Riley Stoker Corp.

National Labor Relations Board - Board Decisions

Apr 29, 1976

223 N.L.R.B. 1146 (N.L.R.B. 1976)

1146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Riley Stoker Corporation and International Brother-
hood of Boilermakers, Iron Shipbuilders , Black-
smiths, Forgers and Helpers, AFL-CIO. Case 6-
CA-8210
April 29, 1976
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On December 9, 1975, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding . Thereafter, the Respondent and
the General Counsel filed exceptions and supporting
briefs. The Respondent then filed an answering brief
to the General Counsel 's exceptions.
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, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
We agree with the Administrative Law Judge that
employees Koehler and Flanders were terminated
because of their union activities and were not, as
contended by Respondent , discharged as part of a
reorganization plan for the Company's Erie works.
We also agree , as found by the Administrative Law
Judge , that employee Crane was selected for termina-
tion under the same conditions as Flanders and
Koehler, and that in all material respects Crane's dis-
charge did not differ from those of the other two
employees found to be discriminatees.
The Administrative Law Judge found, and we
agree, that the record supports the finding that
Crane's discharge was as much a violation of Section
8(aX3) as the discharges of Koehler and Flanders.
However , because Crane did not appear at the hear-
ing, the Administrative Law Judge found that the
public interest is not served , nor private rights vindi-
cated , by finding that an employee who abstained
from appearing at the hearing was discriminatorily
discharged . He further found that , because Crane
failed to appear at the hearing, an inference is war-
ranted that her testimony would have been adverse
to the proof of discrimination . He concluded that the
General Counsel did not prove by the preponderance
of the evidence that Respondent discharged Crane in
violation of the Act , and that the allegation of dis-
crimination pertaining to Crane be dismissed. The
General Counsel excepted to these findings and con-
clusions of the Administrative Law Judge pertaining
to Crane. We find merit to these exceptions.
The Administrative Law Judge's determination
that "public interest" and "private rights" will not be
served by reinstating an employee who abstains from
appearing at a hearing is clearly erroneous. We note
that the Supreme Court in National Licorice Company
v. N.L.R.B., 309 U.S. 350, 362, 363 (1940) stated:
The proceeding authorized to be taken by the
Board under the National Labor Relations Act
is not for the adjudication of private rights... .
It has few of the indicia of a private litigation
and makes no requirement for the presence in it
of any private party other than the employer
charged with an unfair labor practice. The
Board acts in a public capacity to give effect to
the declared public policy of the Act to elimi-
nate and prevent obstructions to interstate com-
merce by encouraging collective bargaining and
by protecting the "exercise by workers of full
freedom of association , self-organization, and
designation of representatives of their own
choosing, for the purpose of negotiating the
terms and conditions of their employment
...." The immediate object of the proceeding
is to prevent unfair labor practices which, as de-
fined by §§7, 8, are practices tending to thwart
the declared policy of the Act. To that end the
Board is authorized to order the employer to de-
sist from such practices, and by § 10(c) it is given
authority to take such affirmative remedial ac-
tion as will effectuate the policies of the Act.
The second basis for the Administrative Law
Judge's conclusion that Crane was not discriminato-
rily discharged was his finding that Crane's absence
from the hearing warranted the inference that her
testimony would have been adverse to the proof of
discrimination. We note that neither the General
Counsel nor the Respondent contends that Crane's
presence at the hearing was necessary to elucidate
any facts. The Respondent did not contend that
Crane was discharged because of either misconduct
or poor work performance or any other reason which
would require Crane's testimony. Rather,
Respondent's defense was based on lack of knowl-
edge of union activities of Koehler, Flanders, and
Crane; the reorganization of its Erie plant which
eliminated any need for the services of Koehler,
Flanders, and Crane; and the lack of any proof of
union animus. The Administrative Law Judge specif-
ically found these defenses to be without merit as to
all three employees named in the complaint, Koeh-
ler, Flanders, and Crane, and we agree with this find-
223 NLRB No. 178
RILEY STOKER CORP.
ing. Thus , Crane's testimony was totally unnecessary
to elucidate any facts in issue and the adverse infer-
ence rule has no application . The Board has held that
if, as in this case , the record sustains the allegations
of unlawful discrimination against discharged em-
ployees , their testimony is not a sine qua non for relief
under the Act.' Therefore , we find Crane's discharge
was a violation of Section 8(a)(3) of the Act, and
shall enter an amended Order and notice in accor-
dance with our conclusion.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Riley
Stoker Corporation , Erie , Pennsylvania , its officers,
agents , successors , and assigns , shall take the action
set forth in the Administrative Law Judge 's recom-
mended Order as so modified:
1. Add to paragraph 2(a) of the Administrative
Law Judge 's recommended Order , after the name
"Arlene Flanders" as it appears in two places of that
paragraph , the name "Carolyn Crane."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Atlanta Flour and Grain Company, Inc., 41 NLRB 409, 416, In. 11 (1942),
and case cited therein . See also Milco Undergarment Co., Inc., 106 NLRB
767, 771 (1953).
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify you that:
WE WILL NOT threaten employees with plant
closure because of their union activities, inter-
ests , and desires.
WE WILL NOT warn or reprimand employees
for talking about union-related matters on com-
pany time or premises , while permitting employ-
ees to engage in other nonwork-related conver-
sations.
WE WILL NOT discharge employees because of
their union activities , sympathies, or interests.
WE WILL NOT in any other manner interfere
with , restrain , or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the National Labor Relations Act.
1147
WE WILL offer immediate and full reinstate-
ment to Gay Koehler, Arlene Flanders, and
Carolyn Crane to their former positions of em-
ployment discharging if necessary any employee
hired after March 7, 1975, or, if their jobs no
longer exist , we will offer them substantially
equivalent jobs, together with all rights and priv-
ileges they previously enjoyed, and WE WILL
make Gay Koehler , Arlene Flanders , and Caro-
lyn Crane whole for any loss of earnings they
may have suffered by reason of their discharges.
RILEY STOKER CORPORATION
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge: This
case came on to be heard before me on September 23 and
24, 1975 , at Erie , Pennsylvania, upon a complaint I issued
by the General Counsel of the National Labor Relations
Board and an answer filed by Riley Stoker Corporation,
hereinafter sometimes referred to as the Respondent. The
issue raised by the pleadings in this proceeding relate to
whether or not the Respondent violated Section 8(a)(1) and
(3) of the National Labor Relations Act, as amended, by
acts and conduct hereinafter specified . Briefs have been
received from the General Counsel and the Respondent,
and have been duly considered.
Upon the entire record 2 in this proceeding , and having
observed the testimony and demeanor of the witnesses, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. PRELIMINARY MATTERS (COMMERCE , JURISDICTION AND
LABOR ORGANIZATION)
The complaint alleges , the answer admits, and I find that
(1) the Respondent is engaged in the manufacture and sale
of boilers from its facility at Erie, Pennsylvania ; (2) its
sales in interstate commerce are sufficient to satisfy the
standards for the assertion of jurisdiction ; and (3) the Re-
spondent is an employer within the meaning of Section
2(2) of the Act, and engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act. The complaint also
alleges , the answer admits, and I find that the International
1 The complaint in the case was issued on July 11, 1975, upon a charge
filed on April 8, 1975, and amended thereafter on June 6 and July 2, 1975.
The Respondent admits timely service of the charge and the amendments.
On July 31, 1975, the Regional Director issued an order consolidating cases,
consolidating the instant case with a complaint issued on July 31, 1975, in
Case 6-CA-8347. After the opening of the hearing on September 23, 1975,
the parties reached agreement for an adjustment in Case 6-CA-8347, and
an order was granted to sever that case from Case 6 -CA-8210.
2 The General Counsel 's motion to incorporate into the record in this
proceeding an amendment to the complaint granted during the hearing in
Case 6-CA-3847 is hereby granted , and the Respondent's motion to incor-
porate its denial of the allegation is similarly granted.
1148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Boilermakers , Iron Shipbuilders , Black-
smiths, Forgers and Helpers , AFL-CIO, hereinafter called
the Union, is a labor organization within the meaning of
Section 2(5) of the Act.
11. THE UNFAIR LABOR PRACTICES ALLEGED
The complaint alleges that the Respondent violated Sec-
tion 8(aXI) of the Act by directing employees not to dis-
cuss union matters during working time while permitting
other nonwork related conversations , and by threatening
its employees with plant closure if they selected the Union
as their bargaining representative . After the opening of the
hearing the General Counsel amended the complaint to
additionally allege that on March 4 , 1975, the Respondent
violated Section 8(aXl) by promulgating an invalid no-so-
licitation rule. The complaint also alleges that the Respon-
dent violated Section 8(aX3) of the Act by discharging its
employees Carolyn Crane, Arlene Flanders, and Gay
Koehler because of their union activities . The Respondent
admits that the employees were discharged on March 7,
1975, but denies all allegations that it violated the National
Labor Relations Act.
A. The Discharge of Gay Koehler
Since 1948 , the Union has been the collective -bargaining
representative in a unit of production and maintenance
employees at the Respondent 's Erie facility . Insofar as the
record reflects, office clerical employees and some or all of
the plant clerical employees were excluded from the unit.
The issues presented in this case focus on attempts by the
Union to organize the unrepresented office and plant cleri-
cals.
The record reflects that , while there may have been some
talk of organizing the clerical employees in late 1974, the
organizing campaign did not become a reality until Janu-
ary 1975 . The campaign was spearheaded by Jack Geib,
the Union's chief steward in the production and mainte-
nance unit , and he was assisted by employees Gay Koeh-
ler, Arlene Flanders , and others in both office and plant
clerical classifications . Word of the organizing campaign
was spread by the employees, a series of union meetings
was held , and authorization cards were obtained . A peti-
tion was filed with the Board , a hearing was held, and an
election was conducted on May 23, in which the Union
failed to receive a majority of the valid votes cast . Insofar
as the record reflects , no objections were filed , and the
representation case is not in issue in this proceeding.
Jack Geib testified generally about how the Union's or-
ganizing campaign was instituted, what steps were taken to
convince the clerical employees of a need for a union, and
the principal persons who participated in the Union's ef-
forts . Geib testified that , on or shortly after January 1, he
had a series of conversations with Gay Koehler about or-
ganizing the clericals, and that these conversations contin-
ued up to the date of the representation election . Geib also
had similar conversations with employees Arlene Flanders,
7 All dates hereinafter are in 1975, unless specified to the contrary.
Carolyn Conway, and some of the timekeepers in the plant.
Geib further testified that in mid-February he spoke to
Patrick Lupo, the Respondent's production control manag-
er and an admitted supervisor, told Lupo that he had re-
ports that Lupo was interfering in the Union's organizing
campaign, and if proof was obtained he would report Lupo
to the Labor Board . According to Geib, Lupo denied that
he had said anything out of line to the clericals.
I was not impressed by Jack Geib's testimony, wherein
he evinced a fine talent for oral argument , but no ability to
answer the questions posed to him in a forthright, concise,
and candid manner. I credit his testimony of the conversa-
tion with Lupo, nevertheless, upon Lupo's confirmation
that Geib approached him toward the end of February,
told him that the Union was attempting to organize the
office, and accused Lupo of threatening some of the em-
ployees. Lupo also testified that near the end of February
he reported the rumors of an organizing campaign to the
Respondent's general manager , Kenneth O. Nelson, but
denied that he mentioned the names of any employee in-
volved in the organizing effort. Upon the basis of Nelson's
testimony, as related below, I do not credit Lupo's denial
that he withheld from Nelson the names of employees en-
gaged in the organizing effort.
Gay Koehler was hired by the Respondent as an inven-
tory clerk in January 1973. About 2 months after her initial
hire Koehler was offered a transfer with a promotion and
salary increase to work as a receiving clerk, and she contin-
ued to perform these functions after the department was
moved to the Respondent's west warehouse. Later, at a
time not specifically delineated in her testimony, Koehler
was asked to return to the inventory department because of
her prior experience and abilities. Koehler continued in the
inventory department until January 1974, when she was
asked if she would assume the receiving clerk's job, and she
remained in this position until her discharge on March 7,
1975. Koehler testified, and her testimony is uncontradict-
ed, that she was never criticized about her work, but on the
contrary she received many compliments about her perfor-
mance and was both transferred and promoted because of
her abilities.
Koehler confirmed Geib's testimony that conversations
about organizing the clerical employees began shortly after
January 1, and Koehler had conversations on the subject
with Geib and other stewards from the production and
maintenance unit. Koehler's work duties entailed messen-
ger service in various areas of the Respondent's facility,
and from January up to the date of her discharge she spoke
about the Union to all, or most all, of the nonrepresented
office clerical employees. The Union held its first organiz-
ing meeting on February 25, and Koehler, assisted by Car-
olyn Conway and Arlene Flanders, passed word of the
meeting to all of the eligible employees. All of Koehler's
conversations with employees about the .Union, including
distribution of union cards, took place on the Respondent's
premises, during both work and nonwork time, and in both
work and nonwork areas.
At the first meeting on February 25, authorization cards
were signed by the employees, and Koehler, Conway, and
Flanders were appointed to a committee to contact the
Respondent's front office personnel, and another commit-
RILEY STOKER CORP. 1149
tee was appointed for the plant clerical employees. Succes-
sive union meetings were held each week, and Koehler at-
tended all of the meetings until her discharge on March 7.
On March 6, employees from the plant production and
maintenance unit distributed union handbills at the main
entrance to the Respondent's plant.
On March 4 or 5, Murray Lysakowski, the Respondent's
supervisor of inventory control, stopped Koehler in the
east warehouse and told her that she had better speak to
her immediate supervisor, John Carlson, before she left the
area. Carlson called Koehler into his office and told her
that Lysakowski was upset and did not want her speaking
to any more of the office employees. Koehler asked why
she could no longer speak to employees, but Carlson's only
answer was that Lysakowski was really upset with Koehler.
Carlson also instructed Koehler to look upset when she left
the office, so that Lysakowski would think Carlson had
yelled at her.
On March 7, shortly after the noon hour, Lysakowski
asked Koehler to step into Carlson's office. Inside the of-
fice Lysakowski stated, "Gay, I really hate to tell you this,
but as of right now, you are terminated with the Compa-
ny." Lysakowski told Koehler that he was surprised about
the termination, that Koehler had always been a good
worker, and that Lysakowski would give her a good recom-
mendation. Koehler asked why she was terminated, and
Lysakowski replied that Nelson, the Respondent's new
general manager, was cutting back. Koehler protested that
the department always needed a shipping clerk, which Ly-
sakowski confirmed, and informed Koehler that employee
Arlene Beckeny would be moved over to take Koehler's
duties. Koehler also asked if she could be transferred to the
shop, and Lysakowski replied, "Gay, there- are certain
things we just cannot do."
After the termination interview, Koehler reported her
discharge to the Union, and then returned to her work area
to assist Carlson in understanding how to process bills of
lading. Lysakowski was present and told Koehler that he
and Carlson were aware that she was trying to bring in the
Union. Lysakowski insisted that this was not the reason for
her discharge, and Koehler replied that she did not wish to
discuss the Union.
B. The Discharge of Arlene Flanders
Arlene Flanders was employed by the Respondent from
December 1971 to March.7, 1974. At the time of her dis-
charge Flanders was classified as production control clerk,
writing up parts and contract orders and maintaining mas-
ter requisition files. Flanders, however, was initially hired
in the blueprint and offset department, but during an orga-
nization change she was asked to assist in implementing a
new production control system, and promised a pay in-
crease. Throughout the course of her employment with the
Respondent, Flanders was complimented several times on
her work performance, and she also received merit salary
increases . At the time of her discharge Flanders was the
eighth oldest office and clerical employee in terms of se-
niority, and she was senior to both of the employees who
were retained in the blueprint and offset department.
During the months of January and February, Flanders
had conversations with Gay Koehler about organizing the
office clerical employees, and Flanders agreed to help in
the campaign. The conversations took place at Flanders'
desk in the front office, and she attended the first and most
of the subsequent union meetings. Flanders helped to pass
word to the employees of the February 25 meeting and she
was appointed to serve on the organizing committee. Flan-
ders obtained authorization cards at the first meeting,
which she distributed to approximately 10 other employ-
ees. Flanders' activities occurred on the Respondent's
premises, during both work and nonwork time, and in both
work and nonwork.areas. On March 6, the day of the
Union's handbilling at the main gate, Flanders passed out
union literature in the main office before the start of the
workday.
After the lunch hour on March 7, Flanders' supervisor,
Don Gaudette, called her into the office and advised her
that he was sorry, but that he had orders to terminate her.
Flanders asked the reason, and Gaudette replied that they
were moving her job to Worcester, Massachusetts. Flan-
ders asked if she could move with the job, but Gaudette
replied that there were already employees at Worcester to
perform her job. Flanders then asked if she could return to
her previous job in the print room. Gaudette answered:
I cannot answer that. I just have my orders to termi-
nate you. When I come back from lunch I had these
checks handed to me by Mr. Nelson. When I saw who
they were, I was shocked to see that these people were
being terminated.
C. The Discharge of Carolyn Crane
Carolyn Crane did not testify in this proceeding, and
there is evidence in the record that in the week preceding
the hearing Crane told employee Doris Baker that she did
not want any part of the National Labor Relations Board
hearing. Through the testimony of other witnesses present-
ed during his case-in-chief, the General Counsel estab-
lished that Crane participated in the organizing campaign
to the extent she had conversations with other employees
on the subject of the Union, attended meetings, and proba-
bly signed an authorization card. In his case-in-chief the
General Counsel did not establish any direct evidence that
the Respondent was aware, or had reason to be aware, of
Crane's union sympathies, activities, or interests.
Because she did not testify, there is no evidence in the
record of when Crane was hired by the Respondent, but
only that at the time of her discharge on March 7 Crane
was employed as an inventory clerk for fabricated parts
under the supervision of Don Gaudette. Gaudette testified
that two of the requisitioning functions at the Erie plant
were transferred to Worcester, that it was decided to dis-
continue stocking fabricated items in favor of manufacture
on customer demand, and that this reduced the need for
inventory clerks. Gaudette also testified that he suggested
to Nelson that because of the inventory cutback Crane
should be terminated. Gaudette talked to Crane, advised
her of her termination, but admittedly gave Crane no rear
son or explanation for the discharge. On direct examina-
tion Gaudette admitted knowledge of the Union's organiz-
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing campaign , and acknowledged that he had heard the
names of the employees involved. On cross-examination
Gaudette admitted that Carolyn Crane was named to him
as a participant in the organizing campaign . Gaudette also
admitted that Betty Clemens, who was retained in place of
Crane, told him that she was against the Union.
D. Other 8(a)(1) Allegations
Carolyn Conway was employed by the Respondent from
August 1973 to January 1974, and again from August 1974
until April 1975. In March 1975 , Conway was employed as
an accounting clerk under the supervision of Norma Com-
stack , and she participated actively in the Union 's organiz-
ing campaign . At the request of Gay Koehler, Conway
agreed to assist in notifying employees of the union meet-
ing to be held on February 25.
On February 26, Conway engaged in a conversation in
the office with employee Gert Holdnack about the events
of the union meeting on the preceding evening. Comstock
entered the room and told Conway that Mr. Warren would
come in and close the plant down because of the Union.
Comstock interjected disbelief that the Company would
close the plant because of 25 employees , but Comstock
insisted that the Company was losing money and the work
would be transferred to another plant.
Later in the afternoon hours of February 26, Conway
had a conversation with Gay Koehler in which the two
employees agreed that it was advisable to reduce their
union conversations in the office. After Koehler left the
office Comstock came up and told Conway, "I do not want
you talking about the Union on my time."
Conway further testified that in March , during the week
following the termination of Koehler and Flanders , she at-
tended a meeting held by General Manager Nelson in his
office . Nelson told the employees of the fuel burning divi-
sion that it had been decided that certain jobs would be
eliminated, and that he had tried his best to select those
discharged according to seniority.
E. The Respondent's Defenses
It is the Respondent's first line of defense , propounded
in its opening statement in this proceeding, that the Com-
pany had no knowledge of the union activities , sympathies,
or interests of Gay Koehler , Arlene Flanders , and Carolyn
Crane. Upon the whole record, and particularly upon the
testimony of the Respondent 's own witness , I reject their
defense as totally lacking merit.
As recounted above , the Respondent 's agents became
aware in February that the Union had undertaken a cam-
paign to organize the clerical employees . Patrick Lupo ob-
tained this information from Jack Geib and other employ-
ees, and transmitted the information to General Manager
Nelson . The Respondent's industrial relations manager, Je-
rome L . Baumbauer, also obtained knowledge of the orga-
nizing campaign in February , and he informed Nelson of
this fact . Although both Lupo and Baumbauer denied that
they gave Nelson the names of the employees involved in
the campaign , I discredit their denials on the basis of
Nelson's testimony as reviewed below.
In the case of Gay Koehler, her union activities, like
those of Arlene Flanders, were open and notorious, and
conducted in such a manner and at such times and places
as could not escape the attention of the Respondent's
agents . The evidence of the Respondent 's knowledge is not
limited , however , to the times , places , and circumstances of
Koehler's activities. A day or two preceding her discharge
Koehler was called in by Carlson and informed that Lysa-
kowski was upset and did not want Koehler to speak with
any more of the office employees. Granted, the Union and
union activities were not mentioned in Carlson 's warning,
but on the testimony of both supervisors there is no room
for doubt that the warning was directed at union conversa-
tions. Lysakowski and Comstock confirmed that the latter
supervisor complained that Koehler was spending time
talking to other employees. Lysakowski passed the infor-
mation to Carlson, with instructions to talk to Koehler.
Following close on the heels of Comstock's reprimand to
Conway for talking about union matters with Koehler, I do
not credit the Respondent 's contention that the warning to
Koehler was directed at all nonwork conversations , or that
the Respondent's agents lacked knowledge of the topic of
Koehler's discussions.
Carlson acknowledged that in January he formed a
vague idea that a campaign was underway to organize the
clerical employees, but denied that he had any real knowl-
edge of the employees involved. On top of this denial, Carl-
son then testified that Koehler may have mentioned her
interest in the Union, and also admitted that in January
Koehler asked him if he knew how to go about starting a
union . In complete contradiction of these admissions, Carl-
son then testified that prior to the termination of Koehler
he observed no attempts to form a union among the office
clericals , and on cross-examination testified that he had
only a vague idea of the union activities, and did not know
for sure who was involved. Carlson, nevertheless, had suffi-
cient knowledge of Koehler 's union activities to recognize
that it was an issue in her termination . When he was ad-
vised on March 7 that Koehler was to be terminated, Carl-
son told Lysakowski that Koehler would think her dis-
charge was because of union activities. According to
Carlson , his comment to Lysakowski was prompted by
Koehler's request for information about organizing a union
and the conversations she had in the department with the
steward from the production and maintenance unit.
Lysakowski's testimony concerning knowledge of
Koehler's union activities was no less conflicting and con-
tradictory than that of Carlson. Lysakowski was told of the
organizing campaign in January by a union steward, and
he passed the information on to Baumbauer. While he ad-
mitted that Comstock had complained about Koehler, and
he directed Carlson to issue a warning, Lysakowski denied
any knowledge of Koehler's union activities . He did, never-
theless , assure Koehler at the time of her termination that
he did not think her discharge was because of her union
activities.
Flander's union activities were no less open and notori-
ous than those of Koehler . Her immediate supervisor, Gau-
dette , acknowledged awareness of the organizing campaign
and also acknowledged that he had heard the names of
those involved. Gaudette could not recall the date of the
RILEY STOKER CORP. 1151
termination interview with Flanders , could not recall what
reason he gave for the termination , or what reply he made
to Flanders' accusation that her discharge was motivated
by her union activities.
It is abundantly clear , in spite of their protestations to
the contrary , that their immediate supervisors had ample
and early knowledge of the union sympathies and activities
of Koehler and Flanders . It appears to be the Respondent's
contention , nonetheless , that since General Manager Nel-
son ordered the terminations , no prima facie proof of
knowledge is shown without evidence that Nelson was
aware that those he ordered discharged were engaged in
union activities . As Lysakowski, Carlson, and Gaudette are
admitted agents of the Respondent, the contention is falla-
cious in law , but there is also evidence that Nelson was
fully informed of the identities of the activists in the orga-
nizing campaign well in advance of the date he ordered the
terminations.
Nelson confirmed that he ordered the terminations of
Koehler and Flanders, but as a witness for the Respondent
denied that he had knowledge of their participation in the
union's organizing effort. Nelson hedged this denial by tes-
tifying that there was speculation of the involvement of
Koehler , Flanders , and others in the Union 's campaign,
but that he had no actual knowledge . Moreover , as a wit-
ness for the General Counsel, Nelson admitted that Lupo
and Baumbauer informed him of the campaign to organize
the office clerical employees , and admitted that in a pre-
hearing statement given to the Board he had conceded that
he was also informed that quite a number of people, in-
cluding Koehler and Flanders , were interested in the
Union's effort . Although Nelson attempted to negate this
admission in subsequent testimony as a witness for the Re-
spondent, I find that his admission is the one reliable as-
pect of his otherwise conflicting and equivocal testimony.
Accordingly, upon the whole of the record, I find and con-
clude that the Respondent's agents, in an ascending order
of position and responsibility, were fully aware of the
union activities , interests , and desires of Gay Koehler, Ar-
lene Flanders , and Carolyn Crane.
It is the Respondent 's second line of defense that Koeh-
ler, Flanders , and Crane were discharged as a part of a
reorganization plan for the Company 's Erie works , and the
elimination of any need for their future services . According
to Nelson , who assumed the position of general manager
on February 17, he acted upon a need for an organiza-
tional change to increase production and lower costs,
which was further impelled by a corporate determination
to centralize the purchasing function and thereby reduce
the staff employed. Nelson testified that he reduced the
staff from 114 down to 95, but the record is clear that not
all of these employees were permanently terminated, and a
large percentage were transferred or allowed to bump into
jobs in the bargaining unit.
It was also Nelson's testimony that he selected those to
be terminated on the basis of the senior best qualified em-
ployees , and that the selection was made only after he
spent several weeks with the supervisors about the func-
tions performed and the capabilities of their employees. In
the case of Gay Koehler , Nelson decided on her termina-
tion because the consolidation eliminated the need for a
messenger, because the blueprint and traffic- functions
could be absorbed by someone else, and because the re-
maining functions could be transferred to Irene Beckeny, a
senior and more qualified employee. Nelson admittedly
had no information or indication that Koehler's job perfor-
mance was inadequate.
Nelson also made the determination to terminate Arlene
Flanders after discussion with the supervisors, and ostensi-
bly for the reason that the master requisition function had
been transferred to Worcester, and the need for Flander's
services was eliminated. Like Koehler, Nelson had no in-
formation concerning the adequacies or inadequacies of
Flanders' performance , and he gave no consideration to
transferring Flanders to another job, or allowing her to
bump a less senior employee. According to Nelson, he se-
lected Flanders solely because she was most closely related
to the requisition function he chose to eliminate. After the
reduction in force the Respondent hired one new office
clerical to replace an employee on leave of absence, and
the hire of a second new employee was approved. It is clear
that no consideration for these positions was given to
Koehler, Flanders, or Crane.
There are discrepancies in Nelson's testimony which,
when compared with the totality of the record and the evi-
dence adduced from other of the Respondent's witnesses,
indicate that his explanations of the terminations and the
reasons therefor are less than candid and truthful. If Nel-
son discussed his intended plans with the supervisors and
sought their imput into the selection process, he studiously
omitted Lysakowski, Carlson, and Gaudette. Lysakowski
testified, and his testimony is corroborated by Carlson,
that Nelson and Baumbauer gave the order to terminate
Koehler 1-1/2 hours before the termination interview. Ly-
sakowski also confirmed that neither he nor Carlson par-
ticipated in the decision to terminate Koehler, and that
there was no reason for the termination on the basis of
Koehler's work performance.
Gaudette testified that Nelson directed him to terminate
Flanders, but he did not testify when Nelson gave the or-
der, or whether the termination was directed after consul-
tation. According to Flanders' testimony, however, which
was neither contradicted nor rebutted, Gaudette expressed
both surprise and shock at the termination interview, and
indicated that Nelson had not ordered the termination un-
til a few minutes before the interview, and that he had no
advance knowledge of those selected for discharge.
There is similarly no credible evidence in the record to
support the Respondent's argument that Nelson selected
the employees to be terminated on the basis of the senior
best qualified. In the broad sense Irene Beckeny had great-
er seniority in terms of her employment than Koehler, but
Koehler had greater seniority than other office clerical em-
ployees who were retained. There is no real evidence,
moreover, that Beckeny was in any way a better qualified
employee with experience and capabilities to perform a
variety of functions. Beckeny did not in fact immediately
assume any or all of Koehler's job functions. Beckeny's
transfer was delayed for a period of 4 to 6 weeks, and
during the interim Koehler's functions were performed by
Lysakowski and Carlson, or parceled out to other employ-
ees.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nelson's measuring stick of the senior best qualified em-
ployee applies no better to Flanders than to Koehler. Like
Koehler, Flanders was qualified to perform a variety of
functions , and the record of her job performance is attend-
ed by ascending levels of responsibility and merit increas-
es. Up to March 7 Gaudette had three clerical employees
in his section , Arlene Flanders, Betty Clemens , and Caro-
lyn Crane. Flanders was hired by the Respondent on De-
cember 12, 1971, and according to the Respondent's rec-
ords Clemens was not hired until February 19, 1974. There
is no evidence that Clemens' capabilities and work record
were equal or superior to Flanders but, without consulta-
tion with Gaudette, Nelson directed that Flanders be ter-
minated and Clemens be retained . Flanders' request to
transfer back to the print room where she had seniority
over both remaining employees was summarily denied.
Clemens' retention out of seniority and capabilities is af-
forded a reasonable explanation only in the light of the
evidence that Gaudette knew she was opposed to the
Union.
Assuming, arguendo, that Nelson's reorganization plan
was undertaken for valid business considerations, I find
that the selection of Koehler and Flanders for termination
was motivated by reasons unconnected with the plan and
its resulting reduction in staff . Both employees were known
union adherents , and known by management to be actively
engaged in the union 's campaign to organize the
Respondent's office clerical staff . Both Koehler and Flan-
ders had excellent employment records and a past history
of progression in terms of job responsibilities and salary.
Both were summarily discharged at the height of the
union 's organizing campaign and after management had
put the quietus on union-related conversations . Not only
were the employees removed from their existing jobs, both
were denied any consideration to fill other positions for
which they had both experience and qualifications. As re-
flected above, the Respondent did not finally terminate all
of those whose jobs were affected by the reorganization
plan. Positions were consolidated, employees were allowed
to transfer to other clerical jobs , and still others were al-
lowed to bump into production and maintenance job. As
examples, two timekeepers were allowed to bump into bar-
gaining unit jobs . Employees Clemens and Yacklon as-
sumed the functions previously performed by Flanders, al-
though both had considerably less seniority than the
employee discriminated against . After the terminations the
Respondent approved the hire of two new clerical employ-
ees. No consideration was given to Koehler or Flanders for
these positions because , as Baumbauer made clear to the
Union's representative on the day of the representation
case hearing , the Respondent had no intention of hiring
back those it had discharged.
The Respondent contends that there is no proof of a
discriminatory motive in this case because there is no proof
of the Respondent 's union animus ." On the contrary, I
credit the General Counsel's witness and discredit Com-
stock, that the latter threatened a plant closure if the em-
ployees persisted in organizing the clerical force . As found
above, I also credit the General Counsel 's evidence that
4 Citing Enterplastic Industries, Inc., 217 NLRB No. 98 ( 1975).
Comstock, Lysakowski, and Carlson prohibited employees
from engaging in conversations about the Union, while
continuing to permit other nonwork-related conversations
which were always allowed among employees. While the
prohibitions do not rise to a general no-solicitation rule as
contended by the General Counsel, they are evidence of
the Respondent's union animus directed toward those it
knew were union adherents. Finally, under the facts of this
case and considering the time of the discharges, the dispar-
ity of treatment accorded those affected by reduction in
force on the basis of union versus nonunion adherents, and
the continuing discrimination against Koehler and Flan-
ders, I find that the Respondent's union animus is amply
evidenced by the fact of the discharges alone. I find and
conclude accordingly that Gay Koehler and Arlene Flan-
ders were discharged for reasons proscribed by the Nation-
al Labor Relations Act.
There remains for consideration the alleged discrimina-
tion against Carolyn Crane. There is evidence that Crane
was involved to some extent in the Union's campaign, her
interests and activities were known to Gaudette, and Gau-
dette recommended her discharge to Nelson. Crane, a
known union advocate like Flanders, was selected for dis-
charge, while Betty Clemens who had expressed her oppo-
sition to the Union was retained.
Aside from the above, the only other evidence in the
record pertaining to Crane and her discharge is the testi-
mony of Baumbauer. Applicable to Crane, Baumbauer's
testimony was a continual recitation of pious platitudes
related to his personal friendship for Carolyn Crane, inter-
spersed with conflicting testimony about his lack of knowl-
edge, either general or specific, about the employees' union
activities. I discredit Baumbauer except where his testimo-
ny is corroborated by other evidence. Even, however, if
Baumbauer's testimony were credited in its entirety, the
evidence adduced through him has little material bearing
on the hearing on the merits of the allegation of discrimi-
nation against Crane.
I accept the Respondent's argument that the General
Counsel has the burden of proof to establish that Crane
was discharged because of her union activities or interests.5
The testimony of the alleged discriminatee is not, however,
an essential element of proof, and the General Counsel was
free to establish the illegality of the discharge by other evi-
dence.6 The General Counsel established that Crane was
engaged in union activities and on the admission of the
Company's agents there is credited evidence that her activ-
ities were known to the Respondent. Crane was selected
for termination under the same conditions as Flanders and
Koehler, which I have found were motivated by the
Respondent's union animus, so that in all material respects
her discharge "did not differ from those of other employees
found to be discriminatees." I Without more, the record
supports the finding that Crane's discharge was as much a
violation of Section 8(a)(3) as are the discharges of Koehler
and Flanders.
5 N.L.R.B. v. Murray Ohio Manufacturing Co., 326 F.2d 509, 513 (C.A. 6,
1964).
Valiant Moving and Storage, Inc., 204 NLRB 1058, 1063 (1973); Ameri-
can Grinding & Machine Co., 150 NLRB 1357 (1965).
7 American Grinding, supra, at 1358-59.
RILEY STOKER CORP. 1153
There . is, however , another relevant consideration in
Crane's case . On the issue of the failure of a material wit-
ness to testify the Supreme Court has held that, "The pro-
duction of weak evidence where strong is available can
lead only to the conclusion that the strong would have
been adverse ." B Moreover, in prior cases where the Board
has found discrimination in the absence of the testimony of
the discriminatee , the Board has considered the reasons
behind the unavailability of the witness to testify. In Qual-
ity Manufacturing Company, 195 NLRB 197, 208 (1972), the
discriminatee did not testify because of illness; and in
American Grinding, supra, the discriminatees did not testify
because the General Counsel could not locate them. Under
those circumstances the Board held that an adverse infer-
ence could not be drawn from the failure of discriminatees
to appear.
Here, however, the General Counsel has afforded no ex-
planation for Crane's failure to appear to testify, save his
admission on the record that Crane was not present at the
hearing . In contrast with the General Counsel 's silence is
the testimony adduced through the witness Doris Baker
that she had talked to Crane the week preceding the hear-
ing, and that Crane had told her that she wanted out and
did not want any part of the case. The General Counsel
offered no evidence to rebut Baker's testimony, and did
not cross-examine Baker on her testimony concerning
Crane's remarks. There is no other credible evidence in the
record to explain or justify Crane's failure to appear as a
witness at the hearing.
I am mindful that unfair labor practice proceedings are
intended to accomplish the public interest , as well as to
vindicate private rights. I fail to see, however, how a find-
ing of discrimination on behalf of an employee who pur-
posefully abstained from appearing to testify accomplishes
the public interest, or vindicates any private right entitled
to protection. In the absence of any evidence to explain
Crane's failure to appear, save the testimony of Doris Bak-
er, the inference is warranted that her testimony would
have been adverse to the proof of discrimination. I will
recommend that the allegation of discrimination pertaining
to Crane be dismissed.
III. THE REMEDY
Having found that the Respondent violated Section
8(a)(1) and (3) of the National Labor Relations Act, I shall
recommend that it cease and desist therefrom, and take
certain affirmative action to remedy the unfair labor prac-
tices and effectuate the policies of the Act. As I have found
that the Respondent violated Section 8(a)(3) of the Act by
discharging Gay Koehler and Arlene Flanders on March 7,
1975, I shall recommend that the Respondent offer them
immediate and full reinstatement to their former jobs, dis-
charging if necessary any employee hired on or after the
date of their discharges, together with all seniority, rights,
and privileges previously enjoyed or, if those jobs no longer
exist , the Respondent shall reinstate Koehler and Flanders
8Interstate Circuit, Inc., et al. v. United States, 306 U .S. 208, 226, and
cases cited therein at 226 ( 1939).
to substantially equivalent positions. I shall further recom-
mend that the Respondent make Gay Koehler and Arlene
Flanders whole for any loss of earnings they may have
suffered by reason of the discrimination against them by
payment to them of the sums of money they would have
earned after the dates of their discharges, less net earnings,
if any, during such period. Backpay and interest shall be
computed in the manner prescribed in F. W. Woolworth,
90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
In view of the nature of the Respondent's unfair labor
practices as found herein, I shall further recommend that
the Respondent cease and desist from infringing in any
other manner on the rights of its employees protected by
Section 7 of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Riley Stoker Corporation, is an em-
ployer within the meaning of Section 2(2) of the Act, and
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union, International Brotherhood of Boilermak-
ers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers,
AFL-CIO, is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening employees with plant closure because
of their union activities, interests, and desires and by warn-
ing and reprimanding employees for talking about union-
related matters on company time and premises while per-
mitting other nonwork related conversations, the Respon-
dent has violated Section 8(a)(1) of the Act.
4. By discharging Gay Koehler and Arlene Flanders be-
cause of their union activities, sympathies, and interests the
Respondent has violated Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
6. The General Counsel has not proved by preponder-
ance of the evidence that the Respondent discharged Caro-
lyn Crane in violation of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
the provisions of Section 10(c) of the Act, I hereby issue
the following recommended:
ORDERS
The Respondent, Riley Stoker Corporation, Erie, Penn-
sylvania, its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening employees with plant closure because of
their union activities, interests, and desires.
(b) Warning and reprimanding employees from talking
about union-related matters on company time and prem-
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ises, while permitting employees to engage in other non-
work related conversations.
(c) Discharging employees because of their union activi-
ties, sympathies, or interests.
(d) In any other manner interfering with , restraining, or
coerceing its employees in the exercise of the rights guaran-
teed them by Section 7 of the National Labor Relations
Act.
2. Take the following affirmative action to remedy the
unfair labor practices and to effectuate the purpose of the
Act:
(a) Offer immediate and full reinstatement to Gay
Koehler and Arlene Flanders to their former positions of
employment, discharging if necessary any employee hired
after March 7, 1975, or, if those jobs no longer exist, offer
them reinstatement to substantially equivalent positions,
together with all seniority, rights, and privileges previously
enjoyed, and make Gay Koehler and Arlene Flanders
whole for any loss of earnings they may have suffered in
the manner prescribed in the "Remedy" portion of this
decision.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze and compute the amounts of backpay due
under the terms of this recommended Order.
(c) Post at its place of business at Erie, Pennsylvania,
copies of the attached notice marked "Appendix." 10 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 6, after being duly signed by the
Respondent's authorized representative, shall be posted by
the Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken to insure that said notices are not altered, defaced, or
covered by other material.
(d) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
10 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."