National Utility Products Co.

National Labor Relations Board - Board Decisions

Aug 29, 1975

220 N.L.R.B. 64 (N.L.R.B. 1975)

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Utility Products Company and Gary R. Kun-
zen. Case 8-CA-8688
August 29, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On April 30, 1975, Administrative Law Judge Wal-
ter H. Maloney, Jr., issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief. The Respondent
also filed a motion for oral argument.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief '
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge, and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, National Utility Prod-
ucts Company, Westlake, Ohio, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
1 We deny the Respondent 's motion for oral argument since the excep-
tions and brief adequately set forth the position of the Respondent
2 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc, 91
NLRB 544 ( 1950), enfd 188 F 2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his credibility findings.
3 The Administrative Law Judge found that the Respondent , through its
vice president, James F. Jefferies , violated Sec . 8(a)(1) of the Act by promis-
ing benefits to individual employees in order to dissaude them from engag-
ing in union activities In adopting this finding we also note that several
days after making these promises Jefferies and President Harold Bowman
addressed a gathering of the employees at which time Bowman expressed
anger at the employees for going to the Union Both officers stated that the
Respondent would not move forward with fringe benefits then under con-
sideration because of the advent of the employees' union activities . Coupled
with Jefferies' earlier statements to Charles Salnajs and Gary Kunzen, we
find that these remarks clearly conveyed to the employees the impression
that certain fringe benefits were being considered, and that, but for the
employees' union activities , such plans for additional benefits would have
been further developed, and perhaps even finalized The withholding or
conditioning of benefits because of the employees ' protected concerted ac-
tivities, or implications that this is being done , is clearly destructive of their
Sec 7 nght to engage in such activities.
DECISION
FINDINGS OF FACT
STATEMENT OF THE CASE
WALTER H . MALONEY , JR., Administrative Law Judge:
This case came on for hearing before me at Cleveland,
Ohio, upon a complaint' issued by the Regional Director
for Region 8, which alleges that the Respondent National
Utility Products Company 2 (sometimes called NUPCO)
violated Section 8(a)(1) and (3) of the National Labor Re-
lations Act, as amended . More specifically , the complaint
alleges that the Respondent unlawfully interrogated em-
ployees concerning their union activities ; threatened em-
ployees with reprisal if they engaged in union activities;
made promises of benefit to employees if they refrained
from engaging in union activities ; and, on June 25, 1975,
discriminatorily discharged Charging Party Gary R. Kun-
zen and employees Charles Salnajs, Charles Sanner, and
John Knight because they supported an organizing drive
conducted on behalf of the Union . The Respondent denies
the allegations that it engaged in independent violations of
Section 8(a)(1) of the Act, and claims that it laid off the
employees here in question , and one other employee not
named in the complaint, because of a decline in sales.
Upon these contentions, the issues herein were joined.'
A. Outline of Events in Question
Respondent manufactures adjustable metal risers into
which manhole covers fit. It purchases raw metal castings,
usually in four pieces, and then processes and assembles
the pieces for shipment. Its customers are, for the most
part, municipalities, public utilities, and paving companies,
which use the finished product in paving streets and road-
ways. Respondent's production is somewhat seasonal. It
does not produce adjustable risers strictly to order, but ac-
cumulates an inventory in the first months of the year to
anticipate the construction season which normally begins
in April. However, production usually continues through-
out the year. Its normal complement of employees has
been approximately 10 in number. From time to time Re-
1 The principal docket entries in this case are as follows Charge filed
herein on October 22, 1974, by Gary R. Kunzen and amended charge filed
on December 4, 1974; complaint issued on December 10, 1974;
Respondent's answer filed on December 13, 1974; hearing held in Cleve-
land, Ohio, on February 4, 5, and 6 , 1975; briefs filed by the General Coun-
sel and the Respondent with me on March 3, 1975.
2 Respondent admits, and I find, that it is an Ohio Corporation, which
maintains its principal place of business in Westlake , Ohio, a suburb of
Cleveland , where it is engaged in the production of adjustable risers which
support manhole covers. In the preceding 12-month period , a representative
period , Respondent purchased and received at its Westlake , Ohio, plant,
from points and places outside the State of Ohio, goods valued in excess of
$50,000 . Accordingly , it is an employer engaged in commerce within the
meaning of Sec. 2(2), (6), and (7) of the Act. I also find that Local 415,
International Brotherhood of Teamsters, Chauffeurs , Warehousemen, and
Helpers of America (herein called Union), is a labor organization within the
meaning of Sec . 2(5) of the Act.
3 Certain errors in the transcript have been noted and corrected.
220 NLRB No. 15
NATIONAL UTILITY PRODUCTS COMPANY 65
spondent has used a night shift, but this practice has varied
depending upon the amount of production required. Until
June 25 , 1974, and the events here in question, Respondent
never had a layoff of personnel.
Late in May or early in June 1974, several of
Respondent's production and maintenance employees be-
gan discussing among themselves the desirability of orga-
nizing . Informal conversations took place in the lunchroom
of the plant during lunchbreaks. One or more such discus-
sions took place at McKay's Tavern, a nearby bar. They
informally selected Charles Salnajs, one of their number, to
make inquiry of Teamsters Local 415 as to the procedure
and desirability of joining a union. Early in June, C. Sal-
najs phoned Dennis Francis , president of Local 415, and
informed him of the interest of Respondent 's employees.
Francis was preoccupied at the time with a strike involving
another employer, but, on the day of C. Salnajs' phone call,
took time out from these other facets of union business to
drive from the union office in the central part of Cleveland
to Respondent's plant in the southwest suburbs in order to
meet with C. Salnajs. He arrived at the plant about lunch-
time, parked in the rear of the plant, and asked at the rear
door of the plant for C. Salnajs. In fact, Francis spoke on
this occasion with Michael Irelan, Respondent's day fore-
man, although he did not disclose to Irelan his identity or
the nature of his business.
Irelan summoned C. Salnajs, who was in the lunchroom,
and Salnajs had a meeting in the parking lot with Francis.
Irelan admits watching this meeting throughout the course
of Francis' visit and of reporting Francis' presence to the
front office, but denies knowledge at that time that the visit
had anything to do with unionization . C. Salnajs obtained
designation cards from Francis, came back into the plant,
gave them to fellow employees in the lunchroom, and ob-
tained signatures on four or five cards in addition to his
own. He returned the cards to Francis in the rear lot and
Francis left, promising to return in a few days to obtain
additional cards which he had left with C. Salnajs for the
night shift to sign. Upon returning to the plant, Irelan
asked C. Salnajs who his visitor was. C. Salnajs simply re-
plied that it was a matter of personal business, to which
Ireland quizically noted that C. Salnajs' personal acquain-
tance was driving quite an expensive automobile.
About 2 days later, Francis returned to Respondent's
plant, also at the lunch hour, and held a meeting in the rear
parking lot with about six employees, including, but not
limited to, the four discriminatees named in the complaint.
C. Salnajs was unable to obtain any additional cards from
the night shift, which was supervised by his brother,4 but
4 The General Counsel contends , and the Respondent denies, that James
Salnajs was a supervisor within the meaning of the Act J. Salnajs was
repeatedly referred to by all witnesses , both rank-and-file and management,
as the night foreman . As noted above , Respondent does not always operate
a night shift, although it was doing so in June 1974 up until June 25. During
those occasions in which a night shift is working , J. Salnajs is the foreman
He is hourly rated , as is the admitted supervisor , Irelan , and makes 50 cents
an hour more than the next highest paid hourly rated employee . He cannot
hire or fire , but on the night shift , he can excuse absences. He signed invoic-
es certifying the presence of night shift "spot labor" which the Respondent
utilized on a daily basis during the summer and early fall of 1974. He does
a large amount of manual labor and is used as a welder on the day shift
when the night shift is not in operation . During night shifts, he is the highest
Francis indicated that he would proceed to contact
Respondent's management and make a demand for recog-
nition. During the informal meeting with employees in the
parking lot, Francis discussed with them possible union
benefits, attempted to allay their fears about being dis-
charged for organizing, and answered questions which
were put to him.
Before leaving the area, Francis was able to meet with
Company President Harold Bowman in Bowman's office.
He claimed majority status, indicated that he had the cards
to back it up, and asked for recognition. Bowman declined
to discuss the matter with him but referred him to the
Company's general corporate attorney, Daniel R. McCar-
thy,s whereupon Francis left.
At or about this same point in time, Jefferies began to
call certain employees into Irelan's office for private dis-
cussions. During a meeting with C. Salnajs, he told Salnajs
that, in the near future, the Company was going to institute
a profit-sharing plan for employees, although it was still in
the planning stage at that moment. He also said something
to C. Salnajs about dental plan and about company life
insurance. In a similar individual meeting with Gary R.
Kunzen, Jefferies told Kunzen that he was in the process of
establishing a profit-sharing program for employees, as
well as a dental insurance plan which would supplement
existing Blue Cross coverage. He also told Kunzen that he
was trying to obtain for him an increase in his hourly wage.
Shortly after these interviews, C. Salnajs phoned union
headquarters and told Francis to "hold up" pressing his
demand for a contract.
A day or two later,6 the Respondent called together its
entire work force, including a salesman and a clerical em-
ployee, in the lunchroom for a brief discussion with Bow-
man. Jefferies began by saying that the Company had sev-
eral fringe benefits under consideration but that they could
do nothing now because the Union had come into the pic-
ture. Bowman then told employees in question that, be-
cause the Union had made a demand for recognition, his
attorney advised him that he could not discuss or grant any
benefits to employees because it would appear that he was
trying to influence their support of the Union. According
ranking employee on the company premises. Company Vice President
James J. Jefferies testified that , at night, J. Salnajs was responsible for the
production schedule, the security of the building, and the safety of the
employees. As his employment in this capacity is regular and substantial,
and as he was so employed at the time of the events at issue herein, I
conclude that J Salnajs was a supervisor within the meaning of Sec. 2(1 1) of
the Act. Phalo Plastics Corporation, 127 NLRB 1511 (1960), Inspiration Con-
solidated Copper Company, 142 NLRB 53 (1963); Viking Bag Division, Shur-
Fine Central Corporation, 161 NLRB 648 (1966); White Chapel Memorial
Association, 167 NLRB 926 (1967); J F. B Manufacturing Co., Inc., 208
NLRB 21 (1973), Sewell Plastics, Inc, 212 NLRB 839 (1974); E. I. du Pont
de Nemours & Co., 210 NLRB 395 (1974); N.L.R.B v Florida Agricultural
Supply Company, Div of Plymouth Cordage Company, 328 F.2d 989 (C.A 5,
1964).
5 There is some testimony in the record that Bowman , in a later discussion
with employees , stated that he actually saw the designation cards which
Francis obtained . Exhibiting cards upon an initial contact with an employer •
is contrary to the practice of this Union Respondent denies that Bowman
saw the cards or made a statement to employees that he saw the cards. I
credit the denial.
6 The record is somewhat confused as to the precise sequence of events
which followed immediately after Francis made the Union's demand for
recognition The outline indicated above is based on the versions of testimo-
ny credited on this point.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to credited testimony, he indicated that he had been con-
tacted by the Union and expressed anger at employees for
going to the Union with their problems rather than in com-
ing to him. In the course of this discussion , employees C.
Salnajs and William Tate told Bowman that the employees
were not actually represented by the Union. Employee
Charles P. Sanner stated that they thought that the cards
did not authorize the Union to represent them but merely
were an expression of interest in learning what the Union
had to say to them which would be of interest. Bowman
replied that the Union had told him that it possessed
signed cards and so he had to assume that the Union was
representing the employees in question. Various employees
mentioned specific items of improvement in wages which
they wanted. Employee Ron Millie had a written list of
grievances which he wished to discuss , but Bowman insist-
ed that he could do nothing for them since the Union had
been designated as their representative . Not long after this
meeting, Tate, Kunzen, C. Salnajs and his brother, Night
Foreman J. Salnajs , went to the union hall to talk with
Francis and to discuss union benefits. At this point, the
employees at the meeting reiterated to Francis an interest
in seeing that the Union contact the Respondent's attorney
and go forward with its original intention of acting as bar-
gaining agent.
On June 25, the Respondent laid off five employees,
Kunzen, Sanner, C. Salnajs, John Gayneau, and John H.
Knight. It did so by handing each of them a letter which
stated as follows:
Re: Work lay-offs
Due to the prevailing economic conditions, which
have resulted in a serious reduction of current order,
National Utility Products Company is forced to re-
duce its direct labor force until economic conditions
change.
Based upon this factor alone, we will not require our
present level of employees directly involved in produc-
tion. Effective, Tuesday, June 25, 1974, we regret to
inform you that you personally will be included in this
lay-off.
We appreciate your past loyalty and service to the
company , and as soon as conditions warrant, we will
make every endeavor to return you to active employ-
ment.
The letter was signed by James F. Jefferies, as vice presi-
dent of the Respondent. On the day of the layoff, Compa-
ny President Bowman told Tate and a couple of other em-
ployees that, when production picked up, he would make
an effort to recall them . Jefferies told C. Salnajs that the
reason for the layoff was that the foundry in Alabama,
from which the Respondent obtained its raw castings, had
shut down and that raw materials were unavailable. He
said that the layoff would last about 2 weeks and that he
would call C. Salnajs when there was more work at the
factory. In fact, a shipment of castings arrived for pro-
cessing on the day of the layoff. Jefferies also told Knight,
when he handed him the layoff notice, that he hoped that
the layoff would be a short one, something on the order of
a month . Jefferies also told Kunzen that the reason for the
layoff was that the foundry in Alabama had shut down for
2 weeks, but he expressed the hope that the NUPCO em-
ployees could be called back around July 4. Jefferies told
Gayneau that he would be recalled when business im-
proved. Jefferies denies these oral statements to employees,
but I discredit his denial.
Shortly after the June 25 layoff, Respondent began hir-
ing other employees, some on a temporary basis and others
on a permanent basis . I credit Tate's statement that, when
he came to work on June 27, four or five men from Man-
power, a supplier of temporary labor, were employed doing
assembling and drilling work. When Tate asked Irelan why
the laid-off employees were not assigned to this work, Ire-
lan replied that the Company did not want to harm their
eligibility for unemployment by giving them short-term
work and then laying them off a second time. I also credit
Gayneau' s statement that, at the time of his recall on July
3, the employees were working regularly at NUPCO, and
that he was assigned to instruct them. On July 2, Respon-
dent hired a college student, James Spellacy, and put him
to work on a full-time basis doing production work. On or
about July 15, it hired a second college student, Francis
Gareau, and put him to work full time in a similar capaci-
ty. Spellacy and Gareau worked the rest of the summer.7
Within a few days of the layoff, Gayneau returned to the
factory to pick up his personal possessions which were
stored in his locker. Irelan told him that he was not permit-
ted on the premises , but did allow him to complete this
errand. I credit Gayneau to the effect that, in the course of
their conversation, Gayneau told Irelan that he was still
loyal to the Company and did not sign a union card. He
exhibited to Irelan an unsigned union card which he had
taken from his locker. Irelan asked him how he could be
sure that this was Gayneau's own card, since it did not
have his name on it. Gayneau replied that he could not put
his name on it because, by so doing, he would be affiliating
with the Union. At this point, Irelan, J. Salnajs, and Tate
were the only regular production employees left on the
payroll. Tate mentioned to Jefferies that Gayneau had not
in fact signed a card and urged that he be recalled. Jefferies
said that, in such an event, he might be able to work some-
thing out and instructed J. Salnajs to get in touch with
Gayneau and ask him to return to work. Gayneau returned
to work on July 3, and is still employed .8 Tate and Gay-
neau regularly worked overtime on Saturdays following the
layoff.
During the summer months and on into September, the
Respondent hired employees, whom it refers to as "spot
labor," on a day-to-day basis from three suppliers of tem-
porary employees, Manpower, Minute Men, Inc., and In-
dustrial Labor Service. Respondent admits hiring "spot la-
7 Jeffenes ' recollection of the employment status of Spellacy and Gareau
was clearer and more positive than was the testimony of Irelan, who thought
(but was not sure) that they had been hired before the layoff and were
part-time employees.
8 It is undisputed that Gayneau did not in fact sign a union card. He did
participate with other employees in organizational discussions and met with
Francis and other employees in the parking lot on the occasion when Fran-
cis was present to discuss union benefits and organizational procedures.
Jefferies admits the conversation with Tate in which Tate recommended
Gayneau 's recall , but Jefferies did not recall any mention by Tate of
Gayneau's declination to sign a union card . I credit Tate 's recollection over
Jefferies ' lack of recall.
NATIONAL UTILITY PRODUCTS COMPANY
bor" totaling 88 hours on July 1, 2, 3, 8, and 9. It also
admits hiring "spot labor" totaling 148 man-hours during
the week ending August 25, 208 man-hours during the peri-
od August 27-30, 232 man-hours from September 3
through 9, 344 man-hours from September 9 through 13,
246 man-hours from September 16 through 20, and 16
man-hours on September 23. Beginning late in July, it be-
gan to hire additional permanent employees on its payroll.
These were:
Name
Fred Stefano
Michael Loan
Craig Lewis
Todd Starr
Louis Mender
Francis Shaw
Francis O'Malley
Date of Hire
July 29, 1974
August 23, 1974
(part time)
September 4, 1974
September 12, 1974
September 16, 1974
September 23, 1974
October 9, 1974
B. Analysis and Conclusions
1. Independent violations of Section 8(a)(1) of the Act
Shortly after the Union made its demand for recogni-
tion , Jefferies summoned Kunzen , C. Salnajs , and possibly
other employees into Irelan 's office for individual consulta-
tions . He told both Kunzen and C. Salnajs that the Compa-
ny had been considering, and was currently considering, a
grant to employees of certain fringe benefits . He spoke spe-
cifically of a profit-sharing plan, company life insurance,
and a dental care plan to supplement Blue Cross coverage.
Both the nature and timing of these conversations indicate
clearly that their intendment and effect was to dissuade
employees from pursuing efforts toward unionization, ef-
forts which were then well known to Jefferies and to others
in management . Accordingly, I find that such statements
by Jefferies constituted a violation of Section 8(a)(1) of the
Act. I do not find in the record in this case substantial
evidence of unlawful threats or interrogation of employees
by Respondent's management which would violate the
Act, so I will recommend that so much of the complaint
that alleges such violations be dismissed.
2. The layoff of Kunzen, Knight, C. Salnajs, and Sanner
The Respondent has placed in the record a prodigious
amount of documentary evidence indicating that, in the
calendar year 1974, the sale of adjustable risers by
NUPCO had declined . The evidence is clear that during
1974, taken in its entirety , sales were down from about
43,000 units in 1973 to about 31,000 units , a decline of
some 27 percent . How much of this decline was evident to
the Respondent midway in the calendar year , when the
layoff took place , is problematical . Late in June , just be-
fore the layoff , Respondent received a cancellation of an
order for 5,000 units which had previously been placed by
the city of New York. During the entire year, declines oc-
curred in sales to other major customers . Throughout the
early part of 1974 , and up to the point of the layoff, Re-
spondent had been accumulating in its relatively small fac-
tory building a stock of inventory which was being stacked
in cases along the walls of the production area . In addition
67
to stocks of finished product, the walls were also stocked
with raw iron which was scheduled for processing.
Respondent's witnesses testified that the accumulation was
not only untidy but that it was becoming a safety hazard.
The necessary implication is that production had to be
scaled down radically because there was no place to put
the finished product , and insufficient demand to warrant
any assumption that the stockpile would be shipped out in
sufficient quantities in the near future to alleviate the cong-
estion.
While a decline in sales can be posited as factual prem-
ise, other factors in the conduct of the employer, both be-
fore and after the layoff, make it abundantly clear that this
fact was not the motivating cause of the layoff. A claim of
economic distress has often been found to be pretextual
when antiunion motives of a respondent are laid bare by
statements, acts, and conduct which are inconsistent with a
plea of financial necessity. Serv-Air, Inc., 161 NLRB 382
(1966); Ventre Packing Company Inc., 163 NLRB 540
(1967); West Coast Casket Company, 192 NLRB 624
(1971), enfd. 469 F.2d 871 (C.A. 9, 1972); Mannington Elec-
tric, Inc., 200 NLRB 970 (1972); Santa Rita Mining Compa-
ny, a Division of Homestake Production Company, 200
NLRB 1070 (1972); Radiadores Paragon de Puerto Rico,
206 NLRB 918 (1973); Arlington Ridge Development Com-
pany, 203 NLRB 787 (1973); Machinery Distribution Com-
pany, 211 NLRB 756 (1974); VADA of Oklahoma, 216
NLRB No. 135. The Respondent herein was well aware of
the decline in its sales and the increase in its inventory late
in May and early in June 1974 , when it first employed
Knight and Sanner, two discriminatees who were then laid
off within a month of their employment, assertedly because
of conditions which existed at the time they were hired.
Nowhere in the record is this inconsistency explained. At
the time of the layoff, Respondent handed the five laid-off
employees written notices stating that the reason for the
layoff was a decline in sales and that it would recall them
when sales picked up. At the same time, Respondent's
agents told employees that the reason for the layoff was
not a decline in sales but a shortage of raw materials due to
a shutdown of the foundry where they were produced. This
shortage was asserted in the face of conflicting statements
by the same witnesses that raw materials were available,
and in fact were part of the congestion that was causing a
safety problem, and in the face of other credited testimony
that additional raw materials were arriving at the factory
on the day of the layoff.
The termination on June 25 was labeled and explained
by the Respondent to its employees as a layoff. In fact, it
was a permanent discharge as to the four discriminatees
named in the complaint . They were told by the Respon-
dent, in writing on June 25, that when an improvement in
the Company's condition warranted the Respondent would
"make every endeavor to return [them] to active employ-
ment." When an improvement occurred to the point where
the plant was back in production, Respondent made no
effort to contact laid-off employees to offer them recall.
Instead, it told two discriminatees who phoned in that no
work was available, and excused its failure to recall both
them and others with the unsupported supposition that it
felt that the men in question did not want to return to
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, having heard that some (though not all) had ob-
tained employment elsewhere. Moreover, Jefferies testified
that the Respondent eliminated the employees in question
at the time selected so that the men would have a better
chance of obtaining employment elsewhere than they
might otherwise have had if the Respondent had held off
until a later date . Such a statement is wholly inconsistent
with a desire to layoff and recall an employee, and is com-
pletely at odds with statements made to employees by
management on the date of the "layoff" that it would be of
short-term duration.
Irelan testified to the desperate need late in June for a
reorganization and relocation of the materials which had
accumulated in the plant, and of his insistence to Jefferies
for help in cleaning up the place and in straightening up
the boxes of inventory in order to remove a safety hazard.
The asserted hazard did not arise over night, and to the
extent that it existed , it was apparent to management at
and before the layoff. If the Respondent was desirous of
retaining the services of the laid-off individuals, they could
easily have been shifted from production to cleanup. In-
stead, this work was done in part by new hires and by
temporary "spot labor" who were hired in the place of the
discriminatees.
Gayneau, who was laid off with the four discriminatees
on June 25, did not in fact sign a union card. However, it is
easy to see how the Respondent could have believed that
he was part of the organizing drive. He participated in
unionization discussions and was present with Union Pres-
ident Francis and other employees at the impromptu meet-
ing which occurred in the plant parking lot on the date of
the Union's demand for recognition . When Gayneau, and
others on his behalf, satisfied Jefferies that Gayneau was
not in fact a union adherent, Gayneau was recalled
promptly and put back to work. He is still there.
In fact, there was a good deal of work to do at the plant
when five employees were laid off on June 25. In order to
perform this work , the Respondent soon thereafter hired
two college students who worked for it throughout the
summer months, put other employees on overtime during
this same period, and hired a large amount of "spot labor"
to perform the same tasks which the discriminatees herein
were performing before they were discharged. After the
dust of the layoff had settled, the Respondent then began
to rebuild its work force. Instead of recalling the men it
had promised to recall, it hired an entire new work force,
with four exceptions, and such is the work force which it is
currently utilizing.
When the layoff was completed on June 25, the Respon-
dent had left in its production area only two supervisors
and a maintenance man. The rest of its work force was
gone . It is quite clear that its intention at that point was to
retain only a cadre of essential employees and to reconsti-
tute its work force with people who had played no part in
the organizing campaign. This is exactly what it did. When
Francis came into Bowman's office and asserted that he
represented the employees, or a majority thereof, it was not
hard for Bowman and Jefferies to ascertain who, among
their employee complement of 10, these union adherents
might be. At a meeting which Bowman held with them a
few days later, their previous activities surfaced in the
course of the discussion, if only in the posture of an at-
tempt to deny or avoid the full meaning and import of
what they had done in signing union cards. When Jefferies
found out that he had made a mistake in the inclusion of a
nonunion employee among those selected for layoff, he
promptly rectified the mistake and brought the man back
to work. In light of these considerations, I conclude that
the Respondent herein, on June 25, 1974, unlawfully termi-
nated Gary R. Kunzen, Charles Salnajs, Charles Sanner,
and John Knight because they had designated or selected
Local 415 of the Teamsters to be their agent for purposes
of collective bargaining. In so doing, this Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
Upon the foregoing findings of fact, and upon the entire
record herein considered as a whole, I make the following:
CONCLUSIONS OF LAW
1. Respondent National Utility Products Company is an
employer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
2. Local 415, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discharging Gary R. Kunzen, Charles Salnajs,
Charles Sanner , and John Knight for engaging in union
activities, the Respondent herein violated Section 8(a)(3) of
the Act.
4. By the acts and conduct set forth in Conclusion of
Law 3, and by promising employees benefits in order to
dissaude them from engaging in union activities , the Re-
spondent herein violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices have a close, inti-
mate , and substantial effect on interstate commerce , within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I will recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative actions designed to effectuate the purposes and
policies of the Act. Because the unlawful activity found
herein is aggravated and includes the discriminatory dis-
charge of four individuals, I will recommend to the Board
a so-called broad 8(a)(1) order designed to suppress any
and all invasions of employee rights guaranteed by Section
7 of the Act. N.L.R.B. v. Entwistle Manufacturing Company,
120 F.2d 532 (C.A. 4, 1941). The recommended Order shall
provide that the Respondent be required to offer to the
four discriminatees named in the complaint reinstatement
to their former or substantially equivalent employment,
and that the Respondent make them whole for any loss of
earnings which they have suffered, in accordance with the
Woolworth formula. with interest computed thereon at 6
percent per annum. I will also recommend that the Re-
spondent be required to post a notice, advising its employ-
9 F. W. Woolworth Company, 90 NLRB 289 (1950).
NATIONAL UTILITY PRODUCTS COMPANY
ees of their rights and of the remedy in this case.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record herein considered as a whole,
and pursuant to Section 10(c) of the Act, I make the fol-
lowing recommended:
ORDER10
Respondent National Utility Products Company, West-
lake, Ohio , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Promising benefits to employees in order to induce
them to refrain from engaging in union activities.
(b) Discouraging membership in Local 415, Internation-
al Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization,
by discharging employees or otherwise discriminating
against them in regard to their hire or tenure of employ-
ment or any term or condition of employment.
(c) By any means or in any manner interfering with,
restraining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Offer to Gary R. Kunzen, Charles Salnajs, Charles
Sanner , and John Knight full and immediate reinstatement
to their former positions or, in the event that these former
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or to other rights
which they formerly enjoyed.
(b) Make whole Gary R. Kunzen, Charles Salnajs,
Charles Sanner , and John Knight for any loss of pay suf-
fered by them by reason of the discrimination found here-
in, in the manner described above in the section entitled
"Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll and other records necessary to analyze the amount of
backpay due under the terms of this recommended Order.
(d) Post at the Respondent's place of business in West-
lake, Ohio, copies of the attached notice, marked "Appen-
dix." 11 Copies of said notice, on forms provided by the
Regional Director for Region 8, after being duly signed by
a representative of the Respondent, shall be posted imme-
diately upon receipt thereof, and shall be maintained by
the Respondent for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered over by any other material.
(e) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of this Order, what steps
it has taken to comply herewith.
69
Insofar as the complaint alleges violations of the Act
which have not been found herein, the complaint is hereby
dismissed.
10 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall , as provided in Sec.
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
11 In the event the Board's Order is enforced by a Judgment of the United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT promise benefits to employees in order
to discourage them from joining a union or from aid-
ing and assisting a union.
WE WILL NOT discharge or otherwise discriminate
against employees because they have engaged in union
activities. All of our employees are free to become or
remain members of Local 415, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen, and
Helpers of America, or any other labor organization.
WE WILL NOT by any any means or in any manner,
interfere with, restrain, or coerce employees in the ex-
ercise of rights guaranteed to them by Section 7 of the
National Labor Relations Act.
WE WILL offer to Gary R. Kunzen, Charles Salnajs,
Charles Sanner, and John Knight full and immediate
reinstatement to their former or substantially equiva-
lent employment, and we will make them whole for
any loss of pay they have suffered by reason of the
discrimination which was found in this case, with in-
terest thereon at 6 percent per annum.
NATIONAL UTILITY PRODUCTS COMPANY