Right-Gard Corporation

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1181 (N.L.R.B. 1982)

RIGHT-GARD CORPORATION
Right-Gard Corporation and Highway Truck Drivers
and Helpers, Local 107. Cases 4-CA-11105 and
4-CA- 11176
May 28, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND HUNTER
On August 5, 1981, Administrative Law Judge
James J. O'Meara, Jr., issued the attached Decision
in this proceeding. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief in opposition to the excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
Respondent has excepted to certain credibility findings made by the
Administrative L aw Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
hility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
We have particularly considered Respondent's contention that the hear-
ing was tainted by the conduct of a witness, James Smith, who allegedly
threatened and pushed other witnesses outside the courtroom while wait-
ing to testify, and find that Smith's conduct does not warrant reversing
the Administrative Law Judge's credibility resolutions. Furthermore, we
deny Respondent's request that the Board either strike Smith's testimony
or grant a new hearing as lacking in merit In so finding wre do not, of
course, condone any misconduct in which James Smith may have en-
gaged The parties may choose to seek the appropriate civil or criminal
remedies for such misconduct through the local law enforcement agen-
cies or courts In finding that Respondent violated Sec.
8
(aX
3
) and (1) of
the Act by discharging Calvin Duncan, we note that although Duncan
was identified as "supervisor"of the third shift before his discharge on
May 14, 1980, Respondent does not contend, nor does the record renect,
that Duncan is a supervisor within the meaning of Sec 2(11) of the Act
In setting forth the remedy for Respondent's unfair labor practices, the
Administrative Law Judge failed to indicate that the payment of backpay
shall be in accordance with the Board's discussion in Isis Plumbing &
HIeating Co, 138 NLRB 716 (1962). We hereby correct his inadvertent
error.
In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980). Member Jenkins would award interest on the backpay
due based on the formula set forth therein.
2 We shall modify the Administrative Law Judge's recommended
Order by adding par l(c) to order that Respondent cease and desist from
violating the Act in any like or related manner. We shall also substitute a
new notice for that of the Administrative Law Judge, containing lan-
guage which conforms to par. I(a) of the Administrative Law Judge's
recommended Order.
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Right-Gard Corporation, Montgomeryville, Penn-
sylvania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recom-
mended Order, as so modified:
I. Add the following as paragraph l(c):
"(c) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NoTICtE TO EMPLOYEES
POSTiED BY ORDER OF THE
NATIONAL LABOR REIATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILl. NOT discharge employees because
of their actual or suspected union activity.
WE WI.. NO1 discharge or lay off any em-
ployee in order to prevent employees from
seeking to be represented by a union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the
free choice of any of the rights set forth
above.
WE WILl. immediately offer Calvin Duncan,
Leonard Duncan, Bela Giczi, Anderson
Mitchell, Rowena Wells, and Camille Smith
full reinstatement to their former jobs with
Right-Gard Corporation or, if such jobs no
longer exist, each of them will be offered a
substantially equivalent position, without loss
of seniority or other rights, privileges, and
benefits; and WE WILI. make them whole, with
261 NLRB No. 177
1181
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interest, for all moneys each of them and
Holly Joy Russell lost as a result of their dis-
charges in 1980.
RIGHT-GARD CORPORATION
DECISION
STATEM[ENT O0 THE CASEI
JAMES J. O'MEARA, JR., Administrative Law Judge:
The amended consolidated complaint in this matter is
based on two charges filed by Highway Truck Drivers
and Helpers, Local 107, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen,
and Helpers of America, hereinafter referred to as the
Union. I
The consolidated complaint, issued on July 24, 1980,
alleges violations of Section 8(a)(1) and (3) of the Act in
that Respondent discharged seven employees because
they supported and assisted the Union in its organization-
al activities. Respondent denies that it has violated the
Act.
A hearing was held in Philadelphia, Pennsylvania, on
February 25, 26, and 27, 1981. At the close of the hear-
ing, oral argument was waived. The parties were given
leave to file briefs, which have been received and consid-
ered.
In consideration of the record in this case, including
all competent oral and written evidence and the briefs
and argument of counsel, I make the following:2
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent Right-Gard Corporation, a Pennsylvania
corporation, is located in Montgomeryville, Pennsylva-
nia. It is engaged in the manufacture of several plastic
products, including street hockey equipment. During the
year immediately prior, Respondent purchased goods
valued in excess of $50,000 directly from points outside
the Commonwealth of Pennsylvania. I find that Re-
spondent is an employer engaged in commerce within
the meaning of the Act and that it will effectuate the
I An amendment of the complaint was allowed, although the 6-month
statutory period provided in Sec (10(h) of the Act had expired, since the
amendment relates to the unfair labor practice alleged in the original
complaint Daniel Construction Company, A Division of Daniel Internalion-
al Corporation, 244 NlIRB 704 (1979); Staco, Inc., 244 NL.RB 461 (1979)
Further, Respondent's counsel was advised that, if the lateness of the
amendment prejudiced his defense, ample time would be provided to
overcome any such prejudice.
2 The General Counsel has filed with his brief a motion to correct the
transcript of the evidence in this case He cites 22 specific points where
he alleges transcribing errors. A reading of the transcript discloses nu-
merous errors in addition to those set forth by the General Counsel
These errors, however, are deemed to be of no significance in determin-
ing the testimony of the witnesses and other material matters of record.
In addition, G.C. Exhs. II and 13 are reflected in the original record of
this case as having been admitted into evidence. Those exhibits were not
offered nor received in evidence and the reporter's marking to the con-
trary is hereby stricken and they are deemed nonadmitted exhibits [For
the reasons above recited, the motion of the General Counsel to correct
the record is denied.
policies of the Act to assert jurisdiction in this consoli-
dated case.
11. THI I ABOR OR(iANIZA ION
Highway Truck Drivers and Helpers, Local 107, affili-
ated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, is a
labor organization within the meaning of the Act.
111. RI:SPONDLNT'S BUSINI SS
Right-Gard Corporation manufactures plastic sports
equipment at a plant located in Montgomeryville, Penn-
sylvania. One of its principal products is street hockey
equipment. The present "owner" of Respondent is Rich-
ard McGrath.3 He became involved with the Company
on October 27, 1979. The Company was indebted to the
First Pennsylvania Bank, its principal creditor, in excess
of $300,000. The bank "came to" McGrath and told him
that, if he was interested in taking over the Company,
the bank desired that he "take it" otherwise the bank
would "close it down."
The Company had lost $207,000 in 1977, and had a
negative net worth of $324,500. After McGrath took
over the Company, it earned $57,000 in 1978 and $78,000
in 1979. It reported a loss of $29,500 in 1980.
On March 30, 1980, McGrath entered into an agree-
ment with the bank whereby the bank agreed to write
off $195,000 of a $500,000 outstanding loan balance and
in turn McGrath agreed to pay 12-percent interest on the
remaining balance which resulted in a $3,000 monthly in-
terest payment.
Respondent operates at a negative net worth. It bor-
rows money at a level based on 80 percent of its ac-
counts receivable. Its monthly expenses are estimated at
$100,000; accordingly, Respondent must have an average
cash flow of $5,000 per day and to do so must therefore
aggregate accounts receivable at an average of $6,250
per day.
In order to maintain such a financial balance of cash
inflow and the accrual of receivables, Respondent must
monitor its inventory of orders upon receipt and attempt
to adjust its future expenses to a level where production
and sales will enable the realization of a sufficient cash
flow to meet the expenses. 4
In both 1979 and 1980 Respondent operated two shifts
plus a third shift on a seasonal basis. The third shift
(11:30 p.m. to 7:30 a.m.) was operated in 1979 from the
beginning of April to sometime during the summer of
that year and again in 1980 from March until May 14.5
Respondent's barometer of future sales (backlog) dis-
played a drop in April 1980 when compared with the
volume of such sales in April 1979. In 1979 the backlog
in April reflected a level of $78,000 as compared to a
level of $52,000 in April 1980. In the first 9 days of May
3 McGrath characterized himself as the "owner" of the corporation It
is assumed that he acquired the outstanding stock if the Company and
now owns or controils a majority of such stock.
4 Total cash flow under these circumstances arises from horrowed
funds measured by available accounts receivable and from cash floss pro-
duced by the receipt of 20 percent of the accounts receivable when paid
' There is no evidence of third-shift history prior to 1979
1182
RIGHT-GARD CORPORATION
1979 the backlog was $59,219 and for the first 9 days of
May 1980 it was $25,486.6
IV. T[Il UNION ORGANIZATIONAl. EFFORTS
In late April 1980 Leonard Duncan, an employee of
Respondent, contacted the union office for information
regarding the procedure to undertake in order to obtain
union representation for himself and other employees of
Respondent. Shortly thereafter, and about the first week
in May, a union representative met with Leonard
Duncan and provided "representative designation cards"
with which to solicit the designation of interested em-
ployees. Duncan was also advised on how to use the
cards in his solicitation efforts. Between May 2 and May
6 Duncan obtained signed cards from 14 of the approxi-
mately 28 employees of Respondent. These employees
were:
Danette Christman
Linda Cunningham
Leonard Duncan
Bela Giczi
Richard Grabenstetter
Nancy Harlett
Michael Lawson
Anthony Miller
Lillieth Mullings
Michael Owens
Holly Russell
Camille Smith
Katheren Sottanella
Rowena Wells
The signed cards were delivered to a union representa-
tive on May 7 or 8, and on May 9 the Union filed a rep-
resentation petition with the Board. 7
V. R :SPONI)IDNI'S KNOW'I EI)(GI OF UNION ACTIVITY
On Monday, May 12, at or about 5 p.m., a representa-
tive of the National Labor Relations Board telephoned
Respondent's office. The call was received by an em-
ployee, Alice Hienlien. All other office employees had
left for the day and only James Smith, the second-shift
foreman, was present in the office. The caller advised
Hienlien of the Union's organizational plans and asked
her if a letter had been received from the Union's attor-
ney. Smith, upon inquiring of Hienlien as to the context
of the call, which he had overheard, advised her to call
Richard McGrath, Respondent's president, immediately.
She reached McGrath at his home and advised him of
the context of the call and gave McGrath the name and
the phone number of the person calling.
At 8 p.m. on that evening McGrath called Smith at
Respondent's plant. During the conversation, McGrath
asked Smith for his opinion on eliminating the third shift.
Smith advised McGrath that it was his opinion that the
third shift should be eliminated and the personnel from
that shift incorporated into the second shift because it
was Smith's opinion that the third shift, with one super-
visor and two production people, was unable to put out
the production required from each shift. McGrath agreed
6 In the middle of June 1980 Respondent learned that its backlog
records for prior months were underreported due to the default of the
employee charged with maintaining such record. Respondent contends
that, if its backlog record had been accurate, no economic necessity for
discharging would have occurred. Thus, the financial posture of Re-
spondent found, although not accurate, is that which Respondent alleged-
ly believed existed.
7 The representation case regarding the Union's petition for an election
has been indefinitely postponed.
with Smith and asked him to write a letter to McGrath
stating those facts and also to write that Smith felt that
the cut should be made due to the excessive cost of light-
ing and heating the building when compared with the
amount of production of the shift. Smith wrote the letter
that day and placed it on McGrath's desk. In the letter
Smith wrote as follows:
In my opinion, due to inflation and added cost of
raw materials, the amount of production is non-suf-
ficient for the cost of energy that is used to run the
heavy molders. I suggest that the third shift be
eliminated for the above reasons. As for the second
shift I also feel that a cutback of two employees is
essential to prevent a long layoff to the entire pro-
duction force.
On May 14 Respondent received a letter dated May 8
from an attorney representing the Union, advising that a
majority of the production and maintenance employees
had designated Local 107 as their exclusive representa-
tive for the purpose of collective bargaining under the
Act. McGrath contends that he was unaware of the
Union's organizational activities at Respondent's plant
until the receipt of the letter on May 14, from the union
representative. He testified that he was in his office on
Monday, May 12, long after Hienlien had departed and
that her call to him could not have been on May 12. The
letter from the union attorney was admittedly received
on Wednesday, May 14. Hienlien testified that the letter
was not received on the day after her call to McGrath
but was received 2 days later. Smith was called by
McGrath at 8 p.m., on May 12, and requested to prepare
the memo regarding the third-shift termination. Smith
testified that he wrote and dated the memo during his
shift on May 12, which was the day he witnessed Hien-
lien's receipt of the call from the Board agent and her
relay of that call to McGrath. McGrath does not deny
receiving a call from Hienlien but contends it was Tues-
day, May 13, and that he confused the Board agent
making the call with a Labor Department representative
with whom he was involved in a matter of overtime pay-
ment regarding an employee. Smith testified that the
memo he wrote to McGrath on May 12 was, in essence,
dictated by McGrath. The record does not disclose the
reasons for Smith's concern about a cutback in the pro-
duction force nor the source of his knowledge about the
effect of inflation or added cost of raw materials and
energy upon the Company's fiscal well-being. Such in-
formation and the language employed in the memo
would more probably be authored by McGrath than by
Smith.
McGrath also testified that on May 14, at or about
noon, he was advised by an attorney, Mark Cornblatt,
that the letter (which McGrath had not yet seen) from
the National Labor Relations Board was more probably
in regard to union organizational efforts and not related
to the Department of Labor matter. Cornblatt was not
called upon to corroborate this conversation and confirm
McGrath's misunderstanding of the content of the
NLRB telephone call, nor was Cornblatt shown to be
unavailable to Respondent.
1183
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For these reasons I credit the testimony of Hienlien
and Smith and find that Respondent learned of the
Union's organizing activities on May 12 at or about 5
p.m.
VI. I HE DISCHARC;IES
Near the end of April 1980, Smith told McGrath that
he needed additional employees on the second shift.
McGrath said he would not hire more employees since
the complement at that time exceeded 31 employees, ex-
cluding supervisors. Smith physically counted the nonsu-
pervisory employees as reflected by their timecards con-
tained in the timecard rack and told McGrath that there
were 28 such nonsupervisory employees. McGrath gave
Smith permission to hire two additional employees,
which Smith did on or about May 5.
On May 13 Smith went to the plant about 10 a.m. in
order to resolve a problem with one of the molding ma-
chines. In a telephone conversation with McGrath on
that day regarding authority to buy a part for a defective
machine, Smith was told to lay off two employees from
the second shift. McGrath did not give Smith his reasons
for directing such a layoff but stated that he would speak
to him later in the day in that regard. Smith laid off two
employees whom he considered the least productive. At
5 p.m. that day McGrath; Dennis Pickering, first-shift
foreman; Larry Bennett, plant superintendent; Dick Fitz-
gerald, shipping and receiving foreman; and Smith met at
the plant. McGrath told those in attendance that the em-
ployees at the plant had petitioned for a union and that
he wanted to consult with his supervisory personnel on
how to fight the union organizing campaign.
On the following day, May 14, McGrath met with
Pickering, Bennett, and Smith and said that he was going
to do everything in his power to get rid of as many
people as he thought necessary to insure that the Union
could not win a majority in a union representation elec-
tion. He stated that he was going to go through the time-
card and payroll records to determine who had lost a lot
of time and who was absent frequently because, on the
advise of his counsel, that was the best way to prevent
the Labor Board from coming back and saying that he
had fired these people because of union activities. At this
time he also informed those present that he had learned
that Leonard Duncan was involved with the Union and
was passing out union cards to employees. He stated that
he was going to get "rid" of Leonard Duncan on a
phony charge no matter how long it took him.
McGrath and Bennett denied that such a meeting oc-
curred. Pickering and Fitzgerald, who also testified,
were not questioned about the meeting. McGrath also
denied that he gave Smith permission to hire the two
employees Smith hired on or about May 5. He also
denied that Smith had authority to discharge two em-
ployees from the second shift. He cited his policy that
only he hires or fires employees. The employees hired by
Smith were James Donahue and Nancy Hartlett, who, in
the week ending May 10, worked 32 and 24 hours, re-
spectively. It is not deemed credible that Smith would
have hired two employees on May 5 without the authori-
ty of McGrath, or that he would have terminated two
employees on the second shift thereafter without direc-
tion from McGrath. McGrath also denied knowledge
that the two additional employees were working on the
second shift although they had worked 32 and 24 hours,
respectively, during the week ending May 10. For these
reasons I credit the testimony of Smith that he was au-
thorized and directed by McGrath to hire two additional
employees for the second shift and that he was directed
by McGrath to discharge two employees on May 13;
and, further, I credit the testimony of Smith that
McGrath knew of Leonard Duncan's union activities and
that McGrath intended to reduce his employee level in
order to defeat any potential union majority among the
employees.
A. The Discharge of Leonard Duncan
On May 15, shortly after Leonard Duncan reported
for work, McGrath came into the work area and asked
to speak to Michael Lawson, an employee. The two
went to McGrath's office. About 20 minutes later Leon-
ard Duncan was called into McGrath's office. McGrath
asked Bennett and his secretary to join the meeting.
McGrath asked Duncan if he had been smoking marijua-
na a week and a half ago in the company parking lot.
Duncan denied smoking, and McGrath said, "You're
fired." Duncan left the room, picked up his vacation pay
and compensation for the day he had worked, and left
the plant.8
B. 7he Discharge of the Third Shift
On May 15 Larry Bennett advised the supervisor and
two employees of the third shift that they were being
laid off. These were Calvin Duncan, third shift supervi-
sor; Bela Giczi; and Anderson Mitchell. The reason for
the layoff advanced by Bennett was that third-shift pro-
duction did not warrant its continued operation. Calvin
Duncan, the supervisor, was not absorbed into either the
first or second shift.
C. The Discharge of Rowena Wells
Rowena Wells was employed as a machine operator
on March 8, 1978. She was given a increase in salary in
July 1979, and was subsequently denied raises during her
tenure with Respondent. She allegedly was not advised
of the reason she was not given a salary increase. Prior
to May 14, 1980, she had had several problems with one
or more of the supervisors. On one occasion she com-
plained because a supervisor had unplugged her radio at
her work station in order that he could use the outlet in
the repair of a machine. Again she complained to
McGrath that the production of the machine was defec-
tive and that her supervisor had contended that the pro-
duction was acceptable. On May 14, 1980, she was told
by Bennett that McGrath had ordered him to fire her.
When she interrogated McGrath as to the reason for her
I Approximately a week and a half prior to May 15, Leonard Duncan
and Michael Lawson were silting in the company parking lot in a pickup
truck at or about noon when McCirath drove onto the lot. McGrath al-
leges that at this time he had ohbserved Duncan smoking what he believed
to he marijuana Mc(irath discussed the company haseball team with the
two men and proceeded into the plant. No further action was taken by
McGrath regarding this incident until the May 15 discharge of Duncan
1184
RIGHT-GARD CORPORATION
discharge she was advised that it was because she did
not get along with her supervisor.
D. The Discharge of Holly Joy Russell
Holly Joy Russell was employed by Respondent in
April 1979. On May 9, 1980, she advised McGrath that
she was unhappy with the job and was going to quit.
She told him that she felt that she was not getting
enough authority. She had quit a "couple of times
before." On May 12 Russell's mother called Respond-
ent's office and advised that Russell would not be in to
work that day because she was ill. Russell returned to
work on May 13 and again on May 14. At the end of her
shift on May 14, she was advised by Bennett that
McGrath had told him to advise her that she was fired,
since she had voluntarily resigned on May 9 and her res-
ignation had been accepted.
Russell was reemployed by Respondent in September
1980.
E. The Discharge of James Smith9
On the afternoon of May 15 McGrath fired Smith for
the alleged reason that Smith had hired and then fired
two employees without authority. Smith alleged, and I
have found, that the authority to hire the two employees
as well as to fire two others was specifically given by
McGrath. In the first instance, Smith desired two addi-
tional employees to work on the second shift. McGrath
at first refused assent, but, when Smith showed that the
total complement was below 30 nonsupervisory employ-
ees, McGrath acceded and authorized Smith to hire such
employees. Subsequently, on May 13, McGrath directed
Smith to discharge two employees. The discharge of
Smith arose when Williams, McGrath's attorney, asked
to see a list of employees. The list disclosed two names
which McGrath said he did not know. He asked Smith
who had given him authority to hire the two. On the
basis of the alleged usurpation of this authority by Smith,
McGrath stated that he had no alternative but to fire
Smith. Williams suggested to McGrath that he reoffer
employment to the two people who were fired and, if re-
employment were accepted, that the two whom Smith
had hired would have to be dismissed. Eventually,
McGrath did rehire one of the two people Smith had
laid off.
F. The Discharge of Camille Smith
On Friday, May 30, McGrath engaged in a conference
with employee Camille Smith, the wife of James Smith.
During this conversation he called her a "union spy" and
a "double-crosser" and told her that her future days at
Right-Gard were over. When Mrs. Smith asked him if
by that he meant she was fired, he stated, "No." She
asked if by that he meant that she was laid off; McGrath
again stated, "No, I'm not going to make it that easy for
you to collect unemployment." He allegedly also stated
that, if she relayed what he had said to her, he would
deny everything and that, in the event she was fired, he
9 James Smith is not a discriminatee in this case. His discharge, howev-
er, is deemed a part of the total scenario depicting the overall scheme of
Respondent.
would state that it was due to poor attendance. Mrs.
Smith left McGrath's office and told her supervisor that
she was not feeling well. She left Respondent's plant and
went to her husband's place of employment and related
to him what had happened. She then went home and
called her doctor because she was "quite upset."
Mrs. Smith returned to work on June 4, bringing a
doctor's note indicating that she had been under a doc-
tor's treatment Monday and Tuesday, June 2 and 3. She
worked until around 10 o'clock on the morning of June
4, when she was called to the conference room by Ben-
nett, who stated he had received a phone call from
McGrath and as far as McGrath was concerned she had
resigned from her employment on May 30. She requested
a letter stating that she had been discharged. A letter
was prepared which amounted to a letter of resignation,
which Mrs. Smith refused to sign. She left the plant and
did not return.
McGrath testified that the conversation with Mrs.
Smith on May 30 concerned her employment at Right-
Gard, her duties, and the proficiency with which she had
performed. He stated that, upon terminating the conver-
sation, she left the plant, and at 7 o'clock that evening
McGrath received a phone call from James Smith,
wherein Smith told McGrath that McGrath had accused
him of being a "backstabber" and a "union spy."
McGrath testified that on Wednesday, June 4, when ad-
vised that Mrs. Smith had returned to work, he was also
told that the company had received a letter from the un-
employment office disclosing that Mrs. Smith had ac-
cused McGrath of "terroristic threats and harassment."
He was also told that the statement, a copy of which the
Company received, was written in Smith's handwriting
and signed by her. Due to this statement, McGrath told
Bennett to advise Smith that "her resignation of Friday,
as reported to us by the unemployment office, has been
accepted." Mrs. Smith left the premises and did not
return.
The version of this incident as testified to by Mrs.
Smith is more credible than that related by McGrath.
McGrath acknowledged that on the evening of May 30
he received a phone call from James Smith, Camille
Smith's husband, wherein James Smith "accused"
McGrath of calling him a "union spy" and a "double-
crosser." It is also inconceivable that Mrs. Smith would
state to the Unemployment Compensation Commission
that McGrath had called her "union spy" and a "double-
crosser" if untrue. The return of Mrs. Smith to employ-
ment on June 4, with a doctor's note for her absence on
June 2 and 3 of that month, is consistent with her theory
that, although McGrath made accusations against Mrs.
Smith, he did not fire her. There is no explanation as to
why, if McGrath's relation of the May 30 incident is ac-
curate, Camille Smith left the plant without explanation.
Such conduct is consistent with Mrs. Smith's testimony
of the context of the May 30 meeting. It is also consist-
ent with Mrs. Smith's testimony that she considered her-
self an employee through June 4.
1185
DECISIONS OF NATIONAL I.ABOR REI.ATIONS BOARD
VII. DISCUSSION
General Counsel contends that Respondent discharged
seven employees because of union activity. Respondent
contends that the discharges were necessitated and moti-
vated solely by the Company's perceived fiscal condition
at the time of the discharges.
On the face of the issues here presented, the principle
announced in the Wright Line case appears applicable.10
That principle requires that General Counsel make a
prima facie showing sufficient to support the inference
that protected conduct was a "motivating factor" in the
employer's decision. Once that is established, the burden
is upon the employer to prove its defense to the com-
plaint that the same action would have taken place even
in the absence of the protected activity.
The evidence established, and I have found, that Re-
spondent's business levels are cyclical during the calen-
dar year. This is due primarily to the nature of its prime
product (street hockey equipment). In 1979 and 1980 the
Company met the seasonal increase in business volume
by the addition of a third shift. Except on one occasion
in 1977, shortly after present management took control
of the Company, no discharges of employees occurred
during the cyclical downtrend of Respondent's business.
The attrition of the employee complement is high and, in
the past, apparently enabled the Company to adjust its
labor force as business volume dictated." In May 1980
Respondent's backlog records disclosed that the cyclical
downtrend was somewhat deeper than for the same
period in the prior year. These records were inaccurate
due to their failure to reflect a substantial volume of
orders which was allegedly unknown to Respondent
until late June 1980. Because of the projection of such a
level of orders, though inaccurate, Respondent contends
that it elected to discharge several of its employees. 12
The selection of dischargees was allegedly determined
by a consideration of the employees' records. In the case
of each dischargee Respondent put forth a reason for
that employee's inclusion among those to be fired. Each
case will be discussed hereafter.
The business decision made by Respondent in May
1980 to reduce its labor force thus appears to be valid
even when its contrary past history and the expressed
philosophy of its president that he was reluctant to dis-
charge employees are considered.
However, I find that such was not the reason for the
discharges. Respondent's president learned that the
Union had begun its campaign to organize Respondent's
employees on the afternoon of May 12, 1980. A few
hours later McGrath made the first move to fire employ-
ees. While there is no evidence that he knew the identifi-
cation of prounion employees, it is clear that, if a major-
10 Wright Line, a Division of Wright Line. Inc., 251 NLRB 1083 (1980).
L Respondent's payroll record for the period ending May 10, 1980,
reported 35 active and 20 terminated employees for a total complement
during the period of 55 employees. Such a churning of personnel strongly
suggests that employee complement adjustments in prior business
downswings were accomplished by attrition. Also, McGrath acknowl-
edged that he was loath to fire employees because of general economic
conditions.
i2 McGrath testified that, if the backlog had been correctly reflected,
no employee would have been fired for this reason, notwithstanding an
increase of $3,000 in its monthly cash outflow
ity of employees were prounion, indiscriminate dis-
charges would likely mitigate against the maintenance of
that majority. It is concluded, however, that his selection
of those to be discharged was not entirely indiscriminate.
The complement of the third shift was comprised of
Calvin Duncan, the supervisor of that shift: Bela Giczi;
and Anderson Mitchell. Even though Calvin Duncan
was held in sufficient high regard by Respondent to be
engaged as a supervisor (especially on the third shift
when other management personnel were not on duty), he
was not absorbed into the other shifts. He is also the
brother of Leonard Duncan, who was known to
McGrath to have distributed union cards to employees,
and thus Calvin Duncan was reasonably suspected to be
prounion.
In order to veil its true motivation in the reduction of
its labor force, Respondent alleged certain reasons for
the discharge of each employee.
Leonard Duncan was allegedly fired for smoking mari-
juana 1-1/2 weeks prior to the date of his firing. No ex-
planation for the delay in his discharge has been ad-
vanced. Clearly the reason proffered for Duncan's dis-
charge is a pretense designed to mask the fact that
Duncan was fired because he was a known union activ-
ist.
Rowena Wells was fired, allegedly, because she could
not get along with her supervisors. This characteristic
had existed for many months prior to her discharge. She
had been warned on frequent occasions. No new episode
of insubordination occurred about the time of her dis-
charge.
Holly Joy Russell was fired because she "quit." It is
admitted that she had "quit" several times before and
had returned voluntarily with the apparent consent of
management. On the occasion in question, after having
"quit" again, she was not permitted to return and instead
was fired.
The members of the third shift plus Leonard Duncan,
Wells, and Russell were discharged on Wednesday, May
14, in the middle of Respondent's work week, which
commences on Monday and ends on Friday. The motiva-
tion advanced by the Respondent for such discharges is
not consistent with the percipitous nature of the firing
and the absence of any notice of impending discharge to
any of these employees. Discharge for economic reasons
was not stated by Respondent to any fired employee.
I find such conduct by Respondent to be motivated by
Respondent's effort to discourage union activity and
more specifically to destroy the anticipated union major-
ity among the "unit" which would be entitled to vote in
the upcoming union election.
The foregoing conclusion is more evident when the
discharge of Smith, the second-shift supervisor is consid-
ered. Respondent had provided a list of employees
whom it contends are members of the unit of employees
sought to be represented by the Union and thus eligible
to vote in the organizational election. Among these em-
ployees are Calvin Duncan, Richard Fitzgerald, Dennis
Pickering, and Wentworth Vedder. Each of these em-
ployees is described in this record as a supervisor or a
superintendent, yet on the list they are described as
1186
RIGHT-GARD CORPORATION
"direct labor." It is clear that Respondent is attempting
to qualify supervisory personnel as members of the unit
in order to prevent a prounion majority. In view of this,
it would mitigate against Respondent's position if one of
these "supervisors," Smith. had the authority to hire and
fire nonsupervisory employees. Thus, McGrath denied
such power or authority was entrusted to Smith, a super-
visor, who was in the same capacity as Duncan. Fitzger-
ald, Pickering, and Vedder. McGrath thus denied that
Smith had such authority and fired him allegedly for
usurping authority. The discharge of Smith further
seemed harsh under the circumstances alleged by
McGrath. Smith was a supervisor on the second shift.
He was requested by McGrath to recommend the elimi-
nation of the third shift and to assign reasons therefor,
suggesting that Smith was of sufficient caliber that
McGrath would respect his opinion. Further, Smith's
discharge was not alleged to be "for economic reasons."
The discharge of Smith was an attempt to support Re-
spondent's position that such "supervisors" are really
"direct labor" and members of the unit sought to be rep-
resented by the Union. Although Smith is not a discri-
minatee here, this episode supports the conclusion, which
I drew, that Respondent's plan was to overcome a union
majority in the forthcoming election and the discharges
of these employees was motivated solely in furtherance
of such plan.
The discharge of Camille Smith, while later in the se-
quence of events, comprises a continuation of Respond-
ent's campaign to defeat the Union. McGrath discharged
Camille Smith after he had laid the foundation which
caused her to voluntarily leave the Company. His denial
of her testimony regarding the dialogue of the May 30
conference is inconsistent with her having left the plant
after the conference and telling both her husband and a
representative of the Unemployment Compensation
Commission that McGrath had threatened and harassed
her. After discharging Camille Smith's husband, it was
reasonable to expect Mrs. Smith to be prounion. Since
no other reason for her discharge existed, McGrath un-
dertook to coerce her to leave in an apparent voluntary
manner. In this he succeeded when she filed for unem-
ployment compensation and charged McGrath with the
threat and harassing statements ascribed to him. He then
had what he deemed a valid reason to discharge her.
This conduct comprises a constructive discharge and was
motivated by a continuing campaign to defeat a union
majority in the forthcoming election.
In view of the foregoing, the principle set forth in
Wright Line, supra. does not apply. I find that there is no
dual motive of Respondent but rather the single motive
set forth above which underlies the discharges of the
seven employee-discriminatees.
CONCI.USIONS OF LAW
I. Respondent is an employer engaged in commerce
and the Union is a labor organization within the meaning
of the Act.
2. Respondent engaged in unfair labor practices within
the meaning of Section 8(a)(1) and (3) of the Act by:
(a) Discharging seven employees because of actual or
suspected union activity at Respondent's plant.
(b) Discharging seven employees in an attempt to pre-
vent a prounion majority among members of the unit
sought to be represented by the Union.
3. The aforecited practices are unfair labor practices
affecting commerce within the meaning of the Act.
THE R-MIEI)Y
Having found that Respondent engaged in certain
unfair labor practices, it shall he ordered that it cease
and desist therefrom, or from engaging in any similar or
related conduct, and that it take certain affirmative
action to effectuate the policies of the Act.
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 recommend the fol-
lowing:
ORDER' 3
The Respondent, Right-CGard Corporation. Montgo-
meryville, Pennsylvania. its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Discharging employees because of actual or sus-
pected union activity.
(b) Discharging or laying off any employee in an at-
tempt to prevent a prounion majority among members of
any unit now or in the future seeking to be represented
by a union.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer Leonard Duncan. Rowena Wells, Anderson
Mitchell, Calvin Duncan, Bela Giczi, and Camille Smith
immediate and full reinstatement to his or her former job
or, if that position no longer exists, to a substantially
equivalent position of employment, without prejudice to
the seniority or other rights and privileges enjoyed by
each, and make each of the above and Holly Joy Russell
whole in accordance with the formula prescribed in F:
W: UWoolworth Company, 90 NLRB 289 (1950), plus inter-
est as set forth in Florida Steel Corporation, 231 NLRB
651 (1977), for loss of pay and other benefits lost by
reason of their discriminatory discharges.
(b) Preserve and, upon request, make available to the
Board or to its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay and
interest due under the terms of this Order.
(c) Post in conspicuous places at its plant copies of the
attached notice marked "Appendix."1 4 Copies of the
la In the event no exceptions are filed as provided by Sec 102 46 (of
the Rules and Regulalions of the National Labor Relations Board. the
findings, conclusions, and recommended Order herein shall. as pro ided
in Sec 102 48 of the Rules and Regulations. be adopted by the Board and
become its findings, conclusions, and Order. and all ohjections thereto
shall be deemed waived for all purposes
'" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the vwords in the notice reading "Posted by
Order of the National L abor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National L abor Relations Board."
1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice, on forms provided by the Regional Director for
Region 4, after being duly signed by the Employer's au-
thorized representative, shall be posted by the Employer
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to the employ-
ees, eligible to vote, are customarily posted. Reasonable
steps shall be taken by the Employer to ensure that the
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what
steps the Employer has taken to comply herewith.
1188