate it from the
charge of discrimination as to those not recalled.'
We conclude, as did the Trial Examiner, that the alleged reasons
for the failure to recall the 11 discriminatees were pretexts, and that
the real reasons were connected with their leadership of the prounion
forces within the Company, a movement toward which Respondent
had a marked antipathy." Accordingly, we find, as did the Trial Ex-
aminer, that by failing to recall to employment the 11 individuals
named in the complaint Respondent discriminated against them in
violation of Section 8 (a) (3) and (1) of the Act.
2. In his exceptions, the General Counsel urges that the Board find
the specific dates on which the discriminatees would have been re-
employed had Respondent not discriminated against them. The Trial
Examiner in effect recommended that these determinations be left to
the compliance stage of the proceeding. We adopt the procedure
recommended by the Trial Examiner as being the most suitable means
for making these necessary determinations.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner."
7 N.L R.B. v. W C Nabors , d/b/a W. C. Nabors Company, supra.
8 Respondent 's hostility to the Union is manifested in a letter written to employees by
Respondent 's president a few days before the decertification election , in which he said:
I believe, and your company believes, that all of us will be far better off without this
Union. We are convinced that without their interference and without their program
of trying to tell us how we should get along with each other, the Nachman Corpora-
tion will be a happier and better place to work,
It is reasonable to infer from this attitude , and the events in question , that, having been
rid of the Union by the decertification election , Respondent determined to stay "rid" of it
by eliminating those employees who might be expected to try to bring it back
D 'The following shall be substituted for the paragraph immediately below the signature
line in the Appendix attached to the Intermediate Report:
NOTE -We will notify any of the above -named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948 , as amended , after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Separate charges have been filed by Domingo Perdomo on August 23; Joseph E.
Richardson, Willie Mae Harrison , and George D. Thomas on August 27; Marguerite
Hawkins, Robert L. Scott, John Clark, Donald Milbourne , Helena Pagan, and
United Steelworkers of America , AFL-CIO, on September 12, 1962 .1 On these
charges and the aforesaid amended charge the General Counsel of the National
Labor Relations Board , by the Regional Director for the Fourth Region ( Philadel-
phia, Pennsylvania ), issued his consolidated complaint dated November 19, 1962,
against Nachman Corporation, herein called Respondent or the Company, which,
' The original charge of United Steelworkers was amended on November 8, 1962.
NACHMAN CORPORATION 477
as amended at the hearing, alleges in substance that Respondent has engaged in and
is engaging in unfair labor practices as defined in Section 8(a)(1) and (3), and
affecting commerce as defined in Section 2(6) and (7), of the National Labor
Relations Act, hereinafter referred to as the Act. Respondent has answered. As
amended at the hearing, the answer admits part of the complaint but puts in issue
the commission of any unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner James VV
Constantine at West Chester, Pennsylvania, from January 21 through 25, both
inclusive. All parties were represented at and participated in the hearing and had
full opportunity to introduce evidence, to examine and cross-examine witnesses,
to submit briefs, and to offer oral argument. Briefs have been received from Re-
spondent and the General Counsel. Before the General Counsel presented any evi-
dence, Respondent renewed a written motion to sever the cases from one another
so that they would be tried independently of each other. This motion filed on
January 15, 1963, had not previously been disposed of. It was denied by me. At
the close of the General Counsel's case, and again at the close of the hearing,
Respondent moved to dismiss the complaint. These motions were denied on the
ground that as a matter of law it could not be ruled that the General Counsel had
failed to make out a prima facie case.
Respondent's motion to correct stenographic record is granted absent opposition
thereto.
Upon the entire record in this case, including the stipulations of the parties, and
from my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, an Illinois corporation, is engaged among other places, at West
Chester, Pennsylvania, in manufacturing, selling, and distributing mattress springs
and related products. During the past year, it shipped products valued at more than
$50,000 directly to points outside the Commonwealth of Pennsylvania. I find that
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act, and that it would effectuate the purposes of the Act to assert jurisdiction
over this proceeding.
II. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America , AFL-CIO, herein called the Union , and its
Local 5676, are labor organizations as defined by Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
Many of the factual issues were disputed and ably contested. Where dispute exists,
it has been resolved in accordance with my evaluation of the credibility of the wit-
nesses and reasonable inferences drawn from the evidence. In determining credibility
I have credited some witnesses in part and rejected in part testimony of the same
witnesses, whether they were called by the General Counsel, the Union, or the Re-
spondent; but in general I have not narrated evidence in connection with the ap-
praisal of the credibility of any witnesses. Trumbull Asphalt Co. of Delaware v.
N.L.R.B., 314 F. 2d 382 (C.A. 7). All evidence has been considered, and none has
been overlooked, in arriving at the ensuing findings of fact and conclusions of law.
This case involves the alleged discriminatory failure or refusal to recall 11 em-
ployees who, the parties concede, were lawfully laid off. I proceed to consider
each of said employees individually.
A. Joseph E. Richardson
This employee started to work for the Company on October 2, 1952, as an
operator of a hand-knotting machine in the upholstery department, under code num-
ber GK. His starting wages were 98 cents an hour and as a result of increases he
reached $1.52 an hour in a few years. About 1958 he was made a mechanic in
the same department with a rate of $1.76 an hour. A year later he became a
working leader in this department; but, when the department was "cut in size"
4 or 5 months later, he "voluntarily went back" to his mechanic's job.
After 2 months in the mechanic's job, he was informed that the new working
leader's duties absorbed those of the mechanic. As a result, he was displaced as a
mechanic, but he was permitted to look for another job in the plant. After some
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
search he located and was appointed to an inspector's job in the box spring depart-
ment, where his rate of pay was $2.01 an hour and his code number was PLB.
This occurred in March 1960. He was discharged on November 8, 1960, because
his wages were garnisheed for nonpayment of taxes, but he was rehired on April 17,
1961, as a result of an arbitrator's award disposing of a grievance protesting the
discharge.
When he returned in 1961, he was assigned to inspection work in the peerless
department at the rate of $2.06 an hour, and thereafter performed inspection work
there and in the nat mar department until March 12, 1962, when he was transferred
to his original job of hand-knotter at $1.58 an hour. On April 8, 1962, Vince Naples,
his work leader, laid him off for lack of work. He has not since been asked to return.
In 1958 the Union and its Local 5676 started to organize Respondent's employees.
Richardson assisted by "getting cards signed." In February 1958, the Union and
its Local 5676 were recognized by Respondent. From then until February 14, 1962,
when the Union and the local were decertified, Richardson served as its financial
secretary. He also was elected chief shop steward in 1959, a position he held until
February 14, 1962; and he also was elected shop steward in the peerless department.
On behalf of the Union he also attended the decertification hearing held at the offices
of the Board in Philadelphia. Others present for the Union were its vice president,
recording secretary, treasurer, and chairman of the grievance committee. Its presi-
dent, Hugh Warden, did not attend. However, Warden was observed "in the office
of management" during the holding of the decertification election and the counting
of the ballots thereof.
After the Union lost the decertification election, Richardson continued to be active
on behalf of the Union.
Respondent contends and offered evidence that Richardson inspected so slowly
that he lagged behind in his work and caused a pileup, sometimes ceiling high, of
materials in the room. This slowed production. One inspector, Robert Davis,
who noticed the pileup, testified that when he talked to Richardson about this,
Richardson asked him to "hold it down" a little bit so that it would not look bad
for Richardson. Davis claims he reported this to Supervisor Bill Young. Davis,
who testified that his average production was about twice that of Richardson, also
testified that he often was asked to help Richardson.
Work Leader Vincent Naples testified that Richardson worked in his department
for 2 or 3 weeks and that he did a lot of work but of poor quality. On one of
Richardson's jobs, a customer named Aristocrat complained that the 2,000 pound
springs he made were "too low." Work Leader Francis Moore testified that
Richardson "could not do a job properly" and "was constantly behind in his work."
As a result, Moore warned Richardson "quite a bit," and almost every day had to
give Richardson a helper to assist him. Moore claims Richardson also "wandered
around" a lot. Work Leader Gincley testified that Richardson was "constantly
behind" in his inspection work, so that "every day we had to bring a helper down
to help him out." When the work piled up the women who fed him work to
inspect were deprived of their working area. Gincley discussed this with Richard-
son and also reported it to Assistant Plant Manager Bill Young and Plant Manager
Holzhauser.
Work Leader Collins described Richardson as one who "could be a very good
worker" but who (a) "argued over instructions given to him," (b) "produced too
much bad quality work," and (c) disobeyed or ignored company rules on break-
time, lunchtime, and morning reporting time. Early in 1958 Collins was told by
Plant Manager Holzhauser that Richardson "would be replaced" because he was
not dependable. Yet Richardson was not discharged because he was needed and
because Collins preferred to reform, rather than fire him. Nevertheless, although
Collins often talked to Richardson about his failings, the latter neither improved
nor tried to correct them.
In late 1961, Supervisor Bill Young called Richardson and Union Local President
Hugh Warden into his office and complained to them that Richardson was failing
in his job. According to Warden, Richardson "admitted" he could not do the
work. Later in the year Young complained to the two that units were stacked on
the floor because Richardson's inspections failed to keep up with production Young
testified that Richardson then said it was caused by too much inspection work for
one man.
B. Willie Mae Harrison
Harrison was originally hired by Respondent in 1946 or 1947 as a machine hand-
knotter in the peerless cushion department From 1950 to 1952 she was not at the
plant On her return she worked in both the peerless cushion and peerless special
departments as a knotter until she was laid off on April 11, 1962. About 4:30
NACHMAN CORPORATION 479
p.m. on that date Bill Young, whom I find to be a supervisor within the meaning
of Section 2(11) of the Act, told Harrison that she was laid off and to stay home
until she was called. Upon inquiry from Harrison as to the duration of the lay-
off Young replied that it would last from 3 to 5 days. She has not since been
notified to return to work.
Five others performing the same knotting work were also laid off at the same
time as Harrison. In seniority, she was "fourth down the list" in the peerless de-
partment "by our timecard numbers." While employed by Respondent her attend-
ance record was very good and her work was not criticized.
When the Union was organizing the plant in 1958, Harrison attended "all meet-
ings" and passed out union authorization "white cards." During the organizing
drive, Vic Holzhauser (Respondent's plant manager), whom I find to be a supervi-
sor under Section 2(11) of the Act, called Harrison to his office. One Charles
Kersting was also present. They asked her why she went to the union meetings and
what she thought the Union could do for her which they could not do. After the
Union became the collective-bargaming agent in 1958, Harrison was elected its
treasurer and remained such while the Union represented the employees at the
plant. As treasurer, she attended the decertification hearing. She also was elected
shop steward for the peerless cushion department but she resigned after a while.
Plant Manager Holzhauser has described Harrison as a "very good worker" whom
he refuses to take back because of a "personal" objection, which he considers petty.
This personal matter relates to Harrison's failure to recall a remark he made to
her alone at a prior time, and which developed when he subsequently asked her, at
a conference with union officials, to verify that earlier statement or remark made
to her alone. He referred to this as a slap in the face which stunned him, as he
expected her to confirm his prior assertion and thus his contention that he was falsely
accused of saying something else. However, Harrison was not disciplined or given
a written warning notice for her inability to remember this remark to her made by
Holzhauser.
C. Mary Baker
Baker was hired by Respondent on October 21, 1955, as a knotter in the peerless
special department. On April 9, 1962, Foreman Bill Young called a group of
employees, including Baker, to his office to inform them that they were being laid
off for 3 weeks for lack of work, and that they would then be recalled. Continuing
with his remarks, Young stated that the layoffs were made according to seniority.
However, she has not since been recalled.
In November 1961, Baker was laid off for a week, returning when the Company
so notified her by letter and also received a telephone call from Margaret Rickard,
a secretary in the front office. Her work was not criticized by her employer, ac-
cording to her. While employed by Nachman, Baker was elected as recording
secretary of the Union's local and, for a while, also served as the local's shop steward
in the peerless cushion department. As such secretary, among other things, she
sat in on all grievance meetings. During the short time preceding the decertifica-
tion election, she worked actively on behalf of the Union to preserve its majority,
and she also attended the hearing in connection with the decertification petition.
Baker's health has been poor. For `three years straight," from about 1958 to
1961, she was in a hospital, by her own testimony. She also took a leave of
absence from October 19 to 25, 1960, to attend a conference of District 7 of the
Union 2 in New York City, and from September 29 to October 6, 1958, for the
same purpose, and she also was absent on March 13, 1962, because her boy had
measles. Nevertheless, Baker contends that at no time was she warned in writing
by Respondent about her extensive absenteeism. All absences have been shown to
be excused, i.e., they were approved or sanctioned by the Company.
Respondent contends that Baker has not been recalled because of her inordinate
number of absences from work. Plant Manager Holzhauser testified that he spoke
to her about a dozen times on this subject. Nearly all her absences resulted from
illness, as noted above.
D. Helena Pagan
This employee was first hired by Respondent as a knotter in the peerless cushion
department in 1950. After leaving voluntarily in July 1953, she returned in August
1954, and was assigned to the same work. At some undisclosed period thereafter she
requested and was permitted to work as "first knotter in the middle line" in the peer-
less special department. On January 22, 1962, she obtained maternity leave.
2 The "five top officers" and the chairman of the grievance committee of Local 55675 also
attended this conference.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 25, 1962, while still on maternity leave, she reported to Respondent that
she would return to work the next day, but was informed that she should take a
temporary layoff until July 26 because "there are not many orders and it is the last
week before your vacation." Since her vacation was scheduled for the first 2 weeks
in July, she made no effort to return until July 16. On that date she went to the
plant seeking to ascertain when she should come back to work, but she was told
to remain on layoff "indefinitely" because there were "no orders for [her] work."
She has not been recalled since.
When the Union was engaged in organizing the plant, Pagan obtained signatures
to a few cards. At that time, Victor Holzhauser, Respondent's plant manager, called
Pagan to his office. Accusing Pagan of being a "trouble maker," 3 Holzhauser con-
tinued that he should fire her. During the conversation he also mentioned the
Union and asked her if she had signed a union card. When Pagan told him to "go
ahead and fire me," he replied, "I can't, but I will get rid of you sooner or later."
After the Union was recognized in 1958, Pagan was elected to its grievance com-
mittee. She retained that position until September 1961 when she resigned because
she was expecting a baby. In May and November 1961 Pagan was laid off for
short periods of time. On each occasion she was recalled to work both by telephone
and letter.
Pagan 's absentee record, according to her, "was not too good" from 1954 to 1957.
She was also absent for long periods in 1959, 1960, and 1961. She contends that
these were not only approved or granted by Respondent, but at no time was she
warned in writing that her absences were excessive or that they might lead to
suspension , discharge, or refusal to recall after a layoff.
Respondent objects to further employing Pagan because of her immoderate
absentee record, in principal part caused by illness. From August 3 to 10, 1959, and
August 8 to 12, 1960, according to Respondent's records, Pagan obtained authorized
leave of absence for "union activities." Her other absences also are shown to be
either approved or excused. The record also discloses that Pagan was not given
written warning notices, although Holzhauser testified that he has talked to her about
her absences.
E. Domingo Perdomo
Perdomo was originally taken on by Respondent in 1952 as a borderwire machine
operator in the peerless cushion department with code number BW 1175. A year
later, having learned to twist on his own, he was made a twister in the same depart-
ment. This last job resulted in increased wages. He quit in 1956, returning in 1957.
Beginning in 1957, he was assigned to various jobs, including the operation of
a machine in his department and hauling scrap to the baler. At the time of the
decertification election he was working as a twister in peerless cushion, and stayed
therein until he was laid off in March 1962. The day before he was laid off, Foreman
Bill Young told him not to come in again until he was notified to do so. He has
neither been notified by nor received any communications from Respondent since
then, nor has he since been recalled to work.
In 1958, Perdomo was elected shop steward in peerless special and in 1960 he
became vice president of Local 5676.4 At some time in 1961, Art Green, Respond-
ent's machine shop foreman and a supervisor under Section 2(11) of the Act,
"walked in" while Perdomo was talking to President Hugh Warden of Local 5676
about a petition in Warden's possession to get rid of the Union. Green saw the
petition in Warden's hand. Then Green asked Perdomo if Perdomo was going to
support or take care of employees who became unemployed. After a heated argu-
ment , Green shouted at Perdomo "just because [you] are union officers [you] mean
to run the plant." During this time employee Mabel Hiddelson struck her name from
the petition in Green's presence.
Respondent contends that Perdomo's record as one who not only "fooled around
so much" 5 but also who did not produce as much as he could have justified the
refusal to take him back.
In this connection, Respondent's evidence discloses that Perdomo often left his
work area and went to the men's room, sometimes threw gloves at employees as a
frolic,6 wandered around from department to department, quite frequently talked to
3 This statement was stricken on motion of Respondent. It is narrated only because it
gives continuity to the entire conversation. It has been entirely disregarded in making
findings herein.
4 As vice president he attended the decertification hearing.
s This language is taken from the testimony of employee Mabel Hiddelson.
6 Other unidentified employees joined him in this.
NACHMAN CORPORATION 481
ether employees while they were working, and, on occasion, broke gears and tore
down a machine because he did not like to work on a particular line. As a result
of this inattention to duty, Perdomo's work often piled up so that the next employee
in the line, Mabel Hiddelson,7 did some of his work to "keep the thing cleaned up."
And employee Grube, who fed work to him, sometimes had to "go home" because
of lack of space to place her "units." In fact, although Grube "many a time" scolded
Perdomo because his failure to do the work caused her to go home, he "would take
it as a matter of a joke."
Respondent's evidence also indicates that, prior to the advent of the Union,
Perdomo worked "pretty hard," and that his unsatisfactory behavior was displayed in
the last 3 or 4 years of the Union's representation period. Supervisors Bill Young
and Denny Moore also reprimanded Perdomo for his conduct. In 1961, Foreman
Young complained to Union President Warden that Domingo had disobeyed Young's
insistence that Domingo not leave his work area.
F. Robert Scott
In 1956, Scott started employment with Respondent in the hard goods depart-
ment with job code DD. A year later he was transferred to the japan room, where
he was employed for 5 years. Just before his layoff in April 1962, Scott also
performed duties in the hard goods and the zigger departments.
On April 8, 1962, as he was packing ziggers, he observed his brother and Work
Leader (Charles Scott) talking to Plant Manager Holzhauser and Supervisor
Vincent Naples. As Charles approached Robert, the latter greeted him by saying,
"You don't have to tell me. I am laid off." Confirming this, Charles also said that
he was directed to do so by Holzhauser, and added that Holzhauser stated it resulted
from lack of work and that Robert would "definitely" be called back to work. He
has not been recalled
For a time, Robert Scott served on the Union's grievance committee, and then
became its chairman. He also was elected as the local's shop steward in various
departments of the plant. He attended the decertification hearing and, when the
decertification election was held, he acted as an observer for the Union. A week or
so later Plant Manager Holzhauser stopped at Scott's work table and informed
Scott that Bert Hough, "staff man for the Union," had just requested that union
dues be checked off for the month. Scott insisted that Hough's position was right.
Thereupon Holzhauser threw up his hands and exclaimed, "Jesus Christ, the Union
is out of here and you are still fighting the battles for them."
Respondent's evidences recognizes that Robert's duties in the japan room required
him to go "all over the plant." In addition, Robert's functions as chairman of the
grievance committee required his presence in many parts of the plant. But Re-
spondent contends that Robert Scott was not recalled because he remained away
from his assigned tasks too long. His work leader, Charles Scott, described him as a
good worker, but complained that Robert wandered around the plant and " spent too
much time holding other people up on their jobs." Although Charles talked to
Robert about this,8 and Robert promised to "knock it off," Robert nevertheless
persisted in this conduct. In fact, Charles claims he told Plant Manager Holzhauser
about it, and Holzhauser at least once spoke to Robert in the presence of Charles
on the subject. Nevertheless neither Charles nor Holzhauser gave Robert a written
warning notice for such malfeasance.
Respondent's evidence further indicates that Robert, as chairman of the grievance
committee, obtained permission of his work leader to leave the japan room to
investigate grievances. But Respondent insists that since February 14, 1962, when
the Union was decertified, Robert stayed away from his work too long; and that this
also occurred prior to February 14, although not so frequently. Thus, although
Robert's work necessarily brought him to other departments, he did more than just
perform tasks in these other places by talking to employees there for such periods
_that the supervisors in these departments reprimanded him .9
7 Hiddelson testified that she took a 5-minute break every half hour, although she "was
not supposed to." Hiddelson also complained to Union President Warden that she was
losing money because Perdomo did not remain at his machine to work.
8 On one occasion Robert so upset two female employees working for Work Leader
Gincley in another department that Gincley requested Charles "to get him out of my
department "
0 One of the supervisors who so reprimanded, Vincent Naples, talked to other super-
visors about it but not to "management."
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When Work Leader Wallace Collins had charge of the japan room he found that
in "several instances" Robert ran certain materials too long in the ovens, thus cutting
down production. Collins also claimed that Robert wandered around too much.
G. George D. Thomas
In December 1952, Thomas was hired as an inspector in the nat mar mattress
department. Six weeks later he was transferred to the shipping department. After
quitting in about 5 months, he was rehired in 1953 as an inspector in the box spring
department, where he remained for about 2 months. Then he became a spinner in
the box spring department for about 2 years, after which he again quit. About 2
years after this, he was rehired but was laid off for about 2 months in 1958.
He returned in April 1958 when the Union insisted upon his rehire as a condition
to executing a collective-bargaining contract. His classification then became MM,
box spring department. From then until December 1961 he worked in sundry
departments. On December 14, 1961, he was laid off. On February 2, 1962, he
was recalled and assigned to the receiving department. About 11: 15 a.m. on March
16, 1962, Plant Manager Holzhauser personally laid him off giving as the reason that
the shipping and receiving departments had been consolidated. Holzhauser invited
him to look around the plant to ascertain if other work was available. He has not
since been recalled.
At the advent of the Union, Thomas campaigned on its behalf by soliciting mem-
bership at the homes of employees and distributing union cards at the plant. He
also attended union meetings during that same period. After the Company recog-
nized the Union, Thomas became chairman of the local's grievance committee for
18 months and a member thereafter, chairman of its safety and health committee,
chairman of its trial committee, and a member of its legislative committee.
In 1961, while processing a grievance for an employee as a member of the
grievance committee, Thomas and Foreman George Bellgrau `had words." As a
result Bellgrau remarked that "if it is the last thing I do, I am going to get you."
Later in 1961, about July, Bellgrau told Thomas, "We can't find a way to get rid
of you."
Thomas, with employees Joseph Richardson, Domingo Perdomo, and Helena
Pagan, also attended a course on Labor Education at Pennsylvania State University
1 week a year for 4 years.
According to Respondent, the receiving department, in which Thomas was em-
ployed, was combined with the shipping department as a result of which some jobs
were eliminated. This required those with the least seniority, one of whom was
Thomas, to be laid off. He has not since been recalled, according to Plant Manager
Holzhauser, "for a loss of work which was due to business cutbacks, and his job
was eliminated."
H. John A. Clark
Clark was first hired as an inspector in the nat mar and box spring departments
in about 1948 or 1949. About 18 months later he left and returned again as an
inspector in about October 1955, at a rate of $1.58 an hour. In 1959 he was
promoted to senior inspector, with a code designation of PSI and a rate of $2 25
an hour. He also in his spare time ran the rotary baler and flat baler. At one time
Clark was chairman of the local's safety and health committee for 3 years, and
was the shop steward of his department at the time of his layoff. About quitting
time (4.25 p.m.) on March 6, 1962, Supervisor George Bellgrau told him that he
was laid off for lack of work. Clark has not since been recalled.
About the last week of January 1962, Foreman Bill Young paged him over the
public address system, and Clark responded by going to Young's place. When
Clark arrived Young stated that he heard that Clark was campaigning for the
Union 10 in the coming decertification election and wanted to know why he was
doing this since Clark had been "treated right in the past." Young ended the con-
versation by asking Clark "to think it over."
According to Clark, Frank Wilson," who had less seniority than he, has been
called back as an inspector. Respondent contends that Clark's work is now be-
ing done by employees engaged in other work who inspect on a part-time basis. As
a result of lack of business, according to Supervisor George Bellgrau, the working
10 Clark actually did campaign for the Union and, on election day, acted as a whip or
"runner" to get employees to vote at the polls
11 Frank Wilson, who, according to Bellgrau, had seniority over Clark as an inspector,
left in 1961 and returned later. If material, I find that Wilson quit his employment even
though he stated he would later come back.
NACHMAN CORPORATION 483
force was cut to the point where he had two men, and that was "a half man too
much." Hence he had no job for Clark and reluctantly let him go. Bellgrau testi-
fied that the production work spinners are now performing inspection work be-
cause "it is easier to lay off one man and I needed spinners." Clark cannot spin.
When business is good, as it sometimes is in spurts, the spinners are so busy they
cannot inspect. In such cases, Bellgrau uses as inspectors At Boyd, a baler, or
Jim Winfield, the helical machine operator, or Hugh Warden, or if all these three
are occupied, will borrow an employee from another department.
I. Eugene Allen
About August 1955, Allen started working for Respondent as a borderwire
straightener in its hard goods department under code DD. Sometime thereafter
he was successively transferred to the upholstery and the nat mar departments,
where he ran coilers on a GA code. In November 1961, he was assigned to the
econoflex department under a TE code. He "bumped" into this job to obtain an in-
crease in pay. After a while in econoflex, Allen bumped into the peerless depart-
ment where he worked for a short while and then returned to econoflex. He was
then laid off but was recalled by Respondent in January 1962. When the Union
was recognized in 1958, Allen served as the local's inside guard. Later he became
"Chief of the Shop Stewards" and from 1959 until he was laid off he was a mem-
ber of the local's grievance committee.
On February 22, 1962, about 3 or 3:30 p in. Work Leader Nayles told him that
he was being laid off because "they were short on orders," but that "as soon as
we get work in . . . upholstery, we will give you a call." Although he asked for
permission to bump, nothing was done about it. Allen has not since been recalled.
In 1960 or 1961, Chief Inspector Bill Young found that Allen's coils "were not
right." Allen asserted that he was written up about six times for this, i e., he
received a written warning with a copy thereof being placed in his personnel file,
but claims that only two warnings "remained" and that four were "set aside."
Allen contends that most of his bad work was caused by defective wire supplied
to him, and that such wire inevitably led to unacceptable work. He does con-
cede that he properly was "written up" twice and that he was also given a dis-
ciplinary layoff of a half day for one of these written notices. Allen's employee
file discloses that he received one written warning notice for "disobedience," four
for defective work, and one for leaving the building during working hours without
permission.
Allen's reinstatement is opposed by Respondent on the ground that, as testified
to by Work Leaders Vincent Naples and Wallace Collins, the quality of the work
he performed was good at times and at times poor. According to Naples, Respond-
ent's customers who used merchandise which Allen "made" complained about its
condition, and Naples relayed this information to Allen "about five times a week."
Each time Allen promised to "correct it " Naples further testified that Allen's
defective work for which he was criticized resulted from Allen's fault (bad sizes
or wrong sizes), and that he was not reprimanded whenever bad work developed
from break wire (a condition for which the material, and not Allen, was respon-
sible.) Naples reported to Supervisor Bill Young about the quality of Allen's
work.
According to Work Leader Francis Moore, Allen "turned in" more production
"everyday" than he actually put out, i.e., Allen claimed credit for work not done.
Moore claims he reported this to Assistant Plant Manager Bill Young. In Young's
opinion Allen's work was often "sub-standard" and sometimes "it would have been
better had it not been made at all." According to Work Leader Wallace Collins,
Allen's poor work slowed down the other operators to whom his materials were
fed so as to cause them "to lose piece work earnings."
J. Donald E. Milbourne
This employee was first hired as a clip machine operator in 1955 in the resto
department with a YA code number. Quitting 3 months later, he returned in 1957
as a TB operator in the newo web department. Thereafter he was assigned to vari-
ous jobs. During the time the Union was recognized, Milbourne served as shop
steward in the newo web department.
On February 28, 1962, he was laid off for lack of work by Work Leader Gincley
from the newo web department, along with Domingo Perdomo and Estugio Santiago.
Gincley informed him that it would be "temporary" and that they would be called
back in a couple of weeks. He has not since been recalled. His base pay was
727-083-64-vol. 144-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$1.56 an hour but, being on piecework, he averaged $2.05 an hour when laid off.
He testified that he never received any complaints about his work; but he admitted
that he was "written up" twice, each time for being delinquent in payment of taxes.
He was never disciplined.
Respondent objects to taking back this employee because, although "he did do
work while he was there,... he would quit early," and rest on the ramp.12 Although
official quitting time was 4:25 p.m. Milbourne would stop working at 4 p.m. and
punch out at 4:30 p.m. "if he felt he had earned enough money that day." This is
supposed to have occurred two or three times a week. Although Work Leader
Gincley often scolded Milbourne about this, the latter ignored Gincley. As a result
Plant Manager Holzhauser "growled" at Gincley for Milbourne's premature leav-
ings. Respondent also caught Milbourne punching in another employee's timecard,
a fact which he admitted.
In addition, Respondent contends that Milbourne's recall would be undesirable
because his wife visited him at the plant about three times a week during working
hours, usually to fetch him a lunch. She persevered in this habit even after Gincley
told Milbourne that the Company did not permit such visitations. Holzhauser
gave Gincley "heck" often for not controlling this situation.
K. Marguerite Hawkins
Hawkins commenced employment with the Company in 1955 as a spring-up
girl, code MJ, in the box spring department. In November 1957 she was laid off
but was recalled by telephone in May 1958. In October 1961, Plant Manager
Holzhauser told Hawkins and the five other employees in box spring that they were
being laid off because the department was being abolished as a money loser. In
1958 Hawkins aided the Union organizing attempt by attending its meetings and
actively solicited employees to join it. Thereafter she became shop steward in
box spring and also served as acting secretary of the Local for about 4 months.
She was fifth in seniority in box spring. Although Hawkins requested permis-
sion to bump when box spring was abandoned, this was denied 13 her. Nevertheless
employees Pearl Young and Helen Brady bumped to newo web. Each outranked
Hawkins in seniority, however.
According to Hawkins, box spring has reopened, but she has not been recalled.
The employees therein, she maintains, are not former employees but, rather, "com-
pletely new people, but the operation is the same." However, this department was
reopened on an experimental basis only.
Respondent has no objection to rehiring Hawkins if and when work is available.
But it contends that there is now no job to which she can be assigned.
Concluding Findings Common to the Entire Case
1. As to seniority
Prior to the advent of the Union, Respondent, as declared by Plant Manager
Holzhauser (whom I credit in this respect), had no seniority policy; while the Union
was recognized, Respondent observed a seniority practice pursuant to contractual
provisions in the collective-bargaining agreement; and, after that contract became
inoperative following the decertification of the Union, Respondent discarded its
seniority practices.
2. Warning notices
Beginning in 1957 or 1958 , Respondent inaugurated a written warning notice sys-
tem whereby an employee was warned in writing for infractions of rules and dis-
charged after a third written warning.14 However , no uniform method was followed
in giving such notices ; often an employee would be orally informed of his infraction.
But when a written notice was given to an employee a copy thereof was placed in his
file and , during the period of union recognition , a copy also was transmitted to the
Union.
3. Rehabilitation policy
According to Respondent's officials who testified, it was the Company's policy
not to discharge employees who were derelict in work performance or otherwise
>z Milbourne concedes this.
"The General Counsel does not claim that this denial constitutes an unfair labor
practice.
14 This was later modified, at the request of the Union, to a disciplinary layoff of
2 weeks.
NACHMAN CORPORATION 485
merited disciplinary action for infraction of rules. This was considered preferable or
desirable, because it was felt better to retain an employee with the hope of correct-
ing his faults. But I find such a policy did not exist on the evidence before me.
Not only were many employees discharged without any conscious efforts to retain
them for the purpose of rehabilitating them,15 but also, with respect to excessive
absenteeism, it is patent that excused absences (no matter how heavy) were never
regarded as grounds for disciplinary action.
Accordingly, I find that, insofar as Respondent's explanations of its failure to dis-
charge the employees involved herein prior to their layoffs are based on a policy of
rehabilitation, they are not well taken because I find no such policy existed.
4. Union animus
It is patent, and I find that Respondent's officers and supervisors displayed opposi-
tion to the Union both orally and in writing. While I recognize that Section 8(c)
protects the right of an employer to oppose unions, it does not insulate his utterances
from being evaluated in the light of pronounced hostility to unions. International
Brotherhood of Electrical Workers, Local 501, et at. (Samuel Langer) v. N.L.R.B.,
341 U.S. 694, 701. Nor does 8(c) immunize statements either false 16 or contain-
ing promises of benefits.17 Accordingly, I have taken this antiunion attitude into
consideration in appraising 18 the individual cases hereinafter analyzed. N.L.R.B. v.
Audio Industries, Inc., 313 F. 2d 858 (C.A. 7), is distinguishable.
5. Knowledge of union activity
Without reciting the relevant evidence or reiterating the pertinent subsidiary find-
ings above, I am of the opinion, and find, that Respondent had knowledge that all
the alleged discriminatees were active as officers or committeemen of the Union,is
and that this fact entered into the decision of Respondent not to recall any of them.
Cf. General Medical Supply Corp., 140 NLRB 712.
Concluding Findings as to the Individual Employees
1. Joseph E . Richardson
In my opinion , Rachardson has not been recalled because he was active on behalf
of, and held high office in, the Union's local. I so find; and I further find that this
is embraced within the proscription of Section 8(a)(3) against discriminatory treat-
ment of employees. I am not unmindful that Richardson often miserably failed to
meet minimum quantity standards expected of him as an inspector , and that when
he worked on production he sometimes turned out work of inferior quality; that he
reported for work late many times; and that he was "written up" or given written
warning notices several times on account of the foregoing shortcomings.
Yet, in spite of the existence of adequate cause for Richardson's discharge,20 he
was retained for years and, when he was laid off, it was not as a disciplinary measure;
nor was he, at the time of his layoff, reminded of his failings as an employee. And
at no time since has he been informed that he was not being recalled because of
such inadequacy as an employee.
On the other band, he is one of the "top five" officers of the local and he rep-
resented the local with other top officers at the decertification hearing. Moreover,
is See General Counsel's Exhibit No. 11.
le Respondent's literature urging employees to repudiate the Union in the election of
February 14, 1962, contains assurances that contract benefits will be preserved. Yet
seniority was discarded as soon as the Union lost the election.
11 Said literature also promises no reduction of wages, fringe benefits, or working condi-
tions "regardless of the outcome of the election."
1s In this connection I have disregarded evidence of antiunion animus in 1958. Although
it was received, I am of the opinion that such evidence is too remote to aid as background.
10 Respondent does not argue to the contrary.
20 On January 22, 1959, for example, Plant Manager Holzhauser wrote Richardson re-
garding his tardiness, reminded him he was "setting a very bad example for the rest of
the members to follow . . . In view of your union standing," and warned that repetition
of it would "leave us no alternative except to process you on this tardiness " And on
October 6, 1960, Supervisor Bill Young wrote to the president of Local 5676 that Richard-
son had not improved and requested a meeting to discuss "proposals on discharge." In
this letter Young referred to Richardson as "the Financial Secretary of this Local [who]
has an obligation first as an employee of this Company . . . .
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent has not hesitated to discharge for cause in the past, as when Richardson
was fired for wage attachments. Further he was told that he was laid off for lack
of work, thus giving him reason to believe that he would be recalled and that his
status as an employee had not been impaired.
Hence, on the record as a whole and the above-mentioned items, I find, as stated
above, that the failure to recall Richardson violates Section 8(a) (3).
2. Willie Mae Harrison
It is difficult to understand why Harrison has not been recalled. She has been
acknowledged as a very good worker by the plant manager. While it is true that
the plant manager has testified that Harrison is obnoxious to him for a lapse of
memory on her part which stunned him, I am unable to accept this testimony as
offering the true explanation for her not being recalled. Not only did the plant
manager fail to reprimand or discipline Harrison at the time, or at any other time,
for this so-called reprehensible conduct, but he has never told her about her figurative
slapping of his face. In fact, the first time that Holzhauser disclosed this as a reason
for refusing to reemploy Harrison was at the hearing. Moreover, I credit Harrison's
testimony that at the time she was laid off she was told it was only a temporary
matter of 3 to 5 days, and that she would be called back to work. However, I find
that cause existed for her discharge, even though Holzhauser characterized such cause
as "petty."
Accordingly, I reject Respondent's explanation of why Harrison has not been
permitted to return to work. This of course does no more than erase a defense;
it is insufficient in itself to establish a discriminatory motive for the refusal to recall.
The burden of proof still remains on the General Counsel to sustain this segment
of the complaint. "At all times, the burden of proving discrimination is that of
the General Counsel." Rubin Bros. Footwear, Inc., et al., 99 NLRB 610, 611.
On the other hand, I find that Harrison has not been recalled because she was
active on behalf of the Union both as a shop steward and as its treasurer 21 This
finding, based on the entire record, is supported by the following factors:
(a) Respondent openly opposed the Union and was decidedly antiunion.
(b) Respondent has since hired numerous new employees, many of them in-
experienced, when it would be reasonable to expect that it would prefer an experienced
hand over raw recruits.
(c) Respondent's excuse that it does not want Harrison back for reasons personal
to the plant manager is not credited.
(d) All officers active on behalf of the Union immediately preceding and at the
time of the election have yet to be recalled. While it is true that some present em-
ployees are former union officers, including Hugh Warden, its president, I find that
none of this group actively supported 22 the Union during the period above mentioned,
and that the terms of office of many of them had long since expired. Hence the fact
that some former union officers are still employed does not undermine the conclu-
sion that not one union officer active on February 14 on its behalf has been recalled.
(e) Harrison, as one of the local's five "top" officers, attended the decertification
hearing on behalf of the Union.
3. Mary Baker
Baker's defection as an employee has been her excessive absenteeism, chiefly due
to her health. I find that she did stay out of work for longer periods than the
average employee, that this was discussed with her by her superiors, and that this
constitutes cause for discharge. Nevertheless I find that Baker has not been recalled
because of her activity on behalf of, and her holding a high position, in the local. This
conclusion is based upon a critical analysis of the entire record and the following
factors:
(a) Although cause existed for years to discharge Baker, she was never dis-
missed. Cf. The Richard W. Kaase Company, 141 NLRB 245.
(b) On the occasion of her layoff, no mention was made of her demerit as an
employee flowing from her absenteeism. Rather she was told that she was being
temporarily let go for economic considerations and that she would be recalled in
about 3 weeks.
n The treasurer is considered one of the five "top officers."
22 In fact Warden did not attend the hearings on the decertification petition, although
all the other top officers did. And some in this group of former officers actively supported
the petitioner in the decertification proceeding by endorsing, or working for, the petition,
or both.
NACHMAN CORPORATION 487
(c) Not only has she not been recalled, although new employees have since been
hired, but at no time has she been given to understand why she has not been asked
to return. In fact, the record shows that the first time she became aware that she
had been removed from a laid off status is when her superiors testified in this pro-
ceeding. I do not credit that part of Respondent's testimony that Baker's absenteeism
is the real cause for her not being recalled.
(d) She was active for the local, both as one of the five top officers and as a
representative of the Union at the decertification hearing
(e) None of the top officers active for the Union have been recalled. While it is
true that one of the top officers, President Hugh Warden, is still employed by Re-
spondent, this circumstance is unimpressive, for he did not actively espouse the
Union. Warden not only was conspicuously absent from the decertification hearing,
but he also (1) testified for Respondent, thus indicating probable lack of sympathy
with the Union, (2) he did not in any way aid the Union in resisting decertification,
and (3) some witnesses regarded him as "close" to management. Manifestly he
was not an active union officer.
4. Helena Pagan
Like Baker, Pagan's absences from work have been abnormal. Although this
affords unassailable grounds for discharging Pagan, it is patent that she was neither
discharged nor otherwise disciplined therefor during the period of her employment.
Nor do I credit Respondent's testimony that Pagan has not been recalled because
her absenteeism would interfere with a proper scheduling of the work. Instead I find
that she has not been called back because of her union activity and her being a
member of the local's grievance committee. While this finding is based on the entire
record, it also emerges from the following factors:
In May and November 1961, Pagan was laid off for short periods, but each time
she was recalled to work when it became available 23 It would have been simple
to avoid her recall by referring to her absenteeism; but she has not been recalled
following her last layoff notwithstanding that new employees have been hired since
then.
(b) At the time of her attempted return subsequent to maternity leave granted
her, she was placed on layoff status until July 26. No objection was then voiced to
her poor attendance record. And on July 16, when she inquired as to the date of
her recall, she was informed her layoff would remain indefinite because of a lack
of work. It is reasonable to expect that she would then be denied further employ-
ment based on her absenteeism; yet it was not even mentioned.
(c) At no time was her attendance record conveyed to her as a reason for the
failure to recall her. In fact it was first disclosed as the reason at the hearing in this
proceeding.
(d) None of the active officials of the local, a total of 11 persons, has been re-
called. Pagan is 1 of these 11.
5. Domingo Perdomo
While I find that the record reveals adequate cause for Perdomo's discharge,
I nevertheless find that he was never discharged or otherwise severely disciplined for
his many faults While it is true that his personnel file contains several warning
notices for "disobedience, attitude"; many failures to wear safety glasses, once when
an insurance inspector was inspecting the plant on October 18, 1961; and wage
attachments; it is equally true that no drastic action was enforced against him
when he was employed. I find that Perdomo has not been recalled for reasons
associated with his union activity and his holding a top office in the local, and that this
amounts to discrimination under Section 8(a)(3) of the Act. This result is based
upon the record as a whole and the factors enumerated below:
(a) At the time of his layoff Perdomo was told that he would be notified when
to return, nothing was said about his derelictions as an employee.
(b) At no time since his layoff has Perdomo been informed that he will not be
recalled because of his deficiency as an employee. In fact, this deficiency was first
delineated at the hearing in this case, so that, until then, he labored under the im-
pression, instilled in him by Respondent, that he would be recalled.
(c) He was one of the local's five top officers and attended the decertification
hearing on behalf of the Union.
(d) I do not credit Respondent's testimony that Perdomo has not been recalled
because he became an obnoxious or undesirable employee, although I do credit its
13 The evidence shows that the Company usually recalled laid-off employees in the past.
Cf General Medical Supply Corp., 140 NLRB 712.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence and find that he left his work area without permission, threw gloves at em-
ployees, wandered from department to department, broke gears intentionally, and
often would not wear safety glasses when required to do so.
(e) Not one of the laid-off 11 active union officers, among whom Perdomo is
included, has been recalled although many new employees have been hired.
6. Robert Scott
It is manifest, and I find, that Scott's work and his duties on the local's grievance
committee often demanded his presence away from the japan room, where he was
regularly assigned. Nevertheless I also find that Scott often unnecessarily wandered
around the plant; that on many occasions he neglected his regular work and his
union duties by engaging in unrelated conversations with employees; that complaints
were made about this; and that his superiors several times orally warned him that
such wanderings and conversations were prohibited during working hours. It is my
opinion, and I find, that these constitute grounds for dismissal or severe disciplinary
action. Nevertheless I do not credit Respondent's testimony that Scott has not been
recalled because of his above-enumerated misdeeds or for his defective oven work.
Upon the entire record and the ingredients particularized below, I find that Scott
has not been recalled because of his union activities and his holding of union office,
and thereby suffered discrimination prohibited by Section 8(a)(3) of the Act:
(a) Notwithstanding the serious nature of his inattentions to work requirements,
and the frequency of their occurrence, Scott was neither disciplined nor "written up"
therefor. At most, he was given oral reprimands. The record shows that the only
written warning notice marring his record is a tardiness demerit dated May 19, 1960.
(b) His immediate supervisor referred to him as "a real good worker when he
worked." Since he is a good worker, it is reasonable to infer that his prior offenses,
which had not even resulted in his being "written up," 24 have been resurrected now
for reasons of union activity and prominence of union office.
(c) At the time of his layoff Robert not only was informed that he definitely would
be called back to work, but no allusion was made to his wanderings or his talks to
employees as impediments to his recall. In fact, such failings were not mentioned
as obstacles to his return to work until Respondent's supervisors testified at the hear-
ing herein.
(d) Robert as a member of and later as chairman of the grievance committee,
as a shop steward in various departments, and as a representative of the Union at
the decertification hearing, was active on behalf of the Union, although he was not
one of the so-called "five top officers" of the local. He was thus 1 of the laid-off
11 active union officers who has not been recalled, although many new hires have
been taken on. I deem it more than accidental or coincidental that not 1 of these
11 has been invited to return to work notwithstanding the employment of scores
of new employees.
7. George D. Thomas
As narrated above, Thomas served as chairman of the local's grievance committee
for 18 months, and also as a member of that committee and three other committees.
I find that he has not been recalled because he was an active union officer, and
that thereby he has sustained discrimination outlawed by Section 8(a)(3). In this
respect, I have relied upon the entire record and the following elements:
(a) There is no intimation that Thomas presented any disciplinary problems to
management or that he was unable to perform the tasks assigned to him. Hence I
must presume that the quality of his work and his working habits did not merit
criticism.
(b) Thomas had been laid off before, and was recalled to a different job. Yet,
although he was again laid off on March 16, 1962, he has not been recalled despite
the fact that new employees have since been hired.
(c) Not only has Thomas acted in several capacities as an officer of the local, but
he also attended labor courses, on behalf of the Union, at Pennsylvania State
University. He also appears to have been energetic while serving on its grievance
committee. In fact, Foreman George Bellgrau warned him during a grievance dis-
cussion that "If it's the last thine I do, I am going to get vou."
(d) All 11 active union officers who were laid off had remained in that status
when this hearing opened. Thereat for the first time reasons were advanced for
24 Charles Scott, Robert's work leader, explained this by saying be was lenient toward
bis brother. But no reason has been advanced for the failure of the plant manager or
assistant plant manager, who were cognizant of Robert' s alleged misconduct , to write up
or give a written warning slip to Robert.
NACHMAN CORPORATION 489
their not being recalled. It is significant that all 11 are active officers of the local
and that previously not 1 had been apprised of the reasons for not being recalled 25
8. John A. Clark
In my opinion, Clark has not been recalled because he was an active officer in
the Union. I so find; and I further find that such failure to recall constitutes dis-
crimination as contemplated by Section 8(a)(3). This conclusion is based on the
record as a whole and the following:
(a) Clark's work was satisfactory. He has not been recalled, according to Re-
spondent, solely because his job was eliminated 26 as a result of a "cut back in his
department." Nevertheless, Respondent has since hired new employees.
(b) Clark has been a job steward for, has held other offices in, and acted as a
campaigner and runner during the decertification election for, the Union.
(c) Foreman Bill Young unlawfully interrogated Clark in January 1962 about
Clark's campaigning for the Union in the approaching decertification election, and
expressed displeasure at this activity of Clark.
(d) None of the laid-off 11 active union officers, of whom Clark is 1, has been
recalled.
9. Eugene Allen
According to Assistant Plant Manager Young the failure to recall Allen is due
solely to the fact that "he produced a lot of poor quality work." Nevertheless,
while employed he was not discharged for it; in fact he was given a disciplinary
layoff and then permitted to resume his "sub-standard" work upon his return. Nor
was he ever told that his poor quality work (which I find he did produce and which,
on occasion, caused a customer of Respondent to complain about the product de-
livered to it) stood between him and his recall. Actually, when he was laid off he
was informed that he would be given a call as soon as business picked up. Not
until the hearing did Respondent manifest to Allen that he was no longer wanted
because his work failed to meet specifications.
Accordingly, I reject the explanation of Respondent that Allen's ineptness at work
has prevented his recall. Further, I find that Allen has not been recalled because
he occupied union office and engaged in union activity, and that such failure to
reemploy contravenes Section 8(a) (3) of the Act. This finding, based on the record
as a whole, flows from the matters mentioned in this subsection 9 of the Intermediate
Report and the following additional considerations:
(a) Allen has served as chief shop steward, job steward, and member of the
local's grievance committee.
(b) None of the local's 11 active officers, including Allen, has been recalled.
(c) Allen's poor quality work has been condoned by his continued employment
notwithstanding knowledge by Respondent of his consistently unsatisfactory work.
10. Donald E. Milbourne
Undoubtedly Respondent would have been justified in dismissing Milbourne for
sitting on the ramp, quitting early, punching another employee's timecard on one
occasion, and disrupting the orderly operation of the plant by persistently receiving
his wife as a visitor; and I so find. His file also shows several written warnings for
wage attachments, one of which bears the legend that disciplinary action was waived
by Respondent. Yet I am unable to find that any one or more of the above de-
faults have prompted Respondent not to recall him. Accordingly, I do not accept
Respondent's exposition that Milbourne's above shortcomings have precluded his
reemployment.
On the other hand, I find that Respondent refused to consider Milbourne for re-
employment because of his union activity, and that this type of discrimination is
comprehended by Section 8(a)(3) of the Act. As noted above, Milbourne had been
active in the Union as a shop steward, and he was well known to Respondent in
such capacity. The record is devoid of evidence that the quality of his work was
unacceptable; in fact, his superiors state that be did good work. And the record
does show that scores of new employees have since been hired. Moreover, he
was informed that he was let go for lack of work and that he would be called back
15 It is no defense that no job is available, as that is a subject of inquiry at the com-
pliance stage, Shawnee Industries, Inc., Subsidiary of Thiokol Chemical Corporation,
140 NLRB 1451.
0 See footnote 25, supra.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a couple of weeks; not until the hearing did he learn that his alleged failings
had become his downfall. Then again, he was not discharged when Respondent
had cause to justify such recourse. This amounts to condonation. Finally, he is
1 of the 11 active union officers who have not been recalled, which, in my opinion
(and I find) evidences a policy by Respondent not to employ persons recently active
as officers of the Union. Cf. Shawnee Industries, Inc., Subsidiary of Thiokol Chemi-
cal Corporation, 140 NLRB 1451.
11. Marguerite Hawkins
Manifestly Respondent has no complaint regarding Hawkins and is willing to take
her back. But it claims no job is at its disposal to offer her. I am unable to accept
this asserted vindication, and find that it does not depict the actual reason for the
failure to recall her 27 Further, I find that Hawkins has not been rehired because
of her union activity as incorporated in her capacity as job steward and acting
secretary of the local, and that such failure to recall her constitutes discrimination
within the purview of Section 8(a)(3) of the Act. This conclusion, based on the
whole record, also is derived from the following factors:
(a) Hawkins has been active on behalf of the Union and its local as an officer.
(b) Respondent displayed hostility to active union officers
(c) None of the 11 active union officers laid off, which group includes Hawkins,
has been recalled.
(d) Respondent's declaration of no available work is not the true reason for
its unwillingness to ask Hawkins to return to work.
(e) A large number of new employees have been hired since the layoff of
Hawkins.
(f) Respondent may not interpose as a justification that no vacancy exists for
Hawkins. . . an employer must consider a request for employment in a lawful,
nondiscriminatory manner, and the question whether [a person] has been given such
consideration does not depend on the availability of a job. Consequently, the Act is
violated when an employer fails to consider [a person] for employment for reasons
proscribed by the Act, and the question of job availability is relevant only with respect
to the employer's backpay obligation " Shawnee Industries, Subsidiary of Thiokol
Chemical Corporation, 140 NLRB 1451.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Having found that Respondent discriminated with respect to the recall of Domingo
Perdomo, Joseph E. Richardson, Willie Mae Harrison, George D. Thomas, Marguerite
Hawkins, Robert L. Scott, John Clark, Donald Milbourne, Helena Pagan, Eugene
Allen, and Mary Baker, it will be recommended that Respondent offer to each of
them immediate employment, without prejudice to such seniority or other rights and
privileges each would have enjoyed or acquired had each been recalled on the
dates when, absent Respondent's discrimination against them, Respondent would have
reemployed them. It will be further recommended that Respondent make them
whole for any loss of pay each may have suffered as a result of Respondent's dis-
criminatory refusal to recall them, beginning with the date of such discrimination
to the date when each is offered reemployment. Computation thereof shall be cal-
culated in accordance with the formula in F. W. Woolworth Company, 90 NLRB
289, and shall include interest at 6 percent as computed in Isis Plumbing & Heating
Co., 138 NLRB 716. It will finally be recommended that Respondent retain and
make available to the Board or its agents. upon request, all pertinent records and data
necessary to determine the amount of backpay due.
27I am not bound to accept the ground put forward by Respondent as the true one.
N L R B. v. Texas Bolt Company , 313 F. 2d 761 (C A. 5).
NACHMAN CORPORATION 491
Since Respondent 's discriminations go "to the very heart of the Act" (N.L.R.B. V.
Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ), it will be recommended that an order
be issued safeguarding employees against infringement of their Section 7 rights in
any manner.
Upon the basis of the foregoing findings of fact , and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Union and its local are labor organizations within the scope of Section
2(5) of the Act.
2. Respondent is an employer engaged in commerce as defined in Section 2(6)
and (7) of the Act.
3. By discriminating in regard to the recall of the employees mentioned in "The
Remedy" herein, thereby discouraging membership in a labor organization, Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8(a) (3) and (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDED ORDER
By reason of the above findings of fact and conclusions of law, and the entire
record in this case, it is recommended that Respondent, Nachman Corporation,
its officers , agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any other labor organization,
by refusing or failing to recall laid-off employees, or otherwise discriminating in
any manner against its employees in regard to their hire or tenure of employment
or other terms or conditions of employment.
(b) In any other manner restraining, coercing, or interfering with its employees
in the enjoyment or exercise of rights guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer the employees named below in this paragraph immediate employment
at the same or substantially equivalent positions to which they would have been
recalled had they not been discriminated against, without prejudice to their seniority
or other rights and privileges previously enjoyed or which they might have acquired,
and make them whole for any loss of pay each may have suffered, with interest
at the rate of 6 percent, as a result of the discrimination against them:
Domingo Perdomo Marguerite Hawkins Donald Milbourne
Joseph E. Richardson Mary Baker Helena Pagan
Willie Mae Harrison Robert L. Scott Eugene Allen
George D. Thomas John Clark
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze and
determine the backpay due under the terms of this Recommended Order.
(c) Post at its plant in West Chester, Pennsylvania, copies of the attached notice
marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Di-
rector for the Fourth Region, shall, after being signed by a duly authorized agent
of Respondent, be posted by Respondent immediately 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. Respondent shall
take reasonable steps to insure that such notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Fourth Region, in writing, within 20'
days from the date of receipt of this Intermediate Report, what steps have been
taken to comply therewith 29
If this Recommended Order Is adopted by the Board, the words "A Decision and
Order" shall be substituted for the words "The Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order Is 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 be substituted for the words "A Decision and Order"
29 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith "
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is further recommended that, unless within the prescribed period, Respondent
notifies said Regional Director, in writing, that it will comply with the foregoing
Recommended Order, the National Labor Relations Board issue an Order requiring
the Respondent to take the aforesaid action.
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 National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in United Steelworkers of America,
AFL-CIO, or any other labor organization of our employees, by refusing to
recall employees, or in any other manner discriminating against them in regard
to their hire or tenure of employment or any other term or condition of
employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the enjoyment or exercise of rights guaranteed to them by Section
7 of the Act.
WE WILL offer the employees named below immediate employment at the
same or substantially equivalent positions to which they would have been
recalled had they not been discriminated against, without prejudice to any
seniority or other rights and privileges they may have enjoyed or acquired, and
make them whole for any loss of earnings they may have suffered by reason of
the discrimination against them:
Domingo Perdomo Marguerite Hawkins Helena Pagan
Joseph E. Richardson Robert L. Scott Eugene Allen
Willie Mae Harrison John Clark Mary Baker
George D. Thomas Donald Milbourne
All our employees are free to become or remain, and to refrain from becoming
or remaining, members of the above-named or any other labor organization.
NACHMAN CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act after discharge from the
Armed Forces.
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, 1700
Bankers Securities Building, Walnut and Juniper Streets, Philadelphia, Pennsylvania,
Telephone No. Pennypacker 5-2612, if they have any question concerning this
notice or compliance with its provisions.
United Aircraft Corporation (Hamilton Standard Division) and
Lodge 743, International Association of Machinists , AFL-CIO.
Cases Nos. 1-CA-4003 and 1-CA-401d3. September 11, 1963
DECISION AND ORDER
On May 28, 1963, Trial Examiner Joseph I. Nachman issued his
Intermediate Report herein, finding that the Respondent engaged in
certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Intermediate Report. Thereafter, the Respondent and
144 NLRB No. 56.