Que Enterprises, Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1963

140 N.L.R.B. 1001 (N.L.R.B. 1963)

QUE ENTERPRISES, INC. 1001
All our employees are free to become, remain, or refrain from becoming or
remaining members of United Steelworkers of America, or any other labor
organization.
MARSHFIELD STEEL COMPANY,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NOTE.-We will notify any of the above-named employees presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act after discharge from the Armed
Forces.
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, 1200
Rialto Building, 906 Grand Avenue, Kansas City 6, Missouri, Telephone No.
Baltimore 1-7000, Extension 731, if they have any question concerning this notice
or compliance with its provisions.
Que Enterprises , Inc. and Gilbert S. Medina, Otto G. Laube,
Robert W. Anderson, R. T. Bogtie . Cases Nos. 28-CA-808-1,
28-CA-808-2, 28-CA-808-3, and 38-CA-808-4. February 1, 1963
DECISION AND ORDER
On September 21, 1962, Trial Examiner Eugene K. Kennedy issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the attached Intermediate Report.
Thereafter, the Respondent filed exceptions to the Intermediate Report
and a supporting brief. The General Counsel filed a brief in support
of the Intermediate Report.
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 [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record
in these cases,' and finds merit in certain of the Respondent's
exceptions.
The Trial Examiner found, as alleged in the complaint, that the
Respondent on the afternoon of March 30, 1962, unlawfully dis-
charged five employees because they had engaged in protected con-
certed activities. The sole extent of such activities by the discharged
1 The Respondent requested oral argument. As the record, including the exceptions
and briefs , adequately sets forth the Issues and positions of the parties, the request is
hereby denied.
140 NLRB No. 93.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees consisted in their signing, sometime during the 10 days
prior to their discharges, one of two blank sheets of paper handed
them by employee DeMar to obtain, as DeMar testified and told the
other employees, a list of those interested in improving working condi-
tions.' Nine employees, including the five dischargees, signed. As
subsidiary findings to support his ultimate conclusion that the em-
ployees were unlawfully discharged, the Trial Examiner found that
Underwood, Respondent's vice president and manager who ordered
the discharges, knew prior to the afternoon of March 30 that some
employees were engaging in concerted activities and that the five
discharged employees had signed the lists.
In making these findings and conclusions the Trial Examiner relied
wholly on the testimony on direct examination of DeMar whose testi-
mony, he observed, "establishes the entire case of the General Counsel."
There DeMar stated that he asked Underwood on the morning of
March 30 why the employees were accusing him of having a list;
that Underwood replied he would find out; and that in the afternoon
prior to the time of the discharges Underwood told him, DeMar, that
he, Underwood, had found out all about it and would put a stop
"to that sort of thing permanently." Still on direct, DeMar further
testified that during the morning of March 31 Underwood told him
that he, Underwood, had a list of nine names of people who had joined
the Union and that was the reason he had discharged the five em-
ployees the previous day. On cross-examination, however, DeMar
testified, not that Underwood stated on March 31 that he, Underwood,
had a list, but rather, that Underwood accused him, DeMar, of having
a list of some 9 or 10 employees who wished to organize. Further on
cross, DeMar, in detailing the March 31 conversation with Under-
wood, failed to mention altogether any statement by Underwood to
the effect that the employees had been discharged for signing the list
or for joining it union. In considering the above-outlined testimony
of DeMar we need not disagree with the impression of the Trial
Examiner that he was a "conscientious and truthful witness." How-
ever, the inconsistencies between his testimony on direct and cross-
examinations show on the face of the record that he was confused
concerning precisely what was said during his crucial conversation
with Underwood on the morning of March 31.
Furthermore, the Trial Examiner in crediting DeMar's testimony
,on direct, did so in part on the grounds that Underwood and, his sec-
retary, Charlene Haller, both of whom gave testimony inconsistent
with that of DeMar,3 were not credible witnesses. This rather in-
2 Shortly before his discharge Leonard Leech also accompanied DeMar on a trip to two
union offices for the purpose of seeking union aid for the employees . No one was present
at either office, and apparently no further attempts were made to enlist union support.
3 Thus, Underwood stated he decided on March 28 to discharge the five employees for
economic reasons and also denied knowing about DeMar's list or making the statement
QUE ENTERPRISES, INC. 1003
verted method of substantiating DeMar is in the circumstances here
without substance, for the reasons apart from demeanor for discredit-
ing these witnesses are either as a matter of law or on the face of the
record untenable. Thus, in discrediting Underwood, the Trial Ex-
aminer relied in part on Respondent's refusal to consent to an agent
of the New Mexico Employment Security Commission testifying con-
cerning an alleged communication to him from Underwood privileged
under State law and upon Underwood's failure to respond volun-
tarily to a subpena. Neither of these matters bears upon the credi-
bility of a witness.' As for Haller, she was discredited in part upon
"the content" of her testimony which on the face of the record is
plausible and consistent and clearly does not contain the ambiguities
and inconsistencies possessed by that of DeMar.5 Consequently, little
or no support for crediting DeMar can be found in the Trial Exam-
iner's discrediting of Respondent's witnesses.
Thus, DeMar's testimony stands alone and essentially unsupported
on the crucial matters of company knowledge of concerted activity and
its motivation for the discharges. It is on these matters, as concluded
above, confused and somewhat inconsistent. Consequently, it will not
support a finding that the Respondent discharged the five employees
for reasons proscribed by the Act. Furthermore, though the case is
one that raises perhaps certain doubts concerning the legality of the
discharges, nevertheless, Respondent's defense that it discharged the
employees for economic reasons, though not as compelling as it would
have us believe, is clearly more than frivolous.6 Consequently, we con-
clude, contrary to the Trial Examiner, that the General Counsel has
failed to establish by a preponderance of the evidence that the dis-
charges of Gilbert Medina, Otto Laube, Robert Anderson, R. T. Rogue,
and Leonard Leech on March 30, 1962, violated Section 8 (a) (3) and
(1) of the Act.
The Trial Examiner also found, as alleged in the complaint, that
the Respondent violated Section 8(a) (1) by unlawfully threatening
and interrogating employees. He failed, however, to specify the par-
ticular conduct upon which such finding was predicated. We fail to
find in the record any evidence of improper interrogation, while that
attributed to him on March 31 that union considerations played a part in the discharges
Haller testified she made up the final paychecks for the five employees on March 29, or
a day or so before Underwood, under even DeMar's testimony, allegedly had any knowl-
edge of concerted activities in the plant.
* Neither does Underwood' s failure to respond to the subpena warrant, as contended by
the General Counsel, striking all of his testimony.
6 We also find that the Trial Examiner was in error in associating a bias reflecting
adversely on the credibility of Hunt and Balok in testimony supporting the Respondent
because they were at the time of the hearing employees of, and working for, the Respondent.
9 Thus, in the quarter preceding the discharges the Respondent's machine shop opera-
tions had not been profitable and the five dischargees had at least on certain jobs not
performed in a wholly satisfactory manner. Also, in April and May 1962, the Respondent
discharged a number of other machine shop employees assertedly for economic reasons and
such discharges have not been challenged as unlawful under the Act.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relating to unlawful threats is a part of DeMar's testimony which we
found above to be confused and contradictory and, thus, insufficient
to support a conclusion that Respondent violated the Act. Accord-
ingly, we further find that the General Counsel failed to establish
an independent Section 8 (a) (1) violation.
In view of the foregoing, we shall dismiss the complaint.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
A hearing in this proceeding was held in Albuquerque, New Mexico, on June 26,
27, 28, and 29, 1962, before Trial Examiner Eugene K. Kennedy. The issues
litigated were whether Respondent discharged five employees because of their ex-
pressed interest in organizing for collective bargaining, and whether Respondent made
certain threats with respect to the consequences of union organization.'
Upon the entire record, my consideration of briefs submitted by Respondent and
the General Counsel, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent corporation is engaged at Albuquerque, New Mexico, in research and
development in the field of electronics and machined products. It is now, and has
been at all times material herein, an employer engaged in commerce within the
meaning of the Act .2
H. THE UNFAIR LABOR PRACTICES
A. Background
Respondent's operation here involved has an electronic and mechanical depart-
ment. The employees of the mechanical department, or machine shop, are machinists
or helpers with varying degrees of skill. There were approximately 15 employees in
the machine shop on March 30, 1962, which is the key date with relation to the issues
litigated.
Ralph Underwood was the owner of the operation until about a year and a half
prior to this proceeding. At that time in order to obtain additional capital the busi-
ness was incorporated and he continued as the responsible manager, vice president,
and part-owner.
The employees of Respondent have never been represented by collective-
bargaining representatives. Underwood's attitude toward union organization is
reflected in his following testimony which he gave concerning a talk made by him
to the machine shop employees about 1'h weeks prior to March 30 when the five
alleged discriminatees were discharged:
Q. Now when you talked in March and talked to your employees what did
you say about the right to work laws?
'Respondent's motion to correct the transcript in certain respects is hereby granted.
The motion and order granting said motion are included in the record as Trial Examiner's
Exhibits Nos. 1 and 2 , respectively.
2 During the 12-month period immediately preceding the issuance of the complaint,
Respondent purchased in excess of $50,000 worth of materials originating out of the
State of New Mexico, which were purchased from enterprises located in the State of
New Mexico which enterprises had received such materials directly from outside the State
of New Mexico. During the same period Respondent sold products valued in excess of
$100,000 to the Sandia Corporation and to ACF Industries, Inc, each of which enter-
prises annually ship goods valued in excess of $50 ,000 outside the State of New Mexico
and are engaged in commerce within the meaning of the Act. During the same period
Respondent manufactured and sold goods valued in excess of $50,000 to prime contractors
with the Atomic Energy Commission which had a substantial impact on the national
defense.
QUE ENTERPRISES, INC. 1005
A. I think it is the only way the State of New Mexico will become famous
as an industrial state, that is the gist of my conversation; it is the only way that
this state will ever be recognized as an industrial unit in this country.
Q. What did you say about unions?
A. That I thought the union had very little place, and I thought it was on
the down hill because of the communist activity and the crooked work that has
been going on in it. It has developed its own black name.
Underwood also equated circulating a union petition in his shop with guilt.
This reference in his testimony concerned the suspected activity of Harold DeMar.
Underwood also gave the following testimony with respect to the day that DeMar
asked him about being accused of organizing a union:
Q. Did you do anything else with respect to the union at that time?
A. No.
Q. Or shortly after?
A. Other than probably say a few choice words to myself.
Q. Was it a matter of concern to you that the man [sic] were talking about
organizing a union?
A. The union doesn't bother me. It's the fact of production that I was worry-
ing about, is this excessive loss in anything that agitates people in the shop re-
flects in loss to the company whether it's good or bad for the people or the
company, anything to upset the regular routine of a company-of an employee,
reflects in cost structure.
B. The events
Approximately 1i weeks prior to March 30, 1962, Underwood called a meeting
of the employees in the machine shop and spoke to them for a period of time exceed-
ing an hour. He stated that there was poor workmanship being performed and told
the employees about the advantages of the right-to-work law and included a criticism
of an archbishop who had previously spoken out against the right-to-work law.
There had been several meetings of this type previously in which criticism of the
employees' work had been made. Following this meeting in March, Harold DeMar,
a machinist in Respondent's employ, obtained the signatures of nine other employees,
signifying their interest in union organization. DeMar along with one of the alleged
discriminatees, Leonard Leech, visited two union offices in Albuquerque but failed
to obtain any aid or assistance in either one.
With reference to the purpose for which the signatures were executed DeMar
testified as follows:
Q. Now, who solicited the signatures on the list?
A. Well, this Leonard Leech and I talked it over, and he wanted to do it,
but actually, I rather done it myself because I didn't-at that time I didn't know
Leonard very well and still don't, and so I circulated the list around employees
that I knew that we had talked about this here several times, it was just an
exploratory list of people who would be interested in improving the conditions
there, getting away from this here general chewing out all the time that had been
going on ever since I had been there.
This list referred to in DeMar's testimony contained the signatures of 10 employees
including the 5 alleged discriminatees: Gilbert Medina, Otto Laube, Robert Ander-
son, R. T. Bogue, and Leonard Leech.
C. Circumstances attending the discharge
Gilbert Medina, Otto Laube, Robert Anderson, R. T. Bogue, and Leonard Leech
were discharged without prior notice at 3:30 p.m., 1 hour before the usual quitting
time, on Friday, March 30, 1962. Approximately 2 days before this, two employees
of the machine shop, Morris Hunt and Chester Balock, approached DeMar at work
and accused DeMar of starting the union. On the following day another employee,
Ernie Fitchner, a welder, came up to DeMar and said, "Where is those ten names
you got on the list?" and "I'd like to put mine on there, how come you didn't ask
me?" Underwood identified Fitchner as one of the employees who had told him
that DeMar should be watched as he was in favor of a union.3
8 The record is not clear whether DeMar spoke to Underwood on the same day that
Fitchner asked him about the list, although it seems probable that it was on the following
day. In any event, it is not significant whether Fitchner made the inquiry on the same
day or the preceding day.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to March 30, 1962, DeMar testified as follows:
The WrrNESS: I asked, later this morning Ralph Underwood came by and
L asked him why, how come they were accusing me of having the list, and he
kind of shrugged his ^soulders [sic] a little bit, and says, "I'll find out," and
,and I asked him how come they were accusing me of starting a union, and he
says, well, he didn't know but he'd find out. So a little later that morning he
came by and he said, "I found out all about it," this was in the afternoon, I
believe, it was in the afternoon he came by, and he says, "And I'll put a stop to
that sort of thing permanently," he says .. .
Q. Now, then, did you have any further-do you recall any further conver-
sation with Mr. Underwood?
A. The next day.
Q. Next day?
A. The next day was Saturday-wait a minute, now, let me think just a min-
ute. That was the same day, and the men were discharged that night, that I
talked to Ralph Underwood in the morning, the men were discharged the same
night. The next morning he called me in his office, after these men were dis-
charged in this little inspection room, and told me he found out. He says "I
have a list of nine or ten names of people that joined the union," and he says
that's the reason he let these five men go, and he says, "There will be more,"
and so I told him then if he was sure of that, I asked him how come he didn't
fire me too. He says, "There is time for that, there will be more," and he pro-
ceeded to tell me that there was twenty-eight men before in his organization
that he went down the line and chopped them off, just right on down the line,
he says, and for .the same reason. And I asked him then, "even if they were
the best men in the house," and he said it didn't matter to him if they were the
best men or not.
Q. Do you recall anything further being said during that-
A. There was mention made that if the union come in there that he couldn't
pay the three and a half an hour that the union demanded, that he would have
to knock off all the overtime and probably some help .4
D. Respondent's justification for discharges
Respondent claimed that the five employees were discharged because their poor
workmanship was causing Respondent to lose money. In support of this conten-
tion certain financial statements were offered along with testimony by Underwood
and also records pertaining to ,the work of the five discharged employees, as well as
Underwood's testimony as to the work of the employees. The financial information
offered will first be considered and then the alleged shortcomings of the employees.
Underwood testified that sometime in mid-February he was advised by his ac-
countant that his Company was in serious financial condition. He then testified that
4 Although admitting DeMar interrogated him on the morning of the discharge about an
accusation that DeMar had been trying to start a union, Underwood denies DeMar's ver-
sion of the conversation in the afternoon as well as DeMar's testimony concerning the
conversation between himself and DeMar the following morning.
DeMar's testimony establishes the entire case of the General Counsel. In excess of
800 pages of testimony and many exhibits which constitute the record in this matter may
correctly be regarded as primarily concerned with the question of whether DeMar's or
Underwood's testimony should be accepted. Consequently, in a sense this report is sub•
stantially devoted to the question of credibility of Underwood and DeMar. Considera-
tions leading to the acceptance of DeMar's testimony and rejecting that of Underwood's
will be found in the body of this report. DeMar exhibited the impression of a con-
scientious and truthful witness.
Some of the considerations in making a determination of credibility in addition to the
demeanor of the two witnesses include the fact that Underwood refused to comply with
a subpena duly served by the General Counsel and appeared at the hearing only after the
General Counsel had completed his case. Also, Respondent refused the opportunity of
having an apparently objective and neutral witness testify with respect to what Under-
wood told him was the reason for the discharge of the five employees on March 30, 1962.
The General Counsel sought to elicit this testimony from an employee of the New Mexico
Employment Security Commission . This employee claimed that the communication to
him by Underwood was privileged under New Mexico laws and although the General
Counsel agreed to have the testimony included in the record, Respondent would not, which
would be the only basis on which the New Mexico official would, voluntarily, give the
testimony.
QUE ENTERPRISES, INC. 1007
he spent a couple of weeks going over the reports of his superintendent, John Glover,
and comparing those with the information he received from the accountant. These
reports by Glover were not made a part of this record and there is no basis other
than Underwood's testimony that there was any variance between these reports and
the information supplied him by his accountant. Underwood claimed that on the
basis of the accountant's report and the discrepancies in Glover's records he decided
to fire Glover and did S0.5
Underwood then stated that he began an examination of the records of the
employees in the machine shop and also spent some time in the shop observing their
performance and finally on the evening of March 28, 1962, he spent several hours
going over the individual records and concluded that the five alleged discriminatees
should be discharged. He further testified that on the morning of March 29 he gave
orders Ito his secretary to make out the final checks for the five alleged discriminatees
including 8 hours on March 30.6
The financial statements submitted by Respondent appear at best equivocal and
are incomplete. However, they show that the pattern of profit and loss for 1962 was
approximately the same as in the preceding year. There seems some merit in the
thought expressed in Underwood's testimony to the effect that his board of directors
were dissatisfied with the financial statements as well as himself because an examina-
tion of them did not -adequately reflect the financial status of Respondent. Despite
Respondent's contention of financial loss in the spring of 1962, sometime prior to
the hearing herein, an expansion project involving construction of a new plant had
been initiated by Respondent. I find the financial statements as submitted by Re-
spondent are unpersuasive in establishing any unusual financial loss attributable to
the five alleged discriminatees, and in any event, even assuming that they do reflect
this contention of Respondent, I find that the alleged financial considerations were
not the reason for the discharges.
Turning now to the Respondent's claimed reasons for discharging each of the em-
ployees on March 30, Respondent's contentions with respect to each will be ex-
amined separately.
Gilbert Medina
Underwood testified he discharged Medina because he was too slow and made too
much scrap. There was introduced on behalf of Respondent a record which pur-
portedly shows that a job that Medina worked on resulted in a loss of $84. Under-
wood also assigned as a reason for Medina's discharge that he was too slow in tapping
holes on a steel bracket and made a mistake in sawing raw material. These last two
reasons lose their validity in view of the fact that Underwood claimed that he had
made his decision to discharge Medina on a Wednesday evening and the work of
tapping holes and sawing raw material was performed on the following day. The
record is uncontroverted that Medina was complimented by Foreman Goodman on
the excellent nature of his work. He had received no prior warning of his discharge
and at the time he was fired on March 30, 19'62, he had not completed a job on which
he was performing work.
Otto Laube
Laube had worked for Respondent since May 1961, and had received two raises
including one during the first or second week of his employment. Foreman Good-
man gave Laube as well as the other four alleged diseriminatees their checks on
March 30, 1962. Goodman had no knowledge of the impending discharge of these
five employees until Underwood turned over the checks to him despite the fact that
he testified .that the performance of each man in the shop was reviewed practically
every week in conference between himself and Underwood.
At the time of discharge Laube was about two-thirds through a job on which he
was working. Underwood stated one of the main reasons for discharging Laube
was the low quality of workmanship in connection with this job and Respondent
submitted documentary evidence purporting to show that Laube was responsible
for a loss in connection with it. However, scrutiny of this evidence, which includes
5 Although Underwood on direct examination stated several times that he had fired
Glover, on cross-examination he admitted that Glover had quit.
6It is appropriate to note here that Charlene Haller, a witness called by Respondent,
testified that she was employed by Respondent and her duties included making out pay-
checks and that the only time that she had ever made out a final paycheck, except on the
day employees were terminated, was in the case of the five discriminatees She could
i ecall the dates that she made out the checks for the discriminatees and DeMar but could
not recall the date she made out checks for any of the other people that were terminated
during her approximate 6 months of employment.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a letter from the Sandia Corporation addressed to Respondent, reflects that of the
22 claimed estimated hours that Respondent was being backcharged for, welder
Fitchner was responsible for 16 hours. Four hours involved work that was not
performed at all by Respondent. It is doubtful from this record whether Laube
was responsible for even two of the backcharged hours. Whether he was or not,
it seems incongruous on Respondent's part to offer this letter to support Laube's
discharge when it demonstrates others were primarily responsible for the backcharge
and claimed loss.
Underwood also attributed Laube's discharge to slow work on aluminum brackets.
In attempting to corroborate his estimate of Laube's slowness, he stated that the
work had subsequently been done more rapidly by an apprentice. However, on
cross-examination he admitted that the work done by the apprentice had to be
done over and that he was fired for scrapping material.
Robert Anderson
Respondent claims that Anderson was discharged for poor quality of work on items
called shoulder bolts and for being too slow in his performance in connection with
making certain shafts and his inability to obtain a proper finish on adjustment
screws. At the time of his discharge on March 30, Anderson inquired from Foreman
Goodman as to the reason for the discharge and Goodman told him , "Well, the
boss said we have been making too much scrap in the shop , so we put all the names
in a hat and drew out five and yours was one of them."
In connection with the shoulder bolts Anderson 's testimony is credited to the effect
that part of the difficulty in connection with the work on those items was because
the specifications were changed . In connection with the work on shafts the record
reflects that 2 days prior to his discharge Respondent received an order for another
large amount of these shafts , and Underwood brought the blueprint out and told
Anderson that because he had done such a "damn good job" they had gotten
another order .? In connection with the adjustment screws, Anderson 's testimony
is credited that he never performed any work on these screws . Although Respond-
ent produced certain selected work records of employees' work on particular
jobs, there was no work record produced in connection with Anderson 's alleged
working on the adjustment screws, and I find that he did not work on these screws,
contrary to Underwood 's testimony.
R. T. Bogue
The alleged poor workmanship involving Bogue related to work on items called
coathangers. Bogue was working on this job on March 29, 1962. Underwood
claims that the inspector informed him on March 25, 1962, that there were defi-
ciencies and errors in this work performed by Bogue. If this were true, it seems
incredible that Bogue would be permitted to continue working without being advised
by Underwood as ,to what was wrong and how to correct it. Since the record does
not reflect this, it seems probable that it was not done and that Underwood's
testimony was incorrect, and I so find. Further, in connection with work on this
same job, the record is uncontradicted that in the presence of Foreman Goodman,
Bogue was complimented by an inspector, who stated "that he was glad to see
that somebody could finally fix these pieces right, so that they could pass final
inspection."
On March 30, the day of his discharge, Bogue started working on a job which
would have required approximately a month's work.
Leonard Leech
Leech was an experienced tool-and-die machinist, representing the highest degree
of skill in the trade. Even so, he started at $2.70 an hour, which was considerably
below the top rate paid by Respondent. His primary work with Respondent was in
an operation involving grinding some discs. According to the credited testimony
of Leech, this job was a novel operation and I find Leech's testimony more credible
than Underwood's and Foreman Goodman's to the effect that there was not poor
workmanship involved in connection with the disc job or excessive time consumed,
considering the difficulties attached to the job.
On the occasion when Leech was fired on March 30, 1962, at 3:30 p.m., just before
leaving the plant, he said to Foreman Goodman, "Well, Bill, tell me exactly what
9 Underwood admits telling Anderson they had another order but denied any compliment
was included in his comment to Anderson.
QUE ENTERPRISES , INC. 1009
happened." And Goodman replied, "The hit the fan and the whole bunch
got fired."
Examining the alleged reasons for terminating these five employees, it is apparent
that in developing the alleged reasons for their discharge, Respondent developed
further reasons for not crediting the testimony produced in its behalf.
Assuming that in the context of a vacuum the reasons offered by Respondent
would provide a basis to justify the discharges, in the circumstances here present I
find that the evidence preponderantly points to union animus as the predominant
factor in causing the discharges. Even though the records produced by the
Respondent reflect some shortcomings on the part of the alleged discriminatees,
this evidence loses any significant probity by reason of the fact that a performance
record of employees who did not sign the list evincing interest in union affiliation
was not presented for comparison, the only exception being that the record of
Fitchner's work reflected that he was responsible for a much greater loss to Respond-
ent than could have been correctly attributable to Laube. Fitchner was the employee
who interrogated DeMar about the list but who did not sign it and also told
Underwood that DeMar was really for the union although he spoke against it.
E. Other testimony offered by Respondent
Although as indicated above, a resolution of all the issues here is effected in
crediting DeMar's testimony as against Underwood's, examination of the testimony
of other witnesses, offered by Respondent, adds to the credibility attached to DeMar's
testimony and detracts from the trustworthiness of Respondent's witnesses.
Foreman Goodman testified that during his employment of approximately 3
years with Respondent and its predecessor he had never actually fired anyone. This
is in conflict with Underwood's testimony wherein he stated with relation to a list
of several employees terminated between April 6 and June 8, 1962, as follows:
I don't personally supervise the people, so how do I know whether he
quits or gets fired. The fact that he leaves over the job is incidental to whether
he quits or gets fired.
TRIAL ExAMINER: Does Mr. Goodman have authority to hire and fire people?
The WITNESS: Yes, sir, in fact possibly a lot of these people could have been
fired by Mr. Goodman or by Mr. Glover. They weren't hired by myself, so this
puts me in a little different position.
* * * * * * *
TRIAL ExAMINER: I don't think Mr. Underwood really knows whether these
people were fired or quit, some of them, is that right? . .
The WITNESS [Underwood] : There is a possibility, yes, because Mr. Good-
man has the prerogative of firing as well as myself, and people that is there
a short time you don't learn a hundred percent people by their name, what
they do, the problems when you have a turnover of personnel.
Not only does this testimony conflict with Goodman's testimony but it conflicts
with Underwood's own testimony given previously wherein he said he made a
personal decision to fire 11 employees for the same reasons that he fired the 5 alleged
discriminatees,
Contained in Goodman's testimony is the statement that when he advised the
alleged discriminatees how to do their work better, they substantially followed his
directions. Goodman also admitted that he had complimented Medina for the high
quality of his work. Since Medina was there only a short time, this seems in-
consistent with the testimony of Goodman that he had recommended to Underwood
that Medina be let go shortly after he was employed.
Charlene Haller had been employed by the Respondent as a clerical employee for
about 6 months prior to the hearing, and was currently in Respondent's employ at
the time of her testimony. Included in her duties was the making up of payroll
checks. With respect to the people that were either discharged or quit between
April 6 and June 8, she testified that their termination check was made up on the
day that they quit or were fired. However, she testified that in the case of the five
alleged discriminatees, at the instruction of Underwood, she made up their checks on
a Thursday morning, the day prior to their discharge. She also testified that the
only payroll checks that she made out on a day other than on the date of termination
were in the case of the alleged discriminatees Based upon her demeanor and upon
the content of her testimony, I find it to be not credible and reject it, insofar as it re-
lates to her preparing the payroll checks on Thursday, March 29, 1962.
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morris Hunt, an employee for 3 years and in the employ of Respondent at the time
of hearing herein, also testified for Respondent . Respondent first developed the fact
that he was a member of the Machinists union, presumably to show that Respondent
had no antipathy toward hiring a union member. However, on cross-examination
it developed that Hunt worked only part time for Respondent and was a union
member at his main place of employment where there was a compulsory union
shop and in working for Respondent was engaged in "moonlighting " which was
frowned upon by his Machinists union . This suggests Hunt had an interest in
keeping a union out of Que Enterprises , Inc., since he might not be permitted to work
there, and also at his main place of employment in the event Respondent 's plant
became organized.
Significantly , Hunt testified that he had heard of the union organizing approxi-
mately a week prior to the end of March, and also gave the following testimony
which is regarded as significant with respect to corroborating DeMar's testimony,
relating to his conversation with Underwood about the list. Hunt testified as
follows:
Q. (By Mr. MAST .) Now, you say there was a lot of talking generally.
What do you mean by that, Mr. Hunt?
A. Well, it was common knowledge in the shop the next morning-I wouldn't
say common knowledge , but common talk that a list had been turned in to Mr.
Underwood that I knew nothing about . Other than that, why, I know no
more.
Q. Now, what list?
A. The people-from what was spoken, that were requesting that the
Machinists represent the employees there .8
The final witness produced by Respondent was Chester Balock. He had been
employed by Respondent for about 3 years prior to the hearing and was currently
in its employ at the time he gave his testimony . Balock, as well as Hunt, denies that
he accused DeMar of trying to organize or start a union. The testimony of
Balock and Hunt in this respect is rejected , based on their demeanor as witnesses
and due to the bias which I associate with their being currently in the employ of
Respondent . This rejection of their testimony , although not on an issue basic to a
resolution of the issues here, flows in large part from a rejection of the testimony
of their employer.
Balock also heard about the Union organizing shortly before the end of March.
Balock stated that he had heard the five discriminatees had engaged in union activities,
probably the following week after their discharge . Balock also testified as follows:
I heard that something , whoever was trying to talk the fellows into turning
the list in to Mr. Underwood.
Q. You heard that Mr. Underwood had been given the list?
A. Yes.
Balock testified that he had heard this approximately a week after March 30.
F. Concluding findings
The events here took place in a group of about 15 employees. Ten of these
employees evinced their interest in organizing by putting their names on a list
circulated by Harold DeMar. Respondent through Ralph Underwood obtained
knowledge of this on Friday, March 30. Respondent in all probability could rule
out Hunt and Balock who testified for Respondent , as well as the welder, Ernie
Fitchner, and also Don Keefer , who Underwood said shortly after March 30 told
him that DeMar was "talking out of both sides of his mouth" and was "really for
the Union although he protests not to be." The precipitous discharge of five em-
ployees in the context of this record appeared calculated to destroy any union
organization , and for the time being , in any event , the calculated effect was achieved.
The credibility of witnesses has been alluded to previously . However, it should
be added that a careful reading and rereading of this record confirms with each
additional reading the contention of the General Counsel that the defenses offered
by Respondent were contrived . Numerous inconsistencies and implausibilities in
8 Whether or not this testimony is hearsay is not significant in this context as an inde-
pendent finding that Underwood obtained the names on the list is derived from the testi-
mony of DeMar . It is noteworthy , however , that Underwood did have sources of informa-
tion about the Union among his employees This conclusion is derived from Underwood's
own testimony that two employees came to him shortly after March 30, 1962 , and warned
him about DeMar's being really for the Union although he was talking against it.
THE GREAT A & P TEA CO. (FAMILY SAVINGS CENTER) 1011
Respondent's testimony not mentioned are reflected in a careful examination of the
record. In view of the above findings no useful purpose would be served by detailing
them.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in
connection with the operations of 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found Respondent has engaged in certain unfair labor practices , it will
be recommended that Respondent cease and -desist therefrom and take certain af-
firmative action designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully discriminated with respect to the
tenure of employment of Gilbert Medina, Otto Laube, Robert Anderson , R. T. Bogue,
and Leonard Leech . It will therefore be recommended that Respondent offer them
immediate and full reinstatement .to their former or substantially equivalent posi-
tions, without prejudice to any rights or privileges , and make them whole for any
loss of pay they may have suffered by reason of discrimination , by paying to them a
sum of money equal to that which they :normally would have earned as wages from
the date of their discharge to the date of Respondent 's offer of reinstatement, plus
their net earnings during that period , in accordance with the formula set forth in
F. W. Woolworth Company, 90 NLRB 289-294.
As the unfair labor practices found above indicate a deliberate and flagrant attempt
to thwart the right of employees in duly selecting their bargaining representative and
the likelihood of the recurrence of such action appears likely, a broad cease-and-
desist order will be recommended.
Upon the basis of the foregoing findings of fact , and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. By discharging Gilbert Medina, Otto Laube, Robert Anderson, R. T. Bogue,
and Leonard Leech, Respondent discriminated with the respective employment of
said employees because they engaged in concerted activities for the purposes of
collective bargaining or mutual aid and protection, thus violating Section 8(a)(3)
and (1) of the Act.
2. By interrogation and threats addressed to any employee, Respondent interfered
with, restrained, and coerced its employee in the exercise of his rights guaranteed by
Section 7 of the Act and thus Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of the Act.
[Recommendations omitted from publication.]
The Great Atlantic and Pacific Tea Company (Family Savings
Center) and Retail Clerks International Association , Retail
Store Employees Union, Local 1407, AFL-CIO and Amalga-
mated Meat Cutters and Butcher Workmen of North America,
Amalgamated Food Employees Union, Local 590, AFL-CIO,
Party to the Contract. Case No. 6-CA-2492. February 1, 1963
DECISION AND ORDER
On October 5, 1962, Trial Examiner Samuel M. Singer issued his
Intermediate Report in the above-entitled proceeding, finding that
140 NLRB No. 89.
681-492-63-vol. 140-65