Rubber Fabricators, Inc.

National Labor Relations Board - Board Decisions

Apr 17, 1963

142 N.L.R.B. 67 (N.L.R.B. 1963)

RUBBER FABRICATORS, INC. 67
Rubber Fabricators , Inc. and United Rubber ,. Cork, Linoleum
and Plastic Workers of America , AFL-CIO. Case No. 9-CA-
2596. April 17, 1963
DECISION AND ORDER
On December 14, 1962, Trial Examiner Samuel Ross issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached'Intermediate
Report. The Trial Examiner also found that the Respondent had
not engaged in certain other unfair labor practices as alleged in the
complaint. Thereafter, the Respondent and the General Counsel filed
exceptions to the Intermediate Report and" supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in.connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered, the Interme-
diate Report and the entire record in the case, including the exceptions
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified below:'
.1. We find, contrary to the Trial Examiner, that General Manager
Schnurr's interrogation of employee McClung as to his union activi-
ties, when considered against the background of the Respondent's
union animus and in the context of the other 8 (a) (1) violations herein
found to exist, restrained and interfered with McClung's rights as
guaranteed in. Section.7 of the Act, in violation of Section 8 ('a) (1) of
the Act 2
We find it unnecessary to pass upon the Trial Examiner's finding
that Earl Garner's threat to discharge Supervisor Jackie Cooper, made
to employee Martha Smith, constituted a violation of Section 8(a) (1)
of the Act.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner, with the following modifications :
1. Paragraph 1(d) of the Recommended Order is modified to read
as, follows :
'Member Rodgers would ' not find that Respondent ' s offer to promote McClung to a
supervisory position diolated Section 8 ( a) (1). 'Further , for the reasons set forth in the
dissenting opinion in Isis Plumbing & Heating Co:, 138 NLRB 716, Member Rodgers would
not award interest on backpay.,,,
Compare Blue Flash Express , Inc., 109 NLRB 591.
142 NLRB No. 12.
712-548-64-vol. 142-6
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Prohibiting or restricting employees from talking about unions
in the plant during nonworking hours.
2. The designation of paragraph (e) of the Recommended Order is
changed to paragraph (f) and inserted between it and paragraph (d)
is the following paragraph :
(e) Interrogating employees regarding their membership in,
or activities on behalf of, a labor organization in a manner consti-
tuting interference, restraint, or coercion in violation of Section
8(a) (1) of the Act.
3. The Appendix attached to the Intermediate Report is hereby
modified by striking the paragraph beginning "WE WILL NOT prohibit
or restrict," and substituting therefor the following :
WE WILL NOT prohibit or restrict employees from talking about
unions in the plant during nonworking hours.
4. The Appendix is further modified by inserting after the above
paragraph the following :
WE WILL NOT coercively or unlawfully interrogate our em-
ployees regarding their union membership, activities, or desires.
5. The Appendix is further modified by adding the following state-
ment immediately below the signature line at the bottom of the notice :
NoTE.-We will notify the above-named employee, if presently
serving in the Armed Forces of the United States, of his right to
full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and an amended charge filed May 21 and July 3, 1962, respectively,
by United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO
(herein called the Union), the General Counsel of the National Labor Relations
Board issued a complaint dated July 6, 1962, against Rubber Fabricators, Inc. (herein
called the Respondent or the Company), alleging that the Respondent had engaged
and is engaging in unfair labor practices within the meaning of Section 8(a)(1)
and (3) and Section 2(6) and (7) of the Act. In substance, the complaint, as
amended at the hearing,' alleges that Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed by the Act, by interrogation,
threats, surveillance, and other means, and that Respondent discriminated against
employees by laying off and refusing to reinstate one employee,2 and by laying off
and subsequently discharging another employee,3 because of their activities on behalf
1 At the close of his case, the General Counsel was granted permission to amend the
,complaint by adding the following language as paragraph 6(f) thereof:
The conduct of said Schnurr , on or about March 23, 1962, in offering to promote
Earl Gerald McClung, an employee of Respondent, to a supervisory position in order
to restrain said employee's activity on behalf of the Union.
James Ross.
a Earl Gerald McClung.
RUBBER FABRICATORS, INC. 69
of the Union. The Respondent filed an answer denying the substantive allegations
of the complaint and the commission of unfair labor practices.
Pursuant to due notice, a hearing was held before Trial Examiner Samuel Ross
in Summersville, West Virginia, on September 5 and 6, 1962. All parties were
represented at the hearing by counsel and were afforded full opportunity to be
heard, to introduce evidence, to examine and cross-examine witnesses, to present
oral argument, and to file briefs. Briefs were filed by the Respondent and the
General Counsel on September 28 and October 1, 1962, respectively, which I have
'carefully considered.
Upon the entire record in the case, and from my observation of the witnesses
and their demeanor, I make the following:
FINDINGS OF FACT
1. COMMERCE
The Respondent is a West Virginia corporation engaged in the manufacture and
sale of rubber life rafts and other survival equipment at plants located in Richwood
rand Grantsville, West Virginia.4 During the past 12 months, a representative period,
Respondent sold and shipped products valued in excess of $50,000 from its plants
in West Virginia to points and places outside said State. During the same period,
the Company's gross sales were in excess of $500,000. On the foregoing admitted
facts, the Respondent concedes and I find that it is engaged in interstate commerce
within the meaning of Section 2(6) and (7) of the Act.
It. THE LABOR ORGANIZATION INVOLVED
The parties have stipulated and I find that United Rubber , Cork, Linoleum and
Plastic Workers of America , AFL-CIO, is a labor organization within the meaning
,of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent's Richwood plant has been in operation since July 1959.
In October 1961, the Union commenced a campaign to organize the employees of
Respondent's Richwood, West Virginia, plant. Later that same month, Robert L.
Schnurr, secretary of Respondent and general manager of the Richwood plant, made
a speech to all the employees during working hours, in which he voiced the Re-
spondent's opposition to union representation of the employees, and, according to
the credited testimony of Earl Gerald McClung and James Ross, thteatened that
the plant would move if the Union succeeded in its organizational drive .5
Schnurr's speech is not alleged as a violation of Section 8(a) (1) of the Act,
undoubtedly because it occurred more than 6 months prior to the filing of the charge
in this case, and, therefore, is barred from consideration as an unfair labor practice
by the limitations contained in Section 10(b) of the Act. Moreover, Respondent
does not dispute that it actively opposed union representation of its employees.
Accordingly, I find that from the inception of the Union's organizing campaign,
Respondent not only was opposed to the representation of its employees by the
Union, but also made that opposition known to its Richwood employees by Schnurr's
speech described above.
B. Interference, restraint, and coercion
As noted above, the complaint alleges that Respondent, on a number of occasions,
and by various means, engaged in interference, restraint, and coercion of employees
in violation of Section 8(a)( I) of the Act. The testimony regarding these alleged
violations will be reported and considered chronologically.
4 Only the Richwood plant Is involved In this proceeding.
6 Schnurr denied making the threat. According to Schnurr, and Delbert E. Mossor,
Respondent's supervisor in charge of cutting and production, Schnurr said that the plant
would stay in business as long as it could make a profit. For reasons appearing herein-
after, I regard both Schnurr and Mossor as witnesses in whose testimony I cannot place
much reliance. Conversely, I was favorably impressed with the apparent candor, frank-
ness, and veracity of both McClung and Ross. Moreover, as hereinafter found, a similar
threat was conveyed by Respondent to its employees by a letter dated April 24, 1962.
Accordingly, I do not credit either Schnurr's or Mossor's testimony that no such threat
was made.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Employee Jackie Cooper was one of the early participants in the Union's
organizational campaign at Richwood. He attended union meetings and assisted in
passing out union authorization cards to Respondent's employees. In about Decem-
ber 1961, Cooper was promoted to a supervisory position in the packing department.
He continued, nevertheless, to attend union meetings.
In February 1962, according to the uncontradicted and credited testimony of
employee Martha Smith, Supervisor Earl Garner, referring to Cooper, said, "there
is a boy if he doesn't watch his step he's going to get fired. They [the Company] had
been accusing him for working for the Union but he's a good liar." Garner was not
called to refute Smith's testimony, and no explanation was offered by Respondent
for its failure to do so. In the absence of a concurrent explanation to Smith, that
nonsupervisory employees could not lawfully be discharged for engaging in union
activity, Garner's statement clearly conveyed the threat that employees who engaged
in such activity would likewise be subject to discharge. Accordingly, I conclude
that thereby, Respondent engaged in interference, restraint, and coercion of employ-
ee's rights in violation of Section 8(a) (1) of the Act.
2. From the inception of the Union's campaign, employee Earl Gerald McClung
was its principal proponent at the Richwood plant. On March 8, 1962,6 the Union
filed a petition for certification as the representative of Respondent's production and
maintenance employees at said plant.? A few days later, on March 12, while
McClung was in Respondent's office, he was asked by General Manager Schnurr,
"how are you and your activities going?" McClung inquired, "what do you mean?"
Schnurr explicated, "you and the Union." McClung then replied, "well, we are
not doing as well as we would like to, but we are doing all right." 8
The complaint alleges that the foregoing interrogation was coercive and violated
Section 8(a) (1). I do not agree. The Board no longer follows a per se doctrine that
all employer inquiries directed to the employees concerning union matters are viola-
tions of the Act.9 The test which the Board applies in determining whether interroga-
tion is lawful or unlawful, an enunciated in Blue Flash, is "whether under all the
circumstances the interrogation reasonably tends to restrain or interfere with the em-
ployees in the exercise of rights guaranteed by the Act." In making such determina-
tion, "the time, the place, the personnel involved, the information sought and the
Employer's conceded preference must be considered." 10 Applying these tests, I
regard the instant inquiry made by Schnurr as casual and friendly, and not inference
or restraint. Accordingly, I conclude that such interrogation did not violate Section
8(a)(1) of the Act.
3. On March 16 McClung was instructed to go to Schnurr's office, and on arrival
was told by Schnurr that he was being promoted to the job of supervisor "over the
cutting department." McClung asked Schnurr whether he means "group leader,"
and Scnurr assured him that he meant supervisor. Schnurr told McClung that the
promotion would be temporary, but that it would become permanent and they would
discuss salary at the end of 2 weeks. The record does not disclose whether or not
McClung accepted the promotion at that time. However, on the following Monday,
McClung advised several of Respondent's supervisors that he preferred not to accept
the responsibility, and would not accept the promotion, because he did not wish to
"straddle the fence." 11 About a week later, Schnurr asked McClung whether he
had changed his mind, and the latter replied in the negative. The next day, Schnurr
introduced McClung to Respondent's president, Fleming, "as the new supervisor in
the cutting department." McClung then told Fleming that he had been offered the
job, but "wasn't taking it." Fleming suggested that employees "should want to ad-
vance forward" and not remain static.
In addition to the foregoing, the General Counsel adduced proof that a similar pro-
motion in the packaging department had been offered to, and accepted by, Jackie
Cooper, who like McClung, had also been active in the Union's effort to achieve
representative status for Respondent's employees. After his promotion, according
to Cooper's uncontroverted and credited testimony, General Manager Schnurr asked
him to identify the employees who had signed union authorization cards.
e Unless otherwise specifically noted, all dates hereafter refer to 1962.
° Case No. 3-RC-4878 (not published in NLRB volumes).
The conversation between McClung and Schnurr is based on McClung's credited testi-
mony. Schnurr denied any knowledge of this conversation, but I do not credit his denial.
9 Blue Flash Express, Inc., 109 NLRB 591.
20 N.L.R.B. v. Syracuse Color Press, Inc., 209 F. 2d 596, 599 (C.A. 2).
"Although not explicated, by the term "straddle the fence," McClung quite apparently
was saying that he preferred to continue his association with the Union rather than to
divide his loyalty by accepting promotion to the side of management.
RUBBER FABRICATORS, INC. 71
As noted above, the complaint was amended at the hearing to include an allegation
that Respondent offered the promotion to McClung "in order to restrain said em-
ployee's activities for and on behalf of the Union." In defense, the Respondent ad-
duced testimony that: as a consequence of receiving several new contracts for its
products, its labor force had expanded rapidly from about 30 to 200 employees; it
had sought unsuccessfully to recruit experienced supervisory personnel from outside
the area; it had finally decided to develop and train supervisors from among the
employees whom it had hired locally; and it had promoted Douglas Mullins and
Jackie Cooper to supervisory status in furtherance of this policy. The Respondent
further adduced testimony that Mossor, its supervisor in charge of production and
cutting, had too many people to supervise, and too much territory "to cover," and
that General Manager Schnurr offered promotion to McClung to lighten. Mossor's
.supervisory load. Significantly, however, after McClung's declination, the Respond-
ent did not fill the position of supervisor of the cutting department. Moreover, the
Respondent offered no proof or explanation why, in the light of the alleged need for
such a supervisor, the position remained unfilled.
On the foregoing record, including the promotion of Cooper, another of the active
union proponents, to supervisory status, the subsequent interrogation of Cooper re-
garding the identity of employees who had signed union cards, the Respondent's
admitted hostility to the Union, and the failure of Respondent, despite the alleged
need therefor, either to fill the position of supervisor of the cutting department, or
to offer any explanation for its failure to do so, I am persuaded and conclude that
the offer of promotion to McClung was not motivated by any alleged need for a
supervisor of his department, but rather was inspired by Respondent's desire to
eliminate further activities by McClung on behalf of the Union. Accordingly, I con-
clude that thereby, Respondent interfered with, restrained, and coerced employees
in the exercise of rights guaranteed by the Act, and engaged in an unfair labor prac-
tice within the meaning of Section 8(a) (1) of the Act.
4. On the night of March 22 or 23, a union meeting was held at the home of
McClung's mother in Holcumb, West Virginia. At about 9:30 p.m., as they left
the meeting, a number of Respondent's employees observed Supervisor Delbert E.
Mossor and Dennis Ash, the husband of another of Respondent's supervisors, sitting
in the latter's car which was parked on the highway diagonally across from the en-
trance road leading to the meeting place. Mossor admitted that he went to the place
where the meeting was being held shortly before 9 p.m., that he drove back and
forth in front of the house two or three times, and that he parked at the place where
he had been observed by Respondent's employees until after the meeting ended at
about 9:30 p.m. Mossor further admitted that he had no business in the area where
the union meeting was held. Despite the foregoing admissions, Mossor denied that
his purpose in going to the meeting site, and parking there until the meeting ended,
was to learn the identity of the persons attending. He further denied that he recog-
nized or made any attempt to recognize any of the employees who attended. When
asked what then was the purpose of his presence there, he testified that he was just
curious to learn what was going on. He was unable, however, to give any explanation
as to how he expected to accomplish the satisfaction of his curiosity by sitting in the
parked car. In the light of the patently implausible explanation for his presence at
the site of the meeting, I regard Mossor's denial, that his purpose was to ascertain the
identity of the employees who attended, as unworthy of credence, and I conclude that
such was the motivation for his surveillance of the meeting. 12 In view of the fact
that several of Respondent's employees were able to recognize Mossor despite the
darkness of the night, and in view of my lack of regard for Mossor's veracity, I am
also persuaded and find, contrary to Mossor's denial, that he was able to recognize
some of the employees who attended the union meeting. Moreover, in the light of
the previously noted interrogation of Supervisor Jackie Cooper by General Manager
Schnurr regarding the identity of employees who had signed union authorization
cards, I likewise do not credit either Mossor's testimony that he engaged in the sur-
veillance of the union meeting on his own initiative, or his testimony that he did not
report to anyone what he had observed.
On the foregoing record, I conclude that by Mossor's surveillance of the union
meeting described above, Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed by the Act, and thereby engaged in un-
fair labor practices within the meaning of Section 8(a) (1) of the Act.13
5. About 1 week after the union meeting referred to above, Respondent laid off
some employees in the cutting and other departments in the Richwood plant. On
April 13, the Respondent, the Union, and District 50, United Mine Workers of
"Dyer v. MacDougall, 201 F. 2d 265 , 269 (C.A. 2),
Is Dal-Tex Optical Company, Inc., 137 N7.I:I: 274.
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
America, the intervenor in the representation proceeding , executed an agreement for
a consent election which was scheduled for April 26. Two days before the election,
the Respondent sent a letter to its employees , the last two paragraphs of which, stated
as follows:
We want to stay in business and we expect to continue in business in Richwood
and in Grantsville.
YOU CAN END ALL OF THE UNCERTAINTY ON THURSDAY, BY
VOTING NO. Then the strangers who came to Richwood can all go back to,
Akron-we can all settle down and have peace and security.
Respondent's Vice President Zannoni, the signatory to the above letter, was asked
to explain what "uncertainty" he was referring to in the above quotation from the
letter. He made the unresponsive and implausible response that he believed that
there was "a general slowdown in work," and that like "a coach at half time," he
was attempting to "put some spirit in the team." 14 In the context in which it
appears, I am persuaded and conclude that Respondent's gratuitous statement that
it wanted to stay in business , followed immediately by the suggestion that the em-
ployees could end the "uncertainty" by voting against the Union, clearly implied.
that the "uncertainty" referred to the possibility that the Respondent might, nowith-
standing its desires and expectations , discontinue operations at the Richwood plant
in the event of a union victory at the election. This implication is likewise supported
by the statement in the letter that "peace and security" would ensue when "the
strangers [the Union's organizers]" returned "to Akron [the headquarters of the
Union]." Accordingly, I conclude that by the foregoing letter, Respondent threat-
ened the job security of its employees if the Union won, and thereby restrained
and coerced employees in violation of Section 8 (a) (1) of the Act.
6. The parties stipulated that the election, which was held on April 26, resulted in
the defeat of both the Union and the Intervenor District 50. On May 17, McClung
was recalled from layoff and restored to his former job. On the same day, according
to McClung's credited testimony, General Manager Schnurr told him, "McClung,
the Union is out. I don't want to hear any more speeches or campaign for at least
another year." McClung replied, "Well, a year is a long time off and if nothing
comes up you won't hear anything." Schnurr did not deny making this statement to,
McClung. Instead, he testified that McClung frequently engaged in excessive
talking, and that he had warned McClung regarding this failing on several occasions,.
once in writing.ls
Respondent contends that in view of McClung's propensity for excessive talking,
Schnurr's statement above did not constitute interference, restraint, or coercion within
the meaning of Section 8(a)( I) of the Act. I do not agree. Although Respondent
undoubtedly had the right to prohibit talking generally, especially such that would'
interfere with production, it could not lawfully restrict employees in their right to,
discuss or promote unions during nonworking time.16 Schnurr's statement to
McClung quoted above did not limit the prohibition of speechmaking or campaign-
ing for unions to nonworking time. Moreover, this statement was made by Schnurr
to McClung at a time when, according to the latter's credited testimony, he was not
talking to anybody. Accordingly, I conclude that by Schnurr's said statement to
McClung, Respondent interfered with, restrained, and coerced employees in the
exercise of rights guaranteed by the Act, in violation of Section 8(a)(1) of the Act.
7. On the following day, May 18, while McClung was working in the cutting
department, Supervisor Mossor told him that one employee should be able to do all
the work in the department alone. McClung replied that he had heard that during
his layoff, Mosser had worked in the cutting department 14 to 16 hours per day,
and 6 to 7 days per week, and that he had been helped by "4 or 5 guys." Mossor then
said, "You better shut up and get back to work. You known your standing with-
this Company."
The complaint (paragraph 6(d)) alleges that by Mossor's foregoing statement
to McClung, Respondent was guilty of "warning an employee not to speak in
the presence of other employees about working conditions," and "informing the
employee that Respondent had knowledge of his Union membership, ." in viola-
tion of Section 8(a)(1) of the Act. I regard McClung's testimony, which was all
the General Counsel adduced in this regard, as insufficient to support this alleged'
14 Aside from Zannoni's conclusionary testimony , the record is devoid of any evidence of
the existence of any "slowdown in work ." I, therefore , do not credit Zannoni's implausible
explanation of the word "uncertainty " in the last paragraph of the letter.
11 Respondent's Exhibit No. 10.
11 Walton Manufacturing Company, 126 NLRB 697.
RUBBER FABRICATORS, INC. 73
violation. In the first place, I can perceive no basis for concluding from this testi-
mony, that McClung was instructed by Mossor to desist from talking about working
conditions. Moreover, I know of no provision in the Act which prevents an em-
ployer from telling an employee during working time, to be silent and to get back
to work. Furthermore, I find it difficult to understand how the equivocal statement,
"You know your standing with the Company," necessarily means that Mossor was
informing McClung that the Respondent had knowledge of his union membership
and activities. At best, the sentence was ambiguous and capable of several connota-
tions. Quite apparently, the implication of this remark was that McClung was
persona non grata with the Respondent. But this does not necessarily mean that
Mossor was advising McClung that the Company had knowledge of his union
activity, since quite conceivably, the reference to McClung's disfavored status might
also have referred to his refusal to accept promotion to supervisor. In view of the
ambiguity, I conclude that there is insufficient proof of any unlawful implication in
Mossor's above statement to McClung.17
Accordingly, I find that the General Counsel has failed to establish by adequate
proof, the violation of Section 8(a) (1) of the Act set forth in paragraph 6(d) of the
complaint.
C. The alleged discriminatory layoffs and discharge of Earl McClung
McClung was hired by Respondent to work at the Richwood plant in August
1960. His principal job was that of fabric stock cutter in the cutting department
under Supervisor Delbert E. Mossor, but on occasions, he worked at cementing, in
the vulcanizing room, in shipping and packing, as a buffer, as a press clicker
operator, and at loading and unloading trucks. When first hired, he was paid at
the rate of $1 per hour, but as a consequence of successive raises, the last of which
he received in October on November 1961, his rate of pay was increased to $1.35
per hour. McClung was laid off on April 3, 1962, recalled to work on May 17, laid
off again on June 11, reinstated on June 24, and fired on June 28. The General
Counsel contends that both of the layoffs and McClung's final termination 18 were
motivated by Respondent's hostility to the Union, and McClung's leading role in
advocating the Union's cause.
1. McClung's layoff on April 3
As noted above, McClung was the principal proponent of the Union in Re-
spondent's plant. He signed a union authorization card in October 1961, solicited
other employees in the plant and at their homes to do likewise, supplied his mother's
home in nearby Holcumb, West Virginia, as a place for holding union meetings,
and furnished transportation to the meetings for employees who had no independent
means of getting to his mother's house. In view of my findings above, that General
Manager Schnurr questioned McClung on March 8 regarding the Union's progress,
and that Supervisor Mossor engaged in surveillance of a union meeting held at the
home of McClung's mother on March 22 or 23, I find and conclude that Respondent
knew of McClung's active support of the Union prior to his layoff on April 3.19
As found above, on March 16, Respondent offered to promote McClung to the
position of supervisor of the cutting department, because it diesired to eliminate his
activities on behalf of the Union. McClung refused the promotion, and told Re-
spondent's supervisors that his reason for not accepting was, inter alia, because he
did not want "to straddle the fence" on the issue of union representation for Re-
spondent's employees. Several weeks later on April 3, McClung was laid off. Ac-
cording to his undenied testimony, McClung was told that the reason for his layoff
was the completion by Respondent of its contract with the United States Government
for 15-man rubber life rafts. According to the notarized notice sent on April 3 by
17 Mossor's version of this conversation differed somewhat from that of McClung, but in
view of my conclusion above, I deem it unnecessary to resolve the conflict in their
testimony.
1s Although the complaint makes no reference to McClung's final dismissal and does not
allege it as a violation of the Act, the issue of whether he was discriminatorily discharged
was fully litigated at the hearing and briefed by all the parties.
19 This conclusion is further supported by the uncontroverted and credited testimony of
Supervisor Jackie Cooper, that in conversations with General Manager Schnurr in March
19e2, before McClung was laid off, Schnurr said, "Everything would be O.K. if McClung
would settle down and quit his union activity," and, "Gerald [ McClung] was going strong
for the Union."
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Manager Schnurr to. Respondent' s main office in Grantsville, McClung's lay-
off was "permanent." 20
McClung testified credibly and without contradiction that he had never before
been laid off because of the completion of a contract, and that on previous such oc-
casions, he had been assigned to do general work about the plant, helping to load
and unload trucks, sweeping, packing life rafts, and performing other miscellaneous
chores. McClung also testified without denial, that at a meeting of the Goodwill
Committee 21 with Schnurr at an unspecified time before the layoff, a request had been
made that employees in the cutting department be put on a "piece rate," and that
Schnurr had replied that the girls on piece rates would be laid off when the Company
was short of materials, but the cutting department would stay on hourly rates and be
kept working even if they "had to sweep the floors and clean up to stay busy."
After McClung's layoff, according to the uncontroverted and credited testimony of
employee Shirley Truman, cutting work on the 15-man rubber life rafts continued to
be performed by two employees who had not theretofore worked in the cutting
department,22 and by Supervisor Mossor.
McClung continued his activities on behalf of the Union after his layoff. He
distributed union literature to employees at the plant entrances, he testified for the
Union at the Board hearing in the representation proceeding on April 13, and he
acted as observer for the Union at the Board election on April 26. After the Union's
defeat at the election, Respondent recalled McClung to work, and he was reinstated
on May 17. Upon his return, McClung resumed work on the same contract on
which he had been working before his layoff. As found above, on the day that
McClung resumed work for Respondent, he was told by General Manager Schnurr
that "the Union is out," and was admonished not to make "any more speeches" or
to "campaign for at least another year."
As noted above, McClung's testimony, that the reason he was given for his layoff
was completion of the contract for the 15-man rubber life rafts, was not denied by
Respondent, nor was any effort made by Respondent to support this reason for his
layoff. Instead, the Respondent adduced testimony that the reason was that the
Company had temporarily run out of material to be cut and further processed. In
this connection, Vice President Zannoni testified that the Company had originally
received 50,000 yards of rubber fabric, based on the assumption that each raft
required about 55 yards of material. He further testified that when the rafts were
produced, the Company actually used from 57 to 59 yards per raft with the result
that before the required number of rafts had been completed, the Company found
itself running short of fabric and had to order an additional 10,000 yards to complete
the contract. According to Zannoni, the additional yardage was received by the
Company during the period between April 19 and June 24. General Manager
Schnurr testified that because of the material shortage, the cutting department, which
was the first to be affected, was the first to be laid off.23 Schnurr further testified
that the other three employees in the cutting department were laid off in the latter part
of March, before McClung was terminated.
On the foregoing record, documented by Respondent's records of orders and
receipts of fabric, there can be little doubt that Respondent was faced with a material
shortage at about the time of McClung's layoff, and that its layoff of some em-
ployees 24 was required in the interests of good business management. That, how-
ever, is not dispositive of the issue as to whether McClung's layoff was motivated by
economic necessity, as the Respondent contends, or by antiunion considerations, as
asserted by the General Counsel. On the entire record, I am persuaded that the latter
was the real reason for McClung's layoff. I base this conclusion on the following:
(1) The reason given to McClung at the time of his layoff, completion of the con-
tract for the life rafts, was not true 25 and it was not until the hearing in this case,
that Respondent advanced the reason to be shortage of material.
(2) Even the latter reason for McClung's layoff cannot be accepted in the light of
the undenied testimony that cutting operations were continued during the period of
20 Respondent's Exhibit No. 11-A.
n This was an employee representation group that met with General Manager Sehnurr
to discuss plant and employee problems.
22 Edgel Blake and Herman Davis.
Za According to Schnurr , some employees in the fabrication and other departments were
laid off later in April.
2*The records of the layoffs produced by Respondent show that the Company laid off
49 of its approximately 200 employees.
vs The same reason "work completed on this Mark V raft," appears in the notice of
McClung's layoff which was sent to Respondent's home office on April 3.
RUBBER FABRICATORS, INC. 75
McClung's layoff, and were performed by persons who were not regularly employed
in the cutting department.
(3) Respondent adduced no testimony regarding the extent of the cutting opera-
tions which were performed during McClung's period of layoff, nor any that such
cutting work was not sufficient to keep McClung, its admittedly most capable cutter,
occupied. Moreover, it offered no explanation or testimony to explain why McClung
was not retained to perform such cutting, or why it used employees who worked in
other departments, rather than McClung, to do such work.
(4) Although the material shortage, which Respondent belatedly asserted as the
reason for McClung's layoff, was of a temporary nature, it is quite apparent that Re-
spondent had no intention of ever recalling McClung when it laid him off. Thus,
Schnurr's notice to Respondent's home office regarding McClung's layoff stated:
"In the cutting section one permanent layoff was made: 2097-McClung, Earl, Rich-
wood, West Virginia."
(5) Schnurr's attempted explanation, that the reference to McClung's layoff in
said notice as "permanent" was an error of the secretary which he "neglected to cor-
rect," is patently implausible because: (a) a reading of the notice shows that it first
listed a number of employees whose layoff was designated as "temporary," and then
separately listed McClung as permanently laid off; (b) the said notice was signed
and sworn to by Schnurr before a notary public; (c) Schnurr never thereafter advised
the home office of the error; (d) although the secretary who allegedly made this
error testified for Respondent, she was not asked to corroborate Schnurr's testimony
in this respect; and (e) the "permanent" layoff is consistent with the reason given to
McClung for his layoff (completion of the Mark V raft). I, therefore, do not credit
Schnurr's attempted explanation that the "permanent" layoff notice was a clerical
error.
(6) Although Zannoni testified that the additional material ordered by Respondent
began to arrive on April 19, Respondent did not attempt to recall McClung until
about May 11, after the Union was defeated at the Board election held on April 26.
(7) The Respondent admittedly was hostile to and actively opposed the Union's
effort to organize its Richwood plant and, as found above, in connection, therewith,
engaged in various acts of interference, restraint, and coercion of employees' rights
to defeat the Union.
(8) The Respondent knew of McClung's leading role in advocating the Union in
the plant and, as found above, offered him promotion to supervisory status to elim-
inate his activities on the Union's behalf.
(9) On the day of McClung's reinstatement, he was admonished not to engage in
further campaigning or speechmaking for the Union for at least another year.
For all the foregoing reasons, I am persuaded that when Respondent originally
laid off McClung, its intention was to be "permanently" rid of the leading advocate
of the Union in the plant, that in pursuance of this plan, it falsely told McClung that
his layoff was necessary because of the completion of its Mark V contract, that Re-
spondent thereafter concluded that in view of the Union's defeat at the Board elec-
tion, it would be safe to recall him, its most capable cutter, back to work. I am
further persuaded that in the light of the undenied testimony that cutting work was
performed during McClung's period of layoff, and the absence of any explanation
why he was not utilized for this work, the Respondent's belated assertion that shortage
of material required his termination, is likewise pretextual. On the entire record, I
am convinced and find that the real reason for McClung's layoff was his advocacy
of the Union's cause, and Respondent's hostility thereto. Accordingly I find and
conclude that thereby, Respondent discriminated against McClung in regard to the
tenure of his employment because of his activities on behalf of the Union, and dis-
couraged membership in the Union, in violation of Section 8 (a) (3) and (1) of the
Act.
2. McClung's layoff on June 11
After his reinstatement on May 17, McClung continued to work for Respondent
until June 11, when he was again laid off by Supervisor Mossor. On this occasion,
Mossor told McClung that the layoff was necessary because of a shortage of fabric
to cut. McClung was recalled to work on June 25.26
General Manager Schnurr testified that the reason for this layoff of McClung and
the other employees in the cutting department was that Respondent had completely
cut up all the fabric on hand for the Mark IV suit contract. Respondent's records
show that no fabric was received for this contract between February and June 25,
1962.
° McClung 's testimony that be was reinstated on June 24 Is apparently an error, since
that date was a Sunday.
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel contends that the June 11 layoff of McClung was also mo-
tivated by antiunion considerations. However, unlike the case of the earlier layoff,
the General Counsel adduced no evidence that cutting work was performed by Re-
spondent during this period of McClung's layoff. In addition, Respondent's records
support its testimony that the layoff was based on a shortage of material for this
contract. Thus, unlike his earlier layoff, the reason given to McClung when he was
laid off was not changed at the hearing, but was supported by substantial and credible
testimony. Moreover, McClung was recalled to work on the very day that Respond-
ent received its final shipment of 1,270 yards of fabric to complete the suit contract.
On the foregoing record, I am persuaded and conclude that the General Counsel
has failed to establish that McClung's layoff on June 11 was motivated by antiunion
considerations.
3. McClung's discharge on June 28
On June 25, McClung made an error in cutting 54 plies of material for the Mark IV
.suit which Respondent was making for the Government. In laying out the pattern
on the uppermost layer of fabric, McClung inadvertently had placed the pattern for
the front of the suit with the reverse side up. McClung admitted making the error.
He also admitted that since the material was not the same on both sides, the fronts
which were cut in this manner could not be used. McClung was advised of this mis-
take on the day it occurred by Ash, a supervisor in the fabrication department. He
then told Supervisor Mossor that there was enough material left to fit in replace-
ments for the unusuable fronts on the next cutting. On June 27 McClung completed
the last cut to complete the contract for the Mark IV suits, and was able to fit in the
extra fronts without running out of material. On the following day, June 28,
McClung was called into the office of General Manager Schnurr. According to
McClung's credited testimony, Schnurr told him that the fronts which McClung had
cut with the pattern reversed were a total loss, and that he was giving him a warning
notice. McClung signed the notice.27 Schnurr then handed McClung his "termina-
tion papers." Thereupon, McClung asked, "It was my understanding that it took
three warning notices before you was [sic] fired?" Schnurr replied, "You just get
two." 28
McClung had received one earlier warning notice on March 15 under the follow-
ing circumstances: On a day when both McClung and James Ross had been cutting
Mark IV suits, someone had cut some sleeves inside the line called for by the
pattern. Both McClung and Ross were separately queried by Schnurr regarding
who was responsible for the error, and each had admitted that one or the other of
them might have made the mistake. Consequently, since he was not certain who
had been at fault, Schnurr had issued warning notices to both of them. However,
at the same time that he issued these warning notices, Schnurr told McClung that
he was "up for promotion," and, as noted above, on the following day, March 16,
he offered McClung the job of supervisor over the cutting department.
McClung testified that in early 1961 when Respondent first started issuing warning
notices to employees, he was advised by Supervisor Mossor of Respondent's policy
in respect to warning notices. According to McClung, Mossor told him at that
time that employees are entitled to two warning notices, and that on the third offense,
he is "automatically terminated." McClung's testimony in this respect was corro-
borated by employee Mildred McCoy. She testified that about a year ago, Mr.
King, who was then Respondent's plant manager, notified her of Respondent's
policy in respect to warning notices. According to Mrs. McCoy, King said "it would
take three [notices to be fired], we would get two and in the third one that would
be it." The record also shows that the notices in question contain the following
printed matter at the top of the notice:
EMPLOYEES WARNING NOTICE 1st Notice q
2nd Notice q
The notice read as follows:
MARK 4 SUITS ( 54 FRONTS CUT BACKWARDS) FABRIC TOTAL LOSS. 2ND
WARNING. AUTOMATIC TERMINATION.
28 Schnurr 's version of this conversation was slightly different, but since I regard
McClung as reliable, I credit his testimony reported above . Schnurr's version , which I do
not credit where it differs from McClung's , was that he told McClung , "I am forced to
give you a second warning notice and this notice here will automatically terminate you."
McClung then asked, "Don ' t other people make mistakes ?" Schnurr replied , "Yes, they
-do." Then McClung said , "I thought you were allowed three warning notices," and
Schnurr said , "No, two warning notices and you are terminated automatically."
RUBBER FABRICATORS, INC. 77
The Respondent's testimony in respect to its policy regarding automatic termina-
tion after a certain number of warning notices was inconsistent and vague. Vice
President Zannoni denied that the Respondent had any rule that an employee was to
be automatically terminated after a "certain number of written [warning] notices."
However, Schnurr testified that he instituted the rule, that an employee would be
automatically terminated upon receipt of his second warning notice, at or about
the time when he first took over management of the Richwood plant (September
1961). Schnurr further testified that the rule was flexible, and that if the offense
was sufficiently serious, the employee would be discharged "right then," and without
any warning. Schnurr admitted that he did not publicize the rule to employees.
Moreover, Respondent adduced no testimony that any supervisor publicized the rule
at the time it was allegedly instituted. Indeed, Mossor, the only supervisor who
testified regarding publication of the rule to employees at any time, testified that he
notified the employees in the cutting department of the rule, in March 1962, ap-
proximately 6 months after the rule was allegedly instituted. In view of my general
lack of regard for Mossor's veracity, his failure to offer an explanation why such an
important rule, if promulgated, was not publicized to employees promptly, and his
like failure to explain why such alleged publication was limited to the employees
in the cutting department, the smallest segment of his supervisory responsibility, I
do not believe Mossor's testimony in this regard. Significantly, no employee was
called by Respondent to corroborate Schnurr's testimony regarding the existence of a
rule that discharge would be "automatic" upon receipt of a second warning notice.
On the foregoing record, it is fairly obvious that Respondent had a rule regarding
automatic termination of employees after a certain number of warning notices, but
that rule antedated Schnurr's accession to management of the Richwood plant, and
required dismissal not on the second, but on the third offense after two warning
notices. I base this conclusion on Mrs. McCoy's uncontradicted testimony that
she was advised of such a rule by King, Schnurr's predecessor, upon McClung's
credited testimony that he was advised of such a rule by Mossor early in 1961, and
on the printed form used by Respondent which provided space for two warning
notices.29 For all the foregoing reasons, I do not credit either Schnurr's testimony
that he instituted the rule regarding automatic termination of employees, or that
the rule was that employees would be terminated concurrently with a second warn-
ing notice. In the light of the foregoing it becomes apparent that McClung's
dismissal was not automatically required by any rule of Respondent.
Unquestionably, the Act does not prohibit an employer from discharging an
employee without prior warning or for any reason other than to discourage union
membership or activities. However, since Respondent had no existing policy
requiring McClung's "automatic" termination, the assertion of that baseless reason
for his dismissal suggests that it was utilized as a pretext to conceal the true reason
for McClung's ouster. That inference is also suggested both by the record of
McClung's long history of satisfactory employment by Respondent, and by the nature
of the incidents for which he was fired.
Respondent's Richwood plant was established in July 1959. McClung started to
work there in August 1960. In 1961, when Respondent received its contract for the
15-man life rafts, only 30 employees worked at Richwood. Later the labor force ex-
panded to about 200. Thus, McClung was among the oldest in seniority of Re-
spondent's employees. During his 2 years of employment, McClung received suc-
,cessive raises which brought his initial rate of pay of $1 per hour to $1.35. General
Manager Schnurr regarded McClung as the most capable in the cutting department
which consisted of four employees30 In March 1962 he offered McClung promotion
to supervisor of the department. Schnurr knew that the first cutting error for which
McClung received a warning notice was one which might have been committed by
James Ross. Quite apparently, it could not have been regarded as very serious,31
"0 Webster's New Collegiate Dictionary (2d ed.) defines the word "warning" as follows:
"implies a timely notification that makes avoidance of any situation possible." Obviously,
if the situation to be avoided, in this case discharge, befalls concurrently with the notice,
there is no "warning." A fortiori, the provision in the form for two warning notices pre-
supposes that discharge will not occur until a third offense.
30 According to Schnurr, this was the reason why McClung was the last of the cutters
to be laid off in April 1962.
01 Schnurr originally testified that the total cost of the error to Respondent was about
$55 for material and $10 for labor. However, he admitted on crass-examination that the
defective sleeves were later cut into smaller pieces and used . Since his original estimate
of the cost of this error made no allowance for the material thus saved, it is obviously an
Exaggerated figure.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
even if committed by McClung, since it did not deter Schnurr from concurrently of-
fering to promote McClung to the position of supervisor. The second error,
admittedly made by McClung, involved the fronts of the Mark IV suits, and occurred
just before the completion of Respondent's contract for that product. The material
used for these suits was especially coated pursuant to specifications for the par-
ticular contract, so that the material is porous when dry, but seals and becomes
water proof when wet. McClung was able to cut all the suits required to complete
Respondent's contract, including replacements for the defective fronts, from the
material on hand 32 Consequently, Respondent was not required to purchase any
additional material as a result of McClung's error.33 Significantly, although the error
was discovered by Respondent's supervisor on June 25, the day it was made, McClung
was not discharged until June 28, after he completed cutting the balance of the con-
tract. Accordingly, the inference is inescapable that McClung's single error 34 was
not of such gravity that Respondent was unwilling to entrust him with further
cutting responsibility. Moreover, Respondent did not fire McClung because of the
gravity of this error, but only because such termination allegedly was required auto-
matically pursuant to Respondent's rules. For all the foregoing reasons, I am
persuaded and conclude that the assertion of the nonexistent two-notice policy for
his "automatic" discharge was a pretext used by Respondent to conceal the real
reason for McClung 's dismissal.
In the light of the pretextual reason asserted, the real motive for McClung's
summary discharge is not difficult to perceive. As found above, Respondent first
attempted to eliminate McClung's activities on behalf of the Union by offering
him promotion to supervisory status on March 16. When this failed because McClung
refused the proffered promotion, Respondent then apparently decided to rid itself
of McClung's advocacy of the Union by dispensing with his services. It did so on
April 3, when it falsely told McClung that he was laid off because of the completion
of the life raft contract. As disclosed by the notice of his termination, McClung's
initial discriminatory layoff was intended to be "permanent." However, after the
Union's defeat at the election on April 26, Respondent undoubtedly believed that it
was now safe to reemploy McClung, and, since he was its most capable cutter,.
recalled him to work on May 17, at the same time admonishing him not to engage
in further union campaigning or speechmaking. The situation changed, however,
on May 21, when the Union filed a charge alleging, inter alia, that McClung's layoff
was discriminatory and a violation of the Act. Moreover, McClung apparently
did not desist from speechmaking, for on May 28, he was admonished in writing for
"spending too much time talking." 35 Thus, the Respondent found that it was not yet
wholly free of the threat of organization by the Union, and apparently again decided
to permanently rid itself of McClung at the first opportunity which could not be
ascribed to his unoin advocacy. That opportunity first occurred on June 25, when
McClung committed the error in cutting. Even then, Respondent did not act im-
mediately but waited until he had completed cutting the balance of the fabric for
the Mark IV suit, and then ascribed his discharge to an "automatic" discharge
policy, which I have found above, would not have required McClung 's dismissal
unless he committed another error or offense after his second warning. I am,
therefore, convinced and find that Respondent's true reason for McClung's dismissal
was his union activity and Respondent's hostility thereto. Accordingly, I conclude
that by discharging McClung on June 28 because of his activities on behalf of the
12 Schnurr testified that the cost of the-error to Respondent was about $125 for the mate-
rial which was spoiled, plus another $125 for the material used to recut the fronts, plus
$20 to $25 for the extra labor in recutting them. When his attention was directed to the
fact that he was counting the cost of the spoiled material twice, he revised his estimate
of the loss, eliminated one of the $125 items, and finally testified that the loss was $145
to $150. In the light of his attempted inflation of this loss, I do not place much reliance
on his final estimate , even as reduced.
34 Unless used for making additional like suits for the Government, the specially coated
material used to make the Mark IV suits was not readily adaptable to commercial use.
Schnurr testified that if the fronts had not been spoiled, he could have made about 12 addi-
tional suits and asked permission of the contracting officer to make an over shipment. In
view of my general lack of regard for the reliability of Schnurr's testimony, and his
exaggerations in respect to the extent of Respondent 's loss as a result of the two errors,
I do not place much credence in this testimony. However, even if true, the acceptance of
such an overshipment is purely speculative.
34 Schnurr admitted that as far as he knew, the only error made by McClung was the
one for which he issued the second "warning" notice.
35 Respondent 's Exhibit No. 10.
RUBBER FABRICATORS, INC. 79
Union, Respondent discriminated in regard to tenure of employment and discouraged
membership in the Union, and thereby engaged in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
D. The alleged discriminatory layoff and failure to recall lames Ross
Ross was hired by Respondent on September 17, 1961. He worked for 2 weeks
in the inspection department, and then was transferred to the cutting department as
a clicker operator.36 In the latter part of October 1961, after solicitation by
McClung, Ross signed a union authorization card. Thereafter, he attended six or
seven union meetings held at the home of McClung's mother.
On March 30, 1962, Ross was laid off by General Manager Schnurr, and told
that "the contract had ended" and that Respondent had no more work for him.
Schnurr also told Ross that he would be recalled in 3 or 4 weeks. Concurrently,
Ross received a termination notice from Respondent which stated that he was eligible
for rehire as a clicker operator, that his training was "good," and his "termination
[was] due to completion of [the] 15 man raft contract."
After his layoff, Ross assisted McClung and Union Representative Misock in
distributing union handbills to employees at the plant gate. While so engaged,
several of Respondent's supervisors, including Douglas Mullins, supervisor of the
repair department, came out of the plant and obtained copies of the handbill.
Mullins told Ross that he had been asked to secure a copy by General Manager
Schnurr. Thereafter, although all the other laid-off employees in the cutting de-
partment were subsequently called back to work, Ross was never recalled. Some
of those who were reinstated had less seniority than Ross.
General Manager Schnurr testified that the reason Ross was laid off and never
recalled was that he had performed all the clicking operations necessary for the
completion of the Mark V rafts, and that Respondent thereafter had no need for
the full-time services of a clicker operator. Schnurr also testified that all the
clicking operations which Respondent required thereafter, were performed by other
employees in the cutting department whenever they had a free hour or two, and
he further testified that Respondent never replaced Ross with another full-time
clicker operator.
The complaint alleges that Ross' layoff and the failure to recall him were motivated
by antiunion considerations. I conclude, although not without some doubts, that
the evidence is insufficient to sustain this allegation. This conclusion is based on
the following considerations.
As found above, at about the time of Ross' layoff Respondent was faced with
a shortage of material for the Mark V rafts, and a layoff of some employees was
required in the interests of good business management. Respondent laid off not
only Ross, but all of the other employees in the cutting department, and later, of
other departments. There is no evidence that before his layoff, Ross did any more
than sign a card and attend union meetings. Thus, his status in the Union was no
different than that of many other employees who also signed union cards, attended
union meetings, were laid off, and whose termination is not alleged to have been
discriminatorily motivated. Moreover, there is no evidence that any employee
was utilized after the layoff in full-time clicking operations 37 Under the foregoing
circumstances, although I am persuaded that Respondent had knowledge of Ross'
interest in the Union before his layoff,38 I conclude that there is not sufficient
evidence that Ross was laid off because of his union membership or activities.
. We come then to the question of whether Respondent's failure to recall Ross
was discriminatorily motivated as alleged in the complaint. There can be no
doubt that after his layoff, when Ross distributed union handbills at the plant en-
trance, Respondent knew that he was a supporter of the Union. The General
Counsel suggests that the recall of all the other cutting department employees, in-
cluding some with lesser seniority, requires the inference, in the light of Respondent's
hostility to the Union, that the failure to reinstate Ross was motivated by antiunion
30 A clicker is a small machine which , by means of a die, cuts small pieces of fabric of
predetermined design.
37 There was , however , undenied testimony by employee Shirley Truman that some click-
ing work on rafts was performed after the layoff. Accordingly, Schnurr's testimony that
Ross had clicked a sufficient number of pieces to complete the raft contract cannot be
credited.
18 There was no direct evidence of such knowledge. I base this conclusion on Schnurr's
interrogation regarding the identity of union adherents , Mossor's surveillance of at least
one union meeting, and the small size of both Respondent's plant and the town of Richwood.
8O DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations. Although at first blush, this argument appears persuasive, the record
does not support the suggested inference. Ross was the only full-time clicker
operator. The other employees in the cutting department performed other opera-
tions. In view of the fact that the recalled employees performed different work
than Ross, and in the absence of any evidence that any reinstated employee was
put to work full time in Ross' job, or that a replacement for him was hired, I regard
the record insufficient to conclude that the failure to recall Ross was discriminatorily
motivated.39
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,.
I will recommend that it cease and desist therefrom and take certain affirmative:
action designed to effectuate the policies of the Act.
Having found that the Respondent first discriminatorily laid off, subsequently
reinstated Earl Gerald McClung, and later discriminatorily discharged and refused
to reinstate him, I will recommend that the Respondent be ordered to offer him im-
mediate and full reinstatement to his former or substantially equivalent position,
and make him whole for any loss of earnings he may have suffered because of the
discriminations against him by the payment of a sum of money equal to the amount
he normally would have earned as wages from the dates of the discriminations against
him to the dates of the offers of reinstatement, less his net earnings during said
period, with backpay computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294.40
I shall also recommend that the Respondent make available to the Board upon
request, payroll and all other records necessary to facilitate the determination of
the amounts due under this recommended remedy.
In view of the nature and extent of the unfair labor practices committed, and
because discriminatory layoffs and discharges go to the very heart of the Act,41
the commission of other unfair labor practices reasonably may be anticipated. I
shall therefore recommend that the Respondent be ordered to cease and desist from
"in. any other manner" infringing upon rights guaranteed to employees by Section 7
of the Act, in addition to those rights found to have been violated herein.
In view of the absence of sufficient evidence that Respondent's layoff of and failure
to recall James Ross was motivated by antiunion considerations, I shall recommend
the dismissal of those allegations of the complaint which charge that Respondent
thereby engaged in unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of Section 2(5) of the Act.
2. By discouraging membership in a labor organization through discrimination in
employment , and by interfering with, restraining , and coercing employees in the
exercise of their rights under the Act, the Respondent has engaged in and is engag-
ing in unfair labor practices affecting commerce within the meaning of Section
8(a) (3) and ( 1) and Section 2(6) and (7) of the Act.
3. The General Counsel has failed to establish by a preponderance of the evidence
in the record that the Respondent 's layoff of and failure to recall James Ross was
motivated by antiunion considerations.
39 In so concluding, I have given consideration to the fact that the reason given for Ross'
layoff (completion of the Mark V contract) was not correct, and thus, possibly pretextual.
However, I regard the fact that Ross was never replaced by a full-time clicker operator
as conclusive that the layoff and failure to recall Ross was economically justified and
motivated.
40 Backpay shall include the payment of interest at the rate of 6 percent per annum to
be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
11 N.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532, 536 (C.A. 4).
RUBBER FABRICATORS, INC. 81
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, I recommend that the Respondent, Rubber Fabricators,.
Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, and activities on behalf of, United Rubber,
Cork, Linoleum and Plastic Workers of America, AFL-CIO, or any other labor
organization of its employees, by laying off, discharging or refusing to reinstate any
employee, or in any other manner discriminating in regard to hire or tenure of
employment, or any term or condition of employment.
(b) Threatening employees with shutting down the plant or with other economic
sanctions, or offering employees promotion or other economic benefits, to discourage
union affiliation or adherence.
(c) Engaging in surveillance of union meetings or activities.
(d) Prohibiting or restricting employees from talking about unions or from
engaging in union activities in the plant during nonworking hours.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of their right to self-organization, to form labor organizations, to join
or assist United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,.
or any other labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain from engaging.
in such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act.
(a) Offer to Earl Gerald McClung immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority or other rights
and privileges, and make him whole for any loss of earnings he may have suffered
as a result of the discrimination against him, as provided in "The Remedy" section
of the Intermediate Report.
(b) Preserve and, upon request, make available to the Board or its agents, all
payroll and other records, as set forth in "The Remedy" section of the Intermediate
Report.
(c) Post at its plant at Richwood, West Virginia, copies of the attached notice
marked "Appendix A." 42 Copies of said notice, to be furnished by the Regional
Director for the Ninth Region, shall, after being duly signed by a representative of
the Respondent, be posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Ninth Region, in writing, within 20 days.
from the date of the receipt of this Intermediate Report and Recommended Order,
what steps it has taken to comply herewith.43
I further recommend the dismissal of the complaint insofar as it alleges that by
laying off and failing to recall James Ross, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
+2 In the event that this Recommended Order he adopted by the Board; the words "A
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "A Decree of the United States.
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision,
and Order."
43 In the event that this Recommended Order .be adopted by the Board; this provision
shall be modified to read: "Notify said Regional Director, in writing, within YO days from
the date 'of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in or activities on behalf of United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, or any
82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization , by laying off, discharging or refusing to reinstate
any of our employees or in any other manner discriminating against our em-
ployees in regard to their hire or tenure of employment, or any term or condi-
tion of employment.
WE WILL NOT threaten our employees with shutting down our plant or
with other economic sanctions , nor will we offer our employees promotion or
other economic benefits, to discourage their union affiliation or adherence.
WE WILL NOT engage in surveillance of union meetings or activities.
WE WILL NOT prohibit or restrict our employees from talking about unions
or from engaging in union activities in our plant during nonworking hours.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization , to form labor
organizations , to join or assist United Rubber, Cork, Linoleum and Plastic
Workers of America , AFL-CIO, or any other labor organization , to bargain
collectively through representatives of their own choosing , and to engage in
other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , and to refrain from any or all such activities.
WE WILL offer to Earl Gerald McClung immediate and full reinstatement
to his former or substantially equivalent position , without prejudice to any
seniority or other rights and privileges previously enjoyed, and make him
whole for any loss of pay suffered as a result of the discriminations against him.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of United Rubber, Cork, Linoleum and Plastic Workers of
America, AFL-CIO, or any other labor organization.
RUBBER FABRICATORS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NoTE.-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Transit
Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone No. Dunbar
1-1420, if they have any questions concerning this notice or compliance with its
provisions.
International Ladies Garment Workers ' Union, AFL-CIO and
Federation of Union Representatives . Cases Nos. 2-CA-7857-1
and 2-CA-7923. April 18, 1963
DECISION AND ORDER
On August 10, 1962, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and had not engaged in others, and recommending
that it cease and desist from the unfair labor practices found, and
take certain affirmative action, as set forth in the attached Intermediate
Report. Thereafter, the General Counsel, the Respondent, and the
Charging Party filed exceptions to the Intermediate Report together
with supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
142 NLRB No. 10.