Plastic Composites Corp.

National Labor Relations Board - Board Decisions

May 20, 1974

210 N.L.R.B. 728 (N.L.R.B. 1974)

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plastic Composites Corp. and International Union of
Electrical, Radio & Machine Workers, AFL-
CIO-CLC. Cases 25-CA-5457, 25-CA-5457-2,
and 25-RC-5257
May 20, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On September 28, 1973, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding . Thereafter , the General Counsel
filed exceptions , a supporting brief , and a brief in
support of the Decision, and the Respondent filed
exceptions and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided. to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge,2 subject to the modifications set forth below,3
and to adopt his recommended Order.
We agree with the Administrative Law Judge that
in view of its conduct violative of both Section
8(a)(1) and (3) of the Act, the Respondent should be
required to recognize and bargain with the Union as
the representative of its production and maintenance
employees under the standards set forth in N. L. R. B.
v. Gissel Packing Company, Inc., 395 U.S. 575.4 In so
doing, however, we disavow his assertions that the
threats found violative of Section 8(a)(1) were
relatively minor, as compared to the discharge found
violative of Section 8(a)(3), which, according to the
Administrative Law Judge, "goes to the heart of the
Act." Not only do we doubt the efficacy of any such
attempt to make a comparative assessment of the two
types of violations-a subject on which reasonable
minds will readily disagree-but, more basically, we
fail to perceive any useful purpose which might
thereby be served, inasmuch as it is the combination
of violations that herein provides the basis for the
Gissel -type remedy recommended by the Adminis-
trative Law Judge and hereinbelow ordered.5
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent, Plastics Composites
210 NLRB No. 121
Corp., Fort Wayne , Indiana, its officers, agents,
successors, and assigns , shall take the action set forth
in the said recommended Order.
IT IS FURTHER ORDERED that the election conducted
in Case 25-RC-5257 on March 7, 1973, be, and it
hereby is, set aside , and that the petition for
certification of representative filed therein be, and it
hereby is, dismissed.
I In adopting the 8(axl) violation findings of the Administrative Law
Judge Chairman Miller does not rely on any statements made by the
Respondent in the letters issued to employees on February 19 and 23 and
March 5, 1973. In Chairman Miller's view , the statements there made do not
exceed the bounds of privileged activity as defined by Sec . 8(c) of the Act.
Adopting the remaining 8(axl) and 8(aX3) violation findings of the
Administrative Law Judge , Chairman Miller agrees that a bargaining order
is appropriate, but only as part of the remedy for those violations . See his
separate statement of his views as expressed in United Packing Company of
Iowa, Inc, 187 NLRB 878 , 880, and General Stencils, Inc, 195 NLRB
1109, 1111.
2 We deny as without merit the Respondent 's posthearing "Motion to
Reopen the Record and Cite Additional Authority," which contends that
the United States Supreme Court's postheanng decision in N.LR.B v.
Savarr Manufacturing Company, 414 U.S. 270, requires a finding that the
cards used to support the Union's showing of interest in the election herein
were tainted and that the Administrative Law Judge 's Decision herein is
therefore invalid . The basis for the motion is a letter from the Union's
International to its Local herein, granting the Local 's request for
"exoneration for the present employees" from initiation fees "when they
join IUE," and from the payment of dues until the signing of a contract
between the Respondent and the Union.
We conclude that this waiver of initiation fees does not warrant setting
aside the election in Savarr, the Supreme Court characterized such a waiver
as a legitimate interest of the union in eliminating an "artificial obstacle,"
e g, the expense of representation, from the employees ' free choice in the
election. This union interest "can be preserved as well by waiver of
initiation fees available not only to those who have signed up with the union
before an election but also to those who join after the election." The
unconditional availability to all then present employees , whether they
should join the union before or after the election , indicates that the waiver
had not been conditioned upon support of the union in any form during the
election . The absence of such condition avoids the creation of any
impression that employees who refrain from supporting the union would be
penalized therefor in comparison with those employees who support the
union during the electral campaign In the instant case, the waiver was
optional before or after the election and was clearly not conditioned upon
the expression of support for the Union in any form during the electoral
process
3 We correct the third paragraph of that section of his Decision entitled
"VII The Alleged Refusal to Bargain" by changing therein the following
words. "unlikely" to read "likely," and "likely" to read "unlikely."
4 In adopting the Gissel -type remedy recommended by the Administra-
tive Law Judge, we find it unnecessary to consider his determination as to
the challenged ballots and as to the Union's objection to conduct affecting
the result of the election , involving alleged interrogation of employees at
their work station, and the distribution of literature , raising new issues as to
which there was insufficient time to respond
' Chairman Miller , unlike his colleagues, finds the Administrative Law
Judge 's rationale for the bargaining order constructive and would wish this
Board might rationalize the basis of its bargaining orders as well as the
Administrative Law Judge did here . See his dissent in General Stencils, Inc,
195 NLRB 1109 , 1111, cited with approval by the Court of Appeals for the
Second Circuit in the course of its opinion in that case , N.LR.B. v. General
Stencils, Inc, 472 F 2d 170
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: This
is an unfair labor practice proceeding consolidated with
proceedings on challenged ballots and objections to
PLASTIC COMPOSITES CORP.
conduct affecting the results of an election, both under the
National Labor Relations Act, as amended (the Act).
The litigation arises in the following manner. On January
29, 1973,1 the International Union of Electrical, Radio &
Machine Workers, AFL-CIO-CLC (herein Union or
Petitioner), petitioned the National Labor Relations Board
(herein the Board), for an election for collective-bargaining
representative of the production and maintenance employ-
ees of Plastic Composites Corp. (herein Employer or
Respondent). Pursuant to a stipulation for certification
upon consent election executed by the Petitioner and the
Employer, and approved by the Acting Regional Director
for Region 25 of the Board on February 20, an election was
conducted by the Board on March 7. The tally of ballots in
the election shows there were approximately 40 eligible
voters and that 42 ballots were cast, of which 18 were for
the Petitioner, 18 against , and 6 challenged. Enough ballots
were challenged to affect the results of the election.
On March 12 the Union filed timely objections to
conduct affecting the results of the election and also filed
unfair labor practice charges (Case 25-CA-5457). On April
30, based on those charges, a complaint issued alleging
violations by the Employer of Section 8(a) (1), (3), and (5)
of the Act. Following investigation the Regional Director
on May 8 issued a report on challenged ballots and
objections to conduct affecting results of election, recom-
mendations to the Board, order consolidating cases, order
directing hearing, and notice of hearing, in which he
recommended , inter alia, that one of the challenges, to
Calvin Compton, be sustained, and that a hearing be held
to determine the voting eligibility of Claude Amburgey,
Thomas Abercrombie, Frank Sutton, James Burnett, and
Floyd Long, Jr., and to resolve issues raised by the
objections and certain other additional objectionable
conduct noted in his report. Also on May 8 the complaint
in Case 25-CA-5457 was amended to include further
allegations under Section 8(a)(1) and an additional
discharge under Section 8(a)(3) of the Act. The Regional
Director also ordered that the representation case
(25-RC-5257) be consolidated with the unfair labor
practice case (Case 25-CA-5457) for the purposes of
hearing, , i ig, and decision by an Administrative Law
Judge. 1 here being no exceptions to the Regional Direc-
tor's report, the Board on May 25 adopted his recommen-
dations.
On May 25 the Union filed additional unfair labor
practice charges (Case 25-CA-5457) which became the
basis of a further complaint issued May 29 alleging another
discharge in violation of Section 8(a)(3) of the Act. This
was consolidated with the complaint issued earlier and the
consolidated proceedings were noticed for hearing at the
same time as the hearing on objections and challenges.
Respondent, answering the complaints, denied the
commission of unfair labor practices. The consolidated
matters came on for hearing before me at Fort Wayne,
Indiana , on June 13, 14, and 15.
Upon the entire record,2 my observation of the witness-
es, and consideration of the briefs filed by the General
Counsel and the Employer, I make the following:
i All dates herein are in 1973 unless otherwise indicated
2 The record includes a postheanng stipulation, together with six
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
729
The Employer is an Indiana corporation engaged at Fort
Wayne, Indiana , in the manufacture and sale of custom
molded, fiberglass reinforced plastic products. It annually
purchases goods and materials valued at over $50,000
which are transported directly to its plant from outside
Indiana. I find it is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
Respondent's principal products , commonly called
cherrypickers, are plastic buckets extended on plastic
booms for mounting on trucks used in the aerial servicing
of utility lines . Safety and reliability in the finished product
are extremely important.
II. THE UNION AND ITS ORGANIZING CAMPAIGN
The petitioning union is a labor organization within the
meaning of Section 2(5) of the Act.
In mid-January 1973 the Union , having been contacted
by some of Respondent 's employees , commenced organiz-
ing activities by forming an organizing committee . Respon-
dent first learned of the organizing activity on January 19
when it received a letter from the Union naming the
employee members of the organizing committee. On
January 24 the Union wrote Respondent asserting it
represented a majority of the employees and requesting
recognition and bargaining . Organizing activity continued
until the election on March 7. During the weeks prior to
the election Respondent countered the Union campaign
with its own campaign to persuade the employees to vote
against the Union.
III. ALLEGED THREATS, COERCION , AND RESTRAINT
The complaint alleges, and the answer denies, that
Respondent committed various independent violations of
Section 8 (a)(1) of the Act. These allegations include
solicitation of grievances of employees ; promises of
benefits and threats of loss of benefits and changed
working conditions in order to induce employees to
withhold support from the Union ; threats that the plant
would close ; imparting to employees the impression that
union activities were under surveillance; and paying or
loaning employees money to induce them to refrain from
supporting the Union.
A. The Alleged Solicitation of Grievances and
Promises of Benefits
1. Cavanaugh 's survey
The record shows that after the organizing activity began
and Respondent learned thereof it retained the services of
labor relations consultant James Cavanaugh . Cavanaugh
began a study aimed at identifying and analyzing problems
within the Company, including personnel problems. As
part of this study he interviewed most of the employees
between February 1 and 5 . Employee attendance at these
appendices thereto, which is designated Joint Exh. I
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interviews was voluntary. Respondent contends that steps
were taken to effectively maintain employee anommity. I
find steps were taken for that purpose but make no finding
as to whether they were effective to maintain employee
anommity because I deem it unnecessary to a disposition
of the issue.
Cavanaugh opened each interview with the same
question. Each employee interviewed was asked "If, when
you awaken tomorrow morning you were President of this
corporation, what would you do?" Although some employ-
ees did not respond to the query, most of them did. Many
of the responses dwelt on terms and conditions of
employment and matters of normal employee concern such
as their problems at work, and employee complaints. The
collected results of Cavanaugh's interviews showed in part
the following: 41 percent of the responses indicated that
the pay was too low resulting in excessive turnover; 33
percent commented about the supervision; 28 percent felt
absenteeism was the result of too much management
leniency and failure to enforce company rules resulting in
high turnover and unfairness to those working; 26 percent
expressed the need for a retirement program, either profit-
sharing or a pension program; 28 percent indicated serious
concern regarding safety. The results of the interviews were
read at one of the meetings with employees referred to
hereinafter.
I find that the question asked was designed to elicit
employee gripes, complaints and grievances and was
effective in doing so.
2. Meeting with employees
On February 19 Cavanaugh submitted the results of his
study to Company President John Lanmore in a document
entitled "Recommendations." Among other things, Cava-
naugh recommended a grievance procedure, a grievance
committee, a profit-sharing retirement program, an incen-
tive system, a safety committee, and a job posting and
seniority system. During the preelection period John
Larimore and Cavanaugh conducted a series of group
meetings with employees. At one of these John Larimore
read to the employees parts of Cavanaugh's "Recommen-
dations." At subsequent management-employee meetings,
prior to the election, various portions of Cavanaugh's
program were discussed.
During the preelection campaign management held an
estimated 10 of these general meetings with employees.
Two were devoted to the subject of attendance. The other
eight were for the avowed purpose of stimulating commu-
nications between management and the employees.
Most if not all of the meetings for the purpose of
improving communications were conducted by John
Lanmore with some participation by Cavanaugh. Larimore
opened each meeting with the statement that he would not
and could not make any promises. Further, various
Company witnesses including John Larimore, his brother
Robert, Production Superintendent Marion Hetrick, As-
sistant Foreman Gene Gray, Ralph Bentrup and Claude
Amburgey all testified that he did not promise anything at
these meetings. I do not fully credit what I view as the
conclusion of these witnesses because of the circumstances
and the contradictory testimony of other witnesses.
At these meetings employees were permitted to ask
questions from the floor. Numerous questions were asked
by employees, particularly those on the union organizing
committee. As a result of these questions and the subject
matters posed by Cavanaugh's recommendations, John
Larimore had occasion to explain and make statements
respecting terms and conditions of employment for the
present and for the future . A preponderance of the
evidence shows that in doing so he explicitly or implicitly
indicated on a number of occasions that improvement
could be expected. As communications from the president
to the employees these necessarily were promises.
Thus, when John Larimore reported to the employees
what Cavanaugh had recommended he said , according to
the credited testimony of Paul Muscello, "Some of these
we can do, and some of them we just can 't do at this time."
This version is corroborated by the credited testimony of
Lynn Royse that John Larimore in effect said he could not
promise but then went on to say he was going to look into
Cavanaugh's recommendations and see if they were
economically feasible for the Company . The net effect was
to dangle Cavanaugh's recommendations before the
employees as prospects for the future.
The credited testimony of Floyd Long, Jr., indicates that
the subject of safety in the plant was mentioned at two
meetings . At the first of these Cavanaugh reported on the
percentage of employees interviewed who had commented
on safety problems. Franklin Sutton recalled that John
Lanmore said he could not promise that safety problems
would be taken care of overnight. But Cavanuagh's
recommendations included procedures for handling em-
ployee complaints about safety-in other words a griev-
ance procedure. Lynn Royse credibly testified that John
Larimore explained in detail the four steps of the
recommended grievance procedure. The employee meet-
ings themselves were, in a loose sense , such a procedure
since their declared purpose was that of a vehicle for two-
way communication. And even after the election cam-
paign, according to the testimony of Assistant Foreman
Gene Gray, plans for employee meetings in the future
using the device of a so-called hot box, were discussed.
Such meetings apparently were held after the election of
March 7, the last such meeting being the week prior to the
hearing herein.
According to John Larimore the Company since at least
June 1972 had pending plans for a combination profit-
sharing retirement program for employees . At the time of
the events involved herein these plans had not come to
fruition, but they were, according to John Larimore a
subject of discussion at the employee meetings . According
to Franklin Sutton, when he asked at one of the meetings
about the pension plan , John Larimore said he could not
promise when they would have it; that it was a complex
matter ; and that they had been working on it for 6 months.
Paul Muscello recalled that John Larimore said they were
going to follow through on the pension plan. Considering
that such a program had been in the works for some time,
it is not clear whether John Larimore was promising any
change from the existing situation. I find the evidence in
this regard is insufficient to establish that he was promising
such a change.
PLASTIC COMPOSITES CORP. 731
On at least one other topic the circumstances were such
that the employees could reasonably infer that conditions
would improve if they went along with the Company rather
than the Union. At one meeting John Larimore, using
charts , undertook to demonstrate that a number of terms
and conditions of employment at Respondent's plant were
at least comparable to those at other plants in the area. On
the topic of paid holidays, however, the charts showed the
conditions were better at the other plants than at
Respondent's. Noting this John Larimore commented,
"Well, we're behind on that, but we'll do something about
that."
In a word, then, in these meetings the Company
promised the employees improvements in general terms,
proposed a grievance procedure for handling safety and
other problems which employees could raise, and promised
an improvement in paid holidays.
3. Company letter to employees on February 19
John Larimore further commented on Cavanaugh's
recommendations in a letter to the employees on February
19. In this letter he told the employees, among other things,
that through the Cavanaugh survey management had
learned of shortcomings in its relationship with its
employees; conveyed the idea that management would do
its utmost to correct the shortcomings; and urged them in
the upcoming election to vote against the Union as being
unnecessary to the solution of existing problems. Thus,
specifically referring to Cavanuagh's survey, he noted that
many of the employees' comments, suggestions , ideas, and
criticisms were surprising to him, indicating that communi-
cations had been poor, and that in responding to the
survey the employees were helping to start the Company
on the way to a better understanding. The letter continued,
"We told Jim [Cavanaugh] that it was his responsibility to
make sure we are treating our employees fairly. I also
asked Jim to give me his recommendations on how we can
continue to improve not only our communications, but our
ability to work together." Somewhat further on he wrote,
"I sincerely hope that you will agree with me that the
I.U.E. is not necessary for each of us, and the Company as
a whole, to improve, progress and continue to grow."
While it is true that in the mid-portion of the letter, in
alluding to the technical nature of Board election regula-
tions, he asserted that management had not promised, nor
would they promise, the employees anything, the sense of
the letter as a whole is to promise employees better
conditions. Thus, he went on to say, "I know that we are
not perfect. Jim's report pointed that out . . . but I would
hope that we can continue to work together to solve
problems rather than be pulled apart. Resorting to an
International Union by employees MAY be necessary, and
even a good thing, where a Company has a sweat-shop
condition .. . where it always mistreats its employees .. .
and where there is no possibility of improving conditions
by working through the Company itself. I have told you
that I am not opposed to unions where employees have
exhausted every other possibility." He then mentioned
some existing conditions and plans which were favorable
and noted that wages, hours, and working conditions were
generally in line with other companies in the area. But then
he suggested that without the Union there could be further
improvement by writing, "This is not to say that we're
perfect and have no room for improvement. I now know
that we have some problems and that a variety of changes
need to be made. What we need now is your advice and
confidence. We can work out our problems, together,
WITHOUT a need for you to pay your hard earned money to
this union who want to put an end to our direct
relationship with each other. I hope the great majority of
employees agree that we are small enough to be able to talk
to each other directly." Toward the end of the letter he
wrote the following, "I can assure you that I will do my
level best to find solutions to our existing problems, which
are fair. As you know, we have always tried to do this in
the past, and now with better communications we can be
even more effective." He ended by asking the employees to
vote against the Union.
In sum, in his February 19 letter Larimore inferentially
promised the employees improved conditions without the
Union, explicitly invited direct bargaining with them, and
urged them to reject the Union.
4. Company letter to employees on February 23
On February 23 John Larimore sent to each employee
what he called a "fact letter" setting forth a number of past
or present conditions or facts which he deemed favorable
to the Company's position. In addition he referred to
Cavanaugh and the Company's intentions with respect to
his recommendations which had been communicated to
the employees, the employee meetings, and John Lari-
more's letter of February 19. This present letter conveyed
the idea that Cavanaugh's recommendations would result
in future advantages for the employees. While nothing in
this letter conditions the receipt of any advantages on
rejection of the Union, Larimore had already made clear to
the employees that he did not favor a union and that a
union was not necessary for the employees to progress.
Against a background of a union campaign, the letter of
February 23 could only be understood by employees as an
inducement to reject the Union at the upcoming election.
The precise words used in the portion of the February 23
letter referred to above are as follows:
FACT: It is our intention to utilize Jim Cavanaugh's
knowledge of employee relations to help you and me
better understand each other's needs , not just for now,
but for the remainder of this year and as long as
needed.
I find this was a general promise of better things to come.
5. Company letter to employees on March 5
Two days before the election John Larimore sent each
employee another letter enclosing a review of facts which
he had prepared. In this letter he again indicated in general
terms the idea that they would fair better at the hands of
the Company than if the Union were in the picture. His
precise words in this regard were:
I honestly believe, that at this time, each of you will
have more to gain personally and more opportunity, if
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you give your company a chance and let us continue
progressing together.
Therefore , I urge you to think and then vote NO, on
Wednesday and give your company that chance.
This letter cannot be viewed in isolation . In context with
the whole antiunion campaign , and although it purported
to only be Larimore 's belief , it was a promise to the
employees of "gain" and "more opportunity" if they
rejected the Union.
Of course in the attachment of this letter John Larimore
stated , "I have made no promises because the law will not
allow me to" to offset the fact that , "The Union talks about
all the promises I've made ." But this type of disclaimer did
not offset the impact of the promises he in fact had made.
Summing up regarding the preelection campaign, I find
Respondent committed unfair labor practices prohibited
by Section 8(a)(1) of the Act by soliciting employee
complaints and grievances through the device of Cava-
naugh ,s survey , by generally promising the employees
better conditions without the Union in the employee
meeting and in the letters of February 19 and 23 and
March 5 , and more particularly by promising a grievance
procedure to handle safety and other problems and a
better paid holiday program at employee meetings. See
Tom Wood Pontiac, Inc., 179 NLRB 581, enfd . 447 F.2d
383 (C .A. 7, 1971); Fairchild Camera and Instrument
Corporation, 169 NLRB 90, enforcement denied 404 F.2d
581 (C.A. 8, 1968).
B. Other Alleged Promises and Threats of Plant
Closure
The complaints allege , and the answers deny, that
additional statements in violation of Section 8(a)(l) of the
Act were made by John Larimore, Manager Robert
Larimore, and Supervisor Clyde Crutchfield in the form of
promises of greater benefits, by Supervisor Christey Hees
in the form pf a warning that the plant would close if the
Union came in, by John Larimore in imparting to
employees the impression of surveillance of their union
activities, and by John Larimore and James Cavanaugh in
threatening the lost of benefits, changed working condi-
tions, and harsher work rules.
Considering the record as a whole I find no evidence that
John Larimore violated the Act by giving the employees
the impression of surveillance of their union and concerted
activities , nor that he or Cavanaugh violated Section
8(a)(1) by threatening employees with loss of economic and
other benefits, changed working conditions or harsher
work rules if they did not refrain from becoming or
remaining members of the Union or giving assistance or
support to it.
1. The supervisory status of leadmen
The allegation that Respondent is liable for unlawful
statement of two alleged supervisors, Crutchfield and Hees,
depends in part on whether either was a supervisor within
the meaning of the Act. For the reasons indicated below I
find that both were.
Crutchfield and Hees hold comparable positions and the
evidence in the record relative to supervisory status is
applicable to both . Respondent employs a number of
persons, including Crutchfield and Hees , who are some-
thing more than rank-and-file employees and something
less than full-blown supervisors . At the hearing Respon-
dent witnesses referred to them as leadmen . The General
Counsel's witnesses all referred to them as foremen. Most
of the leadmen wear distinctive shirts provided to them by
the Company on which are embroidered their name and
the word supervisor . The preponderance of the evidence
shows that they spend a substantial amount of their time
(as much as 75 to 80 percent ) performing the same work as
rank-and-file employees. Hees is a leadman in the mold
department, Crutchfield in the boom department.
Higher management of the Company consists of the
president, John Larimore, his brother and manager, Robert
Larimore, superintendent of production, Marion Hetrick,
and assistant foreman, Gene Gray. During the preelection
campaign James Cavanaugh was a part-time consultant
and an agent of the Company. The leadmen operate
immediately under Hetrick and Gray. Each leadman has a
minimum of about four or not greater than about seven
employees on his crew and for whom he is responsible.
There are six leadmen . They attend supervisors' meetings.
Regarding the leadmen assistant foreman Gray testified:
Their responsibilities as leadmen in their departments,
they supervise in a sense the men and make sure that
the job is being done right. Working supervisors is what
they are, working leadmen.
More particularly John Larimore described their duties as
being responsible for the assignment of work to the men on
their crew, keeping records of production including records
of man-hour output, ensuring that production schedules
are met, and inspecting and ensuring that the work is
properly performed. According to Gray if a problem
develops in a department the leadman tell Gray or Hetrick
and one of them takes over.
In matters of discipline the leadman ordinarily do not
discipline but calls such matters to the attention of Gray or
Hetrick who then observe the employee involved. The
report of the leadman to the assistant foreman or the
superintendent of production is essentially informational
but they rely on the recommendations of the leadman as to
what appropriate action should be taken. Ralph Bentrup, a
leadman, testified that their recommendations, both
adverse and favorable, are effective. I so find. A prepon-
derance of the evidence establishes that leadmen have the
authority to initial an employee's timecard in the event the
employee has missed punching in and also on occasions
when an employee works overtime. They do not on their
own have authority to pull timecards or to discipline
employees by sending them home. In such matters they
make their recommendations to higher management.
Among the routine duties of the leadmen are included
the training of new employees and the periodic filling out
of standard forms for evaluating each rank-and-file
employee under him. In doing so the leadman makes some
judgment regarding the employee's competence and the
quality of his work and makes recommendations based
PLASTIC COMPOSITES CORP. 733
thereon . Wage increases received by employees are
ordinarily based upon these evaluations.
In view of the foregoing and because all of the leadmen
appeared to have had essentially the same authority, I find
that Crutchfield and Hees at the time of the events
involved in this case had sufficient indicia of supervisory
authority to make them supervisors within the meaning of
the Act and to make Respondent responsible for their
conduct.
1
2. The alleged unlawful conduct of Christey Hees
In the latter part of January, about the time that
Respondent should have received the first letter from the
Union notifying it of the identity of the union organizing
committee , an employee member of the organizing
committee asked Hees what he thought would happen
when John Larimore received the letter . Hees testified
about his reaction as follows, "I was thinking in the terms
of like everybody walked out and went on strike, I don't
know, I didn't know that much about unions; if everybody
went out or something like that, I said that John would just
probably shut it off and stop it." He was not sure if he
prefixed his opinion on the condition that there existed a
walkout, but that it is what he was thinking.
Franklin Sutton also testified credibly that in late
January or early February at a time when he was
exasperated because Hees had not ordered needed parts,
he blurted out, "You sure can tell that the plant is very
unorganized." By unorganized he meant inefficient. Hees
overheard him and apparently construed his remark as
meaning nonunion and Hees responded that there would
never be a union in the plant because John Larimore
would close the doors and fire everyone.
Floyd Long, Jr., also testified credibly that in late
January or early February while working in the plant he
tried to pursuade Hees to attend a union meeting.
According to Long, Hees replied no , that he did not want
anything to do with it because if the Union ever got in the
plant John Larimore would close the plant down. He
further indicated , when pressed by Long as to his reasons,
that in his view John Larimore was vindictive and Hees,
hoping for a good recommendation at such time as he left
Respondent's employ, intended to avoid his ire.
Hees denied that he ever stated to any employee that
John Lanmore would shut the plant down if the Union got
in. However , that generalization is inconsistent with other
testimony by him as well as with the credible testimony of
Sutton and Long, and the fact that all three apparently
were testifying about separate incidents. Accordingly, I
find that during the preelection campaign Hees in effect
stated to employees that if the Union got in the Company
might shut the plant down. I further find that such conduct
constituted violations of Section 8(axl) of the Act for
which Respondent is answerable . In so finding I am
mindful of the fact that Hees was a minor supervisor, and
that there is no evidence that higher management directed
his conduct in this regard. In the incident reported by
Long, Hees responded to urging by a member of the
organizing committee to attend a union meeting and when
pressed gave a personal explanation for his reasons for not
doing so. I find that that particular instance was not a
violation of the Act.
3. The alleged unlawful conduct of Clyde
Crutchfield
On March 7, the day of the election , Crutchfield in
talking to employee Ellis Caudill expressed his personal
opinion about the prospects of a retirement plan for
employees . Caudill had said that the Company was now
large enough to benefit from having a union represent the
employees and that he himself would like a retirement plan
of some kind. Crutchfield then commented that he believed
they would have a retirement plan sooner or later , with or
without the Union.
Considering the fact that Crutchfield was a minor
supervisor expressing a personal opinion, and that his
observation regarding a future retirement plan was not
specifically conditioned on whether the Union prevailed or
not, plus the fact that a retirement plan had long been in
the planning stage , I find that the remark was not
interference with, or restraint or coercion of, employees in
the exercise of their Section 7 rights. In my view the remark
did not rise to the level of an unfair labor practice.
C. Employee Loans and Payments
The complaints allege, and the answers deny, that
sometime between January 29 and the election of March 7
Respondent committed unfair labor practices by loaning
or paying money to employees to induce them not to
support the Union. The evidence does not sustain the
allegation.
Respondent has a longstanding practice of giving regular
employees advances on their wages . On the morning of the
election , March 7, John Lanmore went to each employee
in the plant individually and asked each in effect to vote
against the Union by saying in substance, "Now is when I
need your help, and I want you to give me a chance."
Among the employees he approached in this manner was
Roberto Gonzalez, a probationary employee . Gonzalez
was overheard telling Larimore that he was in legal trouble
and needed $100 to retain a lawyer. Larimore did not say
yes or no; he just told Gonzalez to see him after the
election.
Sometime after the election, and after regular working
hours, Gonzalez again approached John Larimore for
money for a lawyer. The past practice of advances against
wages apparently did not include advances to probationary
employees. Larimore told Gonzalez the Company could
not loan him the money. He, however, made a personal
loan to Gonzalez, which was all the money he had in his
wallet at the time . The sense of Gonzalez' testimony is that
he obtained the loan on the evening of the day of the
election . John Larimore placed the time as March 9, 2 days
after the election. His version is supported by the text of a
note signed by Gonzalez which is dated March 9 . Absent
evidence indicating that the note was postdated or
executed some time after the loan, I find that John
Larimore' s version of the time is more accurate. In any
case the loan came after the election, it was a personal loan
from Lanmore to Gonzalez and not from Respondent, and
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it was neither promised nor refused prior to the election. In
the circumstances I find that the loan was not conditioned
upon Gonzalez' vote in the election or upon his support for
or lack of support for the Union, and Lanmore did not
violate Section 8(a)(1) of the Act in making the loan.
The record also indicates at some point in the preelection
campaign (the precise date not being established) the
Company gave each employee a piece of literature in the
form of a folder containing $1.64 in cash purportedly to
demonstrate the increase in the dollar value of hourly
benefits between 1967 and 1972. Because the amount was
apparently paid to everyone, was a small amount, and
payment was not conditioned on how employees voted, I
find the payment did not violate Section 8(a)(l) of the Act.
IV. THE ALLEGED DISCRIMINATIONS
A. Thomas Abercrombie
Thomas Abercrombie was hired in July 1971 and
terminated February 2, 1973. He worked on bucket layup.
He was on the union organizing committee, the Union
having so advised the Company by letter of January 23.
Production of Respondent's products requires considera-
ble specialized labor. Safety and reliability in the final
product are important. For these and other reasons the
Company has long emphasized to employees the impor-
tance of regular attendance. Rules 4 and 5 in the company
handbook provides:
4. ABSENCE
There will be no intentional absence from work without
prior permission from your foreman. He will require
the purpose of your request, before considering it.
REPORT ABSENCE BY 8:00 A.M.
If there is involuntary absence from work, the employ-
ees must call and report to the office before 8:00 A.M.,
or within 1 hour after starting time, each day that he is
absent, unless other arrangements are agreed upon.
NO-REPORT PENALTY
Anyone who is absent and does not call in for three
consecutive days shall be considered as having quit
without notice.
5. WARNING NOTICES
A written warning notice may be given for any
infraction of a work rule. An accumulation of three
such notices during a 12-month period is cause for
suspension or release.
Enforcement of rules has not been umformly strict.
However, from time to time business requirements have
dictated sterner enforcement. Such a situation obtained in
the weeks prior to and during the union campaign. On
January 9 John Lanmore had called a meeting of the
employees at which he informed them of customer
rejection of their products and noted an apparent drop in
employee efficiency and morale. He announced attendance
rules would be applied. On January 25 he reiterated the
instructions.
Abercrombie was a good worker. In late 1972 he
received a raise . But at various times during his employ-
ment he had received written warnings because of
unauthorized absences . On January 4 he received another
such notice putting him on probation for 90 days and
warning that further unauthorized absence during that
period would result in automatic termination.
Against this background he called in before 7 o'clock on
the morning of Tuesday, January 30, saying that his car
would not start because of a dead battery, that he was
trying to get it started, and that James Burnett, who
regularly rode with him , was with him . However, they
neither came in nor called in again that day.
On the morning of the next day, Wednesday, January 31,
Abercrombie arrived at the plant in street clothes saying to
Production Superintendent Hetrick that he wished to go to
Alabama because his father was being hospitalized. He
asked for his check , which he did not receive because no
one authorized to issue them was in the office . According
to Abercrombie, when he asked Hetrick if he should go to
Alabama, Hetrick pointed out that he was already on
probation. He did not give him permission to leave saying
if he left he probably would not have a job on his return.
On the next day, February 1, Abercrombie returned in
mid-afternoon . He asked Manager Robert Larimore for his
check and also if he still had a job. The manager was
unable to give him a definite answer . Abercrombie also
sought out President John Larimore that day but he was
too busy to discuss matters and Abercrombie got no
authoritative answer . But he did get his check and then left
for Alabama . On his return to the area several days later he
received written notice from the Company dated February
6 of his termination effective February 2 because of
absenteeism and breaking the conditions of probation.
At the hearing John Larimore seemed unsure whether
Abercrombie quit or was fired . Respondent 's attorney took
the position that he quit. Be that as it may, on the facts
noted above, I find that he was fired . It is clear that
Respondent had sufficient cause to discharge him for
failing to call in or report for work on January 30 after
indicating he would be in, and for failing to report for work
on January 31 and February 1 and 2. Although it is true
that on January 31 and February 1 he sought a leave of
absence, it was never granted to him. On the contrary,
Hetrick indicated that if he left, he did so at his peril.
Respondent was within its legal rights in withholding the
leave of absence . Because sufficient cause existed for the
discharge , and absent any evidence that those reasons were
a sham, there is insufficient evidence upon which to base a
finding that he was fired because of his union or concerted
activities. Accordingly, I find that Abercrombie's discharge
did not violate Section 8(a)(3) and (1) of the Act.
B. James Burnett
James Burnett was hired in March 1971. He was
discharged February 12, 1973. At the time of discharge he
was employed in the small parts finishing department. The
Company had been advised that he was a member of the
initial union organizing committee on January 19.
PLASTIC COMPOSITES CORP. 735
Burnett's work was satisfactory and his attendance
record was characterized by John Larimore as "not too
bad." According to Larimore the Company's problem with
Burnett was that on those occasions when he did not come
in he failed to call in and let them know he was not
coming . During the period of his employment he received a
number of written warnings because of this including
warnings for absence without calling in on 2 days in
August 1972, another in September 1972, and a third in
December of that year.
Burnett was with Abercrombie on January 30 when
Abercrombie called in before 7 in the morning to say they
had car trouble but would be in later . Neither showed up
that day nor called in again . As a result on February 2
Burnett was given a written warning which read in part as
follows:
Absence on 1/30/73 not coming in as agreed. Due to
present conditions we are only putting you on proba-
tion for 60 days, instead of terminating you. If you
break any work rule or are absent without sickness
(sickness must be verified in writing from the doctor
stating cause and time) you will be automatically
dismissed.
On Monday, February 5 , the next working day after the
above warning , he was again absent . According to Burnett
he had received an anonymous threatening telephone call
the night before which caused him to disconnect the
telephone . About 8: 15 in the morning he called the
Company from a public telephone to explain the situation.
He said he would be in to work provided he could get a
relative to stay with his family . It turned out that he was
unable to make that arrangement and stayed home with his
family himself . But he did not again call that day. When he
returned to work the next day Robert Larimore again
warned him saying he wanted to talk to John about it.
After several days delay Burnett was called into John
Larimore 's office on February 12 and told by John that
they were going to have to let him go . Larimore suggested
that he resign with notice , thereby allowing him to receive
additional pay and a good recommendation for future
employment. He declined to resign.
Burnett's employment with Respondent had apparently
been arranged through a rehabilitation program. The
Company explains its efforts to get him to resign on the
ground that management had kindly feelings toward him
and did not want to see him return to the "fast life." John
Lanmore 's testimony in this regard is unrefuted and I find
is an accurate explanation.
The Company had grounds for terminating Burnett. The
delay of a week in firing him raises some question but a
possible explanation for this was the feeling of Manager
Robert Larimore that he needed to discuss Burnett with
John Lanmore and the fact that they were involved in
some business travel about that time. Even though these
explanations are not entirely satisfying, the lingering doubt
together with Company knowledge of Burnett's union
activities are insufficient to destroy the validity of the
asserted cause for discharge . Admittedly the Company was
campaigning against the Union. Yet there is no showing in
this record of virulent union animous . Nor are the
violations of Section 8(axl) of the Act found earlier herein
such as to throw serious doubt on discharge where a valid
cause exists . Accordingly I find that there is insufficient
evidence in this record to establish that Burnett was
discharged because of his union or concerted activities
rather than cause . The Company , therefore , did not violate
Section 8(a)(3) and ( 1) of the Act in discharging him.
C. Floyd Long, Jr.
Floyd Long, Jr., was hired November 15, 1972, as a
probationary employee . He was discharged February 12,
1973, shortly before the end of his probationary period. He
was a good worker , had been favorably evaluated by his
supervisor , and had received a wage increase during his
probationary period.
Long was the principal union activist in the plant. It was
he who initially contacted the Union to arrange for the first
group of employees to meet with union representatives. Of
the employees who solicited employee signatures on union
authorization cards , he was the most successful , having
obtained II signatures.
When he applied for a job with Respondent he filled out
an employment application which included information
about his prior employment history . At that time he was
given an extensive 2-1/2 hour interview by Manager
Robert Larimore which included , inter alia, discussion of
his previous earnings . During the discussion the manager
made notes on the back of the application. Appended to
the application is a form to assist in checking references.
No such check of references was made when Long was
hired , although that was standard practice. It is not clear
why it was not done at that time.
Long's 90-day probationary period would have ended
about February 15. Just a few days before that, in the
midst of the preelection campaign , Respondent began to
check Long's prior employment . Respondent's president,
John Lanmore , apparently made part of the reference
check . Part was done by an office secretary , Ruth Ann
Carpenter.
About February 8 Mrs . Carpenter telephoned Delong
Kennels , the last prior employment of Long listed on his
application where he had listed himself as self-employed.
In talking on the telephone with his parents she received
information that the kennels had been defunct for 3 years;
that his prior employment with Lau Industries was also
about 3 years earlier , apparently about the time he was
operating the kennel ; and that before that he had worked
in filling stations , being unable to obtain factory work
because of a heart condition . Mrs. Carpenter could get no
definite answer to the question where he had worked since
Lau Industries . She was told that he had a family and
needed the job, although on his application he had
indicated he was divorced and had left the question of the
number of dependents blank.
Mrs. Carpenter made notes at the time she made the
reference check . She testified in a credible manner . There is
no reason to question her honesty in reporting what she
understood she was told. It was that information upon
which Respondent in part based its discharge of Long.
Long's father (Floyd Long, Sr.), who was one of the
persons Mrs. Carpenter talked to , did not testify. His
mother (Mrs. Floyd Long, Sr.), was a witness . In some
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regards she contradicted the testimony of Mrs. Carpenter
in that she testified neither she nor her husband stated that
their son could not get into factory work because of a
physical problem. But at that point in her testimony she
already revealed a somewhat poor memory. In the
circumstances , I credit Mrs. Carpenter as to the informa-
tion she reported to Company higher -ups. Even assuming
that the substance of what she reported was erroneous, the
fact of such error does not eliminate that information to
explain the company motive. As a child of 11 or 12 Long in
fact had experienced a heart problem and had been
examined in a clinic for it , but he had experienced no
handicap since that time and did not himself consider that
he had a heart condition. At the time of the hearing, he was
29 years of age.
A further check of his employment with Lau Industries
indicated that his attendance record was poor and that
there was some question regarding the validity of some
doctor's excuses he had provided to justify absences from
work.
On February 12 Long was called to the plant office and
fired. John Larimore told him they heard he had a bad
heart . Although Long denied it, John said his condition
was a safety hazard to himself and others , the Company's
insurance would not cover him, and they would have to let
him go. Not until the end of the interview did John
Larimore mention deficiencies in his application and then
refused to specify what they were. In a word, management
rejected out of hand Long's assertion that his heart was not
a problem and gave him no opportunity to explain
questionable information on his application.
John Larimore confirmed Long's termination in a letter
to him that same day . The letter stated generally "you have
unsuccessfully completed your probationary period." The
specified reasons for this decision were (1) tardiness, (2)
absenteeism, (3) questionable medical slips during previous
employment, and finally, "falsification and voids" in his
application for employment with Respondent including (a)
what he was doing between January 1970 and August 1972
and (b) ". . . most disappointing of all, you stated that you
were in good health...." This letter reveals some shifting
in the rationale for the termination . Testimony regarding
the termination interview does not indicate that the first
three items in the letter were even mentioned then.
In explaining his reasons for the termination, John
Lanmore testified that Long's tardiness was a minor point,
that the major reason was the deficiencies in his applica-
tion for employment, the failure to supply certain informa-
tion and apparent errors in other responses. When asked
why he terminated Long he testified, "Basically for-he
was a starting probationary employee, and basically one of
the points was gross falsification of his application." While
that appears to be an over drawn conclusion, the reference
check raised a number of questions about Long. For
example, Lau Industries (a prior employer) reported he had
a poor attendance record there and supplied forged doctors
excuses to justify absences. And his own parents had raised
a question about his health, and gave the impression there
were gaps in his employment history.
Any or all of the reasons raised by Respondent, or for
that matter no reason at all, would have been adequate
grounds to terminate a probationary employee such as
Long. But the existence of adequate grounds for discharge
is really not the issue here . The crucial question is
Respondent's motivation in discharging Long . Although
the matter is not free from doubt, after assessing all the
factors I find that Long's union activity was the principal
reason he was fired . I reach this result because the reasons
offered by Respondent do not appear to me to be the real
reasons.
Long's work record with Respondent was good. His
attendance record was improving. Whatever latent defi-
ciencies lay in his past or his application , they had not
prevented him from being an adequate employee for
almost 3 months . Although Respondent needed competent
employees and had let the reference check go undone until
the end of the probationary period with no adverse
consequences , John Larimore launched his back tracking
on the leading unionist in the plant during the height of the
preelection campaign in which the Company overtly
opposed the Union.
The sifting through the past turned up some reason not
to keep Long which, in my view, Respondent would not
have asserted had the Union not been in the picture. The
inadequacies in Long's application , which were in part
apparent when he was first interviewed , were let go until
union activity started.
If Long had been asked , he might have been able to
explain to Respondent 's satisfaction many of the questions
raised by the reference checks . But Respondent never gave
him the opportunity . Even though he was owed no duty in
this regard , the failure to check back with him suggests
Respondent really did not want to know if he could
explain.
John Larimore's asserted serious concern about employ-
ee forthrightness would be more understandable if he did
not otherwise demonstrate tolerance of human frailities
unrelated to the job. Thus the record suggests Respon-
dent's participation in a program of rehabilitation through
employment.
Finally, Respondent's asserted reasons involve some
shifting from primary emphasis on the heart condition at
the discharge interview. John Larimore's letter confirming
the termination set forth tardiness as the first reason and
absenteeism as the second. In the context of the letter these
terms seem to relate to attendance at Respondent 's plant
and the reasons most relied on in the letter . But at the
hearing emphasis had slipped to lack of forthrightness
revealed by deficiencies in the employment application and
by the reference checks. As a result, Respondent's claimed
motives are suspect . When balanced against the coinci-
dence of the discharge of the leading union adherent in the
middle of a preelection campaign by an employer openly
opposing the Union, the weight of the evidence warrants
the finding that a desire to unload this union activist was
the chief reason Long was fired. Accordingly, I find
Respondent violated Section 8(aX3) and (1) in terminating
him.
D. Franklin Sutton
Franklin Sutton was hired July 17, 1972, and terminated
February 23, 1973. He worked as a gel coater for molds, a
PLASTIC COMPOSITES CORP. 737
critical task because it is a predicate for the work of other
employees . He was a good worker and received no
complaints about his work.
He was among the more active union supporters in the
plant , having obtained the signed union authorization
cards of five employees , including his own on January 17.
With Long , he was on the initial union organizing
committee about which the Company received notice on
January 19.
In the early part of his career with the Company he was a
valued employee . In August 1972, a month after being
hired , he was favorably evaluated and given a raise. In
October of that year he was again favorably evaluated and
given another raise , although it was noted his attendance
was down due to transportation difficulties. And he
continued to have attendance problems . On October 20 he
was warned for tardiness . On December 19 he was further
warned for tardiness and put on probation for 60 days. He
was absent on December 26 and received a warning for
this the next day. On February 5 he did not come in until
just afternoon , but he had called in at 7 in the morning to
report that he had no ride, and apparently was not
reprimanded for poor attendance on that occasion.
Such was Sutton's situation when he learned of the
discharge of Burnett and Long on February 12. The
following day , February 13, he did not report for work.
Instead in the later part of the morning he called on the
Larimores in the office in street clothes to ask for an
explanation of those firings and what the implications were
relative to his own job security. John Larimore reassured
him on that score . At the end of the conversation he asked
Sutton if he was then going to go to work. According to
Sutton, whom I credit as a particularly forthright witness,
he replied no, that if he decided to work he would be in the
next day and if he decided not to work he would not be in.
The testimony of John and Robert Lanmore as to the
latter part of their conversation conflicts with Sutton's
version which I credit . They recalled him saying that he
quit and the only question left open was whether he was
quitting with or without notice . But the contradiction is
academic because he reported for work the next morning
and both he and management treated the situation as if he
had not quit.
When he left the office about noon on February 13 it
was his unspoken intent to leave and not return. But that
evening union representative George Gould pursuaded
him not to quit . During work on February 14, according to
the testimony of his Supervisor Hees , whom I credit in this
regard , he asked Hees if he could get him fired . Hees said
no. He asked Sutton if he had a betterjob lined up. Sutton
replied yes.
On February 16 Sutton was given a delayed "Final"
written warning notice for his "lateness " and "absence" on
February 13. The notice carried the following remarks:
It would appear from your actions that you are
intentionally violating company rules for the possible
purpose of being terminated. To date we have been
very lenient with you. But we wish to advise you that
one more serious violation within 60 days, will leave us
no choice but immediate termination.
On the morning of February 22 Sutton overslept and was
late for work . The next day he was fired for breaking the
terms of his probation by being late February 22 with no
acceptable cause . John Larimore testified that he consid-
ered Sutton's being an hour late a serious violation because
as a gel coater of molds a delay in his work delayed other
employees whose work depended on his.
On these facts I find there is insufficient evidence to find
that Respondent discharged Sutton because of his union or
concerted activities . Whatever suspicions one might have
because of the timing of the discharge, management had
clear grounds , related to his work , for discharging him.
There is no evidence in the record that indicates that
Respondent neglected that valid ground in favor of one
forbidden by the Act . Accordingly , the discharge of Sutton
did not violate Section 8 (a)(3) and ( 1) of the Act.
E. Mark George
Mark George began work as a probationary employee on
February 22 . Prior to hiring him Respondent made a
reference check of his previous employer which indicated
that he was "possibly arrogant," thus raising some question
as to his attitude as an employee. He was , nevertheless,
hired.
On his first day he was directed to observe the work done
in his department. He did not actually perform work
himself. In the afternoon of that day he attended a meeting
of the employees with company management at which
various matters were discussed . Management asked if there
were any questions and in the discussion which followed
George expressed the view that employees over a 12-year
period had not received much advancement in their pay.
Other employees present expressed a different view.
Another topic raised was plant safety , particularly the
blocking of aisles and the placement of fire extinguishers.
George expressed the view that the accumulation of waste
on floor, particularly in areas where the catalyst , resin, and
acetone were stored , constituted a fire hazard. John
Larimore agreed , stating that they would have to clean that
up.
In his brief the General Counsel contends the discussion
at this meeting initiated by management were protected,
describing them as both concerted activities and the
pressing of grievances . I do not think they rise to the level
of either. There is no evidence to indicate that George was
speaking on behalf of other employees . He merely voiced
his individual , personal views , not the views of any group.
They were not a manifestation even of embryonic
concerted action . Accordingly , even if George was later
discharged because of his comments at that meeting, such
did not constitute an unfair labor practice under the Act.
On the second day of his employment George performed
actual work under the instruction of leadman Ralph
Bentrup . Respondent 's assistant foreman, Gene Gray, had
left a boom in the aisle near where George was working.
George went out of his way to complain to Gray about the
boom, telling him he could not store it in the aisle. Gray
was offended by George 's presumptuousness in question-
ing the conduct of a supervisor. Gray also overheard
George comment to Bentrup that Bentrup was too
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
particular in his work and would not have been able to
work for George's former employer.
On that same day in the course of normal conversation
with other employees George was asked where he had
worked before and what he had been paid. He gave them a
figure higher than the rates in Respondent's plant.
According to Bentrup this adversely affected the morale of
the listeners.
Both Bentrup and Gray reported to Hetnck and Robert
Larimore on their observation of George. Bentrup opined
that George was bad for the morale of other men in the
department, his judgment of the man admittedly being
influenced by the knowledge that George had criticized
him. Gray testified, "I didn't feel that he would be a good
employee there because of the type of materials and things
that we did, and the way we did them, it had to be right,
and with this type of attitude he was dangerous." Gray
admitted he was concerned by the fact that George had
criticized him the day before.
Late in the afternoon of February 23 production
superintendent, Marion Hetnck, discharged George with
the words, "Mark, we're going to have to let you go."
When George pressed him for a reason, Hetrick stated,
"Well, I think you have a poor attitude." And when
pressed further Hetrick stated that the reason was because
George had told other employees what his pay was at his
prior place of employment.
The evidence indicates, and I find, that this was a reason
he was fired. The General Counsel contends that his
conversation with other employees on the subject of his
prior wages was protected concerted activity and therefore
his discharge violated Section 8(a)(1) of the Act. The
General Counsel further contends that because a discharge
for that reason during the course of a union organizing
campaign would affect other employees, the discharge
likewise violated Section 8(a)(3) of the Act. I cannot agree
with the premise that George and the other employees with
whom he briefly and casually conversed were engaged in
concerted activity. There is no question but that they were
engaged in conversation and that George was fired because
of the effect, or possible effect, of the subject matter upon
the other employees. But there is no evidence that as a
group or individually any of them did anything or were
about to do anything about that subject. Accordingly, I
find that the record fails to establish that concerted activity
on the part of employees was involved in this incident.
Therefore George's discharge because of what he said to
the other employees did not violate the Act. Cf. Buddies
Supermarkets, Inc., 197 NLRB 407, enforcement denied
481 F.2d 714 (C.A. 5, 1973).
V. CHALLENGED BALLOTS
At the Board election on March 7 the Union challenged
the ballot cast by Claude Amburgey, the Company
challenged the ballots cast by James Burnett, Floyd Long,
Jr., and Franklin Sutton, and the Board's agent challenged
the ballots cast by Thomas Abercrombie and another
whose ballot is not now at issue. The Board has ordered
that the eligibility of these voters be resolved.
A. Claude Amburgey
Amburgey's eligibility to vote depends on whether at the
time of the election and immediately prior thereto he was a
supervisor.
At one time Amburgey admittedly was a supervisor
within the meaning of the Act. He then carried the title of
assistant foreman and in fact exercised those functions. In
recent years , however , he has suffered a series of disabling
heart attacks, the latest in February 1972 which have
necessitated his progressive retreat from heavy responsibili-
ty and work . As on old and valued employee -he retains his
title as assistant foreman , is paid a salary rather than an
hourly wage, and attends management meetings of
supervisors . He does not now possess or exercise superviso-
ry authority. There are no employees for whom he is
responsible . His duties now include inspecting and running
tests to maintain quality control , and training of new
employees.
I find that during the first 3 months of 1973 including the
period from the filing of the petition for an election
through the date of the election, Amburgey was not a
supervisor within the meaning of the Act. The Company
contends he was a leadman . But he has not been
supervising to the extent the other leadmen have. Not
being a supervisor at the time , Amburgey was eligible to
vote in the election and his challenged ballot should be
opened and counted.
B. James Burnett
James Burnett was discharged on February 12. At the
time of the election on March 7 he was not an employee
and, therefore, not eligible to vote unless his termination
was in violation of the Act. As found earlier herein, he was
discharged for cause and not in violation of the Act.
Accordingly , he was not eligible to vote in the March 7
election . His ballot should not be opened and counted.
C. Floyd Long, Jr.
Floyd Long, Jr., was also discharged on February 12. As
found earlier herein , he was discharged in violation of
Section 8(a)(3) and ( 1) of the Act . But for his unlawful
discharge it must be presumed he would have continued to
be an employee at the time of the election on March 7. As
a rank-and-file production worker he would have been
entitled to vote . Accordingly, the challenged ballot cast by
him should be opened and counted.
D. Franklin Sutton
Franklin Sutton was discharged on February 23. As
found above , he was discharged for cause and not in
violation of the Act. As in the case of Burnett, he was not
on employee eligible to vote in the March 7 election and
his ballot should not be opened and counted.
E. Thomas Abercrombie
Thomas Abercrombie was discharged on February 2. As
in the case of Burnett and Sutton , and as found above, he'
was discharged for cause and not in violation of the Act.
PLASTIC COMPOSITES CORP. 739
He was not eligible, therefore, to vote in the March 7
election and his ballot should not be opened and counted.
VI. OBJECTIONS TO CONDUCT AFFECTING RESULTS OF
ELECTION
A. Objection One
The petitioning Union's first objection alleges in relevant
part that between February 16 and March 7 Employer
questioned employees about union activities, and promised
benefits to whose who opposed, and threatened a loss of
benefits to those who favored the Union. The same
conduct was alleged in the complaint herein as violative of
Section 8(a)(1) of the Act. As found hereinabove Respon-
dent did commit unfair labor practices in violation of
Section 8(a)(1) by soliciting the grievances of the employ-
ees, by promising them better conditions generally, and
specifically a grievance procedure to handle safety and
other problems which they might raise, by promising
improvement in regard to paid holidays, and by threats of
plant closure. Employee rights were infringed by such
conduct which was incompatible with the running of a fair
election . I therefore recommend that the objections be
sustained.
B Objection Two and Other conduct
The second union objection asserted that on the day of
the election the Employer (a) interrogated each employee
at his work station, and (b) distributed literature raising
new issues to which the Union had insufficient time to
respond. The record reveals no evidence of such interroga-
tion and the Employer is not obligated to afford the Union
an opportunity to answer new issues raised by the
campaign literature. I recommend that the objections on
these grounds be overruled. While the Regional Director
was investigating the Union's objections other allegedly
objectionable matters came to his attention. In this
connection, it was asserted that the Employer gave the
impression of surveillance of employee union and concert-
ed activity. The record, however, reveals no substantial
evidence of such conduct. Accordingly, I recommend that
an objection on this ground not be sustained.
It was also asserted that during the campaign the
Employer paid each voter $1.64. The record indicates some
payment of undisclosed amount was made sometime
during the campaign, although not precisely when. In its
brief Respondent admits that a folder containing $1.64 was
given each employee in the unit in order to demonstrate, as
set forth in the literature included, that the dollar value of
employee hourly benefits had increased from 1967 to 1972.
Considering that the sum was small, was given to all
employees, and payment was not conditioned on how the
employees voted in the election, such payment (as found
earlier herein) did not amount to an unfair labor practice. I
find further that such conduct would not warrant setting
aside the election and I recommend that an objection on
that ground not be sustained.
VII. THE ALLEGED REFUSAL TO BARGAIN
There is no dispute that Respondent has refused to
recognize or bargain with the Union. On January 24 and
February 6 the Union requested recognition and bargain-
ing. On the latter date it offered to prove its majority status
by submitting the authorization cards to an impartial third
party. Respondent merely referred these communications
to its lawyer. On January 29 the Union filed its petition for
an election. On February 16 Respondent and the Union
executed a stipulation for a Board election. The payroll
period cut-off date for voter eligibility was February 10.
The election was held March 7.
On January 24 when the Union first sought recognition it
held 28 signed authorization cards out of 45 eligible
employees in the bargaining unit ; when the Union made its
second demand for recognition on February 6, there were
42 eligible employees in the unit of which the Union held
26 authorization cards; on the eligibility cut-off date,
February 10, the Union held 26 authorization cards out of
41 employees in the unit; by February 16 when the election
stipulation was signed it held 23 authorization cards out of
37 employees in the unit ; and on the day of the election
March 7, they held 22 authorization cards out of 42 eligible
employees in the unit . The authorization cards alone
indicate that the Union held a majority at all material
times. However, when the election was held on March 7,
and excluding the challenged ballots, the Union failed to
receive a majority of the other votes cast.
The General Counsel argues that under the standards set
forth in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575
(1969), the Company should be required to bargain with
the Union as the majority representative as demonstrated
by the authorization cards. In considering the matter I note
that the violations of Section 8(a)(1) found earlier are not
of the most serious type. The threats of plant closure were
made by a minor supervisor, there being no evidence of
directions to do so from top management. The various
promises of improvements which followed the Cavanaugh
survey is not far outside the border of permissible Section
8(c) activity. But in addition to those unfair labor practices
I must consider the discriminatory discharge of Long, the
leading union proponent in the plant. This violation of
Section 8(aX3) goes to the heart of the Act and together
with the other unfair labor practices found it was
calculated to put a permanent chill on unionism which
would not unlikely be erased by a cease-and-desist order.
In a small plant such as Respondent's it is likely that an
atmosphere in which a fair election could be held will be
achieved in the reasonably near future . In the circum-
stances I find that the authorization cards are a better
expression of employee sentiment than an election would
be. Accordingly I find that Respondent should be required
to recognize and bargain with the Union as the representa-
tive of its production and maintenance employees.
VIII. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in sections III, IV
and VII, above, occurring in connection with the opera-
tions described in the section I, above , have a close,
intimate , and substantial relationship to trade, traffic, and
commerce between the several States and tend to lead to
labor disputes burdening and obstructing commerce and
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the free flow of commerce . They are unfair labor practices
within the meaning of Sections 8(a)(1), (3), and (5) and 2(6)
and (7) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By soliciting grievances from its employees, promis-
ing better conditions without a union, and threatening
plant closure if the Union came in, all during a preelection
campaign, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, and committed, and is committing,
unfair labor practices within the meaning of Section 8(axl)
of the Act.
4. By discharging Floyd Long, Jr., because of his union
and concerted activities, Respondent discriminated in
regard to hire or tenure of employment thereby discourag-
ing membership in a labor organization, and thereby
violated, and is violating, Section 8(a)(3) and (1) of the Act.
5. All production and maintenance employees, includ-
ing leadmen,3 of the Employer at its Fort Wayne, Indiana,
establishment but excluding all office clerical employees,
all guards and all professional employees and supervisors
as defined in the Act constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of
the Act.
6. At all times since January 24, 1973, the Union has
been the exclusive bargaining representative of the employ-
ees in the aforesaid appropriate unit within the meaning of
Section 9(e) of the Act.
7. By refusing to recognize and bargain collectively
with the Union as exclusive representative of employees in
the aforesaid appropriate unit, Respondent since January
24, 1973, has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
8. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom,
and take certain affirmative action to effectuate the
policies of the Act. I recommend that Respondent be
ordered to offer Floyd Long, Jr., immediate and full
reinstatement to his former job or, if that job is not
available, to a substantially equivalent position, without
prejudice to his seniority and other benefits and privileges,
and that he be made whole for any loss of earnings he may
have suffered by reason of his discharge by paying to him a
sum of money equal to that which he would have earned in
wages from the date he was terminated to the date of
reinstatement , less his net earnings during such period,
backpay to be computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest thereon
at 6 percent calculated according to the formula set forth
in Isis Plumbing & Heating Co., 138 NLRB 716. I also
recommend that Respondent preserve and make available
to Board agents, upon request, all pertinent records and
data necessary in analyzing and determining whatever
backpay may be due.
Inasmuch as Respondent' s violations of Section 8(axl)
and (3) of the Act have undermined the Union's majority
and caused an election to be a less reliable guide to
employee free choice than the signed authorization cards
by which they designated the Union to represent them, and
because Respondent in failing to recognize and bargaining
with the Union while engaging in such unfair labor
practices violated Section 8(a)(5) and (1) of the Act, I
recommend that as an appropriate remedy Respondent be
required to recognize and to bargain with the Union as
well as to remedy the other unfair labor practices found.
See Federal Prescription Service Inc., and Drivex Co., 203
NLRB No. 145.
I further recommend that Respondent post appropriate
notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this case , and pursuant to Section
10(c) of the Act, I hereby issue the following recommend-
ed:
ORDER4
Respondent, its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Discharging employees or otherwise discriminating in
any manner with respect to their tenure of employment, or
any term or condition of employment , because they
engaged in concerted activity or activity on behalf of
International Union of Electrical , Radio & Machine
Workers, AFL-CIO-CLC, or any other labor organization.
(b) Failing and refusing to bargain collectively in good
faith with International Union of Electrical, Radio &
Machine Workers, AFL-CIO-CLC, as the exclusive bar-
gaining representative of all its employees constituting the
unit herein found to be appropriate for the purpose of
collective bargaining.
(c) Soliciting grievances from employees in a manner
violative of Section 8(a)(1) of the Act.
(d) Expressly or by implication, promising employees
benefits or improvements in working conditions as an
inducement to refrain from supporting the above-named
Union or any other labor organization.
(e) Threatening employees that the plant will close if a
union is selected to represent them.
(f) In any other manner interfering with , restraining, or
coercing employees in the exercise of the right to self-
3 It is not clear on the record that all leadmen are supervisors . At this conclusions , and recommended Order herein shall, as provided in Sec.
juncture I am not prepared to find that they are all supervisors or to alter 102.48 of the Rules and Regulations , be adopted by the Board and become
the description of the unit its findings, conclusions and order, and all objections thereto shall be
4 In the event no exceptions are filed as provided by Sec. 102 46 of the deemed waived for all purposes.
Rules and Regulations of the National Labor Relations Board , the findings,
PLASTIC COMPOSITES CORP.
organization , to form labor organizations , to join or assist
the International Union of Electrical , Radio & Machine
Workers , AFL-CIO-CLC, or any other labor organization,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection as guaranteed in Section 7 of the Act, or to
refrain from any and all such activities , except to the extent
that such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment , as authorized in Section 8(aX3) of the Act as
modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Offer to Floyd Long, Jr., immediate and full
reinstatement to his former job, or if such job no longer
exists , to a substantially equivalent position , without
prejudice to his seniority or other rights and privileges and
make him whole for loss of earnings in the manner set
forth in the section herein entitled "The Remedy."
(b) Preserve and make available to the Board or any of
its agents , upon request, all records necessary to analyze
the amount of backpay due Long under the terms hereof.
(c) Upon request, recognize and bargain with the above-
named Union as the exclusive representative of all the
employees in the bargaining unit described above and, if
an understanding is reached , upon request embody such
understanding in a signed agreement.
(d) Post at its plant in Fort Wayne , Indiana , copies of the
attached notice marked "Appendix." 5 Copies of said
notice , on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's
authorized representative, shall be posted by the Respon-
dent immediately upon receipt thereof , and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of the receipt of this
Decision , what steps the Respondent has taken to comply
herewith.
IT IS FURTHER RECOMMENDED that the election held
pursuant to Case 25-RC-5257 be set aside and the petition
for election in said case be dismissed . It is further
recommended that the allegations of the complaint not
hereinabove found to be supported by the evidence be and
they hereby are dismissed.
b In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
741
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give
evidence the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice.
The Act gives all employees these rights:
To engage in self organization;
To form, join or help unions;
To bargain collectively through representa-
tives of their own choosing;
To act together for collective bargaining or
other mutual aid or protection; and
To refrain from any or all these things.
WE WILL NOT do anything that interferes with,
restrains or coerces employees with respect to these
rights.
WE WILL NOT discriminate against our employees by
discharging them in order to discourage membership in
International Union of Electrical, Radio & Machine
Workers, AFL-CIO-CLC, or any other union.
WE WILL NOT unlawfully solicit grievances from our
employees.
WE WILL NOT directly or by implication, promise
employees benefits if they reject the Union.
WE WILL NOT threaten employees that the plant will
close if a union is selected to represent them.
WE WILL reinstate Floyd Long , Jr., with backpay.
WE WILL bargain collectively with International
Union of Electrical , Radio & Machine Workers,
AFL-CIO-CLC, as the exclusive collective -bargaining
representative of our employees in the unit of
All production and maintenance employees,
including leadmen of Plastic Composites Corp. at
its Fort Wayne , Indiana, establishment; but
excluding all office clerical employees , all guards
and all professional employees and supervisors as
defined in the National Labor Relations Act, as
amended.
Dated By
PLASTIC COMPOSITES CORP.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board 's Office, ISTA
Center, 6th Floor, 150 W. Market Street , Indianapolis,
Indiana 46204, Telephone 317-633-7360.