Port-A-Crib, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 483 (N.L.R.B. 1963)

PORT-A-CRIB, INC., AND GRAF-TLAPEK, INC. 483
Port-A-Crib, Inc., and Graf -Tlapek, Inc. and District No. 9, Inter-
national Association of Machinists , AFL-CIO
Port-A-Crib, Inc., and Graf-Tlapek , Inc. and District No. 9, Inter-
national Association of Machinists , AFL-CIO, Petitioner.
Cases Nos. 14-CA-2774 and 1,1t-RC-4297. June 28, 1963
DECISION AND ORDER
On February 6,1963, Trial Examiner Abraham H. Mailer issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent has engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Intermediate Report. There-
after, the Respondent filed exceptions to the Intermediate Report and
a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and funds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and the brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner insofar as they are consistent
with this Decision.
The complaint alleged and the Trial Examiner found that on
March 23, 1962, while petitions for a Board-conducted representation
election were pending, the Respondent, in violation of Section 8(a)
(3), notified 10 of its employees,' who were in layoff status, that their
layoffs were permanent and that they had no reasonable expectancy of
being recalled to work. The theory of the alleged violation was that
while the 10 employees did in fact have a reasonable expectancy of
being recalled to work, they were terminated to preclude them from
voting in a Board-conducted representation election and to discourage
union membership. The Trial Examiner concluded that the dis-
charges were effected for the sole purpose of reducing the number of
union adherents who would vote in an election, and, accordingly, that
the Respondent had thereby violated Section 8(a) (3) of the Act.
The Respondent excepted to the Trial Examiner's conclusions, as-
serting in substance that : (1) the union activity of the dischargees was
either nonexistent or minimal; (2) Respondent had little or no knowl-
1 Merileen Bell ( Gilliland ), Trudy B. Ferguson , Gloria Hdeks, Dorothy McGee, Rosalie
Morgan , Jo Ann Roach , Sue Roach , Evelyn Sommers, Carlene J. Vinson, and Betty Jane
Walka
143 NLRB No. 48.
71 7-G 72-64-vol. 143-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
edge of the dischargees ' union activities ; and (3) Respondent had no
discriminatory motive in sending the notifications of permanent lay-
off on March 23, 1962. Accordingly , the Respondent contends that
the General Counsel failed to prove by a preponderance of the evidence
on the record as a whole that the Respondent discriminatorily dis-
charged the 10 layoffs . We find merit in these exceptions and
contentions.
We agree with the Respondent 's first contention as there is no evi-
dence that any of the dischargees were members of the Union , or that
they engaged in any union activity other than to attend one union
organizational meeting.
We also agree with the Respondent 's second contention , because, on
or about March 19, 1962 , when the decision was made to notify the 10
dischargees that their layoffs were permanent , the Respondent did not
have positive knowledge that all of the 10 dischargees had attended
the union meeting. In this connection the record shows that Harvey
Walka , Respondent's foreman, clearly observed but one of the dis-
chargees at the meeting . His testimony , in pertinent part, is: "I re-
member seeing Dorothy McGee as one of the layoffs and vaguely, Jo
Ann Roach ." In addition , Walka observed that the automobiles of
dischargees Carlene Vinson and Trudy Ferguson were parked near
the meeting . 2 However , it is also clear that Walka definitely saw cer-
tain employees at the meeting who were not subsequently terminated.
However, even if the Respondent actually had much more knowl-
edge of the union activities of the 10 dischargees than appears from
the record , such knowledge would not be especially significant as its
attorney , who was not aware of any such union activities ,, initiated the
notifications of permanent layoff to the 10 dischargees . The record
shows that 2 or 3 days after the layoff of March 16, 1962 , the attorney
asked Graf and Tlapek , Respondent 's principal officers, if the layoffs
were permanent . When Graf and Tlapek said that they were, the
attorney instructed them to inform the 10 individuals of that fact.
Finally, we find that it has not been proven that the Respondent
sent the letters ' notifying the 10 that their layoffs were permanent for
any discriminatory purpose, including that of disenfranchisement in
any contemplated Board-conducted representation election. In this
connection , we are impressed by the foregoing evidence concerning
the extremely limited union activities of the 10 dischargees and the
Respondent 's incomplete or nonexistent knowledge of such activities.
Nor is there any contention made, and the record does not show, that
the 10 dischargees were discriminatorily selected for layoff or that
they were laid off for other than valid economic reasons on March 16,
1962. Moreover , judging from the Respondent 's employment history,
the number of future positions available that could be foreseen on or
2 walka testified that he thought Trudy Ferguson 's car was there but he was not sure.
PORT-A-CRIB , INC., AND GRAF-TLAPEK, INC. 485
about March 16 or 23,1962, as occurring within a reasonable time from
those dates, is highly speculative.' Therefore, we cannot find that
on or about March 16 or 23, 1962, it has been shown that the 10 had
a reasonable expectancy of recall to work.' Finally, while notifica-
tions of permanent layoff had not been sent on prior occasions, this
was because the Respondent had never before permanently reduced
its staff as it did here .5
Accordingly, in view of the foregoing, we conclude, contrary to the
Trial Examiner, that the General Counsel has failed to establish by a
preponderance of the evidence that the Respondent violated the Act
by terminating the 10 complainants. Therefore, we shall dismiss the
8 (a) (3) and (1) allegations of the complaint concerning the perma-
nentlayoff.s
As the Intermediate Report indicates, there is now before the Board,
after consolidation, Case No. 14-RC-4297, a representation case which
involves the Respondent's challenges to the ballots of the 10 dis-
chargees above discussed. The election in that case was held pursuant
to a stipulation for certification upon consent election executed by the
Respondent, the Union, and the Regional Director, and resolution of
the Respondent's challenges is determinative of the result thereof.
In view of our finding that the General Counsel has not established
that the Respondent violated the Act by terminating the 10 dis-
chargees, and as none of them had been reemployed on April 13, 1962,
the date on which the election was held, we find, contrary to the Ex-
aminer, that none of the 10 dischargees was entitled to vote in the elec-
tion. Accordingly, we sustain the Respondent's challenges to the
ballots of the 10 dischargees. Moreover, as we have sustained the Re-
spondent's challenges, it is clear that the Union has not received a
3 Thus, in 714 months in 1960 there were 14 employees who left-Le , quit or were dis-
charged-or about 2 a month, and in all 12 months of 1961 there were 12 employees who
left, or about 1 a month. Based on the foregoing employment experience, it could well
be contended that only six employees would leave Respondent's employ in 1962. More-
over, because the Respondent effected a permanent reduction in force from 40 to 30 em-
ployees on March 16, 1962, this figure of 6 could be further reduced by one-quarter or
1.5 persons (rounded off to 2 persons).
4 While it is true that all 10 dischargees were offered employment within 4 months from
the date of their notification of discharge, we are not thereby impelled to find that the
Respondent believed that the 10 dischargees had a reasonable expectancy of recall to work
when it informed them that they had been permanently laid off. Instead, we find that
such evidence of reemployment is outweighed (1) by the fact that only seven positions
were actually filled by the nine dischargees who accepted reemployment after March 16,
1962, as two of the nine quit soon after reemployment which enabled the Respondent to
-offer their positions to two more disehargees; and (2) by the speculative nature of the
number of positions available that could be foreseen by the Respondent on or about
March 16 or 23, 1962, as occurring within a reasonable time
6In dismissing the 8(a) (3) allegations of the complaint, Member Brown relies upon
the fact that the layoffs of March 16, which are not alleged or shown to have been for
unlawful reasons, were permanent layoffs and that the notices to the employees of March 23
were merely confirmatory of that fact.
9 See Lo-K Foods, Inc., 134 NLRB 956; N.L.R.B. v. Whitin Machine Works, 204 F. 2d
-883 (C.A. 1).
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
majority of the valid votes cast in the election. Accordingly, we shall
also certify the results of the election.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent , Port-A-Crib,
Inc., and Graf -Tlapek, Inc., Ballwin , Missouri , its officers , agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Engaging in surveillance of the union activities of its
employees.
(b) In any like or related manner interfering with, rest ,•aining, or
coercing its employees in the exercise of their right to self-organiza-
tion, to form labor organizations , to join or assist labor organizations,
to bargain collectively through representatives of their own choosing,
and to engage in any other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
8(a) (3) of the Act.
2. Take the following affirmative action which it is found will ef-
fectuate the policies of the Act :
(a) Post at its plant in Ballwin, Missouri , copies of the attached
notice marked "Appendix ." ° Copies of said notice , to be furnished
by the Regional Director for the Fourteenth Region, shall , after be-
ing duly signed by the Respondent 's authorized representatives, be
posted by the Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered , defaced, or covered
by any other material.
(b) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Decision and Order,
what steps the Respondent has taken to comply herewith.
It is further ordered . that the complaint, insofar as it alleges that
the Respondent violated the Act by unlawfully discriminating against
the 10 dischargees , be, and the same is, hereby dismissed.
7 In the event that the Board 's Order is enforced by a decree of a United States Court
of Appeals, there shall be substituted for the words "A Decision and Order " the words
"A Decree of the United States Court of Appeals , Enforcing an Order."
PORT-A-CRIB, INC., AND GRAF-TLAPEK, INC. 487
[The Board certified that a majority of the valid votes was not
-cast for District No. 9, International Association of Machinists,
AFL-CIO, in the election held in Case No. 14-RC-4297, and that
said labor organization is not the exclusive representative of any of
the employees involved.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT engage in surveillance of the union activities of
our employees.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist
labor organizations, to bargain collectively through representa-
tives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment, as authorized by Section 8(a) (3) of the Act,
as amended.
PORT-A-CRTB, INC.,
Employer.
By-------------------------------------
(Representative ) ( Title)
GRAF-TLAPEK, INC.,
Employer.
Dated---------------- Bv-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
'Office, 4459 Federal Building, 1520 Market Street, St. Louis, Mis-
souri, 63103, Telephone No. Main 1-8100, Extension 2142, if they have
any questions concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
in Case No. 14-CA-2774, District No. 9, International Association of Machinists,
AFL-CIO, herein referred to as the Union , filed a charge on May 2, 1962, with the
Regional Director for the Fourteenth Region of the National Labor Relations
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, herein called the Board On August 23, 1962, the Regional Director on
behalf of the General Counsel of the Board issued a complaint based upon said
charge against Port-A-Crib, Inc., and Graf-Tlapek, Inc., herein collectively called
the Respondent, alleging violations of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (29 U.S C. Sec. 151, et seq.), herein called the
Act. In substance, the complaint alleged that: 1) the Respondent interfered with,
restrained, and coerced its employees in the exercise of the rights guaranteed by
Section 7 of the Act by Foreman Harvey Walka's engaging in surveillance of Re-
spondent's employees in their union activities, observing the employees at a union
meeting; and (2) the Respondent discharged 10 employees who were then in layoff
status in order to disenfranchise them from participating as employees in any election
for selecting bargaining representatives that might be conducted by the Board and
in order to discourage membership in the Union. A motion by the Respondent for
a more definite statement or for a bill of particulars was denied by Trial Examiner
Arthur E. Reyman, after the General Counsel supplied certain particulars regard-
ing the surveillance. In its duly filed answer, Respondent denied the commission
of any unfair labor practice.
In Case No. 14-RC-4297, a petition for certification of representatives was filed
by the Union on April 6, 1962.1 On April 10, 1962, a stipulation for certification
upon consent election was signed by the Union and the Respondent and was ap-
proved by the Regional Director on the same date. On April 13, 1962, a Board-
conducted election was duly held pursuant to the aforesaid stipulation. The ballots
of the following named persons were challenged at said election:
Merileen Bell 2
Trudy B Ferguson
Gloria Hicks
Dorothy McGee
Rosalie Morgan
Jo Ann Roach
Sue Roach
Evelyn M. Sommers
Carlene J. Vinson
Betty Jane Walka
The foregoing persons are the same employees who it is alleged in the complaint
case (Case No. 14-CA-2774) were discharged in order to disenfranchise them from
participating in the aforesaid election. The ballots of the above-named persons were
challenged by the Respondent on the ground that said individuals were not em-
ployees within the meaning of the Act on the date of said election. The tally of
ballots showed that 39 votes were cast. Of these, I was void, 11 were cast for the
Union, and 17 were cast against the Union. As noted above, 10 ballots were chal-
lenged. On September 17, 1962, the Board issued an order in which it noted that
"the challenged ballots are sufficient in number to affect the results of the election"
and ordered a bearing to resolve the issues raised with respect to the challenged
ballots. Since the issues raised by the challenges herein would be resolved by the
decision of the Board in Case No. 14-CA-2774; the Board directed that the hearing
as to the challenged ballots be consolidated with the hearing scheduled in the com-
plaint case On September 24, 1962, the Regional Director issued an order con-
solidating Case No. 14-CA-2774 and Case No. 14-RC-4297.
Pursuant to notice, a hearing was held before Trial Examiner Abraham H. Mailer
at St. Louis, Missouri, on October 15, 1962. The General Counsel and the Re-
spondent were represented and were afforded full opportunity to be heard, to in-
troduce relevant evidence, to present oral argument. and to file briefs with me.3
Briefs were filed by the counsel for the General Counsel and by the Respondent.
Upon consideration of the entire record, including the briefs of the parties, and
upon my observation of the witnesses,4 I make the following:
'Two earlier petitions for election had been filed by the Union on March 12 and 21,
1962. On March 27, the Union filed a withdrawal request as to these petitions, which re-
quest was approved by the Regional Director on March 28, 1962
1 Merileen Bell has since married She testified under her married name of Merileen
Gilliland, but is referred to herein by her maiden name
3 At the close of the hearing, Respondent moved to dismiss the complaint on the ground
that the complaint does not follow the substance of the charge I took the motion under
advisement For reasons set forth infra. the motion is denied Motions to dismiss the
complaint for other grounds were denied by me at the hearing and are not discussed herein.
4 Unless specifically indicated to the contrary , any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his de-
meanor as I observed it at the time the testimony was given. Cf. Retail Clerks Inter-
national Association , AFL-CIO, Local 219 (National Food Stores , Inc.), 134 NLRB 1680,
footnote 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I in-
dicate that I do not rely on or,reject in part or entirely the testimony of any given witness,
PORT-A-CRIB, INC., AND GRAF-TLAPEK, INC.
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
489
Port-A-Crib, Inc., and Graf-Tlapek, Inc., herein collectively referred to as the Re-
spondent, are Missouri corporations which at all times material herein have con-
stituted a single, integrated enterprise engaged in the business of manufacturing,
selling, and distributing baby cribs and related items, having their principal office
and place of business in the city of Ballwin, county of St. Louis, and State of Mis-
souri. During the year preceding the hearing, the Respondent in the course and
conduct of its business operations, manufactured, sold, and shipped directly from
its Ballwin, Missouri, plant, products valued in excess of $50,000 to States of the
United States other than the State of Missouri. In view of the foregoing, I find
and conclude that the Respondent is engaging in commerce within the meaning of
the Act and that it will effectuate the policies of the Act for the Board to assert
jurisdiction here.
II THE LABOR ORGANIZATION INVOLVED
District No. 9, International Association of Machinists, AFL-CIO, is a labor or-
ganization within the meaning of Section 2 (5) of the Act.
III. THE ISSUES
1. Whether the complaint is supported by the charge.
2. Whether, by Foreman Walka's surveillance of the union meeting, the Respond-
ent interfered with, restrained, or 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
3. Whether the 10 employees in layoff status had a reasonable expectancy of re-
employment and whether the Respondent discriminatorily discharged said employees
and thereby unlawfully sought to disenfranchise them in violation of Section 8(a) (3)
and (1) of the Act.
IV. THE UNFAIR LABOR PRACTICES
A. Sequence of events
On March 13, 1962, employees of the Respondent held a union organizational
meeting at Breeden's Hall. Among those present, were the 10 employees named
above. The activity was observed by Foreman Harvey H. Walka, Jr.,5 who testi-
fied that he had heard that there was going to be a union meeting and he was
curious. He stationed himself across the street from the union meeting. Foreman
Walka identified some of the 10 dischargees as being present at the meetings Later
Foreman Walka admittedly disclosed to his brother-in-law, Wayne O'Dell, an em-
ployee of the Respondent who was present at the meeting, that he had observed the
meeting. After he returned from the meeting, he reported the matter to Messrs.
Graf and Tlapek, the two principal officers of the companies.7
On March 16, 1962, the 10 employees named above were laid off. The General
Counsel does not contend that the layoff was discriminatory, nor does the com-
plaint charge the Respondent with an unfair labor practice by virtue of the layoff.
At the time of the layoff, these employees were informed by the Respondent that
the layoff would be for a period in excess of 5 weeks. A few days later, Graf and
Tlapek conferred with their attorney. As a result of that conference, Respondent
notified these employees by letter dated March 23, 1962, that their "lay off is per-
manent and that there is no reasonable expectancy that you will be called back
to work." The letter further stated that "the Company will put you on a preferential
hiring list and if the need in the future arises to hire new employees, you will,
on application, be given preference "
As previously noted, an election was held among the employees of the Respond-
ent on April 13, 1962. The ballots of the 10 employees who had been terminated
it is my intent thereby to indicate that such part or whole of the testimony, as the case
may be, is discredited by me. Cf. Jackson Maintenance Corporation, 126 NLRB 115, 117.
footnote 1, enfd 283 F. 2d 569 (CA. 2)
5 Respondent admits that Foreman Walka was a supervisor within the meaning of
the Act.
6 Dorothy McGee, Jo Ann Roach, Carlene Vinson, and Trudy Ferguson At the time
that he testified, Foreman Walka did not remember seeing any of the other dischargees.
4 Graf is president of Port-A-Criib, Inc, and secretary-treasurer of Graf-Tlapek, Inc. ;
and Tlapek is treasurer of Port-A-Crib, Inc , and president of Graf-Tlapek, Inc.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as aforesaid were challenged by the Respondent. These ballots, if they should be
counted, could affect the results of that election.
All 10 dischargees applied for reemployment, and were later offered reemploy-
ment to replace employees who quit or were discharged, as follows.
Names: Reh4i ed
Jo Ann Roach -------------------------------- May 8, 1962.
Merileen Bell -------------------------------- May 21, 1962.
Gloria Hicks --------------------------------- May 23, 1962.
Sue Roach ----------------------------------- May 29,1962.
Dorothy McGee ------------------------------ June 8, 1962.
Betty Jane Walka ----------------------------- June 8, 1962.
Carlene Vinson ------------------------------- June 29, 1962.
Trudy Ferguson ------------------------------ July 24, 1962.
Rosalie Morgan ------------------------------ September 5, 1962.8
B. Respondent's motion to dismiss the complaint because it does not follow the
substance of the charge
As previously noted, I took under advisement the motion made by the Respond-
ent at the close of the hearing to dismiss the complaint on the ground that it does
not follow the substance of the charge. The charge alleged that on or about
March 16, 1962, the Respondent laid off the 10 named employees because of their
union activities and that Respondent thereby and "by other acts and conduct .
has interfered with, restrained and coerced its employees and is interfering with,
restraining, and coercing its employees in the rights guaranteed them by Section 7
of the Act." The complaint, as I have pointed out, alleged that: (1) Foreman
Walka had engaged in surveillance of Respondent's employees at a union meeting
in violation of Section 8(a) (1) of the Act, and (2) the Respondent terminated the
employment of the 10 named employees who were already in layoff status, although
they had a reasonable expectancy of being called back to work, in order to disen-
franchise them from participating as employees in any election that might be con-
ducted by the Board, and in order to discourage membership in the Union, in
violation of Section 8(a) (3) and (1) of the Act.
Respondent argues, on authority of Joanna Cotton Mills Co. v. N.L.R.B., 176
F. 2d 749 (C.A. 4), that the complaint alleges new and different charges of unfair
labor practices from that contained in the charge. The Joanna Cotton Mills case is
not in point.9 In that case, the Board's finding was based on an allegation in the
complaint which, in turn, was based on an amended charge filed more than 6 months
after the occurrence involved. The court held that since the unfair labor practice
alleged in the amended charge was entirely different from the one alleged in the
original charge, it was barred by the 6-month limitation set forth in Section 10(b)
of the Act.
The facts in the case at bar are entirely different. The complaint in the instant
proceeding was issued within 6 months of the occurrence of the unfair labor prac-
tices alleged therein. Moreover, the allegations of the complaint are sufficiently
related to the unfair labor practices set forth in the charge. The allegation in the
complaint that Foreman Walka engaged in the surveillance of the union meeting and
that the Respondent thereby interfered with, restrained, and coerced its employees,
is supported by the general allegation in the charge that the Respondent has inter-
fered with, restrained, and coerced its employees in the rights guaranteed them by
Section 7 of the Act. The allegation in the complaint that the Respondent termi-
nated the employment of the 10 employees, for the purpose of disenfranchising them
in an election, is likewise supported by the allegation of interference, restraint, and
coercion, insofar as said discharge is alleged to constitute a violation of 8(a)(1)
of the Act. Thus, the foregoing allegations of surveillance and termination for
the purpose of disenfranchisement, define more precisely the general allegation con-
tained in the charge Insofar as the complaint charges a violation of 8(a)(3) of
8 Rosalie Morgan was offered reemployment on July 19, 1962, but failed to come in. On
approximately July 25 she called in and said she had been laid off from another job and
would like to come back to work. She was hired on September 5, 1962 . On July 19, 1962,
Respondent sent a registered letter to Evelyn Sommers inviting her to come back to work
on July 23. She declined the offer because she had a better job.
9 In addition , the soundness of the Joanna Cotton Mills decision as to the relationship
between the charge and the complaint has been questioned by the Court of Appeals for
the Ninth Circuit. N.L R B. v. Elwood C. Martin . Fred A. Nemec and Robert W Nemec,
il/b/a Nemec Combustion Engineers , 207 F. 2d 655, 657, cert. denied 347 U.S. 917.
PORT-A-CRIB, INC., AND GRAF-TLAPEK, INC. 491
the Act, by reason of Respondent's termination of the employment of the 10 persons
named above, such allegation is sufficiently related to the averment in the charge
that the 10 named employees were laid off because of union activities. Indeed,
such termination was an outgrowth of the layoff alleged in the charge.
The principles governing the relationship between a charge and a complaint are
now well settled, as is reflected by numerous court and Board decisions. They are
summarized by the Court of Appeals for the Ninth Circuit in N.L.R.B. V. Water-
front Employers of Washington, et al, 211 F 2d 946, 955, as follows (omitting
citations) :
A charge is not a pleading; it simply sets in motion the investigative ma-
chinery of the Board. . . . The charge has served its purpose when the Board's
investigation is begun . It is only when the Board, after investigation of
the charges filed with it, has issued its complaint that the precise issues in the
case are framed. . The charge has one additional function- it informs the
alleged violator of the general nature of the grievance against him; the require-
ment of § 10(b) of the Act that the charge be filed within 6 months after the
event was designed to give alleged violators opportunity to prepare defenses
and to protect them against stale claims. . . . Since these are the only func-
tions of the charge, and because charges must often be prepared by persons
without knowledge of pleading or the laws, the Board has wide leeway in in-
cluding in its complaint allegations of facts unearthed. in its investigation of
a timely charge filed with it, even though such facts were not specifically men-
tioned in the charge. . . . The limitation on this power of the Board is that
the new matter, if incorporated in the complaint more than 6 months after the
events occurred, must not be so dissociated or remote from the allegations
of the charge as to prejudice the alleged violator in preparing his case.10
I therefore conclude that the charge herein formed a sufficient basis for the allega-
tions of unfair labor practices set forth in the complaint. Accordingly, Respondent's
motion to dismiss the complaint is hereby denied.
C. Surveillance of the union meeting
As previously noted, Foreman Walka went to the vicinity of Breeden's Hall on
March 13, the night of the union meeting. He stationed himself across the street
from the meeting and looked through the windows to see who was present. He also
noted whose automobiles were parked in the vicinity of Breeden's Hall. He then
reported his findings to Graf and Tlapek. Respondent contends that the foregoing
surveillance was not violative of the Act. It argues. that this was an isolated act
by a lower echelon foreman, that the foreman's conduct was motivated by his
curiosity and that there is no evidence that any of the employees saw him engaging
in surveillance.
These reasons must be rejected. Whether Walka was a "lower echelon foreman"
is unimportant, although, contrary to Respondent's characterization, Walka was the
only supervisor in the plant except for Graf and Tlapek. Admittedly, he was a
supervisor, and he reported the results of his surveillance to Graf and Tlapek.11
Nor is his motive in engaging in surveillance of any consequence Beatrice Foods
Company, 84 NLRB 493, 494 Equally unimportant is the fact that no employee
saw Foreman Walka engaged in surveillance.12 Foreman Walka's act of surveillance
constituted an interference by the Respondent of the rights guaranteed to the em-
ployees by Section 7 of the Act, "even in the absence of a showing that specific
use was made of the information so obtained or that the employees were aware
that they were being or had been spied upon " (N.L.R.B. v. Baldwin Locomotive
10 See also N.L R.B. v Elwood C. Martin, Fred A Nemec and Robert W Nemec, d/b/a
Nemec Combustion Engineers, 207 F. 2d 655, 657 (CA 9), cert denied 347 US 917,
enfg. as modified 100 NLRB 1118; NL.R.B v. Talladega Cotton Factory, Inc, 213 F.
2d 208, 215 (C.A. 5), enfg 106 NLRB 295; N.L.RB. v Raymond Pearson, Inc, 243 F
2d 456, 458-459 (C.A. 5), enfg. in part 115 NLRB 190; Texas Industrves, Inc; at at.,
139 NLRB 365; Harold Goldsmith and Ida J. Goldsmith, d/b/a Superior Maintenance
Company, 133 NLRB 746, 747, footnote 1; R. H. Osbrink Manufacturing Company, 104
NLRB 42, 43-44, enfd 218 F. 2d 341 (C A. 9), cert denied 349 U S. 928; Stokely Foods,
Inc, 91 NLRB 1267, 1268, enfd. 193 F. 2d 736, 737-738 (C.A 5).
11 Graf also admitted that Walka had reported the results of his surveillance.
12 It should be noted, however, that Foreman Walks admitted that he had discussed his
act of observing the union meeting with Wayne O'Dell, his brother-in-law, who was also
an employee of the Respondent.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Works, 128 F. 2d 39, 50 (C A. 3).) See also N.L R B. v Grower-Shipper Vegeta-
ble Assn., 122 F. 2d 368, 376 (C.A. 9); N.L.R.B. v Clark Brothers Company, Inc,
163 F. 2d 373, 375 (C A. 2); E-Z Mills, Inc., 101 NLRB 979, 980. I therefore find
and conclude that by such surveillance the Respondent interfered with the rights
of its employees guaranteed by Section 7of the Act in violation of Section 8(a) (1)
of the Act.
D. The discharges
As stated above, 10 of the employees who had attended the union meeting of
March 13, 1962, were laid off on March 16, 1962. The complaint does not allege,
and it is not contended , that these layoffs were violative of the Act. Graf testified
that because of a simplification of certain models which the Respondent produced
and because of the introduction of a new machine, the Respondent had determined
to reduce its work force from 40 employees to 30, and Respondent anticipated that
the work force would remain constant at that figure. Two or three days after the
layoff, Graf and Tlapek conferred with their attorney, and as a result of the con-
ference a letter drafted by the attorney was sent on March 23 informing the 10 em-
ployees in layoff status that "it appears that such layoff is permanent and that there
is no reasonable expectancy that you will be called, back to work. . However,
the Company will put you on a preferential hiring list and if the need in the future
arises to hire new employees, you will, on application, be given preference " Graf
admitted that when he sent the letter he was aware that his action would disen-
franchise these employees in any forthcoming election.
All of the 10 persons so terminated were later offered employment by the Re-
spondent; 1 declined, 9 accepted; 3 of them were reemployed within 2 months of
their termination; 3 more within 3 months. All were offered reemployment within
4 months from the date of their termination.
Respondent contends that it had determined to reduce its work force from 40
to 30 employees, a number which would be adequate to meet and fill all anticipated
orders for the coming year; therefore, Respondent concludes, the 10 employees in
layoff status had no reasonable expectancy of reemployment with the Respondent.
The fallacy in Respondent's position is that it makes no allowance for replacement
of employees who would thereafter quit or be discharged And the record shows
that Respondent had experienced a substantial turnover of personnel. Thus, dur-
ing the 5 months from April 25 to September 30. 1960, 14 persons left the Re-
spondent 's employ During the 7 months from March 3 to October 2, 1961, 11
persons left Respondent's employ 13 The record also reveals that from time to
time several persons left Respondent's employ and later returned.14 In the light
of the foregoing, while I am satisfied that while the Respondent expected to keep
its production staff constant at 30 employees, it is incomprehensible that it did not
anticipate the occurrence of vacancies within a reasonable period.
Moreover, layoffs were not uncommon at Respondent's plant. The length of
these layoffs ranged from 3 weeks to 4 months.15 On none of these occasions did
Respondent inform the laid-off employees that they had no reasonable expectancy
of reemployment and that their employment had been terminated. Why, then.
did it do so on this occasion9
The 10 employees who were thus terminated by the Respondent were all mem-
bers of the Union, and at least 6 of them were so known to the Respondent.is The
18 It does not appear from the record whether any of these persons were discharged or
left voluntarily.
11 Mae Heldenbrink left Respondent ' s employ on June 30, 1960 , presumably was later
reemployed, and again left on February 27, 1962. Betty Henderson left Respondent's
employ on August 11 . 1960 , and again on July 21, 1961 Erma Krenn left Respondent's
employ on March 3. 1961 , and again on April 3, 1961. Dorothy McGee. 1 of the 10 per-
sons involved in this proceeding started to work for Respondent in 1954, quit for about
a month and a half in 1957 , and quit again in November 1957. She returned to work in
September 1959, quit in September 1960, and returned to work in June 1961
15Thus , Merileen Bell was laid off In the spring of 1961 for about 2 months . Dorothy
McGee was laid off in August 1954 for a little over a month, in October 1959 for 2 months,
and in April 1960 for 3 or 4 weeks Sue Roach was laid off on October 13. 1961, and re-
turned February 12, 1962. Ruth Rachels was laid off on October 13 , 1961, and returned
February 6, 1962 Rosalie Morgan was laid off on October 10, 1960, and returned Novem-
ber 28 , 1960 Respondent 's records do not reveal whether any of the foregoing employees
were , recqlled at an earlier date but did not respond.
„ 10 Foreman Walka remembered seeing Dorothy McGee and Jo Ann Roach at the union
meeting He also remembered seeing automobiles belonging to Carlene Vinson and Trudy
PORT-A-CRIB, INC., AND GRAF-TLAPEK, INC. 493
discharges were effected after Respondent had conferred with its counsel and while
petitions for an election were pending. Graf admittedly was aware that this action
by the Respondent would have the effect of disenfranchising the 10 employees. In
these circumstances, it is apparent that the discharges of these 10 employees was
effected for the sole purpose of reducing the number of union adherents who would
vote in an election, and I so find. I further find that the said employees had a
reasonable expectancy of reemployment by the Respondent, within a reasonable
time, and were and continued to be employees within the meaning of the Act and,
as such, entitled to vote in the election held on April 13, 1962. Cf. Pyramid Elec-
tric Company, 120 NLRB 1051; Aroostook Federation of Farmers, Inc., 117 NLRB
31, 34-35.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent as set forth in section IV, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a) (3) and (1) of the Act, I shall recommend that it cease
and desist therefrom and that it take certain affirmative action designed to effectuate
the policies of the Act. As the unfair labor practices committed by the Respondent
are of a character striking at the root of employee rights safeguarded by the Act,
I shall recommend that it cease and desist from infringing in any manner upon the
rights guaranteed in Section 7 of the Act.
Inasmuch as all of the 10 employees who had been discriminatorily discharged
have been offered employment by the Respondent, no affirmative action by the Re-
spondent in this regard is necessary. Also, since these employees were all in layoff
status at the time they were discharged, it does not appear that they have suffered
any financial loss by reason of such discharges. Accordingly, there is no necessity
in this case to provide for backpay.
Upon the basis of the foregoing findings of fact, and upon the entire record of
this case, I make the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent occur 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 Foreman Walka's surveillance of the union meeting, the Respondent has
engaged in an unfair labor practice within the meaning of Section 8(a)(1) of the
Act.
4. By discriminatorily discharging Merileen Bell, Trudy B. Ferguson, Gloria
Hicks, Dorothy McGee, Rosalie Morgan, Jo Ann Roach, Sue Roach, Evelyn M.
Sommers, Carlene J. Vinson, and Betty Jane Walka, Respondent has engaged in un-
fair labor practices within the meaning of Section 8(a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Ferguson in the vicinity of Breeden's Hall where the meeting was held Also, an March 21,
an informal conference was held in the office of the Fourteenth Region in Cases Nos.
14-RC-4272 and 14-RC-4261 involving petitions for election. Present with the union
representative at that meeting were Merileen Bell, Dorothy McGee, and Rosalie Morgan.
The fact that the Respondent may not have known that the other four employees were
union members is immaterial "Discrimination in regard to hire or tenure of employment
of a group of employees, including . . union members not known by the employer to be
union members, tends to discourage union membership and activities no less than discrimi-
nation against known pinion members alone " ( Arnoldware , Inc, 129 NLRB 228, 229.)
See also Englewood Lumber Compasiy, 130 NLRB 394, 395'