Nachman Corp.

National Labor Relations Board - Board Decisions

Feb 18, 1964

146 N.L.R.B. 23 (N.L.R.B. 1964)

NACHMAN CORPORATION 23
Nachman Corporation and Joyce Burton. Case No. 13-CA-5467.
February 18, 1964
DECISION AND ORDER
On November 13, 1963, Trial Examiner Reeves R. Hilton issued his
Decision 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 Trial Examiner's De-
cision. He also found that the Respondent had not engaged in certain
other alleged unfair labor practices and recommended the dismissal
of these allegations of the complaint. Thereafter the Respondent
filed exceptions to the Trial Examiner's 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 [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 Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.2
1 In the absence of exceptions thereto, we adopt pro forma the Trial Examiner 's finding
that the Respondent's interview of employee Elsie Brotherton did not violate Section
8(a) (1) of the Act. .
8 The Recommended Order is hereby amended by substituting for the first paragraph
therein , the following paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that Respondent , Nachman Corporation , its officers , agents, successors , and assigns,
shall :
-The Appendix attached to the Trial Examiner 's Decision is hereby amended by adding
.the following immediately below the signature line at the bottom of the notice:
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of her 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.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
Upon :a charge duly filed by Joyce Burton , the General Counsel of the National
Labor Relations Board, through the Regional Director for the Thirteenth Region,
-146 NLRB No. 6.
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issued a complaint, dated April 30, 1963, against Nachman Corporation, herein
called the Respondent or the Company, alleging violation of Section 8(a)(1), (3),
and (4) of the National Labor Relations Act, as amended (29 U.S.C. 151, et seq.),
herein called the Act. The answer of the Respondent admits certain allegations of
the complaint but denies the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Reeves R. Hilton
at Danville, Illinois, on July 30, 1963. All parties were present and represented
at the hearing and were afforded full opportunity to be heard, to introduce relevant
evidence, to present oral argument, and to file briefs. About September 30, counsel
.for the General Counsel and the Respondent submitted briefs.'
Upon consideration of the entire record, and upon my observation of the witnesses,
I make the following:
FINDINGS OF FAcr
1. THE COMPANY'S BUSINESS
The Company, an Illinois corporation, maintains its principal office and place of
business in Chicago, Illinois, and is engaged in the manufacture, sale, and distribution
of bedding and furniture springs, and related products. In the course of its opera-
tions the Company maintains plants in various States including a plant at Milford,
Illinois, the only plant involved in this proceeding. During the year 1962 the
Company purchased wire, coils, and other goods and materials valued in excess
of $50,000, which were shipped to the plant from places outside the State of Illinois,
and in the same period it manufactured, sold, and shipped finished products valued
in excess of $50,000 from the plant to points outside the State of Illinois. I find
the Company is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
;II. THE LABOR ORGANIZATION INVOLVED
International Union, Allied Workers of America, AFL-CIO, . herein called the
Union, is a labor organization as defined in Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. The issues
The principal issue is whether the Company discriminatorily discharged Joyce
Burton by reason of her union membership or activities or because she testified in
a prior Board proceeding. The complaint also alleges a proscription against the
wearing of union buttons by employees while working and one act of interrogation.
B. Events preceding the discharge of, Burton
About June 1962, the Union engaged in an organizational campaign among the
employees which culminated in a Board-conducted election on September 14, 1962,
which the Union lost (Case No. 13-RC-8756). Thereafter the Union filed objec-
tions to the conduct of the election and on December 19, the Regional Director set
aside the election and ordered a new election be held. On February 15, 1963, the
second election was held and again the Union lost. This time it did not file objec-
tions to the conduct thereof.
In the meantime, certain individuals filed charges against the Company, about
October 17, 1962, and thereafter, alleging the discriminatory discharge of six
employees and other acts and conduct in violation of Section 8(a)(1) of the Act
(Cases Nos. 13-CA-5211, 13-CA-5211-2, 13-CA-5211-3, 13-CA-5211-4). These
charges resulted in the issuance of a complaint and a hearing thereon was held be-
fore Trial Examiner Henry S. Sahm in Danville, Illinois, on February 5 through 8,
:1963.
Burton, pursuant to subpena, testified at the hearing as a witness for the General
Counsel. In brief, Burton testified concerning unlawful interrogation, threats, and
surveillance and her testimony was accepted and credited by the Trial Examiner,
who found the Company had engaged in conduct of this character. The Trial
1 On October 21, I received a motion from the General Counsel to correct certain errors
in the transcript, which counsel for the Respondent opposes on the ground it was not
timely-filed. The transcript, as usual, contains some obvious errors which do not affect
the accuracy thereof and do not require formal correction. In any event, if the General
Counsel believed otherwise he should have filed his motion, promptly, at the time he filed
his brief or prior thereto, not anytime before issuance of the Decision . I, therefore, deny
the motion.
NACHMAN CORPORATION 25.
Examiner further found that the Company had discriminatorily discharged three
employees and engaged in other acts of interference, restraint, and coercion and
recommended appropriate remedial relief. On September 3, 1963, the Board issued
its Decision and Order wherein the Board adopted (with modifications and additions
not material herein) the findings,, conclusions, and recommendations of Trial
Examiner Sahm (144 NLRB 335) 2
.The Company concedes that Burton gave testimony in support of the complaint
and that she was an active union adherent. The Company did not dispute Burton's
testimony that at the time in question she was the "number 2" union advocate at
the plant.
C. Burton's employment record; her discharge on March 4, 1963
Burton was first •employed by the Company on January 29, 1962, as an assembler
on.the night shift, or second shift, and continued to work on that shift until August
1962 when she was laid off. About 2 weeks later Burton was recalled to work on
the day shift and worked under Foremen Norbert Tockorski and Gary, or Gerry,
Allen. Burton stayed on the day shift until the early part of October when she was
transferred to the night shift, and remained on this shift until the date of her
discharge.
Dennis Kellogg was foreman of the second shift from October to about mid-
December, when he became material and control supervisor (a position having -no
direct contact with production employees), and Harold Miller succeeded him as
foreman of the second shift. Around mid-December, Earl Kellogg, father of. Dennis,
became night superintendent of the plant and at the time of the hearing.he was
plant manager.
. As an assembler Burton operated a machine which produced a mattress spring
and it was her job to put coils and .helicals into the machine which assembled them
into a spring unit. The Company had 'some 20 such machines and throughout her
employment Burton was regularly assigned to machine No. 9, except for the period
she was on the day shift when she worked on machine No. 5.3 Burton was hired
at $1.20 an hour, received three pay raises, and was earning $1.35 at the time of.
her discharge. '.
The Company, of course, had established daily production quotas for each of its
machines, and the quota for machine No. 9, was-74 units per shift. Earl Kellogg
also stated that it takes from 6 to 8 weeks to break in a new girl and that the average
employee should make the production quota. Burton admitted, she was a little slow,
but not more so than many other assemblers, and that from January 29 to August
1962 she made her quota about once a week. However, when she operated machine
No. 5 on the day shift, from August to October, she never did attain her quota,
which she attributed, at least in part, to the fact that she was getting bad coils and
helicals. Concerning her performance on .the day shift, Burton stated that in Sep-
tember -Foreman Allen told her that she would not have been recalled from layoff
if they did not believe she could make her quota .4
. When Burton was transferred to the night shift Dennis Kellogg asked which ma-
chine she operated and she told him No. 9. Burton knew she could operate this
machine as good, if not better, than any other assembler and she was assigned this
machine. Kellogg also inquired how she had been doing and Burton related her ex-
periences on the day shift. Kellogg said she would not have to put up with that
"rigamarole . . . on the night shift . . . that it didn't make any difference to him
whether the union was in or out, it is all the same." After a short time Burton
reached her production quota and thereafter made it two or three times a week.
Kellogg remarked he was surprised and happy with Burton's performance on ma-
chine No. 9, because it was a bad machine and no one wanted to operate it. Burton
2 On October 21, the General. Counsel submitted a typewritten copy of Burton' s testi-
mony at the prior hearing, with the request that it be received in evidence as an exhibit
in this proceeding. In making my findings herein, I have relied upon the findings of
Trial Examiner Sabin and the Board regarding the testimony of Burton, so I do not con-
sider the' proposed exhibit as necessary or material in this case. I, therefore, reject the
proposed exhibit. '
s The machines as appears in Respondent's Exhibit No. •4, assembled different sizes of
springs. Burton described machine No. 9 as an 8 x 19, that is she put in coils and helicals
until she "had a- nineteen row unit completed," which was eight coils wide. When asked
to,describe machine No. 5 she said, "It produced an 11 by . . . It was a different length
from day-to-day." , ,, i
'Allen did not testify at the hearing so her testimony stands undisputed.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asserted her increase in production was due to the fact that Kellogg made certain she
had good quality materials and when she had mechanical difficulties with the ma-
chine he had it fixed promptly. Burton added that Roy Bane , fixer, spent more time
on her machine than any of the other machines. This situation continued until
around December 4 when Burton was granted sick or surgical leave and was absent
from the plant about 1 week. Upon her return, Burton learned that Miller had re-
placed Kellogg as shift foreman. During her first work break, Burton told Kellogg
he had played a "dirty trick" on her by leaving as shift foreman. Kellogg warned
Burton, "I had better tell you, right now, they are going to ride you like they did the
others." Burton replied, "As long as my machine runs, and I have good material
to work with, I will keep making production, and if I don't I will tell your Dad to
speak to you about it." Kellogg ended the conversation by cautioning Burton, "You
had better keep me out of it."
Burton admitted that commencing about January 17, 1963, she did not make her
quota as frequently as she had prior to that date. In general, Burton said her de-
cline was due to bad materials and difficulties with her machine. Thus, on one oc-
casion she could not get her helicals into the machine and when Bane 'checked the
machine he found that she had been given M helicals instead of Q helicals, which
the machine regularly used.5 When she explained the cause of the delay to Earl
Kellogg he stated she would use M helicals in the future. Again, Burton had constant
mechanical troubles with airhose breaks and oil leaks. Further, at one period when
her machine was not functioning. properly, Bane, after spending much time checking
it, finally discovered that a pin had been removed or had fallen out of the gear. Dur-
ing the above period Earl Kellogg told Burton he would like to see her make more
bonus, as she had under Dennis Kellogg, because he "hate[d] to see anybody that
worked as hard as I do, not make bonus." Kellogg said he would try to place her
on another machine and when Burton stated she did not want another unless it was
"an eight by," he replied no such machine was available.
About 11:45 the night of March 4, Miller took Burton to his office where he
informed her the Company was having a cutback in the work force and she "had
been picked as one to go." Burton queried if she was being laid off on account
of her union activities and Miller told her, no, it was because of her production.
Burton explained that she could make production if she had good materials and
a good machine . At that point Earl Kellogg entered the office and stated he wanted
no more discussion of the matter. Kellogg or Miller then requested Burton to
sign a paper, which she refused to do. Burton thereupon inquired if she was
being laid off or fired and Kellogg replied, "You are fired, this couldn't be a more
permanent arrangement than it is."
Dennis Kellogg testified that at the time of her transfer he spoke to Burton,
who was a union adherent, about her low production on the first shift and told her
she would have to make her quota on his shift. He then asked Burton what ma-
chine she wanted to operate and pointed out that once she was assigned a particular
machine she was on it, that the Company would be wasting time if they trained her
.for that machine and then had to change her. In accordance with her request,
Kellogg assigned Burton to machine No. 9. Kellogg said Burton started out rather
badly and from his observation he concluded "that somewhere along the line in
her training or lack of training her technique was wrong in assembling." Kellogg
worked closely with Burton, corrected her technique, and "she improved steadily"
as an assembler. However, Burton was a slow worker and, while she approached
her quota , she did not make it consistently but only about half the time. Kellogg
made every effort to keep Burton supplied with good materials, she used the same
materials as other assemblers, and to keep her machine in operating condition.
Burton frequently complained about her machine feeling "dead" and while Bane
consistently checked it, most of the time he could find nothing wrong with it.
Kellogg conceded that Bane had to keep the other machines running' and "he was
stretched pretty thin on the second shift." Kellogg had nothing to do with the layoff,
or Burton's discharge, in March.
Miller, who had been assistant foreman on the day shift, stated that when he be-
came foreman of the night shift there were about 15 girls employed on the shift
and within a couple of weeks the number was increased to 20 or 21. Miller was
not personally acquainted with Burton at the time and had no conversation with
Dennis Kellogg concerning her at the time he became foreman. However, Miller
s Dennis Kellogg estimated the M helical is about one -thousandth of an inch smaller
than a Q helical and, generally , depending upon the particular machine, the machine can
be readily adjusted to run the M Instead of the Q helical, but some adjustment is necessary.
NACHMAN CORPORATION 27
knew that Burton was an active supporter of the Union and, later , that she testified
at the Board hearing . As stated by Miller , it was his duty to help the girls keep
up their production , get them started off right , and he. spent most of his time with
the newer girls. Miller also used the following routine for checking production,
he prepared a list showing the name and machine number of each girl working
that night and every 2 hours he checked the meter on each machine , which indicated
the number of units produced , which he entered on his list . After checking all
the machines Miller went over his list and if he found any girl "quite a bit below"
production , he would speak to her and try to straighten out her problem. In the
event ' the girl was having machine trouble , he would tell Bane who would work
on the machine . Miller said Burton operated the No . 9 machine and he considered
her "a steady worker , but . fairly slow," that she was not as fast as the older
girls and no faster than some of the newer girls. When asked if he could recall.
any, particular conversations with Burton , Miller answered , "No, not other than
just when something was wrong, she would call me in and I , in turn, would get hold
of Roy [ Bane] then ." Miller said he treated Burton the same as any other
employee and , when he had the time , he tried to help her . Miller testified sub=
stantially the same as Burton concerning the manner in which she was discharged.
The Selection of Burton for Discharge
Earl Kellogg testified that around February 25 , 1963, Tony Farina, the plant
manager, informed him excessive "stock maximums" necessitated a reduction in
force and Kellogg had to cut the night shift from 20 or 21 to 10 or 11 girls.
Kellogg stated , in selecting assemblers for layoff, three factors were considered:
attendance record , quality performance , and quota performance . However, since
all the assemblers were about equal insofar as the attendance and quality items were
concerned , the controlling factor in selecting the employees was their production
quota . He then added that when other factors were equal , seniority was con-
sidered together with their quotas . Later, Kellogg further qualified the decisive
character of the quota factor by coupling it with the employee's future job poten-
tiality, for he clearly stated:
In deciding what girls we would keep working when we had had the pro-
duction cutback , the improvement they had made in relation to how long
they had been working had a bearing on it.
In evaluating the assemblers , Kellogg • and Miller reviewed the folder they main-
tained on each girl which showed her daily production quota, this information
having been obtained from Miller's 2-hour check of each operator . Kellogg then
prepared a "recap" sheet , taken from these records (Respondent 's Exhibit No. 2),
which purportedly disclosed the daily production quotas for some 22 girls for the
last 2 weeks in February, covering about 12 or 13 work shifts. Kellogg evaluated
the girls on the basis of the recap sheet and on March 4 he effectuated the cutback
in the following manner.
Burton was discharged because she made her quota but once in 12 work shifts,
and as she had been employed for about 14 months , Kellogg did not believe she
would improve in the future.
Perrin , who was hired December 3, 1962 , was also discharged because she made
her quota only twice during the same period.
Barker, hired in January 1963 , made her quota once in the 13 -week period and
was laid off.
Anderson , hired in January 1963, made her quota four times on nine work shifts,
was laid off , and subsequently recalled.
The remaining five or six girls involved in the cutback were not laid off but were
transferred to the day shift . Kellogg admitted that some 'of these girls, like Burton,
did not make their quotas but he did not discharge or-lay them off:
Because they were making steady progress and they had only been with us a
period of two or three months. Their potential in a year's time, they would
be exceedingly good.
Thus , Kellogg conceded that Harper , who was hired October 15, 1962 , made her
quota only twice in the 13-week work shift period , but since she had made her quota
8 out of 13 shifts in the period January 14 to 30 , he considered the latter period as
a "true reflection" of her ability, so she was not laid off.
Likewise; according to Kellogg 's testimony and the recap sheet , jaskula, who was
hired November 19, 1962 , and who made her quota only once in the 13 -week work
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shift period, was retained. Huckelbe, who was hired in January 1963, and whose
production was identical to that of Jaskula, was also retained. Hinse, who was hired
in January 1963, and who never made her quota in the 13-week work shift period, like-
wise was retained. Stephen, or Stephensen, who was hired December 3, 1962, made
her quota but twice in 12 work shifts, but she, too, was retained.
Analysis and Concluding Findings
Here the undisputed evidence shows that Burton, the number 2 union adherent,
while a slow worker, was nevertheless continuously employed by the Company for
some 14 months, without any serious complaints regarding her job performance,
much less any threat of discharge for that reason. Thus, the fact that Burton was
recalled to work in August following an economic layoff and continued to work
until March 4, 1963, dispels the idea that she was an unsatisfactory employee. While
it is true Burton never attained her quota during the period she was on the day shift,
August to October, she 'was neither discharged nor reprimanded. Instead, she was
transferred to the night shift, her original shift, and at the time Foreman Dennis
Kellogg gave his assurance she would not be subjected to the "rigamarole" she had
experienced on the day shift because 'it made no difference to him "whether the
union was in or out" of the plant. Although Kellogg testified as a witness for the
Company he did not deny or question Burton's testimony. It is also true that
throughout the period of Kellogg's tenure as foreman; Burton showed marked"im-
.provement in the performance of her job and attained her quota two or three times
a week.
However, employment conditions changed for Burton soon after Kellogg was
replaced by Foreman Miller and Kellogg's father became night superintendent around
the middle or late December. Indeed, Dennis Kellogg predicted trouble for Burton
for shortly after these managerial changes he warned her, "They are going to ride
.you like they did the others." Burton remarked she could make production provided
she was supplied with good materials.and an efficient machine and, if not, she would
bring the matter to his dad's attention. Kellogg thereupon cautioned Burton "to
keep me out of it." Again, Kellogg did not deny or question Burton's testimony.
Thereafter, commencing about January 17; Burton conceded she did not make her
,quota.as frequently as in the past and she attributed this failure, at least in part, to
'bad materials and mechanical difficulties with her machine. During this period
Burton appeared as a witness for the General Counsel at the Board hearing held
on February 5 through 8, and testified adversely to the Company. Shortly there-
after, on March 4, she was discharged allegedly for failing to make her production
quota.
Here the General Counsel proved 'a strong prima facie case that Burton was dis-
charged for discriminatory reasons. There is no question concerning knowledge of
Burton's activities, that she testified adversely to the Company, that she was warned
by Dennis Kellogg the Company would "ride" her, as they had others, because of
her adherence to the Union, and union animusis clearly established by the Board's
.findings and conclusions in'the case in which she testified and which, in part, are based
-upon her testimony. In these circumstances the'Company was obligated 'to go for-
ward with evidence showing Burton's discharge was for reasons other than her union
'activity or the fact that she testified at the Board hearing. The evidence adduced
by the Company not only fails to support its contention that Burton was discharged
because of her low production in a reduction-in-force program, but demonstrates it
seized upon the cutback as a pretext to eliminate a strong union advocate.
Plainly, the formula supposedly followed by Kellogg in selecting employees for
layoff was a, flexible and convenient one, and unquestionably he applied it in a
manner to suit his own purpose. In brief, as detailed above, employees were selected
on the basis of their production in the last 2 weeks in February, seniority, and future
job potential. Thus, while Burton's production record was as good, if not better,
than Jaskula; Huckelbe, -Hinse, and Stephen or Stephensen, nevertheless Burton was
discharged and' these four employees were retained. Moreover, although Burton
had greater seniority than any of them, Kellogg not only refused to consider this
factor but actually used it as a device to. get rid of her. By following the same
method Kellogg was able to keen Harper instead of Burton, plus the. fact that he
used a different and more favorable work period. in Harper's case in order to show
her productive ability. Manifestly, Kelloeg's selection of Burton for discharge was
motivated by antiunion considerations rather than her failure to make her produc-
tion quota. '
NACHMAN CORPORATION 29
In view of all the evidence, I find and conclude that by discharging Burton in the
manner found above, the Company thereby engaged in unfair labor practices in
violation of Section 8(a) (3), (4), and (1) of the Act .6
The Remaining Issues
The General Counsel concedes, and I agree, the evidence is wholly insufficient to
sustain the allegation that the Company directed employees to remove their union
buttons.
During the hearing I granted the General Counsel's motion to amend his com-
plaint to allege that on or about July 25, Attorney Frederick N. Richman and Charles
Kersting, a company official, unlawfully interrogated an employee.
Elsie Brotherton, a union adherent at the plant, testified that about'July 25
she was called to the plant office where, she met Richman and' Kersting. Richman
introduced himself, she remembered him from the previous hearing, then stated that
Burton had filed charges against the Company claiming she had been discharged be-
cause of her union activities whereas she had, been discharged for low. production.
Richman inquired of Burton's whereabouts and Brotherton said she was working at
a truck stop. In response to Richman's inquiries Brotherton stated that she and
Burton wore union buttons at the plant and no one told them to remove them. Rich-
man asked if she thought the Union would get in the next time and she said, yes,
since a number of employees had told her they would vote for the. Union if it came.
Richman also asked if the employees were satisfied with the 10-cent pay increase
and she answered she supposed so. Brotherton stated they "kidded around" about
the testimony of witnesses at the previous hearing and something was said about her
memorizing her testimony. Brotherton remarked, "No, I just knowed it so good that
it was there." Brotherton also mentioned that she was having some trouble with
her company insurance policy regarding-an injury to her boy and Kersting promised
to look into the matter, which he did and it was satisfactorily adjusted. On direct
examination Brotherton said she was not informed of her right to refuse to talk
to Richman or Kersting. However, on cross-examination she admitted she may
have been told that the interview must be voluntary on her part.
Richman testified he told Brotherton she was free to talk or leave the' office and
she said she would like to talk with him.
The Board has long recognized that an employer, or his attorney, is privileged to
interview employees for the purpose of discovering facts within the limits of the
issues raised by the 'complaint for the purpose of preparing his case for trial?
Brotherton's interview was clearly voluntary on her part and was conducted in a
friendly manner free of any threats, coercion, or promises. While both sides may
have brought up matter beyond the scope of the complaint I cannot see how the
discussion on these matters can be considered as coercive or adversely affecting any
rights which Brotherton may enjoy under the Act. Indeed, Richman did not even
ask Brotherton whether she had been interviewed by the General Counsel, much less
attempt to find out the substance of her testimony or the contents of any statement
she may have given him .8 I find the evidence concerning this single interview is
insufficient to warrant a finding of an independent violation of Section 8(a)(1) of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The. activities of the Company set forth in section III, above, occurring in con-
nection with the operations of the Company described in section 1, 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 of commerce.
8 Reiser Aviation Corporation , 135-NLRB 433 ; Customer Control, Inc., 134 NLRB 1726,
enfd. 309 F. 2d 150 (C.A. 2) ; Carolina Mirror Corporation , 123 NLRB 1712; Pacemaker
Corporation , 120 NLRB 987, enfd . 260 F. 2d 880 (C.A. 7) ; Southern Bleachery and
Print Works, Inc., 118 NLRB 299, enfd. 257 F. 2d 235 (C.A. 4).
7 May Department Stores Company, a Corporation , d/b/a Famous -Barr Company,
- 70 NLRB 94, 95.
8 For example, see Temas Industries, Inc.; :et at., 139 NLRB 365 ; Hilton Credit Corpora-
tion, 137 NLRB 56. -
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative ac-
tion which I find necessary to effectuate the policies of the Act.
Having found that the Respondent engaged in unfair labor practices by discharging
Joyce Burton on March 4, 1963, I shall recommend that the Respondent offer her
immediate and full reinstatement to her former or substantially equivalent position,
without prejudice to her seniority or other rights and privileges, and make her whole
for any loss of earnings she may have suffered by reason of the Respondent's dis-
crimination against her. Backpay, with interest at the rate of 6 percent per annum,
shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB
289, and Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the above findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Nachman Corporation is engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Union, Allied Workers of America, AFL-CIO, is a labor or-
ganization as defined in Section 2(5) of the Act.
3. By discharging Joyce Burton in the manner found herein, the Respondent
engaged in . unfair labor practices within the meaning of Section 8(a) (3), (4),
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.
5. The Respondent has not engaged in unfair labor practices as alleged in para-
graph VI of the complaint , as amended.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
pursuant to Section 10(c) of the Act, I recommend that the Respondent Nachman
Corporation , its officers , agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in International Union, Allied Industrial Workers
of America, AFL-CIO, or any other labor organization of its employees, by dis-
charging any of its employees or by discriminating in any other manner in regard
to their hire or tenure of employment or any term or condition of employment.
(b) Discharging or otherwise discriminating against employees because they have
given testimony under the Act.
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right of self-organization, to form labor organizations, to
join or assist International Union, Allied Industrial Workers of America, AFL-
CIO, or any other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual paid or protection, or to refrain
from any and all such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization as a condi-
tion of employment, as authorized in Section 8(a)(3) of the Act.
2. Take the following affirmative action which I find will effectuate the policies
of the Act.
(a) Offer to Joyce Burton immediate and full reinstatement to her former or
substantially equivalent position, without prejudice to her • seniority or other rights
and privileges, and make her whole for any loss of pay she may have suffered by
reason of the Respondent's discrimination against her, in the manner set forth
in the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board and its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, -and, all other records necessary or useful to
determine the amount of backpay due and the rights of reinstatement under the
terms of this Recommended Order.
NACHMAN CORPORATION 31:
(c) Post at its plant in Danville, Illinois, copies of the attached notice marked:
"Appendix." 9 Copies of said notice, to be furnished by the Regional Director for
the Thirteenth Region, shall, after being duly signed by the Respondent's repre-
sentative , be posted by the Respondent immediately upon receipt thereof, and be.
maintained by it for a period of 60 consecutive days thereafter, in conspicuous.
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are.
not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the-
date of the receipt of this Decision, what steps the Respondent has taken to comply
herewith.'°
It is further recommended that unless on or before 20 days from the date of the.
receipt of this Decision and Recommended Order, the Respondent notifies the said'
Regional Director, in writing, that it will comply with the above Recommended
Order, the National Labor Relations Board issue an Order requiring it to take-
such action.
It is further recommended that the allegations in paragraph VI of the complaint,.
as amended , be dismissed.
9In the event that this Recommended Order be 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 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 be substituted for the words "A
Decision and Order."
10 In the event that this Recommended Order be 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.-
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 International Union, Allied Indus-
trial Workers of America, AFL-CIO, or any other labor organization of our-
employees, by discharging any of our employees or by discriminating in any other
manner in regard to their hire or tenure of employment, or any term or condi-
tion of employment.
WE WILL NOT discharge or otherwise discriminate against employees because
they have given testimony under the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Union, Allied Industrial Workers of America,.
AFL-CIO, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted activities, for
the purpose of collective bargaining or other mutual aid or protection, or to,
refrain from any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor organization,
as a condition of employment, as authorized in Section 8(a)(3) of the Act.
WE WILL offer to Joyce Burton immediate and full reinstatement to her former
or substantially equivalent position, without prejudice to her seniority or other
rights and privileges, and make her whole for any loss of pay she may have
suffered as a result of her discharge.
NACHMAN CORPORATION,
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, Midland
Building, 176 West Adams Street, Chicago , Illinois, Telephone No. Central 6-9660,
if they have any question concerning this notice or compliance with its provisions.
744-670-66-vol. 146-4