Ordont Orthodontic Laboratories, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1965

156 N.L.R.B. 49 (N.L.R.B. 1965)

ORDONT ORTHODONTIC LABORATORIES, INC. 49
Ordont Orthodontic Laboratories , Inc. and Office Employees In-
ternational Union , Local No. 13, AFL-CIO. Case No. 1If-CA-
3477. December 16, 1965
DECISION AND ORDER
On July 22, 1965, Trial Examiner Owsley Vose issued his Decision
in the above-entitled proceeding, finding that the Respondent had
engaged in certain unfair labor practices alleged in the complaint and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's deci-
sion. The Trial Examiner further found that the Respondent had
not engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that the complaint be dismissed with respect
to these allegations. The General Counsel filed exceptions to the Trial
Examiner's Decision and a supporting brief. The Respondent filed
exceptions to that portion of the Trial Examiner's Decision in which
he found that Respondent had violated the Act, and filed a brief in
support of its exceptions and certain portions of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions,' and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
'In finding that the Respondent had not refused to bargain , the Trial Examiner con-
cluded that certain alleged unilateral changes in working conditions , i.e., placing of
restrictions on employees ' movements , enforcement of a no -talking rule , and withdrawal
of training responsibilities from employee -designers , were matters within the realm of
management and were "outside the area of mandatory bargaining ." While we agree with
the Trial Examiner ' s conclusion that Respondent's conduct as to such matters did not
constitute a refusal to bargain , we find it unnecessary to adopt this rationale, as the
record establishes that these matters did not in fact constitute changes but were merely a
continuance of the Employer ' s past operational policies.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, heard before Trial Examiner Owsley Vose in St. Louis, Missouri, on
February 15 to 25, 1965, pursuant to charges filed the preceding October 9 and Novem-
156 NLRB No. 11.
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 4, 1964, and a complaint issued on November 20, 1964, presents questions as to
whether the Respondent has engaged in unfair labor practices within the meaning of
Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended.'
Upon the entire record, including my observation of the witnesses, and after due
consideration of the thorough briefs filed by the General Counsel and the Respondent,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Missouri corporation, is engaged at St. Louis, Missouri, in the
manufacture, repair, and sale of orthodontic appliances. Each year the Respondent
ships more than $50,000 worth of orthodontic appliances directly to customers located
outside the State of Missouri. Upon these facts I find, as the Respondent admits, that
it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act,
and that it will effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Office Employees International Union, Local No. 13, AFL-CIO, hereinafter called
the Union, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
1. Nature of the Respondent's business and the work
of the employees here involved
As indicated above, the Respondent is engaged in the manufacture, repair, and
selling of orthodontic appliances for the straightening of teeth. The Respondent's
business is conducted entirely by mail and its customers are dentists exclusively.
The Respondent serves the entire country except that it does not solicit business in
the St. Louis area because it is unwilling to give the prompt service which local
dentists demand.
The Respondent was founded by Leonard Ruzicka in 1949. It has been operated
very much as a family business with Leonard's brother, Lawrence, in charge of the
office and design departments, his brother, Raymond, in charge of the mailroom and
production departments, and their mother as a part-time mailroom employee work-
ing at home. Although he is the president and treasurer of the Respondent, Leonard
Ruzicka leaves the day-to-day operations of Ordont in the hands of his brothers and
spends only 5 to 10 hours a week at the plant. He is interested in, and an officer of,
at least four other companies-Orfiex, Incorporated, Prodent Dental Laboratories,
R. A. Bussey Machine Company, and Dolen Advertising Company. Leonard Ruzicka
maintains his office in nearby Clayton, Missouri. Alvin Boes, a certified public
accountant, is secretary of the Respondent. Boes is responsible for handling all
financial, accounting, and tax matters for all of the concerns in which Leonard
Ruzicka is interested, and his personal finances, as well.
The Respondent's office employees perform services for Leonard Ruzicka's other
businesses, and a considerable amount of expensive automatic equipment is located
in the Respondent's office for use by these employees in the course of their work for
the five companies in the Ruzicka complex. There are six or seven autotypists-IBM
executive typewriter units costing $11,400 to $13,300, one Graphotoype costing $900,
one Addressograph costing $1 ,600 to $2,500, and two IBM standard electric type-
writers in the Respondent 's office. None of Leonard Ruzicka's other companies have
comparable automatic equipment.
The Respondent's office employees handle, on an irregular basis, the work involved
in sending out large advertising mailings, not only for the Respondent but also for
Leonard Ruzicka's other businesses.
1 Subsequent to the hearing counsel for the General Counsel filed with the Trial Ex-
aminer (1) a motion to withdraw subparagraph A of part V of the complaint, and (2)
a motion to correct transcript . The Respondent In Its brief supports motion ( 1) above,
and has filed no opposition to motion ( 2). It appearing proper, both motions of the
General Counsel are hereby granted.
ORDONT ORTHODONTIC LABORATORIES, INC. 51
The instant case involves primarily the employees in the Respondent's office and
design departments-the departments under the supervision of Lawrence Ruzicka.
2. The organization of the Respondent's office and design department employees
The employees of the Respondent's office and design departments became inter-
ested in organizing in August 1964. By August 27 the Union achieved substantial
representation among these employees. A request for recognition and a meeting to
discuss the matter was made to the Respondent by the Union by letter dated August 27,
which was received by the Respondent the next morning. The same day, August 27,
the Union filed a petition for certification with the St. Louis office of the Board.
Thereafter, the Respondent entered into an agreement with the Union for a consent
election. Pursuant to this agreement an election was held on September 25. The
Union won the election and was certified by the Regional Director as the exclusive
bargaining representative of the Respondent's office and design employees on Octo-
ber 5, 1964.
3. The issues involved
The complaint as amended contains numerous allegations of violations of Section
8(a)(1), (3), and (5) of the Act. With respect to the alleged violations of Section
8(a)(3) of the Act, the complaint alleges that designers Raymond Eyler and James
Wittich were discharged on August 28 and September 29, 1964, respectively, and that
part-time office employees Maureen Fitzsimmons and Judy Semmler were also dis-
charged on September 29, 1964. The complaint further alleges in this respect that
designers Robert Bennett and Milburn Long were temporarily laid off on scattered
days in September and October 1964 and that office employees Diane Bender, Diane
Senseney, and Janet McCrain were temporarily laid off on scattered days in October
and November 1964. A total of 8 days in all is involved in the cases of the latter
three office employees.
The complaint as amended alleges that the Respondent violated Section 8(a) (1)
and further violated Section 8(a)(3) of the Act, by reason of Lawrence Ruzicka's
institution of new and more onerous conditions of work for the designers after he
received the Union's request for recognition on August 28, 1964. The more onerous
working conditions which the General Counsel contends violated Section 8 (a) (1) and
(3) of the Act fall into the following categories: (1) Elimination of all overtime
work; (2) placing of restrictions against designers leaving their desks and timing them
on trips to the restroom; (3) strict enforcement of the Respondent's no-talking, no-
communication rule; and (4) withdrawing of training work from the designers, the
making of disparaging comments about their work, and refusing to assist them with
difficult problems.2
The complaint as amended further alleges that the Respondent has violated Sec-
tion 8(a) (5) by unilaterally and without notice to the Union effecting the discharges
and layoffs above mentioned and instituting the more onerous working conditions
listed above without affording the Union an opportunity to discuss its decisions to
take such actions.
Unlike the typical unfair labor practice case, the complaint as amended herein
contains no allegations and the record contains no proof that any representative of
the Respondent made any threats against employees, uttered any statements indicat-
ing opposition to the Union, or engaged in any hostile questioning of employees about
union matters.
With respect to the discharges and layoffs, the General Counsel's theory is that the
Respondent deliberately diverted available work for both office and design employees
so as to have an excuse for getting rid of some of the organized employees thereby
posing an object lesson regarding the consequences of unionization to the Respondent's
unorganized production and mailing employees. The General Counsel further con-
tends that the more onerous working conditions put into effect by Lawrence Ruzicka
for the designers after he received the Union's request for recognition on August 28
supplies the evidence of antiunion motivation which is essential to establish the illegal-
ity of the discharges or layoffs here involved.
2 The General Counsel wisely no longer presses allegations of the complaint concern-
ing various other alleged restrictive measures , including an allegation that Lawrence
Ruzicka in effect sought to freeze out the prounion designers by turning the air - condition-
ing down.
217-919-66-vol. 156-5
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The imposition of more oneorous working conditions on the design depart-
ment employees in alleged violation of Section 8(a) (1) and (3) of the Act
1. Introductory discussion
In the design department during a period of normal operations a group of about
four young men are engaged in making the designs or diagrams from which the appli-
ances are constructed in the production department, which is upstairs in the plant.
The designers usually work from the dentist's prescription and a full or partial plaster
cast of the patient's teeth, which is called a model. The principal problem in pre-
paring a design is interpreting the dentist's instructions. The designer also has to
mark up a code sheet in accordance with the design which he has made which is used
to inform the office girls of the type of letter to be sent out to the dentist. The code
sheet may be also used to indicate to designer-trainees the type of appliance to be
designed by them. These designs may be either for the actual immediate construction
of an appliance or for the purpose of submitting an estimate to the dentist. The
turnover in the design department is usually very high and the Respondent normally
has about two trainees assisting the more experienced designers in getting out the
work.
Lawrence Ruzicka customarily exercises very close and strict supervision over the
designers. In 1960 Lawrence had the designers moved from the mailroom, which
was a more efficient location from a workflow point of view, to his office, where he
could closely oversee their work. He insists on continuous attention to the job at
hand and tolerates not a single wasted moment. That is, and has been, his consistent
practice.
The designers all sit inside a large U-shaped table or desk facing either away from
Lawrence or to the right or the left. Lawrence's desk is directly behind the U-shaped
table and only a few feet away. Lawrence can keep his eyes on the designers without
moving his head, but the designers have to turn their heads to see Lawrence.
The designers, unlike the office girls under Lawrence's general supervision, are not
permitted to smoke. They cannot drink soda at their desks. The designers are not
given the 10-minute breaks morning and afternoon which the production employees
have. The designers are and for some time have been forbidden to talk to one another
except as may be absolutely necessary in connection with their work.
2. The elimination of overtime for the designers
The record does not support the General Counsel's contention that the Respondent
discontinued giving the designers overtime after August 28. The timecards of the
designers which were introduced into evidence by the Respondent show that the last
overtime worked by any of the designers was on Saturday morning, August 8, 1964.
Secretary Boes testified that on Friday, August 7, designer Kenneth Peebles
approached him on behalf of the men with various grievances. After indicating that
he had tried unsuccessfully to get Lawrence to do something about these matters,
Peebles mentioned his final complaint as follows: "Lawrence ... talks to Drew Rose
(another designer) quite a bit while the rest of the boys have to work and that is why
we don't care about working overtime any more." Boes further credibly testified
that he reported his conversation with Peebles to Lawrence Saturday afternoon,
August 8. Peebles denied telling Boes that the men did not care to work overtime.
Peebles admitted, however, that he told Boes that he did not think that it was fair for
the rest of the designers and trainees to have to be working while Lawrence was carry-
ing on lengthy conversations about personal matters with Rose. Both Boes and
Peebles in other respects impressed me as attempting to tell the truth. However, in
this instance I believe that Boes interpreted some comment of Peebles as indicating
a dislike of having to work overtime when the designers' services were not being fully
utilized during the normal working hours and that he reported this to Lawrence.
Such a conclusion is consistent with Lawrence's testimony discussed below and with
the sequence of events in connection with the discontinuance of overtime for the
designers. Accordingly, I find that Boes reported to Lawrence on August 8 that the
designers did not wish to continue working overtime.
Lawrence testified that the reason he discontinued the overtime for the designers
was the complaint of Peebles and also the fact that he had decided to hire additional
designer trainees. This decision was prompted, so Lawrence testified, by his conclu-
sion, as a result of hearing Boes' account of Peebles' complaints, that Peebles was dis-
satisfied and probably would quit shortly. Lawrence hired Raymond Eyler as a
designer trainee on August 12 and James Wittich on August 17. All of these actions
took place before Lawrence received any knowledge that organizing activities were
ORDONT ORTHODONTIC LABORATORIES, INC. 53
in progress. Lawrence testified that it was not until he received the Union's letter
requesting recognition that he became apprised of the union activities. There is no
contention made in this case to the contrary.
Upon the foregoing facts I conclude that the allegations of the complaint, as
amended, dealing with the Respondent's alleged withholding of overtime work from
the designers in violation of Section 8(a)(1) and (3) of the Act should be, and they
are hereby, dismissed.
3. The restrictions against the designers leaving their desks
During September, Lawrence directed Kenneth Peebles and Drew Rose, the
Respondent's two experienced designers, to discontinue going to the mailroom to
obtain trays of models and prescriptions from which they work, and told them to
ask the trainees to bring them work when they needed it. Before the advent of the
Union the designers themselves, except when they were specially rushed, had nor-
mally obtained their work from the mailroom. In the first half of September, before
Lawrence placed this restriction in effect for Peebles, Lawrence would follow Peebles
to the mailroom and check on his selection of work and occasionally overrule Peebles'
choice.
While the complaint alleges that designers were forbidden to leave their desks for
any reason execpt one 5-minute absence each morning and afternoon to go to the
restroom, the record fails to sustain this allegation. The most that the record shows
in this regard is that Lawrence reprimanded Rose on one occasion for spending 20
minutes in the restroom. Lawrence testified that after observing Rose being absent
for a considerable time to go to the restroom he commenced timing Rose when he
left his desk and that he finally reprimanded Rose only after ascertaining that Rose
was spending an excessive length of time away from his work. Rose admitted that on
the occasion on which he was spoken to by Lawrence the criticism was justified.
Peebles testified that no restrictions had been placed upon his leaving his desk to go
to the restroom.
Lawrence admitted that he curtailed the trips of the designers to the mailroom as
testified to by them, but explained this restriction as follows: On four of five occa-
sions after August 28 he observed the designers joking and carrying on with the girls
in the mailroom. According to the designers, they engaged in only normal pleas-
antries in passing the mailroom girls, and that they had been doing this for some
time.
While I am convinced that Lawrence exaggerated the extent of the designers "car-
rying on" in the mailroom, it appears to me the restrictions placed upon the designers'
trips to the mailroom fall within the "normal area of detailed operating decisions
relating to the manner in which work is to be performed," the making of which is the
prerogative of management. Little Rock Downtowner, Inc., 148 NLRB 717. The
record shows that Lawrence has consistently been a strict supervisor. As appears
more fully below in connection with the discussion of the layoffs of the designer-
trainees, the Respondent had an excess number of trainees during September, and it
was reasonable to utilize their time as messengers rather than the more valuable time
of the experienced designers. The Respondent during this period agreed to the hold-
ing of a consent election, which is more consistent with a lack of opposition to the
Union than the contrary. There is no evidence that Lawrence or any other repre-
sentative of the Respondent ever made any statement to anyone indicating any hos-
tility to the Union. Under all the circumstances, I conclude that the record fails to
establish that restrictions were placed by Lawrence on the movements on the design-
ers because of their union sympathies in violation of Section 8(a) (1) and (3) of the
Act.
4. The no-talking rule
The complaint alleges that after August 27, 1964, Lawrence orally forbade design-
ers to have any conversation with one another except as required in the course of
instruction or training. As indicated above, the Respondent's no-talking rule for the
designers has been in effect for some time. This is shown by the testimony of the
designers themselves that the passing of notes has been resorted to by the designers
for some time in an effort to communicate with one another.
The General Counsel cites the fact that prior to the advent of the Union Lawrence
himself engaged in considerable talk with designer Rose during working hours about
personal matters and argues that Lawrence's strict enforcement of the no-talking rule
after the receipt of the union letter requesting recognition establishes a violation of
the Act. I cannot agree. I do not regard the boss' conversations with an employee
about personal matters as a violation of a rule which prohibits employees from talking
54 DECISIONS OF .NATIONAL LABOR RELATIONS BOARD
with one another. For. this reason, in my opinion, there is no basis for my drawing
the adverse inference which the General Counsel seeks to have me draw from the
asserted contrasting treatment of employees before and after the advent of the Union.
Lawrence was a difficult boss before the coming of the Union and he continued to be
one afterwards. The Section 8 (a) (1) and (3) allegations of the complaint based upon
the Respondent's alleged more strict enforcement of its no-talking rule are hereby
dismissed.
5. The withdrawal of training work from the designers, the making of disparaging
comments about the designers' work, and the refusal to assist the designers with
difficult problems
With respect to the withdrawal of training work from the designers, the General
Counsel.relies on testimony establishing that trainee Long was transferred for train-
ing purposes from Rose to Peebles in the early part of September, and that in the lat-
ter part of September, upon Wittich's layoff, Bennett was transferred from Rose to
Peebles for instruction purposes. During this same period Lawrence stopped Rose
from marking up the code sheets. Also during this period Peebles was relieved of
the responsibility of training Long and Lawrence, himself, undertook this
responsibility.
Lawrence explained his relieving of Rose of his training responsibilities and his
marking up of code sheets on the grounds that he had concluded that Rose was wast-
ing time in various ways, including making an excessive number of alternate designs
and filling in the wrong part of the design sheet first, and because Rose was not fol-
lowing the instructions to prepare the design first and then the code sheet. By relieving
Rose of his training responsibilities, he could ascertain precisely how much work Rose
was doing. As to Peebles, Lawrence testified that he relieved him of some of his
training responsibilities because he had observed Peebles wasting time in the way he
was drawing his designs and also because he was making incorrect changes on Ben-
nett's designs. In addition, according to Lawrence, he saw Peebles making correc-
tions on Bennett 's work in such a way as to completely destroy Bennett's work when
all that was required was for Peebles to change a few lines. Peebles denied failing
to follow any instructions which he understood to be in effect and testified, with
respect to the manner in which he corrected the trainees' work, that he believed that
he was doing it in accordance with Lawrence's instructions.
Regarding the charge that Lawrence subjected the designers to constant criticism
after the receipt of the union letter, Peebles testified that Lawrence frequently told
him "to quit acting like a kid" and that Lawrence had told him that he was not doing
his work properly,..that he was not as smart as he thought he was, and that Bennett
and Long was smarter than he was and were doing a better job. Rose also testified
that Lawrence had asked him why he was giggling like a girl and whether he was
playing games with his. work.
In connection with his discussion of Lawrence's criticism of his work, Peebles
brought out that Lawrence, in contrast with his past practice, would not help him with
difficult problems., Rose gave similar testimony. .
Lawrence admitted criticizing Peebles and Rose and explained that when he said
that Peebles should stop acting like a kid, he was 'referring to Peebles' wearing at
work.of sweaters, heavy, knee-high baseball stocking, and storm galoshes on various
hot September days. Rose occasionally blew on his hands in such a way as to suggest
that it was too cold in the office for him to be able to do his work properly. These
actions on the part of Peebles and Rose were apparently intended to constitute an
unspoken protest against what they regarded as the excessive cooling of the office.
Lawrence further explained that his question of Rose as to why he was giggling was
made in response to Rose's hyperbolic observation on one occasion when Lawrence
turned on both a newly installed air-conditioning system and the old reconditioned
system at the same time, that working there was going to be like working in "a meat
packing plant."
Regarding the withholding of advice from the designers concerning difficult prob-
lems, Lawrence admitted that "after this foolishness started up" 3 he was less accessible
to the designers. However, Lawrence explained that he felt that Rose was imposing
upon him by asking questions to which Rose already knew the answers and that for
7 While the General Counsel intimates in his brief that this is a reference to the em-
ployees' activities in support of the Union, I find the record insufficient to warrant such
an inference . It is just as reasonable to infer that Lawrence had reference to Peebles'
and Rose's exaggerated demonstrations protesting what they regarded as the excessive
cooling of the office.
ORDONT ORTHODONTIC LABORATORIES, INC. 55.
the most part he (Lawrence) was simply too busy with his own work to interrupt it_
to study a problem of one of the designers. Consequently, Lawrence testified, he
would usually tell the designer to leave the problem on his desk and that he would
tend to the matter later.
Considering the evidence upon which the General Counsel relies in connection with
this aspect of the case in the light of Lawrence's various explanations, I find that this
evidence is not sufficient to warrant drawing the inference that Lawrence's action in-
this regard and his critical comments about the designers' -work were taken in retalia-
tion against them because of their adherence to the Union. This evidence, in may
opinion, shows no more than the reaction of-a strict supervisor to the situations with
which he was confronted in the course of his relations with the employees under his
supervision.
Nor is this conclusion altered when Lawrence's conduct complained of in this
section is considered in conjunction with Lawrence's other conduct about which the
General Counsel complains or in the light of the wage increase precipitately granted
by Leonard to the production and mailroom employees on September 22, 1964, dis-
cussed below. There is no affirmative evidence in this case indicating that the restric-
tions placed by Lawrence upon the movements of the designers, his strict enforce-
ment of the no-talking rule, and his withdrawal of training responsibilities from the
designers were put into effect because he disapproved of the designers' support of the
Union. The actions complained of are not of a type which in and of themselves
bespeak union hostility. The normal effect of such conduct, in my opinion, is not
to inhibit employees in the exercise of their rights under the Act. Under all the
circumstances I conclude that the. General Counsel has failed to establish that Law-
rence's conduct hereinabove discussed violates either Section 8 (a) (1) or (3) of the
Act. These allegations of the complaint as amended are hereby dismissed.
C. The grant of wage increases in alleged violation of Section 8(a) (l) of the Act
The complaint as amended alleges that on or about September 25, 1964, the
Respondent, in violation of Section 8 (a) (1) of the Act, granted certain of its employ-
ees wage increases "in order to influence the votes to be cast by the employees in the
Board-conducted representation election on said date." The election above referred
to, which was held on September 25, 11964, involved the Respondent's design and
office employees. The Union at that time was attempting to organize the Respond-
ent's production and mailroom employees, and on November 16, 1964, filed with
the Board's St. Louis office a 'petition for certification as exclusive. bargaining rep-
resentative of the Respondent's production and maintenance employees, including
mailroom employees.4
The record shows that on September 22, 1964, Leonard Ruzicka directed Secretary
Boes to put a 5-cent-per-hour increase into effect for all of the female employees in
the mailroom and production departments and for the two highest paid male produc-
tion employees, Lloyd Borah and Elmer Emerson. Leonard instructed Boes that the
increase was to be effective at the beginning of the weekly payroll period ending
September 24, 1964, and that the affected employees should be immediately informed
of the increase. The employees first received the benefit of the wage increase when
they received their paychecks on September 25, the day of the election among the
design and office employees.
A few of the designers and office employees, the employees in the unit which is
involved in this case, received wage increases in the period between August 28, 1964,
the date of the Respondent's receipt of the Union's letter requesting recognition, and
September 25, 1964, the date of the election: However, I find that these increases
followed a definite pattern. The newer. employees were given wage increases every
3 months, and designers Peebles, and Rose, who, had been. with the Respondent for
several years, received wage increases every 6 months. Office employees receiving
$66 per week were given no increases. - In view of these facts I attribute no signifi-
cance to the circumstances that some of the office and design employees received
wage increases in the period preceding, the election. See N.L.R.B. v. Southern Coach
& Body Co., 336 F. 2d 214, 217 (C.A. 5). The General Counsel's argument to the
contrary is hereby rejected.
With respect to the Respondent's production and mailroom employees the picture
is somewhat different. Leonard's testimony regarding the increases given Borah and
4 On March 29, 1965, after the Union won this election also, the Union was certified by
the Regional Director as the statutory bargaining representative of the employees in
the above-described unit.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Emerson indicates that the Respondent gives wage increases to production employees
every 3 months for the first 2 years, and thereafter reviews the wage rates every
6 months.
The record clearly establishes that this plan was not followed with respect to the
production and mailroom employees . Payroll records covering the second half of
1963 and all of 1964 show that with only one exception , none of the female employees
in both the production department and mailroom had received any wage increase in
the 18 months period referred to above, other than the one granted on September 22,
1964 , on the eve of the election . The one exception was Atrell Beatrice Turner, who
was hired during the payroll week ending February 6, 1964, and who was given a
5-cent raise during the payroll week ending May 7, 1964 , 3 months later.
Borah and Emerson, the male production employees who were given increases at
this time, had both been given wage increases about 4 months earlier. As employees
of more than 2 years' service , Borah and Emerson were not entitled to wage increases
on September 22, under Leonard's purported plan, as less than 6 months had passed
since their last wage increase . Regarding the male production employees who were
not given increases . on September 22, the record indicates that they were given
-increases at other times at 3- or 6-month intervals.
The following explanation was given by the Respondent for the grant of the wage
increases to the production and mailroom 'employees on September 22. In May
1964 Leonard had discussed with Secretary Boes granting increases to Borah and
Emerson, two of the male production employees, and to the female employees in the
production department and the mailroom . The upshot of this discussion was to give
Borah and Emerson 5 -cent-an-hour increases , and to defer decision with respect to
-the girls. Borah and Emerson were given increases effective the beginning of the
-payroll week ending May 14. On September 20, while on business in the Washing-
ton, D.C. , area, Leonard made a telephone call to Secretary Boes during which Boes
-informed him that Helen West, a production employee with 7 years' experience, had
quit. Leonard said at that time, according to Boes' testimony , "We have to do some-
thing. We never did go ahead with the wage increase for the girls upstairs [and] in
the mailroom.... Let me discuss it with Ray and I will let you know whether to put
-it into effect ." While Boes was talking to Leonard in a second long -distance telephone
conversation on the morning of September 22, Clifford Burnham, a production
employee, came in and turned in his uniform . Boes mentioned to Ruzicka that Bur-
ham apparently was quitting . ' Leonard, so Boes testified , immediately said, "Put the
wage increases in effect as is our usual practice ." Leonard testified that news about
two experienced . employees quitting in such a short period of time "kind of flipped
[him] a little bit, more than a little bit" and that he wondered if he was analyzing his
-wage scales properly. According to Leonard , he quickly decided that he wanted to
'put the wage increase into effect immediately , and gave instructions that 5-cent
increases were to be given to Lloyd Borah and Elmer Emerson , and to all the female
employees in the production department and the mailroom.
I have serious reservations about the sincerity of the Respondent 's explanation
regarding the giving of these wage increases . In the first place, at the time when
Leonard discussed with Boes the possibility of giving the female production and
-mailroom employees a raise in May, it had been about a year and perhaps longer,
since all but one of them had had a raise . Yet the Respondent did nothing about
putting the discussed increases into effect for 41/a months longer . Then, just 3 days
before the election was scheduled to be held among the design and office employees,
the Respondent suddenly put into effect a wage increase for all of the female employ-
ees. This was the first time that the Respondent had ever put an increase into effect
on such a group basis. Had the Respondent waited just a few days , until after the
election, all question of interfering with the outcome of the election and of deterring
'the production and mailroom employees in their organizational activities would have
'been avoided.
Leonard testified that when he was informed in the short span of just 2 days that
'both Helen West and Clifford Burnham had . quit, he decided that his wage scales
-were out of line and determined that something had to be done about it immediately.
While Helen West was an experienced employee, Clifford Burnham, whose quitting
assertedly precipitated the decision to put the wage increase into effect, was not,
having been employed only a little over 6 months and being paid but $76 per week.
To remedy this situation ,'Leonard granted increases , not to the lower paid male pro-
duction employees , like' Burnham , but to the two highest paid male production
employees , Borah and Emerson, who each were already being paid $103 per week.
While I can understand an employer 's desire to retain his most experienced employ-
ees, this was not such an emergency as required Leonard to act that very day, without
any opportunity for a face -to-face discussion with his brother Raymond, who was in
ORDONT ORTHODONTIC LABORATORIES, INC. 57
charge of the production department . It should be remembered that Leonard spends
only a day or . so a week at the plant and therefore was not as closely aware of the
operating details of the various departments as were the department heads, . Raymond
and Lawrence.
In view of the foregoing facts, including the fact that Leonard's plan of granting
increases at 3 and 6 months intervals was not followed , I cannot accept Leonard's
explanation for suddenly granting these wage increases to the production and mail-
room employees . Under all the circumstances I believe that it is reasonable to con-
clude that Leonard had an ulterior motive in acting so precipitately with respect to
these increases . The timing of the increases , just 3 days before the election among
the design and office employees , suggests , and I find, that the reason for Leonard's
hasty action was to demonstrate to both groups of employees , the design and office
employees on the one hand, and the production and mailroom employees on the other
hand, his opposition to the Union and to show that a union was not necessary to
advance their interests in the plant . The normal effect of such unprecedented action
taken at such a time, in my opinion, is to interfere with the employees ' freedom of
choice with regard to choosing union representation . Accordingly, I conclude that
the Respondent by granting wage increases to its production department and mailroom
employees on September 22, 1964, interfered with , restrained , and coerced its employ-
ees in violation of Section 8 (a) (1) of the Act. N.L.R.B. v. Exchange Parts Com-
pany, 375 U.S. 405, 408-410.
D. The discharges and layoffs in alleged violation of Section 8(a) (3) of the Act
1. The discharge of Raymond Eyler on August 28, 1964
Lawrence hired Eyler and put him to work as a designer at the plant on August 12,
1964. Lawrence testified that Eyler at first wasted time walking around the table to
obtain his work when he could more readily get it simply by reaching across the table.
Eyler discontinued this practice after Lawrence called the matter to his attention.
Lawrence further testified that after observing Eyler gazing at the ceiling several
times, finally on August 26 or 27, on another occasion on which he saw Eyler staring
at the ceiling, he asked Eyler what he was doing. Eyler replied, according to Law-
rence, that "he was just daydreaming ... that he did this quite often." Lawrence fur-
ther testified that he made up his mind to let Eyler go, having concluded that Eyler
did not have proper work habits. Eyler, when questioned about this daydreaming
incident, did not recall the incident, but admitted that "it is entirely possible that it
could have" happened. I credit Lawrence's testimony regarding the daydreaming
incident.
Lawrence further testified that before 8:30 a.m. on Friday, August 28, in accord-
ance with his usual custom, he handed Secretary Boes the timecards for his employees
and at that time told Boes that he was going to need an additional check for that Fri-
day's work for Eyler because he was going to dismiss him that day. The employees are
paid on Friday each week for their work through the preceding Thursday. Secretary
Boes testified that about 8 a.m. on Friday, August 28, Lawrence brought him the
timecards for the week ending August 27 and asked him to prepare a final paycheck for
Eyler. Boes suggested waiting to see if Eyler reported for work that day. When
Eyler reported for work at 8:30, Boes prepared the check for his final day's work.
I credit the testimony of Lawrence and Boes regarding this transaction.
At 4:45 p.m. on August 28, Lawrence summoned Eyler to the front part of the
office and told Eyler, according to Eyler's credited testimony, "that things haven't
been going as well as I expected them to .... I'm going to have to let you go." Law-
rence then handed Eyler his check for the preceding week and a separate check for his
last day's work. Eyler went outside and waited for Peebles and Rose. When they
arrived Eyler told them of the substance of his conversation with Lawrence. When
Peebles inquired whether Eyler had been laid off or fired, Eyler decided to go back
into the plant and put the question to Lawrence. When Eyler did so, Lawrence told
him, as Eyler credibly testified, that he had been hired on a trial basis and that "You
just didn't work out as well as I expected you to." When Eyler asked, "Well then,
am I fired," Lawrence merely shook his head and would not say anything.5
As indicated above, Lawrence first acquired knowledge that his employees were
organizing when he received the letter from the Union requesting recognition between
9 and 10 that day. This was after Lawrence had communicated to Boes his decision
to discharge Eyler. Hence there is no basis for any inference that union hostility lay
behind Lawrence's decision to terminate Eyler. The Section 8 (a) (3) allegations of
the complaint, as amended, based on the discharge of Eyler, are hereby dismissed.
5 The foregoing findings are based largely on the testimony of Eyler himself.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The layoffs of the designers in September and October 1964
James Wittich was laid off for an indefinite period on September 29, 1964, and had
not been recalled at the time of the hearing. Robert Bennett was laid off on the fol-
lowing days: October 7 through 9, 13 through 16, and 20, 1964. Milburn Long was
laid off on the following days: September 30, October 2, 6 through 9, 13 through 16,
and 20, 1964. Each designer was told by Lawrence when he was laid off that the
reason was lack of work.
As indicated above, it is the General Counsel's contention that the records as to the
number of packages received in the mailroom and the number of hours worked by
mailroom employees show that work was available for the designers and that, not-
withstanding the availability of work, such work was diverted to others. This is
established, so the General Counsel's contention goes, by the disproportionate reduc-
tion in the hours worked by the designers after the receipt by the Respondent of the
Union's letter requesting recognition in comparison with the hours worked by the
mailroom and production employees. The General Counsel argues that in view of the
allegedly restrictive measures imposed upon the designers after they chose the Union
to represent them and the absence of a plausible explanation from the Respondent
for the disproportionate reduction in the designers hours, which he asserts was not
forthcoming, it is reasonable to infer that the layoffs were motivated by hostility to
the Union.
I consider first the question whether there is a sufficient correlation between the
volume of packages received in the mailroom and the hours worked by the mailroom
employees to warrant relying on the Respondent's records as to the numbers of pack-
ages received and the number of hours worked by the mailroom employees as a guide
to the volume of work available to the designers. Next, I will deal with the conclu-
sions to be drawn from comparing the reductions in hours put into effect by the
Respondent after the Union's request for recognition among the designers on the one
hand, and the production employees on the other.
The flow of work at the Respondent's plant is as follows: All boxes and packages
sent to the Respondent by dentists are received in the mailroom and unpacked by
the mailroom employees. Each item in the.box, including any model enclosed and
all papers, are stamped with a number and a record of the numbers used is kept in a
notebook which is called the mailbook. The model and the papers are placed upon
a tray for transfer to the office for the preparation of the design by the designers.
After the design has been prepared, the design is sent to the production department for
construction. After the actual construction of an appliance, it is returned to the
mailroom for wrapping and mailing.
Some of the packages received in the mailroom may merely contain requests for
estimates which may or may not result in actual construction work at some later
date. In such cases the design, the model, and the prescription are sent to the estimate
shelf in the mailroom to await an order for construction. Eighty-five percent of the
estimates prepared ultimately result in an order for construction. In the majority
of the cases orders are received back for the construction of an appliance within a
few days from the submission of the estimate. However, the time lag between the sub-
mission of an estimate and the receipt of an order for construction may amount to
6 months or even more.
Other packages received in the mailroom may merely contain orders for repair
work which involve work for production employees but no work for the designers.
Also, some of the boxes may contain orders for a standard appliance on which no
design is required. Tolman Crafton, a production employee and a witness for the
General Counsel, estimated that 30 to 35 percent of his work was on construction for
which no design was required. Other packages may be sent to the Respondent in
the mistaken belief that it performs dental laboratory work, such as bridgework.
These packages have to be returned and result in work for the mailroom employees
only.
In addition to these factors which indicate the lack of any close relationship between
the volume of packages received in the mailroom and the number of hours worked
by the mailroom employees on the one hand, and volume of work available to the
designers on the other, there is the matter of the time lag between the receipt in the
mailroom of a package containing a request for an estimate and the subsequent
receipt of an order for actual construction, which is indicated above varies from a
few days to up to 6 months.
Finally, Leonard Ruzicka testified that he had attempted to ascertain whether there
was any definite relationship between the level of work in the mailroom, as shown
by the numbers in the mailbook, and the number of incoming orders for work to be
ORDONT ORTHODONTIC LABORATORIES, INC. 59
done, and that he had concluded that there was no consistent relationship between
the number of incoming packages and the amount of work becoming immediately
available for the Respondent's design and production employees.
Upon all of the facts of the case I conclude that the relationship between the num-
ber of packages received in the mailroom and the number of hours worked by the
mailroom employees is not sufficiently close to those worked by the designers to war-
rant assuming that a constant relationship or ratio exists between the level of work
in the mailroom and the level of work of the designers. Consequently, I do not deem
it significant that the level of work in the mailroom remained fairly constant in the
period following the Union's request for recognition, while the level or volume of
work of the designers dropped appreciably.6
Coming now to the question of comparing the hours worked by the designers and
those worked by the production employees. While the work of the designers does
not flow directly from the designers to the production employees in every case and
while the production employees perform some work on appliances which the design-
ers have had nothing to do with, a substantial proportion of the designers' work ulti-
mately results in work for the production employees. Hence, it is not unreasonable
to compare the hours worked by the designers with the hours worked by the produc-
tion employees and to draw whatever inference logically flows from a disproportionate
change in the hours worked by either group of employees. However, as shown below,
the extent of any reduction in the designers' hours in comparison with the reduction
in the hours of the production employees varies depending upon the period chosen for
comparison purposes.
The Respondent, in Exhibit C to his brief, chooses the period commencing on
August 28, 1964, the day on which the Respondent received the Union's letter request-
ing recognition, and ending on October 24, 1964, the end of the payroll week in which
the temporary layoffs of the designers ended. Comparing the number of hours
worked by designers during this 8-week period in 1964 with the comparable period
in 1963, the Respondent concludes that designer hours were down but .37 of 1 per-
cent in 1964 as compared with the corresponding period in 1963.7 In Exhibit D to
its brief, the Respondent compares the number of hours worked by production
employees in the same 8-week period in 1964 and 1963. This analysis shows that
the hours of the production employees were down in 1964 as much as 6.8 percent
below those in the same 1963 period. From this the Respondent argues that one of
the basic premises underlying the General Counsel's case regarding the designers-
namely, that the hours of the designers were reduced disproportionately to those of the
production employees-is refuted by the facts of the case and that, therefore, the
General Counsel's whole argument should be rejected.
The picture, however, is somewhat different if the period is extended for 3 more
weeks, using the 11-week period beginning August 28 for comparison purposes,
instead of the 8-week period chosen by the Respondent. Using this period, designer
hours in 1964 (1548.25) were down 9.0 percent below those in the same 11-week
6 While the actual number of hours put in by mailroom employees in the 11-week period
after the Union's request for recognition shows a gain of 6.9 percent over the hours
worked in the corresponding period in the preceding year
(2235.38-2080.85= 154.53:=6.9)
2235.38 2235.38
this gain is more than accounted for by the hours put in by Velma Brumit during her
first month on this job while she was being trained by Frances McDonald to take over
McDonald's old job in the mailroom. During this month, which ended on October 26,
1964, when McDonald transferred to the production department, there was one extra
employee in the mailroom and Brumit worked 174.42 hours during this period (General
Counsel's Exhibit No. 77 and Respondent's Exhibit No. 64). Subtracting the number
of hours which were duplicated by Brumit from the total number of hours worked by
the mailroom employees in the 11-week period (2235.38), the remaining hours put in by
the mailroom employees (2060.96) show a drop of almost 1 percent from the number of
hours worked in the corresponding period in the preceding year
(2080.85-2060.96= 19.89=.9)
2080.85 2080.85
7 The General Counsel and the Respondent in their briefs both treat the changes in the
levels of work in the various departments in comparison with the levels during the
corresponding period in the preceding year in an effort to show the comparative deviation
from a normal level. This appears to be a reasonable approach and I will adhere to it
throughout my discussion of this point.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period in 1963 ( 1702.83 ).8 With respect to the hours of production employees in
these same 11-week periods in 1963 and 1964, the record shows that 1964 produc-
tion hours ( 6669.70 ) were down 7.8 percent below the 1963 hours ( 7235.85).9
Comparing the reduction in design hours in 1964 below those of 1963 with the
reduction in production hours on still another basis , the results are as follows:
Utilizing the last 24 weeks worked by design and production employees in 1963
and 1964 as the basis for comparison , the record shows that the design hours were
down in 1964 below the 1963 level by 5.7 percent ( 3786.16-3569 . 41) 10 and the
production hours down in 1964 by 4.0 percent ( 15669.83-15055 .70).11
The question remains as to what period should be chosen by which to gauge the
extent of the drop in the hours of the designers as compared with the reduction in
the hours of the production employees . In view of the fact that the General Counsel
contends that the layoffs of the designers were effected by the Respondent in retalia-
tion for the employees ' choosing the Union to represent them, of which the Respond-
ent first became aware on August 28, 1964, and which was confirmed when the Union
won the election on September 25, it seems reasonable to conclude that the test period
should commence on August 28, 1964, and should continue a few weeks after the
Union won the election . The 11-week period mentioned above starting on August 28,
1964, and ending on November 12, 1964, appears to present a sensible solution to
the problem . This period includes the last of the temporary layoffs relied upon by
the General Counsel as being discriminatory and it also includes the weeks of maxi-
mum reduction in the designers ' hours in the period from August 28 until close to the
end of the year. In this period , as found above , the designers hours were down in
1964 below the 1963 level by 9.0 percent as compared with a 7.8 percent reduction
in the hours of the production employees . These figures show that the hours of the
designers were down in 1964 from the 1963 level only 1.2 percent more than those of
the production employees . Such an insignificant disparity scarcely seems to warrant
the inference that the Respondent was deliberately withholding work from the
designers.
The Respondent asserts that the reason that the hours of the designers were cur-
tailed was that it simply did not have work available for them to do . The Respondent
points out that it has not yet rehired anyone to replace designer Drew Rose, who had
quit on October 20, and that it had gotten along with just one designer and two
designer-trainees since that time. Lawrence testified that after hearing from Boes
about Peebles' complaints about working conditions he concluded that Peebles was
about to quit and decided to hire trainees in an effort to have an adequate replacement.
However, after Peebles acted as an observer for the Union in the . election, Lawrence
decided , so he testified , that Peebles was going to remain and this left him overstaffed
in the design department ; consequently he laid off Wittich . Where there still was not
enough design work after the layoff of Wittich, it became necessary to lay off Long
and Bennett temporarily for short periods. Leonard Ruzicka testified that he had
not had any design work done by others and the General Counsel offered no evidence
as to the identity of the persons to whom he claimed design work was being diverted.
Under all the circumstances , including the fact as compared with 1963, that the
hours worked in the design department in 1964 dropped only an insignificant per-
centage more than the hours worked in the production department and the further
fact that the record is barren of any evidence of expressions by the Respondent's
agents of hostility toward the Union, I conclude that the General Counsel has fallen
far short of sustaining his burden of proof with respect to the allegations of discrimina-
tion against the designers in violation of Section 8(a) (3) of the Act. These allega-
tions of the complaint as amended are hereby dismissed.
3. The layoffs of the office employees
The Respondent admits that part-time office employees Maureen Fitzsimmons and
Judy Semmler were laid off indefinitely on September 29, 1964; that full-time employee
e 1702.83-1548 . 25 154 .
58 =9.0.
1702.83 1702.83
7235 .85-6669 . 76 566.15
7235 .85 7235 .
8561.8.
IU 3786 . 16-3569 . 41 216.75 -5.7.
3786.16 3786.16
i^ 15669 .83-15055 . 70 614.13
16669 .83 15669 .
8364.0.
ORDONT ORTHODONTIC LABORATORIES, INC. 61
Diane Senseney was laid- off on October 9, 28, and 29 and November 6; and that-.
full-time employee Janet McCrain was laid off on October 9, 29, and 30. The record:
shows that Diane Bender was laid off on one, undisclosed day in October. Each.
employee was told when she was laid off that the reason was lack of work.
The office employees perform the usual bookkeeping, payroll, billing, and corres-
pondence functions for the Respondent. They also do the billing work for Leonard
Ruzicka's other companies, and the bookkeeping and payroll work for Bussey. In
addition, they.also handle, on an irregular basis, the work involved in sending out
large advertising mailings, not only for the Respondent but also for Leonard's other
companies.
As indicated above, the General Counsel contends that the office employees were
laid off commencing on September 29 because they chose the Union to represent them
in the election which was held on September 25. The Respondent defends its action
on the grounds that office work was slack. The General Counsel rejoins that work was
slack because Leonard deliberately discontinued some of the advertising campaigns
which furnished additional work for the office employees. The record does show
that there were fewer mailings of advertising materials in the last half of 1964 than
there were in the last half of 1963. However, in my opinion, the record does not
show that Leonard artificially created a lack of work for the purpose of discriminat-
ing against the office employees as the General Counsel contends. In 1963, just 1
year before the first of the layoffs here complained of, the number of hours worked
by office employees dropped noticeably and did not again pick up until the end of
the year. This was long before the advent of the Union. Exhibit A to the General
Counsel's brief shows that there were considerable fluctuations from season to sea-
son in both the numbers of hours worked by office employees and the numbers of
such employees. The drop in the demand for the services of office employees which
occurred in 1964, was solved by the temporary layoffs of Fitzsimmons and Semmler,
part-time employees who worked a few hours each day after high school. Semmler
had been hired in June 1964 and Fitzsimmons the middle of August 1964. Fitzsim-
mons could not type and served as a file clerk exclusively. After working less than
2 weeks Fitzsimmons was laid off. She was told that the reason was a lack of work
and that she would be recalled when work became available. This occurred before the
Respondent had any knowledge that the Union was attempting to organize any of its
employees, and the fact that she was laid off at this time indicates that layoffs of
office employees was not an unusual way for the Respondent to solve an overstaffing
problem with respect to the office employees.
The Respondent explains that there was less work for office employees in the second
half of 1964 in part on the ground there were less mailings of advertising materials
to be handled, which was extra work which took part of the time of the office employ-
ees. Secretary Boes testified that the mailing of letters for Bussey Machine Company,
one of Leonard's other businesses, was discontinued in March 1964 because Leon-
ard was dissatisfied with the results of the direct mail form of advertising and that
ultimately Bussey hired a salesman to contact customers. In addition, the Respondent
asserts that after its new Addressograph machine was installed in July 1963 a good
deal of extra time was required of the office help going over the Addressograph plates
correcting names and addresses and remaking the plates. Once this work was finally
done, it did not have to be repeated. Another factor calling for less office help in
1964 was the fact that the employees were experienced and had become skilled in
the use of the Addressograph machine, which was used in many of the Respondent's
routine office operations, such as the preparation of invoices and monthly statements.
Aside from the fact that Leonard did not have the office employees handle as many
advertising mailings in the second half of 1964 as had been taken care of previously,
there is no other evidence tending to indicate that Leonard was artificially creating a
scarcity of work for office employees in order to be in a position to retaliate against.
the office employees for affiliating with the Union. This evidence, in my opinion,
does not establish any discriminatory purpose in effecting the layoff of the office
employees. While the General Counsel relies upon the allegedly more onerous
working conditions imposed by Lawrence upon the designers as establishing the
Respondent's hostility to the Union, I have found that it was not reasonable to infer
union animus from Lawrence's conduct in this regard . As pointed out hereinabove,
the record in this case is barren of evidence of the types of manifestations of union
hostility usually encountered in unfair labor practice cases. Under all the circum-
stances I find that the General Counsel has not sustained his burden of proof with
respect to this aspect of the case. The Section 8(a)(3) allegations of the com-
plaint, as amended , based upon the temporary layoffs of office employees, are hereby
dismissed.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Respondent 's alleged violations of Section 8(a)(5) of the Act
1. The Union 's majority status in the appropriate unit
Respondent 's answer admits , that all "office clerical employees" constitute a unit
appropriate for the purpose of collective bargaining within the meaning of Section
9(b) of the Act, and that "on or about August 27, 1964, a majority of the employees
in the unit hereinabove described ... designated or selected the Union as their repre-
sentative for the purpose of collective bargaining with Respondent ." It is conceded
by all parties hereto that the Respondent's designers who work in the office under
.Lawrence's direct supervision are included in the aforesaid appropriate unit.
2. The Respondent 's unilateral institution of more onerous working conditions
The complaint as amended alleges in effect that Lawrence 's institution of "new and
-onerous conditions of work" for the designers without affording the Union an oppor-
tunity to discuss with the Respondent its decision to take such action constituted uni-
lateral changes in working hours , terms, and conditions of employment in violation
,of Section 8(a)(5) of the Act. These alleged changes include the discontinuance of
overtime work , the placing of restrictions on the movements of designers , strict
enforcement of no-talking rule, and the withdrawal of training responsibilities from
the designers.
Regarding the discontinuance of the designers' overtime work, the record clearly
shows that this occurred several weeks before the Union requested recognition, let
.alone its acquisition of majority status., Obviously the Respondent was under no
,obligation at this time to notify the Union of its intentions and to discuss the matter
of overtime with "it.
.With respect to the remainder of the changes: as* to which the General Counsel
contends there was a duty on the part of the Respondent to.notify the Union in advance
and bargain collectively before putting such changes into effect, I find, as indicated
above, that these .changes related to matters within the realm of management and that
they did not relate to terms and conditions of employment. Such changes were within
the scope of Lawrence's authority to decide how the work of his subordinates was to
be performed and to insist upon compliance with his strict standards of performance.
Little Rock Downtowner, Inc., 148 NLRB 717; Bruns Garage, Inc., 148 NLRB 363.
Hence these matters were outside the area of mandatory bargaining and the Respond-
ent's failure to notify the Union before making these changes , therefore , did not vio-
late Section 8(a) (5) of the Act.
3. The Respondent's unilateral action regarding the layoffs
The final allegation of the complaint , as amended , to be considered is the allega-
tion that the discharge of Eyler, and the layoff of various other employees in Sep-
tember, October, and November, 1964, without giving the Union an opportunity to
discuss these personnel actions in advance, constituted unilateral changes in terms
and conditions of employmentin violation of Section 8(a) (5) of the Act. This and
the Respondent 's unilateral institution of more onerous working conditions are the
only respects in which the General Counsel contends that the Respondent has violated
Section 8 (a)(5) of the Act. There is no claim made that the Respondent is not in
all other respects fully observing its collective-bargaining obligations under the Act.
The failure to give advance notice of the impending layoffs involves, in addition to
Eyler, whose discharge I have found was not in violation of the Act, the indefinite
layoffs of designer Wittich and part-time office employees Fitzsimmons and Semmler,
and the short -term layoffs of designers Bennett and Long and office employees Ben-
der, Senseney, and McCrain. The latter three office employees were off work a day
or two at a time in October and November for a total of 8 days altogether. Designers
Bennett and. Long were laid off for short periods six times in September and October
1964. The longest period of consecutive layoff for either designer was 4 days.
On October 20, 1964, Robert R. Babcock, the business representative of the Union,
visited the plant and took up with Leonard the matter of the layoffs of the designers.
At that time Wittich had been laid off for 3 weeks and Bennett and Long had been
laid off for almost a week. Leonard explained that the Respondent simply did not
have the work for the designers. Babcock countered with the assertion that the
Respondent was giving the designers ' work to someone else. Leonard suggested to
Babcock that he talk with the designers in Lawrence 's office and ascertain for himself
how much . work had been available recently.
ORDONT ORTHODONTIC LABORATORIES, INC. 63
Babcock then asserted that the Respondent was laying off office and design employ-
ees and at the same time was hiring mailroom and production employees and was
working them overtime. Leonard explained that the Respondent was not hiring pro-
duction employees other than to replace a production employee who had left. Leonard
added that to furnish a replacement, he had transferred one of the mailroom employ-
ees to the production department, and to replace the transferee, had hired a new
employee for the mailroom. Leonard further explained that one reason that the
production employees were working while work was slack for the designers was that
the production employees were working on newly received orders for appliances, the
designs for which had been previously prepared by the designers in response to a
request for an estimate. Leonard pointed out that, in view of the time lag between the
submission of an estimate and the receipt back of an order for construction, the pro-
duction•employees may have been working on appliances the estimates for which had
been submitted weeks or months earlier. Leonard then showed Babcock the estimate
shelf and commented that, unlike many businesses, a high percentage of his estimates,
85 percent, ultimately resulted in orders for construction.
After discussing the situation of the designers, Leonard turned the discussion to
the office employees. He mentioned the number of letters which the Respondent
has previously had run off on the automatic typewriters which were no longer being
done. Leonard showed Babcock the Addressograph system. The discussion abruptly
ended when Secretary Boes came up and informed Leonard that Drew Rose, the
Respondent's most experienced designer, had suddenly quit. Both Babcock and
Leonard turned their attention to this unexpected development.
Subsequently, Babcock had telephone discussions with attorneys representing the
Respondent concerning further impending layoffs of office employees. On Novem-
ber 20, one of the Respondent's attorneys sent Babcock a letter in which he explained
that a further layoff of office employees might be necessary and that McCrain and
Senseney, the two junior office employees, were the ones who would be laid off in
the event such action became necessary. According to the Respondent's payroll rec-
ords, McCrain and Senseney were actually laid off for 1 week in December 1964.
This was the only occasion on which the Respondent actually consulted with the
Union in the advance of a layoff.
The General Counsel, relying on the Board's decision in Southern Coach & Body
Co., 141 NLRB 80, set aside 336 F. 2d 214 (C.A. 5), contends that the Respondent's
failure to notify the Union about the impending layoffs to Wittich and the others so
as to give the Union the opportunity to discuss with it the methods of selecting the
employees to be laid off constituted a unilateral change of working conditions in
violation of Section 8(a)(5) of the Act. In Southern Coach & Body Co., supra,
81-82, the Board stated as follows:
The principle is well established that layoffs and recalls of employees come
within the term "working conditions" and are, therefore, mandatory subjects
for bargaining. Although the privilege of deciding that an economic layoff is
required belongs to the employer, absent an emergency or other reasonable
explanation, it is the employer's duty at least to notify and discuss with the
employees' lawful representative the methods of selecting employees to be laid
off before the event takes place.
At first blush Southern Coach appears to be controlling and requires a finding that
the Respondent violated Section 8(a)(5) of the Act by failing to notify the Union of
the forthcoming layoffs and to give the Union an opportunity to discuss them, if it
so desired. However, upon reviewing the developing law regarding this area, and
considering it in the light of the recent trend of Board decisions, I do not believe that
present Board law calls for a finding that the Respondent's conduct violated Section
8(a)(5) of the Act.
The question of the employer's responsibility under Section 8(a)(5) of the Act
to notify the bargaining agent of his employees in advance of a layoff has arisen only
comparatively recently. It was not until 1962, when the Board decided the Town and
Country and Fibreboard cases,12 which involved the question of an employer's obli-
gation under Section 8(a)(5) of the Act to notify in advance and discuss with the
bargaining agent of his employees his decision to subcontract the work of certain
is Town & Country Manufacturing Company, Inc., et at., 136 NLRB 1022 , enfd. 316 F. 2d
846 (C.A. 5 ), and East Bay Union , of Machinists, Local 1304, United Steelworkers of
America, et at. (Fibreboard Paper Products Corporation), 138 NLRB 550 , enfd. 322 F.
2d 411 (C.A.D.C.), affd. 379 U . S. 203.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
departments, that attention became focused on the question of an employer's obliga-
tion to notify in advance and.discuss with the statutory representative of his employ-
ees impending layoffs of employees for lack of work.
Before the Town & Country and Fibreboard decisions it was rarely contended by
either unions or the General Counsel that an employer was obligated to notify the
statutory bargaining representative of his employees in advance each time he decided
that a single employee had to be laid off for lack of work. The reason for this, I
believe, may have been that the parties adopted a practical approach to the bargaining
process. In the normal running of his business an employer has numerous decisions
to be made each day, and to enlarge the area of compulsory bargaining in advance
about every single layoff for lack of work would burden the employer in the manage-
ment of his business in a manner disproportionate to the gain to the represented
employees. In many cases it is very difficult to reach the bargaining agent at the
crucial time. In some cases, where the employer himself has little or no advance
notice that a layoff is going to be required, it is impossible for the employer to bar-
gain with the union in advance about the selection of employees for layoff. For
these, or for whatever reasons, historically the persons most directly concerned-
employers, employees, and their bargaining representatives-have avoided a construc-
tion of Section 8(a)(5) of the Act which would require an employer, each time
economic conditions require him to lay off a single employee, to notify the bargain-
ing agent in advance. This has been true, despite the fact that a layoff involves a
change in a term or condition of employment and hence is technically within the
sphere of mandatory bargaining.
I subscribe to this interpretation of Section 8(a)(5) of the Act. The collective-
bargaining process functions more effectively, in my opinion, when it concerns itself
with the overall problems of employer-employee relations. The details and the
minutiae of employer-employee relations which arise every day in the operation of a
'business can best be handled under the scheme established in the collective-bargaining
contract, without having recourse to the Board available each time a union disagrees
with an employer's decision regarding such a matter.
The fact that the persons most directly concerned, and apparently also the Board,13
have not over the years construed the Act as requiring advance notification to the
bargaining agent in the case of a layoff of a single employee is not without signifi-
cance. It would appear that the problem is one of determining where the line should
be drawn. Certainly, the layoff of all or most of the employees in one of the
Respondent's departments, or the indefinite layoff of a substantial percentage of its
work force would be a bargainable matter and the failure to notify the Union in
advance about such a layoff would be a breach of the Respondent's collective-
bargaining obligations. In the Southern Coach case cited by the General Counsel the
extent of the layoffs there involved are not too clear, the Trial Examiner reciting
"that the Respondent continued to lay off and recall employees at will." However,
in Aztec Ceramics Company, a division of The Texstar Corporation, 138 NLRB 1178,
cited by the Board as authority for the principle followed in Southern Coach, involved
a reduction in the work force of "one-third or more."
In this case, the layoffs were not nearly of such magnitude. Only I of the Respond-
ent's 5 designers, Wittich, and 2 of the Respondent's 11-person office force, part-time
employees Fitzsimmons and Semmler, were laid off indefinitely. Thereafter, all of
the layoffs were of short duration, a week at the most. Designers Bennett and Long
were off about a week each on two occasions, and, in addition, were laid off sporad-
ically for a day or two on several other occasions, as were office employees Bender,
Senseney, and McCrain. In each case the employees laid off were the employees with
the least seniority in the department.
Regarding these short-term temporary layoffs, I conclude, for the reasons above
indicated, that it would not effectuate the policies of the Act to require the Respond-
ent to notify the Union in advance each time such a layoff for lack of work became
necessary. Whether Section 8(a)(5) of the Act should be construed as imposing
13 I have been unable to find any decision of the Board holding, on the bare fact that
the employer has laid off for lack of work a single employee without advance notification
to the bargaining agent of his employees, that the employer has violated his collective-
bargaining obligations under Section 8(a) (5) of the Act. The recent decision of the
Board in The Great Atlantic & Pacific Tea Co., Inc., 150 NLRB 1222, discloses the Board's
unwillingness to find a violation of Section 8(a) (5) of the Act on the bare fact of a
layoff without prior notice to the bargaining agent. See footnote 1, supra. See also
cases cited in footnote 16, infra.
ORDONT ORTHODONTIC LABORATORIES, INC. 65
upon the Respondent the obligation to notify the Union in advance about the forth-
coming indefinite layoffs of designer Wittich, and part-time office employees Fitzsim-
mons and Semmler presents a more difficult question.14
In considering this question it should be borne in mind that this case presents an
exceptional situation, one in which economic layoffs became necessary only a few
days after the Union won the election and before a bargaining relationship had had
a chance to become established. Normally the parties will have worked out in the
bargaining negotiations a procedure for handling such matters as economic layoffs.
Not infrequently unions will propose contract provisions giving the employer the sole
responsibility over the making of layoffs, provided the employer follows certain pre-
scribed standards and the Union has some recourse in the event the employer fails
to follow such standards.15
Aside from the timing of the layoffs, the situation in this case is exceptional in other
respects. Wholly lacking in this case is evidence of the usual overt expressions of
employer hostility to unions which are so frequently encountered in unfair labor
practice cases. The only unfair labor practice thus far found herein is the Respond-
ent's grant, a few days before the election in the office unit, of wage increases to the
production and mailroom employees. After the Union won the election the Respond-
ent granted it de facto recognition, discussed the layoffs in detail with the union rep-
resentative when requested to do so, and, finally, when further layoffs became neces-
sary, did notify the Union in advance and discussed with it the employees to be
selected for layoff.
Recent decisions of the Board indicate that the Board, in considering allegations of
violations of Section 8(a) (5) of the Act based upon unilateral changes in terms and
conditions of employment, is proceeding cautiously so as not to impose upon employ-
ers an inflexible obligation to notify the bargaining agent in advance about every
change of working conditions. It considers all of the surrounding circumstances,
including whether the employer subsequently refused to discuss the Union's protest
against the change and whether the employer in other respects is attempting to avoid
his bargaining obligations under the Act. The Great Atlantic & Pacific Tea Co., Inc.,
150 NLRB 1222, footnote 1; The Celotex Corporation, 146 NLRB 48 (cf. I R). See
also Council Manufacturing Corp., 151 NLRB 298, in which the Board, contrary
to the Trial Examiner who found the violation, declined to pass upon the question
whether unilateral changes in working conditions violated Section 8(a)(5) of the
Act, in addition to Section 8(a)(3) and (1), which violations were admitted. The
Board predicated its refusal to pass upon this question upon its other unfair labor
practice findings and "the limited nature of the alleged violation of Section 8(a) (5)"
(see footnote 1).16
Under all the circumstances of the case I conclude that the Respondent should not
be held to have violated Section 8(a) (5) of the Act by reason of its failure to notify
the Union before laying off Wittich, Fitzsimmons, and Semmler indefinitely for lack
of work. To sum up, the layoffs became necessary just 4 days after the Union won
the election and before any certification was issued by the Regional Director. Bar-
gaining relations had not yet had an opportunity to become established. - Only a
comparative handful of employees were laid off altogether and only three indefi-
nitely. The remaining layoffs were of very short duration. - Seniority was strictly
observed in selecting all of the employees for layoff. When the Union protested the
14 Eyler, having been discharged for cause, as I have in effect found , the Respondent
was under no obligation to notify the Union and discuss this matter with it, as the making
of such a decision was wholly the prerogative of management.
ss See It. L. White, et at. d/ b/a White's Uvalde Mines v. N.L.R.B., 255 F. 2d 564 (C.A. 5),
which was cited with apparent approval in N.L.R.B. v. Benue Katz, etc., d/b/a Williams-
burg Steel Products Co., 369 U.S. 736, 747, footnote 14. In the White case, in which
the court held that the employer's unilateral action did not violate Section 8(a) (5) of
the Act, the court deemed it significant that the unilateral action was taken "before the
bargaining sessions commenced" (255 F. 2d at 565).
10 The Board has shown a similar hesitation about finding violative of Section 8(a) (5)
of the Act employers' unilateral action in contracting out certain of their functions. See
the following decisions in which the Board held under the circumstances of those cases
that its Fibreboard decision was inapplicable and held that the employers' action in sub-
contracting operations was not violative of Section 8(a) (5) of the Act. Kennecott
Copper Corporation (Chino Mines Division), 148 NLRB 1653; Shell Oil Company, 149
NLRB 305; General Motors Corporation, etc., ,149 NLRB 396; Westinghouse Electric
Corporation (Mansfield Plant), 150 NLRB 1574; The Fafnir Bearing Company, 151 NLRB
332; General Tube Company, 151 NLRB 850.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoffs, the Respondent explained them to the Union at length, and when further lay-
offs became necessary, the Respondent discussed with the Union in advance the selec-
tion of the employees to be laid off. No claim is made that the Respondent is not
fulfilling its bargaining obligations under Section 8(a)(5) of the Act in all other
respects. Finally, the record is barren of the usual open manifestations of employer
hostility to unions so often found in these cases. To hold in these circumstances that
the Respondent's failure to consult the Union in advance about these layoffs to be a
violation of Section 8(a) (5) of the Act, in my opinion, would tend to frustrate rather
than to further the effectuation of the policies of the Act. Accordingly, I conclude
that the Respondent has not violated Section 8(a)(5) of the Act by its unilateral
action regarding the layoffs. The allegations of the complaint as amended based
upon such conduct are hereby dismissed.
IV. THE REMEDY
Having found that the Respondent violated Section 8 (a) (1) of the Act by granting
a wage increase to some of its employees, my Recommended Order will direct that
the Respondent cease and desist from such action and from any like or related
conduct.
CONCLUSIONS OF LAW
1. By granting wage increases to its mailroom and production employees just 3
days before the election among its office employees and at a time when the Union was
seeking. to organize its mailroom and production employees, the Respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
.guaranteed in Section 7 of the Act, in violation of Section 8 (a) (1) of the Act.
2. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record , and pursuant
to Section 10(c) of the National Labor Relations Act, as amended, I recommend that
the Respondent, Ordont Orthodontic Laboratories, Inc., St. Louis, Missouri, its offi-
cers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Granting employees wage increases under such circumstances as will inter-
fere with, restrain, or coerce its employees in the exercise of the rights guaranteed in
Section 7 of the Act; provided, however, that nothing herein contained shall be con-
strued'as requiring the Respondent to revoke any wage increase which it has hereto-
fore granted.
(b) In any like or related manner interfering with , restraining , or coercing its
employees in the exercise of the right of self-organization, to form labor organiza-
tions, to join or assist Office Employees International Union, Local No. 13, AFL-
CIO, or any'other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from any or all
such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its place of business in St. Louis, Missouri, copies of the attached
notice marked "Appendix." 17 Copies of said notice, to be furnished by the Regional
Director for Region 14, shall, after having been duly, signed by the Respondent's rep-
resentative, be posted 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.
17 In the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a 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."
LOCAL 868, INT'L BROTHERHOOD OF TEAMSTERS 67
(b) Notify the Regional Director for Region 14, in writing, within 20 days from
the receipt of this Decision, what steps it has taken to comply herewith.ls
is 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 clays
from the date of this Order , what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a 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 grant employees wage increases under such circumstances as
will interfere with, restrain, or coerce our employees in the exercise of the rights
guaranteed in Section 7 of the Act. However, we are not required by said
Recommended Order to revoke any wage increases which we have heretofore
established
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist Office Employees International Union, Local No.
13, AFL-C10, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
All our employees are free to become or remain, or refrain from becoming or
iemaining, members of a labor organization of their own choosing.
ORDONT ORTHODONTIC LABORATORIES, INC,
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 4459 Fed-
eral Building, 1520 Market Street, St. Louis, Missouri, Telephone No. Main 2-4142.
Local 868, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America [Mercer Storage Com-
pany, Inc. ] and Mid - County Buick, Inc . Case No. 2-CC-974.
(f ornaerly 29-CC-27). December 16, 1965
DECISION AND ORDER
On September 24, 1965, Trial Examiner Frederick U. Reel issued
his decision in the above-entitled proceeding, finding that the Respond-
ent had 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 Trial Examiner's Decision. Thereafter, the
Respondent filed limited exceptions and a brief in support thereof,
to which the General Counsel filed an answering brief. The General
Counsel also filed exceptions and a supporting brief.
156 NLRB No. 17.
217-919-66-vol. 156-6