The Rose Co.

National Labor Relations Board - Board Decisions

Aug 4, 1965

154 N.L.R.B. 228 (N.L.R.B. 1965)

228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The revised recommendation of backpay by quarters and by total for Johnson is:
1960-1st Quarter------------------------------------------- $30 98
2d Quarter------------------------------------------- 0.00
3d Quarter------------------------------------------- 0.00
4th Quarter------------------------------------------- 76.43
1961-1st Quarter------------------------------------------- 425.89
2d Quarter------------------------------------------- 75.76
3d Quarter------------------------------------------- 333.73
4th Quarter------------------------------------------- 0.00
942. 79
I have reviewed the evidence of Ronald Bell's efforts to obtain employment during
the backpay period, including the testimony he gave on February 10, 1965, as well as
the evidence dealing with jobs available in the plants of Theon, Miradel, Nestle
LeMur, and Helen Neuschaefer, and I am satisfied that he is entitled to the backpay
recommended on page 218 of my Supplemental Report of August 15, 1963. I am
also satisfied from a review of all the evidence that discrimmatees Robert Bell,
Freddie Allen, and Gerald Mussenden are also entitled to the backpay I recommended
for them on page 218 of my August 15, 1963, Supplemental Report.
RECOMMENDED ORDER
Upon all of the foregoing findings, I find and conclude that discriminatees Ronald
Bell, Robert Bell, Freddie Allen, James Johnson, and Gerald Mussenden are entitled
to backpay payments in the amounts listed below:
Ronald Bell------------------------------------------- $1,766.80
Robert Bell------------------------------------------- 356 78
Freddie Allen----------------------------------------- 807.49
James Johnson---------------------------------------- 942.79
Gerald Mussenden------------------------------------- 45.55
223,919.41
I recommend that the Board adopt the foregoing findings and conclusions, and
order Respondent to pay to the discriminatees the amounts recommended.
22 Since it is Respondent's wrongdoing, which, under the circumstances, has made it
"impossible to do more than approximate the conditions which would have prevailed"
(F TV Woolworth Company v N L R B , 121 F 2d 658, 663 (C A 2) ), Respondent Cannot
complain because the amount of backpay cannot be measured with precision. It is its
wrongdoing that has given rise to the involved state of facts in this proceeding See
Story Parchment Co. v Patterson Parchment Paper Co , 282 U.S. 555, 563, N.L R.B. v
Kartarik, Inc, 227 F. 2d 190, 129-193 (CA. 8), and Eagle-Picher Mining and Smelting
Company v. N.L.R.B., 119 F 2d 903, 914 (C A. 8).
The Rose Company and International Union , United Automobile,
Aerospace and Agricultural Implement Workers of America,
AFL-CIO. Cases Nos. 30-CA-19 (formerly 13-C-4-5728) and
30-CA-41 (formerly 1.3-CA-6234). August 4, 1965
DECISION AND ORDER
On April 28, 1965, Trial Examiner Stanley N. Ohlbaum issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
154 NLRB No. 19.
THE ROSE COMPANY 229
sion. He also found that the Respondent had not engaged in certain
other unfair labor practices alleged in the complaint and recommended
that such allegations be dismissed. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this case to a three-member panel [Members Fannings, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the brief, and the entire rec-
ord in the case and hereby adopts the findings,' conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner , as modified
herein, and orders that the Respondent , The Rose Company , Milwau-
kee, Wisconsin , its officers, agents , successors , and assigns , shall take
the action set forth in the Trial Examiner's Recommended Order, as
so modified :
Amend the "Note" immediately below the signature line at the bot-
tom of Appendix B attached to the Trial Examiner's Decision so that
the date of the Selective Service Act and the Universal Military Train-
ing and Service Act appears as 1048 rather than 1949.
1 The Trial Examiner found that both the notice of July 8, 1963, and the notice which
he concluded was posted in early 1964, were invalidly broad no-solicitation, no-distribution
rules. We agree with the finding that the July 1963 notice was invalidly broad on its
face because it prohibited union solicitation even on employees' nonworking time and
barred the distribution of union literature in nonworking areas during nonworking time,
and Respondent advanced no special circumstances making the rule necessary to main-
tain production or discipline. While we find, contrary to the Trial Examiner, that the
notice posted in early 1964 was valid on its face, inasmuch as it only precluded solicita-
tion and distribution "in company work areas while men are working," we agree with him
that the said notice was discriminatorily applied to preclude union solicitation during non-
working time. In this connection, we note that the solicitation of signatures on union
cards does not constitute "distribution of literature." See Stoddard-Quirk Manufactur-
ing Co., 138 NLRB 615, 620-621. We further find, in conformance with the Trial
Examiner's Decision, that Respondent applied no rule against solicitation prior to July 8,
1963, and that it invoked its no-solicitation, no-distribution rules only against union
adherents. By all the above conduct, Respondent violated the Act Whitfield Pickle
Company, 151 NLRB 430, footnote 1; The Wm. H. Block Company, 150 NLRB 341;
Aluminum Extrusions, Inc., 14'8 NLRB 1662, footnote 2; Harold Miller, Herbert Charles
and Milton Charles, Co-Partners, d/b/a Miller Charles and Company, 148 NLRB 1579,
enfd 341 F. 2d 870 (C A. 2).
The Trial Examiner found, inter ilia, that Bond's union sympathy, membership, and
activities were the cause of his suspension and later discharge, and that the union syur
path es and/or activities of Oresnik and Fetzer were the substantial causative factors for
the various personnel actions taken with regard to them. The record reveals, and we find,
that their union sympathy, membership, and/or activity was the motivating factor for
Respondent's actions with regard to the employment status of all three
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These consolidated cases, heard by Trial Examiner Stanley N. Ohlbaum in Mil-
waukee, Wisconsin, on August 10 through 14 and September 21 through 28, 1964,
with all parties participating throughout by counsel, involve alleged violations of Sec-
tion 8(a) (1), (3), and (4) of the National Labor Relations Act, as amended, herein
called the Act.'
Upon the entire record,2 briefs received from counsel in December following the
hearing, and my observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT; THE LABOR ORGANIZATION INVOLVED
During the representative year immediately preceding issuance of the complaint,
The Rose Company, herein called the Respondent, a Wisconsin corporation, engaged
in fabrication of steel products in Milwaukee, where it has its principal plant and
office, fabricated and shipped from that plant directly in interstate commerce to other
States, steel products valued in excess of $50,000. I find that at all material times
Respondent has been and is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
The Charging Party, herein called Union, is a labor organization within the mean-
ing of Section 2(5) of the Act.
I find that assertion of jurisdiction in this case is proper.
II. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint3 alleges that, in violation of Section 8(a)(1), (3), and (4),
Respondent interfered with, restrained, and coerced its employees in their exercise
of rights guaranteed by Section 7 of the Act, through confiscation and intimidatory
display of a union "petition" of its employees; discriminatory discharges and other
adverse personnel actions against certain employees for union affiliation, activities,
and testimony before the Board; threats of discharge or economic loss for union
affiliation or activity, or if the Union won a representative election; promises and
granting of wage increases to refrain from union support or other concerted activity;
surveillance of employees' union activities; vilification of an employee, in the presence
of other employees, for union activities, prohibition of union solicitation on its
premises; and threatening not to negotiate in good faith with the Union if it won a
Board-conducted representation election. Respondent denied all charges.
Respondent operates a factory which fabricates large steel products, principally
buckets or scoops utilized in ground-breaking or earth-moving construction equip-
ment such as mechanical shovels and front-end loaders. These products are fabri-
cated by cutting and welding large pieces of steel. During the period here material,
Respondent's work force has ranged from around 130 or 140 to 170, consisting
'Chronology and related proceedings:
Case No. 30-CA-19 (formerly 13-CA-5728):
Charge and first and second amended charges filed July 11 and November 7 and 29,
1963, respectively.
Complaint issued and consolidated with Case No 30-RC-10 (formerly 13-RC-9584, in
which Union representation petition had been filed July 30, 1963) September 13, 1963
Amended complaint issued November 11, 1963
Order consolidating case for hearing with Union objections to October 8, 1903, elec-
tion issued November 27, 1963.
Order approving informal settlement agreement, withdrawing amended complaint, and
severing Union objections to October 8, 1963, election (Case No. 30-RC-10) for hearing
before Hearing Officer issued January 8, 1964
Order sustaining certain Union objections to October 8, 1963, election, setting election
aside , and ordering new election issued November 10, 1964.
Order certifying Union as exclusive bargaining representative of employees in appro-
priate unit issued January 6, 1965.
Case No. 30-CA-41 (formerly 13-CA-6234):
Charge and first and second amended charges filed February 19, March 3, and April 7,
1964, respectively.
Order of consolidation and consolidated complaint issued July 2, 1964
2 As corrected by my order dated March 29, 1965.
8 As amended at the hearing
THE ROSE COMPANY 231
principally of welders, with a large turnover 4 because of such factors as welder
scarcity, failure to compete with area wage scales, and the fact that numerous
employees are merely in temporary layoff status awaiting recall to other employment.
A. Employer's action with regard to employees' union "petition"
After preliminary discussion with other rank-and-file employees of Respondent,
Lyle Bond, one of its welders or "setup welders," 5 prepared a "petition" or statement
of desire to unionize, in a notebook,6 for signature by sympathizing employees. It
states: "It is resolved, that we desire Union representation at The Rose Steel Fabra-
eating [sic] Company, 7044 N Teutonia Ave. Milwaukee, Wisconsin." Bond signed
it first and on his way to work on July 3, 1963, secured several other signatures.
Shortly before the beginning of his 4 p.m. shift, i.e., the second or night shift, that
day, Bond showed the petition to Edward Oresnik, a second-shift drill press operator
who had previously expressed the opinion that the plant "really needed a union."
Oresnik indicated it was "a great idea" and that he could obtain signatures. Bond
therefore gave him the petition, at the same time warning him to "be careful with
the book because I don't want the company to find out what guys have signed the
book because it will probably get them in trouble." According to Oresnik, about 10
minutes before Oresnik's 4 p.m. shift started and after fellow employee Wally
Herzog's shift had ended-but according to Respondent's Second-Shift Foreman
Donny Schultz, after the second-shift starting time and before quitting time for first-
shift "overtime" employees-while the petition was in Herzog's hands, Schultz came
over and, asking whether he had "dirty pictures" there. took the petition out of
Herzog's hands,7 looked at it, and asked Herzog where he had obtained it. When
he was told that Oresnik gave it to him, he asked Oresnik where he had obtained it.
Oresnik said it was "around" and was otherwise noncommittal to Schultz' further
questioning. Retaining the petition in his possession, Schultz directed Oresnik to
accompany him to the office, where he showed it to Plant Superintendent Tony "Pate"
(Anthony Petushek), who also asked Oresnik where he had obtained it. Oresnik
reiterated that it was "around" and asked to have it back. Pate again asked him
where he had obtained it. Oresnik said it was his and that he wanted it back. Pate
told him it would be returned to him at 12:30 a.m. when he quit work. Pate and
Schultz then went into the office with the petition and Oresnik returned to work,
shortly after 4 p.m 8
Approximately half or three-quarters of an hour after the petition was taken from
Herzog by Schultz, Oresnik observed Plant Superintendent Pate walking down the
plant aisle with the petition book "grasped in his hand .... shaking it up and down
at the workers," in the manner of a fan, shoulder-high. Denying that he ever walked
through the plant with the union petition in his hand, Pate testified that "I never had
the book in my possession in the plant at all" and also that "I never got out of the
office that particular night that the book incident happened." Even in the case of
an otherwise credible witness, I would have difficulty in believing that a plant super-
4 For example, Respondent's records show that in the 11-month period of October 1963
to September 1964, 239 new employees were hired (General Counsel's Exhibit No 19 )
6 "Setup welding," as distinguished from ordinary welding or "production welding,"
in the usage adopted by various witnesses, consists of merely "tacking" or "tack welding"
metal pieces so that they hold together preparatory to their heavy or final welding.
6 General Counsel's Exhibit No. 2
7 With regard to the union petition, Schultz himself testified, "I took it away from
them " He testified much later that Herzog "nonchalantly offered" it to him. I cannot
credit the revised version, but I do credit his original version, particularly since Re-
spondent's vice president in charge of all plant operations, Donald F Rose, testified
that Schultz stated when he brought the petition to him that it "was taken" from Oresnik
or Herzog, from whom he had "grabbed it away." Earle Rose, Jr., Respondent's presi-
dent, also testified a number of times that Schultz said he "took" it from the employee,
although, to be sure, he later unconvincingly attempted to water this down by stating
that Schultz said the employee "sort of gave it" to him
8 The foregoing is based upon the composite credited testimony of Bond, Oresnik,
Schultz, and Pate, which are in these aspects in essential substance reasonably consistent,
except as to the precise time when Schultz took the petition away from Herzog. Herzog
was not produced as a witness by Respondent, nor was any business record or entry pro-
duced to establish that he was a part-time employee performing overtime work on the
occasion in question. Furthermore, I found (as will be discussed) that Schultz testified
inaccurately in material respects, whereas Oresnik was a highly credible witness.
Variance, including the foregoing, between the versions of the various witnesses, is ac-
cordingly resolved as indicated in the composite version set forth above
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intendent with Pate's full-scale operational responsibilities would not leave his office,
or that after a lapse of over a year he could remember so accurately that he did not.
In this case, however, Pate's testimony was studded with errors, contradictions, and
inconsistencies (some of which will be discussed in another connection) 9 indicative
of testimonial unreliability, whereas Oresnik was an impressive witness who acquitted
himself well even on rigorous cross-examination. For those reasons, I credit Oresnik's
description of the manner in which Pate walked through the plant displaying the union
petition to the employees.
Around 6:45 p.m., Bond saw Schultz walking down the plant aisle swinging the
union petition book back and forth by its front cover with its pages flapping, until
he came to a halt at Bond's work station, where he said to Bond, "Are you making
any good ones [buckets] " When Bond answered that he always did, Schultz
remarked, "Well, you better," and proceeded to the work station of Miller (another
signatory to the petition), with whom he also entered into a conversation. Admitting
the foregoing exchange of remarks with Bond, Schultz linked it to the time, consider-
ably later in the evening, when he returned the petition to Oresnik Asked by
Respondent's counsel to describe how he was carrying the composition book petition
as he walked through the plant, Schultz answered, "I think by the cover along my side
in a natural gait as I walked," at which counsel for General Counsel without contra-
diction accurately described Schultz' accompany action on the witness stand thus:
"Let the record show that as the witness [Schultz] made the answer he held it [com-
position book petition] with one edge of the cover while the opposite cover was
hanging down at length from the book." In view of the foregoing, as well as because
of contradictions and inconsistencies in Schultz' testimony,10 I credit Bond's descrip-
tion of the manner in and circumstances under which Schultz displayed the union
petition as he walked through the plant.
During that evening, according to Schultz, Oresnik asked him in the shop if he
could have the union petition book back, and Schultz told him, "I [do] not know, I
will talk to Mr. Pate and see." 11 According to Oresnik, the union petition was
returned to him by Schultz around 8 30, and according to Schultz as late as after 10,
after first testifying he had returned it to Oresnik around 9 o'clock that evening. In
returning it, Schultz told Oresnik "Put it away .... I don't care how many names
the guys are getting, but I don't want to see it around the shop anymore." 12
Managerial and supervisory personnel of Respondent 13 testified to what transpired
among themselves after Foreman Schultz took the union petition out of Herzog's
hands on duly 3 and prior to its return to Oresnik. Pate and Schultz took the petition
to Vice President Donald Rose, who at once alerted his brother, President Earle
Rose, Jr., to what was going on. Donald Rose testified that Schultz said that-
This [petition book] was taken-I think either from Oresnik or Wally Herzog,
that he walked up to them, and they were talking there. And Donny Schultz
walked up and says, "What you got, dirty stories?" And he grabbed it away,
and said, "I want to see it, too." And naturally, as he opened up the book, he
viewed it, and he found out there was a bunch of names on there.
There is every indication and reason to believe from the record that this was for prac-
tical purposes the first budding of any contemporaneous union activity at the plant,
and of Respondent's learning thereof. As Donald Rose testified:
Naturally, we were all concerned about it .... What was said? What should
we do about it. How can we combat this thing? What should we dog So we
decided to call Abe Chudnow 14 or call a lawyer in. This is what we did ....
the ["petition"] book was kept in the office .... I think Tony Pate kept it ....
0 Among other things, Pate testified that the union petition in question was brought to
him by Schultz "in April . 1963" and that the_ ensuing management conference with
counsel, precipitated thereby, occurred on "approximately the 5th of June, of 1963"
10 Including that already described in footnote 7, supra, and those mentioned below
(e g., footnote 11, infra) in other connections.
11 In his later testimony, Schultz changed this to testify that "while I made my rounds
through the machine shop . . . he [Oresnik] asked me throughout the evening three or
four times if he could have the book back" and that "I told him he could have it back
at quitting time" ; i e, 12 30 a in.
11 Schultz testified he could not "remember" saying this, but that he told Oresnik, "I
don't want to see anymore of this on company time." For reasons already mentioned,
involving comparisons of the observed demeanor and consistency in the testimonial per-
formance of these two witnesses, I credit Oresnik's version.
13 Earle and Donald Rose, Pate, and Schultz.
14 At that time counsel for the Company. Chudnow did not testify herein ; nor did
Donald Musial or Kollentz, who were also called in.
THE ROSE COMPANY 233
Well, we heard this-we heard about unions, and so forth; and we seen this book
with names, and we were frightened. We didn't know what to do . . . we dis-
cussed what we could do .... Could we fire the man? Should we allow him
on our premises? . . . that's why we called .... our attorney [Chudnow] at
this time.
Earle Rose, accordingly, immediately summoned to the plant Company Attorney
Chudnow, as well as Donald Musial, Sr., at that time production manager. Accord-
ing to Donald Rose, no decisions were made before Chudnow's arrival. The con-
ference with Chudnow was attended by Respondent's entire top managerial-
supervisory hierarchy; namely, both Roses, Musial, Kollentz (in charge of the office,
accounting, and general administration), Pate, and Schultz. Donald Rose testified
that Earle Rose showed Chudnow the union petition book and that Chudnow was
told:
What happened and the reason why we called him, because we didn't know
what to do-what could we do about this. I think that was mostly the discussion
I think it was Mr. Earle Rose that said to Mr. Chudnow about how this
book was taken from-I think it was taken from Wally Herzog if I remember
right .... The subject of that was Donny Schultz took this book fi om a gentle-
man, we figured it was the Union trying to organize, and what can we do about
this. And I think Mr. Chudnow's reply was, "Give the book back."
According to both Roses, questions were also raised as to whether the drill press
operator, Oresnik, who had give the "book" to Herzog (and who had declined to
disclose to Schultz and Pate where he had obtained it), could be discharged for other
reasons, which are separately discussed hereinbelow To the questions put to him,
Chudnow responded, according to Earle Rose, "to give the book back to the man"
since he "has a perfect right to have that book," and that if he "does not do his job
when he comes in Friday [July 5], you have no alternative but to let him go." Pate
added that Chudnow advised against firing Oresnik (then and there) "because it
would have been poor timing ...." All this occurred on Wednesday evening, July 3,
the day before the July 4 holiday. On Monday, July 8, Oresnik was discharged,
under circumstances to be shown.
What also emerged from the July 3 evening conference with Chudnow was a notice
drafted by Chudnow, broadly forbidding solicitation and distribution.15 There is no
doubt that this notice was actually posted on the Company bulletin board on or about
July 8, 1963, and remained there for perhaps a week or so. Nor is there any doubt
that this notice was not posted prior to July 8, 1963; 1 e., until after the described
incident of July 3. The original of this notice (for purposes of clarity, it will be
referred to as the Chudnow notice) was introduced in evidence (General Counsel's
Exhibit No. 3). Inspection thereof indicates that it appears to be the bottom portion
of a letter written by Chudnow, perhaps to Respondent after the July 3 conference,
setting forth within quotation marks a notice for posting; and that, apparently, this
portion of the letter, being at the bottom, was simply torn off the letter and posted as
is. The Chudnow notice, thus torn away at the top, states:
PLEASE TAKE NOTICE that employees shall not, on company premises and
during working hours, circulate or distribute literature, pamphlets, periodicals,
petitions, or letters
Dated this 8 day of July, 1963.
THE ROSE COMPANY
By [illegible]
Very truly yours,
A.M. Chudnow 16
15 It is quite evident, considering the date of this notice (Dlonday, July 8) in apposition
to the date and reason for the descrbed conference which preceded it (Wednesday evening,
July 3), that the notice was prepared after and as a result of the conference Pate so
testified (even though he alone insisted, patently erroneously but in keeping with recol-
lective unreliability elsewhere evident in his testimony, that this conference took place
on "approximately the 5th of June, of 1963.") Earle Rose initially denied all knowledge
of it, insisting that he never saw it until one day before the instant hearing; but he
also testified that he was not present in the room during the entire conference, but left
from time to time
16The portion from "PLEASE" through "By: [illegible]" is enclosed within double
quotes, and "8" and "July" are inserted in handwriting As has been stated, it is
evident from an inspection of the paper (General Counsel's Exhibit No. 3) that it was
torn away from something else above it, in all likelihood a letter from Chudnow, of
which it formed a part.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It was, however, contended on behalf of Respondent that at the time of the fore-
going episode , there was in effect another "no -solicitation no-distribution " rule which
had been posted on its bulletin board, dated January 3, 1963, and signed by Pate.
(For purposes of clarity, this notice will be referred to as the Pate notice, in order
to differentiate it from the Chudnow notice, which has already been described.) It
states (Respondent's Exhibit No. 2) :
NOTICE TO ALL
EMPLOYEES
January 3, 1963
SOLICITATION AND DISTRIBUTION OF ANY TYPE LITERATURE
IN COMPANY WORK AREAS WHILE MEN ARE WORKING IS NOT
ALLOWED
ACCORDINGLY IT IS SUBJECT TO SUSPENSION TO THE EMPLOYEE
DOING SO.
(S) Tony Pate
TONY PATE,
Plant Supt.
There is conflict in the evidence as to whether the Pate notice was posted at any time
prior to the July 8 Chudnow notice. If it was not , then it could not in any event have
been applicable to the described episode of July 3, under any version or interpretation
of the events of that day , if it was, then it may or may not have been applicable to
those events, depending upon such factors as whether it was reasonably publicized
and known to the employees , whether it was enforced or applied, whether it was
a legally valid rule, and whether it was violated on July 3.
The testimony of Respondent 's employees indicates that the Chudnow notice of
July 8, 1963-which was undeniably posted on or about that day, following on the
heels of the described July 3 union petition book incident-was the first such rule
posted in the plant; and that the Pate notice, notwithstanding the date of "January 3,
1963" which it bears, was not in fact posted on that date or at any time until after
the Chudnow notice of July 8, 1963, which was concededly removed from the bulletin
board shortly , perhaps a week or so , after it was posted. I believe the testimony of
Respondent 's employees to this effect and I so find , not merely because of credibility
comparisons of the witnesses testifying on each side , but also because the inherent
probabilities of the situation persuade me that it was, indeed , not otherwise. Pate-
the alleged author of what is now claimed to have been the earlier Pate notice-testi-
fied that he signed this notice on January 3, 1963, and posted it the same day,
"approximately January 3." It has already been indicated that Pate's recollection of
dates leaves much to be desired. He later testified he prepared it in December 1962,
the only reason for it being that a lot of "solicitation" was going on at the time, con-
sisting of the posting on the bulletin board of cartoons and items for sale. It may at
once be remarked that the quoted notice is hardly appropriate for that purpose, which
could readily have been served by a conventional notice on the bulletin board restrict-
ing what could be posted thereon. Pate also testified that he drafted the language of
the notice himself ("This is my language" ) and that he put it upon his own , without
discussing it with any attorney or anybody else; on later cross -examination , however,
he conceded that he "might have," and then that he "must have," discussed it in the
office. Pate swore that his first knowledge of union activity in the plant occurred in
"early" 1963 when the union petition book, which has been described , was brought
to his attention by Schultz " in April ... 1963," on which occasion he told Oresnik
that "this was against company policy in the past to do this during working hours."
It will of course be recalled that the described episode did not take place in "early"
or "April ... 1963," but in July. Moreover , Oresnik's activity , as here found, did
not occur during working hours. In character with the foregoing , Pate swore that
he saw the Chudnow notice in the company office "sometime in June, of 1963" and
that he saw it posted on the bulletin board "in June, of 1963 , early in June." This is,
again , patently inaccurate and unreliable testimony , since the conference which
resulted in the preparation of the Chudnow notice concededly took place on July 3,
1963, and Pate could not have seen the notice in the office or on the bulletin board
prior to the conference which resulted in the preparation of that notice . Further-
more , if the Pate notice was already in existence (with, as Pate testified , copies readily
available in any quantity needed through "thermofax " reproduction of the original,
which was retained in the office in the case of all bulletin board notices ) on July 3,
why was there any necessity for the preparation and posting of another such notice?
For additional reasons the probabilities of the situation appear to be in accord with
the preponderance of the credible testimony , that the Pate notice was not posted until
after the Chudnow notice had been removed; indeed, in all likelihood not before
THE ROSE COMPANY 235
early 1964. The common tendency to err in dating papers in early January of a new
year, by thoughtlessly repeating the year lust elapsed, is well known. With the
Chudnow notice removed, the burgeoning Union, the Company being antiunion, and
related Board hearing activity in January-February 1964 (involving, among other
things, an informal settlement of charges on January 6, reinstatement of dischargees
Oresnik and Fetzer to their jobs on January 13, a Board hearing on union election
objections on January 22-23 resulting on February 13 in the recommended sustaining
thereof and direction of a new election, and suspensions of employees Bond, Oresnik,
and George Fetzer in mid-February involving some more allegedly improper solici-
tation and new charges by the Union), the occasion for the posting of a new "no-
solicitation" notice is apparent. Since the Chudnow notice was then no longer posted
and the original thereof no longer available (the original thereof having been posted
and removed from the bulletin board-it is in evidence herein), another notice was
necessary. Although first denying that the Pate notice was posted in February or
March 1964, Pate modified this by testifying that "There could have been one put
up in February, of '64." Although there was thus a definite need, from Respondent's
point of view, for the posting of a new no-solicitation notice early in 1964, particu-
larly since the Chudnow notice was gone, on the other hand there was no compara-
ble-or, indeed, any credibly established-need in January 1963 or at any time before
eruption of union activity on July 3, 1963. Asked whether there was any such rule
at the plant "prior to July 8, 1963," Earle Rose himself testified, "We never had occa-
sion for it," and that he had never seen and had no knowledge of any such rule in
the plant prior to July 8, 1963. It seems unlikely that the head of a plant would be
wholly ignorant of such a rule if it had been in effect, particularly in view of his keen
sensitivity to matters of this nature, demonstrated in part by his immediate reaction
on July 3 as well as his long-range responses to aspirations of his employees to union-
ize his plant. Furthermore, the testimony of Respondent's own witnesses, including
its supervisory personnel, establishes that no rule against solicitation was applied in
the plant prior to July 8, 1963, in view of various types of solicitations regularly
carried on by employees with the knowledge and even participation of management.
The actual practice of unrestricted solicitation argues strongly against the existence
of a rule forbidding it. Moreover, it is noted that Oresnik was not discharged for
violating any no-solicitation rule, as it would seem he would have been had there
been one in effect on July 3. Finally, assuming arguendo that the Pate notice had
been posted and in effect on July 3, 1963, at any rate in its presently contended appli-
cation to the episode under discussion it would have been invalid because unduly
broad. Respondent's employees were legally free to do what they did here, namely,
to attempt to obtain signatures in their book, on their own time, as they did here,
even upon Respondent's premises.17
In view of the foregoing, I find that Respondent has failed to establish, by a pre-
ponderance of the substantial credible evidence upon the record as a whole, that there
was in effect in its plant on or prior to July 8, 1963, a no-solicitation or other rule
or requirement validly forbidding the described activity carried on there by its
employees, including Oresnik and Bond, on July 3, 1963; or that any of its employees
violated any such rule or requirement on July 3, 1963.
As has been mentioned , Oresnik, who appeared to be heavily if not primarily
implicated in circulation of the union petition book on July 3, was discharged by
Respondent on July 8 under circumstances discussed below. Bond testified that,
following Respondent's expropriation of the union petition book and its acquisition
of knowledge of the contents thereof, and the display thereof to employees through-
out the plant by Respondent's supervisors in the manner described, he (Bond) and
a coworker visited union headquarters for guidance in organizing, and received union
authorization cards to distribute to plant employees. Although he was unable to
obtain some signatures on these cards, some of the employees who had signed the
confiscated book petition, as well as other employees, refused to sign union cards
upon the ground that they "had stuck their necks out once signing the book and that
they were not going to take any more chances" in view of the Company's having
obtained possession of the book (and having thereby learned their identities).
The right of Respondent's employees to associate themselves to form or join a
union and endeavor to bargain collectively with their employer through their desig-
nated bargaining representative, or otherwise to engage in protected concerted activi-
ties for their economic betterment, was secured to them by Congress. Respondent's
employees had the right to obtain signatures in their union petition book on their
own time (as they did here), even upon Respondent's premises; the right to uninter-
17 See cases cited infra, footnote 96.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rupted possession of their petition, free from seizure by their employer; and the right
not to have their employer use their petition to discourage other employees from
joining their fellows, by flaunting its discovery and possession in their faces. Respond-
ent violated all of these rights. An employer's removal of union literature or cards
from an employee has been held to be an unfair labor practice (Square Binding and
Ruling Co, Inc., 146 NLRB 206), as has a supervisor's display to an employee of
a list of union adherents (Select Foods, Inc., 133 NLRB 73, 77). Such and similar
employer actions not only interfere with and interrupt organizational rights guaran-
teed under the Act, but intimidate and coerce employees through disruptively burden-
ing the free exercise and enjoyment of those rights. There can be little doubt that
an employer's expropriation of a private, confidentially circulated list of signatures
of employees seeking to unionize, so as to establish the identities of the signatories,
and its utilization of the seized list in order to publicize the discovery to its other
employees by supervisors parading through the plant waving the confiscated list at
their subordinates, is hardly conducive to continued pursuit of such rights. Respond-
ent's seizure of its employees' list of union adherents and its deliberate flaunting of
its knowledge of its contents to its employees in the early bud of their organizational
efforts was-particularly considering the events which were to follow, directed at the
leaders-in practical consequence a dare, carrying a message not to be misunder-
stood. As Judge Learned Hand had occasion to point out in N.L.R B. v. Federbush
Company, Inc., 121 F. 2d 954, 957 (C.A. 2) :
Language may serve to enlighten a hearer, though it also betrays the speaker's
feelings and desires; but the light it sheds will be in some degree clouded, if the
hearer is in his power.
The flaunting display of the employees' union petition throughout the plant by
Respondent's supervisors, under the circumstances and in the manner described,
could have had no purpose other than to make known to the employees the fact that
Respondent was well aware of what they were up to, and to interfere with and intimi-
date them in the exercise of organizational rights guaranteed to them by the Act.
I find that on July 3, 1963, Respondent confiscated a union signature list or petition
book of its employees, temporarily retained it in its possession and refused to return
it, and intimidated its employees by openly flaunting it before them, thereby inter-
fering with, restraining, and coercing its employees in their exercise of rights secured
to them by Section 7 of the Act, in violation of Section 8(a) (1) of the Act, as alleged
in paragraphs V(a) and V(k) of the complaint as amended.
B. Employer's personnel actions against employees active
in protected concerted endeavors
The union organizing committee at Respondent 's plant consisted of employees
Bond , Stergar, Feinas , and Wegher.18
Mention has already been made of Respondent 's discovery of its employees' union
petition on July 3, 1963, Oresnik 's role therein , and Oresnik 's discharge on July 8,
1963.
The first union election , resulting in defeat of the Union , was held on October 8,
1963. The Union filed objections to this election , petitioning the Board to set it
aside by reason of alleged Employer misconduct in connection therewith.
Shortly after the October 8, 1963, election , there appeared on prominent display
in the plant a large (4 by 6 feet) blackboard- type placard or sign depicting a grave-
stone with "UAW" 19 (and also, probably , "Dead" or "Born ? Died 10/8/63"), and
four smaller gravestones bearing the first names of the four union committeemen
(i.e., Lyle Bond, "Al" Stergar , "Dick" Feinas, and "Gilly" Wegher). This large sign
was on display until at least Bond's discharge on April 6, 1964.
18 On August 14, 1963, the Union wrote Respondent that these individuals had been
selected by their fellow employees to represent them at a hearing scheduled to be con-
ducted by the Board on August 19 on the Union's representation petition Also, Re-
spondent stipulated at the instant hearing that as of September 12, 1963, it knew that
these employees had been identified in the Union's campaign literature as members of the
plant organizing committee.
10 I.e., "United Automobile Workers," Charging Party herein.
THE ROSE COMPANY 237
On January 22 and 23, 1964, a Board-conducted hearing was held on the Union's
objections to the October 8, 1963, election, at which the employees herein involved
testified or appeared in support of the Union's objections On February 14, 1964,
a recommended decision was rendered by the Board's Hearing Officer, sustaining
certain of these objections and recommending that a new election be held because
of Employer misconduct in connection with the October 8 election 20
The following shows the personnel actions taken by Respondent against its employ-
ees who were members of the union organizing committee and other employees
active in the organizational activities in its plant.
Date(s) or ap-
Date or ap- proximate Employer's per- Employer's alleged
Employee Job proximate date(s) of sonnel action reason(s)
date hired personnel
action
Oresmk___ Drill press oper- May 28, 1963___ July 8, 1963____ Discharge--------- Poor attendance
ator and poor pro-
duction
Jan 13, 1964___ Reinstatement Settlement of
with backpay. NLRB unfair
labor practices
case
Feb. 17, 1964_ - Not permitted to No written medi-
work cal certificate in
advance
Feb 24,1964 Layoff____________ Lack of work.
Apr 20, 1904__ Offer of reemploy-
ment without
seniority, at
lower pay
Fetzer_____ Welder___________ May 1962______ Nov 5, 1963_ Discharge_________ Poor work.
Jan 13, 1964___ Reinstatement Settlement of
with backpay NLRB unfair
labor practices
case
Feb 18, 1964*_ 3-day suspension-- Union solicitation
Stergar-__. Layout man, set- Spring 1959____ Nov 22, 1963_ Layoff ____________ Lack of work
up welder, and
welder.
Wilder_-__ Burner''___________ Sept 11,1963- Dec 27, 1963 5-day suspension-- Union solicitation.
Bond ------ Setup welder and May 9, 1962__ _ Feb 17, 1964 - 3-day suspension-- Poor production
welder
Apr 6, 1964___ Discharge_________ Idling, poor pro-
duction, etc
*Effective February 21, 1964
20 As indicated in footnote 1, supra, this election was subsequently held , resulting in
a Union victory and its certification by the Board. At the instant hearing, the parties
requested and agreed that the Trial Examiner take official notice of Board proceeding,
Case No. 13-RC-9584, in which that occurred.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wilder's employment with Respondent ceased around January 10, 1964, Fetzer's
in September 1964, and Wegher (who had worked for Respondent since 1959) left
on October 18, 1963. Of the union organizing committee, Feinas alone was still in
Respondent's employ at the time of the instant hearing.
The circumstances attending the terminations of each of these employees will now
be considered.
1. Edward Oresmk
It will be recalled that Oresnik was the employee who on July 3, 1963 (Wednes-
day), appeared to be primarily implicated in the matter of the union petition book.
July 4 was a holiday. It is undisputed that on Monday, July 8, 1963, Oresnik was
discharged.
Oresnik, a drill press operator, entered Respondent's employ on May 28, 1963.
There is no evidence of adverse personnel action by Respondent against him other
than is about to be described. Oresnik testified that on July 5, 1963 (Friday), after
the July 4 holiday following the July 3 union petition book incident, he telephoned
the plant that he would not be in because of personal business and was told it would
be all right. After he had started to work on Monday, July 8, Foreman Schultz (who
had taken the petition away on July 3) asked him whether he had been "out fishing
again " Oresnik said, "No, I wished I had," and explained that he had telephoned in.
Schultz walked away, saying, "I ain't got no time." Five hours later, around 9.30,
Schultz returned and told him he was fired. When Oresnik asked him why, he said,
"poor attendance ... and poor production ... it's not because of the union neither."
Respondent's side of the foregoing is, as testified by Foreman Schultz, essentially,
that on July 1 he (Schultz) had encountered difficulty with Oresmk's production and
alleged misuse of a drill. However, Schultz not only admitted that Oresnik was not
operating his own, familiar drill press that night, but that Oresnik had complained
to him about the trouble he was having with the other machine-that it was "chatter-
ing, and he was having all kinds of problems" with it. Furthermore, before Oresnik
started to operate this unfamiliar machine, Schultz himself had regulated the speed
and pressure on it, in addition to sharpening the drill and providing a presumably
suitable hole reamer; and Schultz also inspected the first piece produced by Oresnik
on it, without adverse comment. According to Schultz, Oresnik also ground an
unnecessary amount off the drill he used that night by sharpening it at an inappro-
priate angle. Schultz told him to see him at once in the future in case of problems
like this. According to Schultz, Oresnik's production "improved somewhat" in the
next 2 days (July 2 and 3) but it was not good enough, and this is the reason he was
discharged. Oresnik disputes these conclusory averments about his "production"
or that he was warned about it, and I believe him, particularly in view of the circum-
stances involving the different machine on the particular night described. No pro-
duction or comparable records were submitted by Respondent to back up its alleged
conclusions, which are under an inevitable pall of suspicion considering the super-
vening events of July 3 when it discovered Oresnik to be deeply implicated in attempt-
ing to unionize its plant. The same is true of Oresnik's alleged "poor attendance,"
which was not credibly factually shown nor in any event such as would itself have
resulted in his discharge. According to Oresnik, whom I credit, the few days he
missed from work prior to July 8, neither unusual nor shown to be consequential,
were by advance permission of Schultz or otherwise reported and excused, and were
never the subject of any warning to him. The conclusion is inescapable that these
were mere pretexts, or at best ancillary reasons,21 for firing him primarily because
of his involvement in the July 3 circulation of the union petition book.
As a result of an informal settlement of charges filed with the Board by the Union
involving this discharge of Oresnik (and, later, Fetzer, as discussed below), Oresnik
(as well as Fetzer) was reinstated by Respondent to his former job, with backpay,
on or about January 13, 1964. This settlement involved the obligation on Respond-
ent's part, undertaken by it as part of the settlement, conspicuously to post and main-
tain the usual type of Board notice in unfair labor practice complaint cases, in such
a way as not to be "covered by any other material," as the notice itself plainly recites.
Notwithstanding this obligation, the credible evidence establishes that there was not
merely posted alongside of this notice, but posted in such a way as at least for a
period of 6 hours (as observed by one witness) or as long as 4 days (as observed by
t, Cf. N.L.R.B. v. We8t Side Carpet Cleaning Co, 329 F. 2d 758 (CA. 6).
THE ROSE COMPANY 239
another ) to cover a "good portion" of the Board notice, a communication on its letter-
head, reading as follows:
"NOTICE TO ALL EMPLOYEES JANUARY 11, 1964
IN ORDER TO AVOID COSTLY LITIGATION AND
LEGAL FEES WE HAVE SETTLED THE
EDWARD F. ORESNIK AND GEORGE FETZER
CASES, WITH THE UNION. THE COMPANY
STILL FEELS IT WAS FULLY JUSTIFIED
IN THE DISCHARGE OF
BOTH OF THESE EMPLOYEES.
TONY KOLLENTZ JR.
SEC. TREAS.
JANUARY 11, 1964"
The posting of this paper in the manner described covering the official Board notice
was in accord with neither the letter nor the spirit of the settlement, and, furthermore,
was not the only breach of that settlement, the basic provisions of which were sub-
stantially violated in material aspects
Respondent urges that there be no piercing of the settlement veil herein. In view
of Respondent's manifold violations of that settlement, I cannot agree 22 Ordinarily,
cases of this nature involving previous settlement agreements are tried by first liti-
gating the issue of whether there has been a breach of the settlement agreement or
whether there have been independent postsettlement violations, before proceeding
to consider facts antedating the settlement agreement. This, however, was not done
in this case. Here, the settlement agreement was not mentioned in the complaint
nor pleaded in the answer, and-as I pointed out during the hearing-the events,
including those antedating the settlement, were presented chronologically without
objection. Even in the absence of these perhaps unconventional procedures, I would
agree and find that in view of the circumstances the Regional Director was justified
in treating the settlement agreement as nudurn pacturn, since my evaluation of
Respondent's postsettlement conduct, uncolored by its presettlement conduct, inde-
pendently persuades me that Respondent violated the settlement agreement and I so
find. Respondent does not cast itself in an alluring position by contending that the
Charging Party and General Counsel are honor bound not to refer to facts underlying
a settlement agreement which Respondent itself chose to dishonor
After Oresnik's reinstatement on January 13, 1964, he remained at work steadily
for 2 weeks, except for 1 day when he was subpenaed to appear at a Board hearing
to testify as a witness adverse to his Employer. After his reinstatement, according
to Foreman Schultz' testimony, "His [Oresnik's] production and his quality was
unsurpassed by any operator that we had at the Rose Company on the second shift."
After his reinstatement, Oresnik continued to solicit fellow employees to affiliate
with the Union, observed by Pate and by Donald Rose's "pretty mean, ornery look ...
a hard, cold stare." He then missed a week because of intestinal flu. When he
returned on Monday, February 10, he told Schultz he did not feel well but would try
to finish out the night. Although he finished out the night, he was unable because of
this illness-involving fever, diarrhea, and nausea-to return to work that week, but
he or his wife called in to the plant daily. When he called in on Friday, February 14,
he spoke to Kollentz, who told him to take care of himself and "we will see you next
week." However, when he reported on Monday, February 17, Pate stopped him
from clocking in, told him to get a doctor's certificate first, and refused to permit him
to work out the night and bring it in the next day. When Oresnik pointed out this
had never been required, Pate said, "I don't care about before, this is now . . . I want
it ... You get it ... or out." Oresnik asked, "Out?" Pate replied, "That's right."
When Oresnik contacted the doctor, the latter restricted him to his home until the
end of the week since he was not symptom-free. On February 20 (Thursday), Ores-
nik received a letter from Pate stating that "your job as drill Press Operator at THE
ROSE COMPANY is still available' and the Company "expect[s] some clarification
of your extended absence before your return to work. We expect acknowledgement
of this motice [sic] no later than 2-24-64." After receiving medical clearance and
a certificate from his physician on Friday, February 21, Oresnik returned to work
on Monday, February 24, and gave the doctor's certificate to Pate who read it.
22 Cf. The Wallace Corporation v. N.L.R.B., 323 U S. 248, 253-255; Larrance Tank
Corporation, 94 NLRB 352.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
However, and notwithstanding Pate's letter to Oresnik of February 20, Pate handed
the doctor's certificate back to Oresnik and told him, "That's fine ... now you can
go home, you are laid off." When Oresnik asked him why, Pate said, "Lack of work."
When Oresnik asked him for how Long, Pate said, "It's indefinite. It would be hard
to say." Fearing he would be accused of having quit, Oresnik returned the next day
and asked Pate to put this in writing. Pate obliged him by writing out and signing
for him a paper dated February 25, 1964, stating: "Edward Oresnik is being laid off
due to lack of work in the drill press dept."
On April 20, 1964 Oresnik received a telephone call (as well as a memorandum)
from Pate, asking him to return to work. Oresnik had meanwhile obtained another
job When Oresnik asked Pate if he could be on the day shift, Pate said it was con-
trary to Company practice to change the shift a man has been on.23 When Oresnik
then indicated he was working elsewhere , and that under Respondent 's existing
seniority policies as spelled out in its employees rules booklet (which he had received
after his January 13 reinstatement) if he were now to return to Respondent as a new
employee, without the seniority and other benefits such as holiday pay which he had
accrued when laid off, and even at a 20 -cent-per-hour reduction in pay to the starting
wage scale, he might as well remain where he was. Pate thereupon wished him luck
in his new job.
Pate exhibited considerable confusion, to put it mildly, on the foregoing subject,
even on direct examination . For example, he testified that he asked Oresnik for the
doctor's certificate in April (although it is dated in February, precisely as Oresnik
testified); that when he spoke to Oresnik on the telephone in April 1964-this being
after Pate himself had laid Oresnik off on February 20 for "lack of work," so stated
by Pate in his own writing-Oresnik was "absent without leave. I didn't know why
he was off"; and that Pate's April 20, 1964, letter recalling Oresnik to work "was sent
to him [Oresnik] on the basis of his absenteeism . . ."-notwithstanding the fact that
Pate himself had laid Oresmk off on February 20 for "lack of work " The foregoing
(as well as other instances elsewhere furnished) are illustrative of the testimonial
unreliability exhibited by Pate, impelling me to credit Oresnik's version, which is
reasonably consistent within itself and with the available documentation.
Some additional observations may be in order in connection with my acceptance of
Oresnik's version of the events and rejection of Respondent's unconvincing explana-
tions. With regard to Oresnik's alleged "production" or other work shortcomings on
his first (July 8, 1963) layoff, in addition to what has already been said, it is to be
noted that there was no previous adverse work history; no documentation was pro-
duced nor its absence explained ; Production Manager Musial was not called to
testify, nor was his absence explained; and Oresnik was reinstated. Concededly, his
work performance after his reinstatement was unexceptionable-indeed, according
to his foreman, "unsurpassed" on the entire shift; and he was offered reemployment
by Respondent on April 20 , 1964. With regard to Respondent 's actions in insisting
on the doctor's certificate, it is noted that there was and is no contention that Ores-
nik's disability was not bona-fide; that no other instance was established where a
medical certificate had been required ; that Respondent 's booklet entitled "Employee
Rules, Benefits, Policies and Plans" contains no such requirement ; and that Respond-
ent itself indicate in writing that Oresmk could return to work on February 24, at
which time, however, when he met its requirement of furnishing a doctor's certificate,
he was not admitted to work but laid off for "lack of work." I find that Respondent's
demand of a medical certificate under the circumstances was pretextuous.24 With
regard to the alleged "lack of work" on and after February 24-the one and only
reason, it is to be observed, that was advanced by Respondent for his layoff-this was
nothing more than a mere self-serving conclusionary averment by Respondent which
was not factually established it must be evaluated in the context of the entire situa-
tion, including Respondent 's own letter of a scant 4 days earlier inviting Respondent
back to his job. No facts were adduced to show that the work situation at the plant
changed in those 4 days , involving an intervening weekend. No records of any kind
were produced to evidence a work diminution or employment cutback, or even layoff
of any other drill press operator, including any having less seniority than Oresnik.
And there was even credible testimony (by Fetzer) that after Oresnik's layoff a
replacement drill press operator was hired. I believe it is abundantly clear, on the
record presented, that the real reason for Respondent's refusal to permit Oresnik to
return to work on February 17 and for its "layoff" of Oresnik on February 24, 1964,
23 Credible evidence to the contrary was furnished by a number of witnesses, as shown
below under the discussion of Stergar 's layoff.
24 Cf. Bannon Mills, Inc ., 146 NLRB 611 (IR).
THE ROSE COMPANY 241
as also for its discharge of him on July 8, 1963, and its invalid offer of reemployment
on April 20, 1964 (at loss of seniority and other accrued benefits, and at lower pay),
was his persistent activism in union protected concerted activities among the employ-
ees. In brief, he was a continuing thorn in Respondent's side. Respondent's "con-
tinued animosity toward and disparate treatment" of Oresnik after his reinstatement
"lend[s] still further support to the ... conclusion[s] that union animus and the union
activities of the discharged employee[s] were a substantial causative factor in the
discharge[s]." Iron City Sash & Door Company of Johnstown, 146 NLRB 1211.
See also Putnam Tool Company, 127 NLRB 1111, enfd. 290 F. 2d 663 (C.A. 6).
For the foregoing reasons and considering the record as a whole, I find that on
February 17, 1964, Respondent discriminatorily refused to permit employee Edward
Oresnik (whom it had previously discriminatorily discharged on July 8, 1963, and
thereafter reinstated) to return to work; that on February 24, 1964, Respondent dis-
criminatorily laid Oresnik off; that on April 20, 1964, Respondent made Oresnik
a discriminatorily invalid offer of reemployment under which, notwithstanding and
solely by reason of its discriminatory layoff of Oresnik on February 24, 1964, Oresnik
was offered reemployment involving a loss of seniority and other benefits as well as
a lower rate of pay; and that all of the foregoing was by reason of Oresnik's union
and protected concerted activities in violation of Section 8 (a) (3) and (I) of the
Act, as alleged in paragraphs VII(a) and (b) of the complaint. I further find that
it has not been established by substantial evidence that, in violation of Section 8(a) (4)
of the Act, Oresnik was discharged because he gave testimony under the Act, as
alleged in paragraph VII(b) of the complaint.
2. George Fetzer
Fetzer, a welder, started to work for Respondent in May 1962, and thereafter
received the regular periodic pay increases of satisfactory welders retained in
Respondent's employ. In late or mid-September, shortly before the October 8,
1963, Union election, he received a special 10-cent-per-hour increase from Pate,
who told him in connection therewith that he "appreciated the good work I [Fetzer]
was doing." 25
After the ensuing October 8, 1963, election which the Union lost, Fetzer (of only
perhaps 4 to 6 other employees, according to Bond) continued wearing his union
button, including Tuesday, November 5, 1963, when Schoen (an ardent antiunionist
who had been promoted to foreman a few days before, on October 28) came over
to him and told him that "I was doing sloppy welding, that I was through, I should
go pick up my check. So I went to the office and picked up my check and took my
tools and left."
Under the same settlement agreement covering Oresnik, Fetzer was reinstated
with backpay on January 13, 1964. After his return, he continued to hand out union
cards. On Febraury 16, 1964, Pate told him, "I thought since I put you on second
ji.e., night] shift, you'd stop this silly nonsense of handing out union cards and have
anything to do with the union." Fetzer's reply was, "Well, I'd still do anything for
the union even though you'd want me or not because what the union had done for
me, how they brought me back to work and gave me my back wages and everything
else." This was on February 16. On February 13, the Board's Hearing Officer had
issued a decision recommending that the October 8 election be set aside because of
Employer misconduct. A day later, on February 14 (Friday), employee Bond-
the author of the union petition linked with Oresnik on July 3-was suspended. On
February 17 (Monday), after an intervening weekend, Oresnik was suspended. The
next day, February 18, Fetzer was suspended after midnight by Schultz, who told
him he had been "caught handing out union cards and that they had the union card
in there filled out by this fellow that accused me of giving him a card." The formal
I` On cross-examination Fetzer testified that he had asked Pate for a raise in June 1963,
at which time Pate told him that he would receive it if he increased his production and
improved his versatility , and that when Pate gave him the raise around mid-September,
Pate told him it was because of his improved attendance, work attitude, versatility, time
elapsed since last raise, good work on front axles, and because he had proved himself
capable of doing three different kinds of welding. While to a degree suspicious in view
of its timing, I nevertheless believe that upon the record as a whole it would be specula-
tive to conclude that the September 1963 raise was purposed as a grant of economic
benefits to buy Fetzer's abandonment of union or concerted activities I therefore find
that it has not been established by substantial evidence that it was so purposed or other-
wise violative of the Act.
206-446-66-vol. 151-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suspension notice handed to Fetzer , dated February 18 (Tuesday ) and signed by
Schultz, stated that he was suspended for 3 days, and could return on February 24,
for "distributing literature in company work areas while men are working while on
own lunch hour ." According to Fetzer , what had happened was that the night
before (February 17), during his second-shift "lunch hour" (9.30-10 p in ), about
9:55, he had given fellow employee Bentz ( Bantz? ) a union card . At the time Bentz,
who was a part-time welder who had no "lunch hour" and whose shift ended at
10 p.m., had already shut his machine off, had his gloves and helmet off, and was
about to leave.26
After his return to work, Fetzer continued his union activity, handbilling with
Bond and Feinas on April 3, 1964 . Just before Labor Day 1964 he left for another
job.
On Respondent's side, Schoen testified that after he began supervising Fetzer on
October 28 , 1963-a week before he fired him-he was dissatisfied with his work
but could not recall what he said to him since it "is a rather difficult thing to remem-
ber what you say to a man that long ago. " Schoen also referred to an incident
involving Fetzer's locking up his "jitterbug " 27 instead of leaving it out on his hose
for the night man as instructed by Schoen (who refused to disclose at the hearing
who told him this until directed to do so by me and instructed by Respondent's
counsel to do so ). On cross-examination , however, Schoen conceded that he him-
self had kept a "jitterbug" in his own locker , as Fetzer testified was a practice among
employees . The "jitterbug " incident cannot, therefore , be regarded as significant;
nor was it assigned as a reason for Fetzer 's suspension . As for the quality of Fetz-
er's welding , it is noted , within the context of Respondent 's awareness of his union
sympathies, that Schoen had been his supervisor for only a week when he fired him
allegedly for poor welding, in the face of no adverse Employer action or comment
before that; that only about a month before his discharge for poor welding he had
received a raise and commendation from Pate for good welding ; and that Schoen,
with an admitted history of stalwart antiunionism, has fired only two employees at
any time; i .e., Union Adherents Fetzer and Bond. In his testimony relative to the
Fetzer suspension, Night Foreman Schultz testified among other things that part-
time welder Bentz (who was solicited by Fetzer at 9:55 p.m. ) "most generally"
worked until 10 p.m.; that Fetzer told him he was unaware that Bentz was on "work-
ing time, company time "; that he ( Schultz ) tore up Bentz ' union card that night; and
that this and the suspension notice to Wilder (discussed below) were the only two
suspension notices he ever issued to any Rose employee. Schultz also testified the
Fetzer-Bentz incident occurred at 9:35 p.m., but on credibility comparisons in the
absence of testimony by Bentz, I do not credit this. The reliability of Schultz' tes-
timony may be gauged by his conflicting statements on direct examination that he
filled out, signed , and gave Fetzer the 3-day suspension notice when he suspended
him, and his testimony on cross-examination that he did not do this when he sus-
pended Fetzer but that he signed it the next day and does not know if it was given
to Fetzer ; his testimony on cross-examination that he does not know who typed up
the Fetzer suspension notice which he gave Fetzer that night (February 18, 1964),
and that neither Kollentz nor other office person was on duty that night, and that
he did not consult with anybody about that notice-contrasted with his testimony
on further cross-examination that on that night (February 19) he merely gave Fetzer
16A degree of doubt was cast upon the veracity of Fetzer in swearing this occurred at
9:55, through production by Respondent on cross-examination of an unsworn , undated
typewritten statement signed by Fetzer indicating that this occurred "between" 9 30
and 10 and that Benz "appeared as if . . . getting ready to weld" Under rigorous
cross-examination , Fetzer explained this by testifying that he had been interviewed by
one Petajan , a former attorney of Respondent , to whom he kept indicating he could not
recall the precise time when Petajan repeatedly asked him whether it was around 9.40;
but that on refreshing his recollection from a statement given to the Board, he recalled
It was 9:55. Mindful of the shortcomings of human memory , perhaps particularly when
it comes to precise moments of time past , and the circumstances attending the signing of
statements by laymen , I was impressed with the candor of the simple , unaffected ex-
planation of the witness , and believe that his description of Bentz ready to leave and
the time of 9:55 as sworn to at the hearing ( with his recollection refreshed from his
affidavit of February 27, 1964, given to the Board shortly after the event in question)
are correct . Petajan did not testify . Nor did Bentz
27 A $175 power tool used to remove slag and "BBs," or adherent weld particles, from
welded objects.
THE ROSE COMPANY 243
a blank suspension form not filled in, but that he (Schultz) typed up a statement for
Bentz to sign and the contents of which he could not recall; and, after this elaborate
testimonial embroidery, his lame final testimony:
I don't know if I can retract my statement. Thinking about this thing a little
further, I think Mr. Kollentz was called in the office the night [February 18]
that I gave this to Mr. Fetzer .... And he typed it at that time ....
Asked why he did not so testify before, Schultz replied, "I just-I didn't think about
it"; asked whether it had "slipped your mind," he replied, "Yes. I am quite sure
that is what happened."
Plant superintendent Pate testified that he was Fetzer's supervisor prior to Octo-
ber 28, 1963, and that Fetzer's good performance and improved "versatility" were the
reasons why he gave him the raise shortly before he was fired; and testified in gen-
eral terms that after the raise Fetzer "had gone along real well for a short period of
time, then his production fell way off. . . . He just didn't seem to be putting any
effort into his work." Again, however, no production records or specific facts were
adduced to support these vague, conclusionary, self-serving averments. According
to Pate, he called Fetzer in about his poor production when allegedly reported to
him by Schoen, and Fetzer, using a "swear word," expressed a lack of interest in his
- - - job," but apologized 28 and thereafter "went along real well for a while";
however, the next week, one day after Pate told Schoen to "give him a little time"
because he "might have had a bad day," he was discharged because his quality and
production had not improved in that day. Pate also testified that from the time
Fetzer was reinstated in mid-January 1964 until he left around Labor Day, he worked
under the supervision of Schultz, who was well pleased with his work and said, "I
am going to be sorry to see George [Fetzer] go."
Femas, still employed by Respondent and therefore in a sense testifying under
peril of reprisal, testified credibly that around the end of October 1963. Pate told
him that "when layoff season comes that they were going to throw the dead wood
on the fire," mentioning Fetzer. Fetzer was in fact discharged shortly thereafter,
within a week after staunch antiunion activist Schoen was designated as foreman.
Schoen's feeling toward Fetzer is further exemplified by Schoen's reaction on Decem-
ber 28, 1963, to Bond's remark that Fetzer "would be coming back to work pretty
soon." Schoen said, "If he comes back . I'll just ride him and ride him until
he's sorry that he came back, and then after that I'll fire him " It will have been
noted that after Fetzer's reinstatement, he was placed on the second shift under
Schultz, who according to Pate was eminently satisfied with his performance.
I believe that on balance the credible evidence preponderates in favor of a finding,
hereby made, that Fetzer's discharge on November 5, 1963, was discriminatory for
his union sympathies and activities, at least in substantial part, and not because or
merely because of work performance so poor as to have resulted in his discharge in
the absence of his union activities.
I also believe that on balance the credible evidence preponderates in favor of the
further finding, hereby also made, that after his reinstatement by Respondent on
January 13, 1964-apparently grudingly, as exemplified by Respondent's obscuring
letter posted next to and for a time over the formal notice required by the Board-
approved settlement stipulation-Respondent's pique at Fetzer persisted, resulting
in his discriminatory suspension on February 18, a scant few days after the Board
Hearing Officer's recommendation of a new election (February 13), Oresnik's sus-
pension (February 17), and Bond's suspension (February 17). It would tax my
credulity to believe that this constellation of events came about purely coinciden-
tally. Furthermore, there is no clear and convincing, substantial evidence that on
February 18, when Fetzer was suspended, there was actually in effect or enforced,
any reasonably enunciated or publicized valid Company policy against solicitation.
Moreover, the record is replete with evidence that such a policy was not only not
enforced against antiunion activity, but that such activity was abetted by Respond-
ent. Furthermore, Fetzer was not unjustified in believing that at 9:55 the individual
to whom he handed the card, with machine, helmet, and gloves off, was finished
with work and in the process of leaving.20 There is no evidence that Respondent
ever insisted upon time requirements with so rigid a punctilio as not to allow time
2sFetzer credibly testified that Pate did indeed call him in on October 31, but that
he accounted for slow work on a particular job by explaining he had had several other
tasks to do.
21 Cf N L R B. V. Pick Manufacturing Company, 135 F. 2d 329, 332 (C A 7), employees
at timeclock.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to walk to the timeclock ; nor was Bentz produced to testify otherwise . Finally,
considering Respondent 's strong union animus, I am persuaded that in any event
Fetzer's continuing union activities constituted at least a substantial reason, if not
the only reason , for his suspension on the occasion and at the particular time in
question . Where an employee is discharged for such a combination of reasons, it is
violative of the Act 30
For the foregoing reasons and considering the record as a whole, I find that on
November 5, 1963, Respondent discriminatorily discharged its employee George
Fetzer because of his union activities, and that, following his subsequent reinstate-
ment, on February 18, 1964 Respondent again discriminated against him by tempo-
rarily suspending him from its employment because of his union membership, sym-
pathy, and activities, as alleged in paragraphs IX(a) and (b) of the complaint.
3. Albert Stergar
Stergar , a union committeeman and a leader of the organizational activities of
Rose Company employees, entered Respondent's employ in the spring of 1959 as a
"nibbler," 31 then assembled machines, and thereafter for the great bulk (about 4
years) of his continuous employment with Respondent for about 5 years worked as
a welder, setup man and welder , and setup and layout man.32 He also built jigs,
fixtures, patterns , and molds for the production work done by others in the plant;
in so doing, he would assemble and set up his product to see that it worked properly.
If there was no work of this type (i e , layout) on hand to be done, he would do setup
work or production or assembly-line work. In doing layout or layout and setup, he
normally worked with several others who did or assisted at doing the same or
approximately the same type of work. During his 5 years of uninterrupted employ-
ment with Respondent, Stergar received no adverse personnel action of any kind.
He was retained in employment even during occasional "slack" periods, at which
times he was assigned to other work , usually production welding.
Without previous notice, about 15 minutes before quitting time on Friday after-
noon, November 22, 1963, Donald Rose walked up to him and said, "You are being
laid off as of today. You can take your tool box and go." Stergar asked why. Rose
gave as reasons lack of work and lack of seniority. When Stergar indicated willing-
ness to do other work as he had in the past when there was a slack in his own, Rose
answered that he was "too slow on production work." Stergar replied that he felt
this was discriminatory due to his union activities and that he would file unfair
labor practice charges. Rose invited him to do so and walked away.
ao Cf N.L.R.B . v. West Side Carpet Cleaning Co , 329 F. 2d 758, 761 (C A. 6) ; N.L.R.B.
V. Symons Manufacturing Co , 328 F. 2d 835, 837 (C.A. 7) ; N L R B. v . The Howe Scale
Company, 311 F. 2d 502, 505 ( C.A. 7) ; Sunshine Bs8cust8, Inc v. N.L .R.B., 274 F. 2d 738,
742 (C A. 7) ; N.L R.B. v. Vail Manufacturing Company, 158 F. 2d 664 , 666 (C.A. 7),
cert. denied , 331 U.S. 835.
zn A "nibbler" punches shaped cuts in steel sheets by machine.
32 "Layout" work involves the making of full-scale layout drawings from engineering
drawings, so as to show precise three -dimensional details of each component part ; also
the layout of paper templates for the purpose of making profiles or models ; and even
the construction of the first products of these layouts , to see whether and how they
will work, preceding plant production thereof. During the process , assembly and setup
work and welding ( usually "tack" welding ) are more or less continually essential The
so-called setup welder not only must know how to weld but also how to fit the pieces
together accurately for welding, placing small "tack welds" on to hold them together
until the production welder puts full welds on them. Thus , the setup welder is some-
what more skilled than the production welder. Since " layout" work requires, among
other things , understanding of engineering drawings and the technique of converting
these into finished articles , the layout man is still more highly skilled. Stergar, an ex-
perienced setup welder and production welder before he came to Rose Company , did all
three types of work-i.e, welding, setup welding , and layout work-as well as other work,
at Rose Company, at various times, as required ; in more recent years , apparently, being
utilized to the maximum extent possible in "layout and assembly" and "layout" work;
I e , the highest -skilled of the described jobs Donald Rose testified that "It takes [a
welder] a long time to become a layout man ," agreeing that layout work is a skilled job
at a level which would take a welder "a long time to reach ." Rose estimated the
progression of skill to be from production welder ( taking 6 months or so for proficiency)
to setup man to setup welder ( requiring perhaps 4 to 5 years ), and eventually in some
cases to layout man, which he characterized as "very much " a "promotion from the setup
welders."
THE ROSE COMPANY 245
Stergar has at no time been recalled or offered reemployment by Respondent.
At the hearing, Respondent formally conceded that the only basis for Stergar's
layoff was "strictly insufficient work," without "any contention on the part of man-
agement that the quality of his work was inefficient," and that "we have never taken
the position that this man [Stergar] was terminated for cause, and we do not now."
In view of the foregoing concessions, it is unnecessary to consider the questions of
Stergar's job qualifications and efficiency, which may be assumed. His uninterrupted
5-year tenure of employment with Respondent lends additional support, if needed,
for this assumption and the validity of the concession of Respondent upon which it
is based.
In order to determine the true reason for the termination of Stergar, it is essential
to scrutinize Respondent's alleged reason within the frame of reference of the sur-
rounding events of which it formed a part. It is conceded that Stergar was a satis-
factory "oldtimer" at the plant. It is undeniable that his layoff-his first and only
one in 5 years, notwithstanding previous "slow" periods at the plant-occurred only
after he sought to exercise rights guaranteed to employees under the Act and
attempted, with several of his fellow employees, to organize a union there. These
are the tangible and unquestioned outer boundaries of the frame of reference within
which lurk the obscurations.
Respondent contends it laid Stergar off for lack of work. At the outset, it is noted
that Respondent supplied no records, entries, or factual data to support this conten-
tion, which, in the absence of such factual support, is mere conclusory averment.
Nor was the failure to produce records or other factual data explained. Even
Respondent's conclusionary statements with regard to lack of work are, however,
subject to question, for a variety of reasons Respondent's president, Earle Rose,
Jr., testified that in the year from around August 1963 to August 1964 "our organi-
zation changed ... tremendously .... Our business had gotten better ... We are
looking towards one thousand [employees] .... " Respondent's contention that at
the time of Stergar's layoff it was nearing completion of a military order for its
customer Drott, even if true, does not mean there was insufficient other work, in the
absence of persuasive factual demonstration that the plant was dependent on that
particular order. The continued plant activities and employment level indicate the
contrary. Furthermore, Respondents chief layout man, Van Ryzin, testifying as
Respondent's witness, indicated that this very work-as well as other-has contin-
ued, since, as he said, "We have been running into a great deal of trouble with our
Drott drawings whereby there's variances on them, whereby you got an awful lot of
template changes to make which was technically rework ...." The same was true,
according to Van Ryzin, on "Hy Dyna" bucket work which was supposedly phasing
out shortly after Stergar's layoff but which actually continued to require layout mod-
ifications and corrections for various reasons, to such an extent that, as Van Ryzin
testified, "... and also on the Hy Dy buckets ... we were running into so much
trouble on that that the orders were just sitting until I had time to go ahead and do
a complete layout on sides because none of the parts were fitting the way they
should when we made them according to their [customers'] drawings." Yet, Stergar
was laid off and he was not recalled. Moreover, Van Ryzin indicated that the flow
and pace of strictly layout work are irregular ("there are times when there's [only]
one [layout job] in process"), with a history of even slack periods, without layoff of
layout men; and he conceded the possibility that a dropoff of layout work might be
attended by an upsurge in production work, to which Stergar had regularly been
shifted on past occasions. Furthermore, before Stergar was laid off, he and Van
Ryzin were (according to Stergar) on overtime, "working like mad," because a
third layout man had returned to his former job; confirming this, Van Ryzin added
that after Stergar's layoff, Van Ryzin, as well as other employees who then did some
of Stergar's work, continued to put in overtime. And the proof is clear, through
testimony of Van Ryzin as well as of Feinas and Stergar, that after Stergar's layoff,
layout and closely related work which Stergar had been doing was then done by
employees Paras, Skenandore, Reynolds, Kurec, and Roberts, at least some of whom
were junior to Stergar but were not laid off. The evidence establishes through these
and other cases (Van Ryzin, Wegher, Schubert) that a seniority system has not
been consistently observed at the plant.
As has been indicated, during his 5 years with Respondent Stergar had regularly
done assembly work, setup welding, and welding, in addition to layout and setup
layout work. Indeed, he was retained in Respondent's employ during slack periods,
when welders were laid off, to do that work. There is no persuasive reason to
believe that Respondent could not have continued this established practice in Novem-
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her 1963,33 even were it to be assumed that it experienced a real lull in work that
might be considered to be strictly and technically "layout" work-an imprecise term
at best, as indicated by the testimony of various witnesses including those who
described the specific work activities involved. Stergar had not only attained a
high degree of qualificational versatility in the welding-assembly-setup-layout skills
at Rose Company, but had been an experienced welder and setup assembler before
he came to Rose Company. No adverse personnel action had been taken in con-
nection with his work, including his production welding, prior to his ill-fated venture
into protected concerted activity. Although it is now asserted by Respondent that
Stergar is a "slow" welder, no records or data have been adduced to establish this
conclusion, nor does it appear that others were not as slow or slower. It is abun-
dantly clear that even in real times of "slack," Respondent followed the practice of
transferring men, particularly older employees, and notably Stergar himself (as well
as Wegher, Schubert, and others), to other jobs temporarily, and that it also trans-
ferred employees from shift to shift (e.g., Bond, Wegher, and others). On (and
since) November 22, 1963, Stergar was denied the privilege of transfer to other
work, which he as well as others had always enjoyed, even though he expressly
asked for it at the time of his layoff. There were also other jobs-such as cleaning,
chipping, grinding, or sandblasting-not involving speed or production welding, for
which Stergar would unquestionably have qualified, even if the view were to be
accepted that Respondent really suddenly decided after so many years that he was
"slow" when it came to welding. Donald Rose testified that he did not offer such a
job to Stergar when he asked for other work, because he (Rose) did not think that
Stergar "would take all the abilities he does have" and do such work-"I [Rose]
don't think a man would appreciate a job like that," 34 "not many employees like to
do that type of work." This excuse does not hold water. Stergar had already indi-
cated he wanted other work, and it was up to him, not Rose, to decide whether he
was willing to do this kind of work to avoid unemployment.
It is furthermore clear from the testimony of Respondent's own officials, that it
observed the policy of recalling employees not fired for cause Although it is con-
ceded that Stergar was not laid off for cause, he has never been recalled. Respond-
ent was unable to furnish the name of any other employee who was employed for
4 or more years who was laid off and never recalled.
The employment picture of new hirings at Respondent's plant since it laid Stergar
off without ever recalling him indicates that there has been a large turnover in weld-
ers, who according to Donald Rose are scarce and hard to come by in the Milwaukee
area. A tabulation prepared by Respondent from its records shows that in the
11-month period from October 1, 1963, to September 1, 1964, it hired approxi-
mately 242 employees (92 on first shift and 150 on second shift), with not a single
layoff for lack of work, and a substantial number of short employments and volun-
tary quits. Analysis of specific hirings of welders during that period indicates that,
following Stergar's layoff on November 22, 1963, hiring of welders occurred com-
mencing December 11, 1963. Analysis of these specific hirings also discloses that
13 employees (10 welders, 2 cleaners, and 1 drill press operator) were hired after
October 1, 1963, with none laid off.35 Even if one were to assume the accuracy of
Respondent's contention that "there was a slack from November [1963] to almost
the first of the year [1964], and we started to call back the people who wanted to
come back. The people who came back we put them to work," it is undisputed that
at no time was Stergar called back or offered any work of any nature after his
layoff."
If this picture leaves one with difficulty in understanding why Stergar was laid off
and never recalled, it is only because the surrounding moving events which were
occurring have been omitted. In my opinion, it is abundantly clear that these events
furnish the only logical and credible explanation for what would otherwise be an
3s It has been held that discriminatory layoff of an employee in a slack period where
previously other work was redistributed is violative of the Act . Friedman-Harry Marks
Clothing Company, Inc 1 NLRB 411, enfd 301 U S 58.
34 Apparently the thought did not suggest itself to Rose that a man, particularly one
who had worked steadily for 5 years, might appreciate a layoff even less
3; It is also noted that there was hired after the union election of October 8, an em-
ployee named Reynolds , who was placed on the second shift , where he did work of the
same type as that done by Stergar , and who was continued in Respondent ' s employ doing
that work after Stergar ' s layoff . I am constrained to conclude that Van Ryzin's halting
equivocations on the subject of Reynolds ( who was not produced to testify ) were the
result of an absence of candor.
THE ROSE COMPANY 247
inexplicable layoff. The events so far omitted involve Stergar's protected concerted
activities toward attempting to unionize the plant. These undoubtedly made him a
most substantial and irritating thorn in Respondent's side Stergar, an "old-timer"
with a history of long employment and steady job progress in the plant, became a
leader of the endeavor to unionize. He was a union organizing committee member,36
wore a union button, handbilled at the plant gate, visited employees at their homes
to persuade them to affiliate, spoke up and raised truoblesome questions at plant
convocations of employees addressed by Earle Rose, and was observed even to devote
lunch or break time to attempted union persuasion of other employees His per-
sistence in these activities was hardly calculated to endear him to Respondent, whose
chief executives have never made a secret of their determination to keep a union out
of the plant. Samplings of Respondent's attitude toward Stergar after his advent
into protected concerted activity, may be found in a sardonic reference to him by
name in a preelection letter to the employees by Earle Rose, with nothing to suggest
that by this reference Respondent intended to convey to its employees that it held
Stergar in esteem; and in Respondent's essential passivity in the face of its officials'
(Donald Rose's and Pate's) eyewrtnessing of terrifying threats of imminent bodily
harm to him (e.g., "he [Schubert, a violent antnmionist, described below] had two
fists, and one of his fists was for putting people in the hospital . . . and the other fist
was for putting people in the cemetery. . . . That if I [Stergar] didn't stop doing
what I was doing, that this would happen to me, one or the other of these was my
fate") uttered by an employee (Schubert 37) who had shortly prior thereto adminis-
tered a vicious beating, involving among other things a broken nose and broken
teeth requiring immediate hospitalization, to an employee whom he heard talking to
Stergar about the Union. And perhaps another clue to what was really going on
was a mysterious "countdown" sign, with a red rag adorned with a hammer and
sickle, emplaced at Stergar's worksite on the day after the election, to Respondent's
knowledge; with the posted number of the "countdown" reduced by one number
daily by Schubert (or by Schoen, also a favored employee, openly highly active
against the union effort, promoted to foreman on October 28, 1963), who was also
intoning to the sound of hammer-banging, ". . . you are finished, you are through,
it won't be long, your number is up." The "countdown" sign originally had the
number "36" on it. Stergar was "laid off" 33 workdays after the October 8 election.
The precipitateness of Stergar's "layoff"-a scant few minutes before quitting time
on Friday afternoon, after 5 years of uninterrupted satisfactory work-also invites
suspicion as to its real reason. Within the total context of the surrounding matrix
of events, it smacks of resentful vindictivenness. In actuality, considering Respond-
ent's failure ever to recall Stergar for employment notwithstanding the large number
of hirings, its personnel action against Stergar was not a layoff but a discharge. This
was manifested by Earle Rose's undisputed remark to Stergar on January 22, 1964,
at the Board representation case hearing when, after Rose had shaken hands with
other employees, he declined to accept Stergar's proffered hand, saying to him, "You
are not my employee."
Although in its brief Respondent defends its discharges or the other personnel
actions which it took against its other employees herein, it is completely silent on
the subject of attempting in any way to justify its "layoff" of Stergar.38
I find that on November 22, 1963, Respondent discriminatorily laid off or dis-
charged, and has at all times since then failed and refused to reinstate, employee
"The large cemetery plot-gravestones placard with the Union organizing committee
members ' names thereon which was on display in the plant has already been described
in another connection . A miniature thereof , on a small card, was found by Stergar on
his workbench a day or two after the election of October 8 Decision was reserved by
me at the hearing upon Respondent's objection to the Charging Part y 's offer in evidence
of this small card ( marked Charging Party's Exhibit No 1 for identification). Respond-
ent's objection is hereby sustained because of the absence of proper foundation connect-
ing it with Respondent.
31 There is persuasive evidence, which I accept-particularly after observing and listen-
ing to Schubert testify-that Schubert enjoyed favored status with Respondent 's officials,
who were undoubtedly aware of his activities but administered neither discipline nor
effective restriction.
""Employers are not in the habit of dismissing competent employees merely to replace
them . . N L It B v Local 776 , International Alliance of Theatrical and Stage Em-
ployees ( Film Editors ) ( Cascade Pictures Co of California ), 303 F 2d 513 , 519 (CA.
9), cert. denied 371 U S. 826
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Albert Stergar , by reason of his union sympathy , membership , and activities in vio-
lation of Section 8(a)(3) and ( 1) of the Act , as alleged in paragraph VI of the
complaint.
4. Floyd Wilder
Wilder started working for Respondent , apparently as a "burner ," on September 11,
1963. He distributed union cards in the plant. During the half-hour no-work
interval between the change of shifts on December 27, 1963, Bond ( who was leav-
ing the first shift ) gave some union cards to Wilder (who was going on the second
shift ). Later that day, but according to Wilder only during coffee break and lunch
hour, he distributed some of these cards. Around 10 o'clock that night, Second-Shift
Foreman Schultz handed him a notice and told him he was being laid off for 5 days
"for handing out union cards on company property ," which was "against the com-
pany policy ." Wilder said he did not know there was any rule against "handing
them out on my own time ." Schultz indicated the 5-day layoff was at Rose's direc-
tion. Wilder said he did not like a 5-day layoff. Schultz told him that "the only
thing you can do is come in and see Mi. Rose tomorrow to see if he ' ll straighten it
out for you ." Wilder said he would think it over and might not come back. Wilder
insists that at no time during his employment at Rose Company did he see any
notice posted on the subject of distribution of literature in the plant.
On the following day, Wilder came in and asked Donald Rose about this suspen-
sion Rose said that he would "have to go along with the company policy and back
up his supervision ." According to Wilder, Rose said nothing about any posted
rules on this subject, and Rose named no individual to whom Wilder had passed out
a card. Also according to Wilder, when he pointed out to Rose that this was on
his own time , Rose said he "would not allow it to be passed out on company prop-
erty," and, further , that "still it was on company property " and that "Earle Rose had
a company policy he was not going to let the union in." Wilder 's account of this
conversation was undisputed by Donald Rose.
With regard to the foregoing , Foreman Schultz testified that on the evening in
question he saw Pressbrake Operator Yenter carry some scrap to a scrapbox near
the machine that Wilder was operating and that Wilder approached Yenter with a
union authorization card. Schultz "immediately went back to the office and .. .
filled out one of the forms that we have to the fact that this is unlawful ," and gave
it to Wilder . The form, on Respondent letterhead , states:
"DATE 12-27- 1963
TO MR. Floyd Wilder
YOU HAVE BEEN ENGAGED IN UNLAWFUL ACTIVITY ON COMPANY
TIME AND IN COMPANY WORK AREAS. THIS IN VIOLATION
OF COMPANY REGULATIONS AND CANNOT BE TOLERATED. YOU
ARE ACCORDINGLY SUSPENDED FROM WORK FOR A PERIOD OF
5 DAYS. ANY FURTHER VIOLATION WILL RESULT IN
YOUR DISMISSAL FROM WORK AT THE ROSE COMPANY.
SIGNED /s/ Donald Schultz
DATE 12-27-63
TITLE 2nd Shift Supt."
According to Schultz, Wilder told him that he (Wilder ) had been informed that
Rose had indicated he would "go along" with the Union if a certain percentage of
employees signed cards, and that Wilder said "for no other reason was he doing it
except for the fact that he thought that the Rose Company was allowing this."
Schultz denies that Wilder said anything about having done this on his own time,
or that this was so much as mentioned . Schultz further testified that although he
has had occasion to suspend perhaps 10 employees , Wilder and Fetzer (described
above ) have been the only 2 suspended for this reason and they also have been the
only 2 where he has employed a written form , even though this form had been in
existence and stocked in the office for about 6 months prior to December 27, 1963.
He also testified that he had not been told to use written suspension forms but "took
it upon myself."
The short answer to the conflict in the testimony of these witnesses might have been
my evaluation of the testimonial qualities of Schultz , already commented upon in
connection with Fetzer, supra , as compared with Wilder, a straightforward and
credible witness . This answer would have been reinforced by Respondent 's unex-
THE ROSE COMPANY 249
planed failure to produce Yenter, the older employee to whom the card was allegedly
handed by Wilder during worktime, and also Respondent's unexplained failure to
dispute Wilder's ensuing conversation with Donald Rose.
However, it is additionally to be observed that as of the date Wilder entered
Respondent's employ (September 11, 1963), the Chudnow notice (July 8, 1963) had
long since been removed, and on the date of the foregoing incident (December 27,
1963), as found above, the Pate notice had not yet been posted Since there is no
evidence as to the existence of any other alleged no-solicitation or no-distribution
rule on the date in question, it has not been established that any such rule was violated
by Wilder. Going still further, however, even if the Chudnow or Pate notice, or both
of them, had been in effect and widely publicized and known to Wilder on the date
in question, I would still find those notices inapplicable in view of my crediting
Wilder's testimony that he did not hand over the union card on Company time.31
Moreover, in my opinion, those notices, at any rate as here applied, were in any event
invalid because too broad in that they purported to prohibit all solicitation or handing
out of a union card in connection therewith, even on the employees' own time,4o or-
without resort to grammatical disputations-could reasonably thus be construed by
the employees,41 and also because the record (as elsewhere shown) plainly establishes
discriminatorily unevenhanded invocation of such a rule only against union
adherents 42
For the foregoing reasons and upon the record as a whole, I find that Respondent's
5-day suspension of its employee Floyd Wilder on December 27, 1963, was not for
violation of any existing, valid no-solicitation or no-distribution rule then in effect at
the plant or applicable under the circumstances, but was for discriminatory reasons
because of Wilder's union sympathy, membership, and activities, in violation of Sec-
tion 8(a) (3) and (1) of the Act, as alleged in paragraph X of the complaint
5. Lyle Bond
Bond was the employee who drafted, signed, and obtained the first other signatures
in the union petition notebook which Respondent confiscated from Herzog and
Oresnik on July 3, 1963, as described.
Bond entered Respondent's employ on May 9, 1962, as a setup man 43 at $2 10 per
hour. He thereafter (around June and July 1962, February 1963, and January 1964)
progressed through the wage increases normally granted by Respondent to satisfactory
employees whom it retains in its employ.44 There is no evidence of adverse person-
nel action nor persuasive credible evidence of adverse employment history 45' before
39 For this purpose, although perhaps academic herein, I find that it has not been
established by substantial credible evidence that any union card was distributed by
Wilder to any person at any time other than Respondent's authorized breaktime, lunch-
time , or proper nonworking time of Wilder and the recipient.
40 Cf. cases cited infra, footnotes 96 and 97
41 Cf. N L R B. v. Harold Miller, Herbert Charles and Milton Charles, Co-Partners,
d/b/a Miller Charles it Co., 341 F 2d 870, 873-874 (C.A 2)
42 Cf. cases cited infra, footnote 98.
43 Hired on May 9, 1962, as a setup man, Bond continued as such, on 72-inch buckets,
until October (or September 30) 1963, when he was transferred for about 6 to 7 weeks
to miscellaneous welding (primarily on buckets). In December 1963 he was reassigned
to setup work ( primarily on buckets ) while continuing to do miscellaneous welding
94 Donald Rose explained that employees who after a 90-day probationary period do not
meet Respondent's requirements are not retained in its employ.
411 so find, notwithstanding vague, conclusory, and broad generalizations, which I
do not credit, now advanced by Schoen, who sweepingly stated of Bond, "He never did
anything right . . . Since he started to work for the Rose Company," then added,
"I don't know when he started." After swearing that he "certainly did" observe Bond's
work before he (Schoen ) became a foreman , Schoen then flatly contradicted himself and
stated that he had not observed Bond's work before he (Schoen) became a foreman since
"It wasn't my duty to observe what he [Bond] was doing," and Schoen then agreed that
all of his statements regarding Bond's work were "not of my own observation" and
were "based on nothing but hearsay." Insofar as the quality of Bond's work is con-
cerned , there is no persuasive evidence that it was unacceptable to Respondent, which
retained him in its employ and even used him as an instructor Indeed , Plant Super-
intendent Pate himself testified that "There is nothing wrong with the quality of Mr.
Bond ' s work ," and contrary to Schoen he testified that "Mr. Schoen nor I never com-
plained about the quality of his [Bond's] work." Insofar as the quantity of Bond's
work, or his "production ," is concerned , it is discussed below. It is notewoithy that at
no time prior to inception of his organizational activities was Bond 's work performance,
during his period of employment in excess of a year, deemed to merit discipline or warn-
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bond prepared the union petition and commenced to attempt to exercise his legal
rights under the Act. Indeed, it is uncontroverted that even as late as January 23,
1964, after the close of the representation case hearing , Earle Rose , Jr., himself
approached Bond and told him he was being considered for the position of night
shift welding foreman; and when Bond told him that although he was gratified he
(Bond ) was "in no position particularly under the circumstances to even consider
being foreman at the Rose Company at least at this time ," Rose replied that "there is
still a good future for [you] at the Rose Company ......
The attached chronology marked "Appendix A," listing in chronological order
events ensuing after the confiscation of Bond's union petition on July 3, 1963, until
Respondent discharged him on April 6, 1964, should be consulted to keep in focus
the events to be described Within the frame of reference of those contemporaneous
happenings, it is necessary to consider certain episodes specifically and significantly
involving Bond. Particularly in view of his role in formulating and introducing the
union petition, and thus in spearheading the organizational drive in Respondent's
plant, and his unflagging efforts in furtherance thereof, Bond must be regarded as the
leader of the organizational activities among the employees.
After the episode of July 3, 1963, involving Respondent's confiscation of the union
petition book, Bond on July 8 visited union headquarters for advice in organizing.
He there received and thenceforth began distributing union authorization cards
among fellow employees. On July 17, Plant Superintendent Pate came over to his
work place and asked him, "What is all this about the union?" Bond told him that he
"really didn't know " Pate replied, "Just what do you mean, you really don't know
. I know better than that .... Don't try to kid me " When Bond persisted that
he did not know "any more about it than you do," Pate said that the employees were
"really nuts or crazy for wanting to get a union in because . all you are doing is
supporting these . . . big union guys down town . . to make them $25,000.00 a year
... who's paying that ... 9 . . All you guys that want to belong to the union ...
they are down there smoking those great big long black cigars while we have to smoke
these [cigarettes] . . . If you really want to have a union . . . I don't really have
anything against unions, you understand ... take my advice ... form an independent
union of your own just among you guys in the shop . . " On Friday, July 26, Pate
again approached Bond and said, "Lyle, what is this I hear about your still promoting
ing Insofar as Schoen ' s current disparagement of Bond is concerned , it is apparent that
Schoen has nursed a strong dislike of Bond which he hardly attempts to conceal , this,
added to Schoen's dedicated extremism against the Union and his keen desire to satisfy
his employer , would account for Schoen's general negative point of view vis-a -vis Bond
Respondent Night Foreman Schultz also indulged in some broad, factually unsupported
generalizations to the effect that while Bond worked on his shift from around May to
July 1963, he was "never up to the standard with the rest of the employees He was
always much slower. Several times I had to reprimand him for his constant visiting
with other employees when he should have been working . . on the average of twice a
week." Schultz also testified that "periodically, not too often" he observed that "some"
of Bond's welding was not up to "standard" of what "good welding would be," since lie
did not use enough heat Comment has already been made on my qualitative evaluation
of Schultz as a witness . Bond , in contrast , (lid extremely well even on lengthy and skill-
ful cross -examination . It will have been noted that Schultz ' characterizations of Bond's
work are vague ; the "standard" referred to was undefined ; no comparative or other work
records were produced ; there was no indication that other employees did not also "visit"
and incur "reprimands" for so doing ; and no adverse personnel action was taken against
Bond for any of the foregoing , suggesting the insubstantial nature thereof. Furthermore,
it is difficult to square Schultz' current contentions that Bond 's work was substandard
with Schultz ' assignment of Bond to train a new employee , Mackey-an assignment made
for the reason , as Schultz himself testified , that Bond was better qualified than anybody
else on the second shift for that purpose, excepting only Schultz himself. (As late as
about 5 days before his discharge, Bond was also assigned to teaching Ogle how to set
up 76-inch buckets ) I also discount the vague generalization of Respondent's un-
impressive witness Paras that, although prior to the election of October 8, 1963, Bond
"was a very conscientious worker. He'd try hard, stay on the job," after the election
Bond "kind of just gave up" After so testifying, Paras conceded on cross-examination
that after July or August 1963, his work station was located a "considerable distance"
away from Bond's work station, so that he was unable to observe Bond's work except
occasionally when Paras took "little walks" around the shop Furthermore, these ap-
praisals of the quality of Bond's work do not accord with the appraisal that "There is
nothing wrong with the quality of Mr. Bond's work," made and so testified by Plant
Superintendent Pate, who it would seem should certainly be in a position to know.
THE ROSE COMPANY 251
the union ." When Bond denied it , Pate said , "Don't b- s- me . I know bet-
ter." Bond continued to deny it. Pate said , "I know better than that, and . . . let
me tell you this . . . if you think that you are going to be a steward in the union .
don't count on it because you'll be on the outside looking in by then . . . don't take
me wrong. This isn't a threat . . . . But . . . you better watch your step that you
be outside looking in before the union gets in." 46 A few days later, around July 30,
Pate transferred Bond to the first shift effective the next day . Bond pointed out that
this would involve personal hardship and expense for him, since his wife was work-
ing and he would have to hire a babysitter ; and, further , that Mackey , a new and
extremely junior fellow employee, doing the same work as Bond, wanted to go on first
shift. Pate nevertheless insisted that it was Bond who would be transferred, but he
allowed him a few days to obtain a babysitter . When Bond asked Pate what was the
matter and whether he did not love him anymore , Pate replied , "If I loved you, Lyle,
I wouldn't want to fire you."
On September 12, 1963, during the course of an address by Earle Rose, Jr , to
assembled plant employees , Rose remarked that the employees "have been getting a
lot of b- s- at the gate lately ." Bond had been ( and continued to be ) active
in handbilling there, and had also been distributing union authorization cards In
the ensuing question-and-answer period, Bond asked Rose why he was opposed to
unions. By way of reply , Rose asked Bond whether he was from a union shop, why
he had left it, why he was working at Rose, and whether he had "learned " anything
at Rose. Bond answered that he had learned from Rose but that he thought Rose had
also learned from him Rose testified that he conceded , "Yes, Lyle, I have learned an
awful lot ... that I wouldn 't soon forget."
During this period, Bond was a union committeeman at the plant and wore a union
button, as did Stergar , Feinas , Fetzer, and a few others. On September 24, 1963,
while Bond was handbilling at the plant gate, Earle Rose , Jr., drove by, stopped his
car, and, after declining a handbill proffered by a union organizer and saying he
already had one on his desk, pointed to the sidewalk and said to Bond, "You better
take good care of that sidewalk because you are going to have to enjoy it pretty soon,"
and drove into the plant 47 Within a few days , on September 30, without previous
adverse personnel actions, Bond was in a sense demoted or downgraded by being
removed from "setup" work on "175" buckets and assigned to miscellaneous welding,
via a note read to him by Pate, giving as the reason that his "production on this job
has deteriorated to a point that makes this operation quite costly " and stating that
"shall you fail to perform in this [welding ] phase of our operation , I shall deem it
necesssary to take other measures "
Bond's activity on behalf of the Union was matched by the activity of Schoen-at
that time ostensibly a rank-and -file fellow employee 48-against the Union . Whether
justified or not, there can be little doubt as to Schoen 's marked hostility toward Bond,
at least because of the latter 's union activity and possibly also for personal reasons,
even before Schoen began wearing the badge of official authority, so to speak, on
October 28, 1963.
Se Pate denied be told Bond he "would be . . . outside . . looking in " and that he
suggested formation of an independent union. Pate also denied that he could recall
any conversation with Bond regarding the Union. I do not believe Bond manufactured
this and for that reason as well as observations elsewhere made herein on compaiative
testimonial quality, I credit Bond
4 Rose testified that all he said to Bond was, "Don't go throwing that trash all over the
sidewalk." Rose indicated that he had a passenger, George Kossty, in his car at the
time. Kossty was not produced to testify , nor was his absence explained Based upon
demeanor comparisons and the entire record, I credit Bond's version of the episode
48 Although during this period ostensibly a mere rank -and-file employee , nevertheless
there are indications that Schoen was even then a favored employee enjoying special
status or standing with Respondent To begin with, he had been-and was known to
the other employees to have been-a foreman in the plant He had been observed to
continue to use the same lunchroom or area as supervisors He had been invited, with
supervisors, to personnel receptions or birthday parties of management His ardent and
avowed antiunion activities, pranks, and antics were carried on openly. He appears to
have had accurate inside knowledge regarding Respondent's intended future personnel
actions, including perhaps its termination of Stergar-as described above, in connection
with the Stergar "countdown" sign-over a month before it occurred, and also of his
own intended promotion to foreman some weeks before it was officially announced on
October 28, 1963 All things considered, I believe it would be unrealistic to regard
Schoen as merely another lank-and-file employee of Respondent unallied with management
prior to October 28, 1963.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bond was one of two union observers at the Board -conducted representation elec-
tion on October 8, which the Union lost but which has since been set aside by reason
of employer misconduct in connection therewith . On October 16, Bond and Wegher
executed affidavits for the Board . Following the Union's loss of the election, Schoen
walked around with a union button on the seat of his pants. On October 28, Schoen
was officially made a foreman
On December 27, 1963, Schoen observed Bond hand a union authorization card
to another employee in a work area during lunchtime . Schoen told Bond that Donald
Rose wanted to see him in the office right after lunch. In the office , in Schoen's
presence , when Donald Rose questioned Bond about the card, Bond pointed out that
it had been passed out during lunchtime . Rose responded that "there was a notice put
on the board to the effect that there will be no solicitation on company time or com-
pany premises , and that rule means just what that rule says. Company time, company
premises " 49 When Bond tried to indicate that he had the right to pass cards out
on his own time on company premises , Rose interjected , "I know what your rights
are ... you do what I say do or you are going to be subject to a ... five -day disci-
plinary layoff "
At the Board hearing on January 22 and 23, 1964 , upon the Union 's objections to
the election of October 8, Bond ( as well as Stergar, Fetzer, Feinas , Wegher, and
Herzog ) testified against Respondent . On February 13, 1964, the Board's Hearing
Officer issued his report based upon that hearing , sustaining certain union objections,
and recommending that the election of October 8, 1963, be set aside . The next day,
February 14, Bond was suspended for 3 days , effective February 17 through 19,
under the following circumstances.
On Februaiy 14 , Bond was assigned a particular welding job he could not do
because of defective equipment , which he reported to Schoen , who thereupon ( around
7:20 a.m. ) directed him to set up and weld " 175" false bottoms 50 Since Bond had
never done this particular work on a "175" false bottom before, and since it was
necessary to follow a required welding pattern which Bond was unable to obtain
elsewhere , in accordance with regular practice Bond obtained the applicable blueprint
in the office , returned to his work place , studied and laid out the welds, and completed
the job by about 8.45 He then asked Pate to show him a faster way of doing this
unfamiliar job. By 2 p.m, according to Bond, he had completed six or seven " 175s,"
turning them out faster by this time , at the rate of about 45 minutes each . Schoen
then came by. Soon thereafter Pate came over to Bond and said, "I am sick and
49 This was an evident reference to the Chudnow notice of July 8, 1963 , which, as in-
dicated above , had been removed a week or 10 days later.
w The "175" false bottom is similar to but longer than the "9K3" false bottom A
"false bottom" is it part of it bucket attached to the front portion of a "front -end loader,"
which is a piece of earth -moving construction equipment used to scoop dirt out of the
ground and lift it into a truck or other place . The false bottom is welded to the bottom
of the bucket to prevent the latter from wearing because of contact with the ground
The false bottom itself consists of a steel plate or sheet with bars welded across it at
intervals to give it added strength The difference between the "9h3 " and the "175"
false bottom is that the plate on the latter is larger, the bars are heavier , and there are
more and larger welds , with a different weld pattern and from 20 to 40 percent more
welding surface . The "9K3 " has approximately 36 welds , 11 on each of its 3 reinforc-
ing bars , whereas the "175" has approximately 60. These are the numbers of welds if
"alternate" welds are used ; these numbers would be reduced by one -half if "skip" welds
are used. "Alternate" welds are welds on each side of the article to be welded, with
one weld right under the other , without "staggering" the welds between one side and
the other . "Stagger" or "skip" welds are also welds on each side of the article to be
welded, but in such a fashion that no weld on one side has a directly corresponding weld
on the other side, so that in effect the welds are "skipped " or "staggered" from one side
to the other . " Cheat" welds are narrow , thinner, and weaker welds produced under
especially intense heat Although the difference in welds is apparent on the false bottom
itself , it cannot be seen once the false bottom is assembled into the equipment itself.
According to Bond , although the blueprints for the "175" false bottom called foi alter-
nate welds, as a matter of practice they were always stagger-welded Bond indicated
that it was necessary for him to study the blueprint on the "175" on February 14, since
because of his lack of familiarity with this work on the "175" he was uncertain of the
weld pattern thereon.
THE ROSE COMPANY 253
tired of this b- s- .... I want you to go downstairs, change your clothes,
wash up and go home and get a good rest over the week end " When Bond asked
Pate why he was being sent home, Pate said, "Because you are not doing enough
work, that's why." 51 When Bond picked up his paycheck, Pate told him to call him
the following morning, Saturday, February 15, at which time Pate told him to return
to work on Monday morning. On Monday, February 17, after setting up his equip-
ment and then being told by Pate to wait in the office, after waiting about 45 minutes
Pate handed him a document placing him on a 3-day disciplinary layoff, effective
February 17, for "obvious lack of production on 9K3 false bottoms on February 12,
1964, and 175 false bottoms on February 14, 1964." When Bond asked Pate if he
should punch out, Pate told him it was unnecessary since he would not be paid. In
their conversation on the previous Saturday, when Pate had told Bond to come in and
see him "before [you] go to work," Pate had mentioned nothing about a layoff,
suspension , or discipline.
Respondent's version of the foregoing must be gleaned primarily from the conflict-
ing and internally inconsistent testimony of Schoen and Pate. According to Schoen,
on February 12 52 he assigned Bond to "9K3" false bottoms, but his work was "very
unsatisfactory, incomplete, and very little of it." Pate denied that Schoen complained
to him about the quality of Bond's work on that day or any other time. Accoiding
to Schoen's testimony on direct examination, Bond produced "approximately seven to
nine pieces" that entire day, by cross -examination time, Schoen was "positive" it was
only seven pieces-three by 11 am. and four more by the 3.30 p.m quitting time.
Schoen testified he told this to Pate. Pate swore that Schoen never told him this and,
indeed, that he had never discussed with Schoen the number of pieces Bond produced
that day-"I [Pate] told Mr. Schoen what Mr. Bond did because I counted the pieces."
Although Schoen swore he was "positive" that Bond produced only 7 "9K3s" that
entire day and that this is what he told Pate, upon being confronted on cross-
examination with a contrary written statement by Pate that Bond finished 4 "9K3s" by
11 a.m. and 7 in the afternoon, or a total of 11, Schoen thereupon acknowledged that
this information by Pate (i.e., 11 "9K3s" produced by Bond on February 12)-
thoroughly inconsistent though it was with Schoen's testimony (i.e., 7 "9K3s" pro-
duced by Bond on February 12)-"must be" correct.
51 Several days prior to this , according to Bond , he had experienced a production in-
terruption or delay because of faulty, nonoperating, or unavailable equipment Accord-
ing to Bond, on February 12 he had been assigned by Schoen around 7.20 a in to assem-
bling and welding "9K3 " false bottoms Bond completed the first "9K3 " in a h , ilf hour,
according to him approximately the normal time According to Bond's further testimony,
which I credit , he was delayed in obtaining essential parts for his next job unit because
an outside crane was not in operation , necessitating the hand -carrying of the parts to
an inside crane, which was then unavailable because it was in other use, meanwhile,
Bond did other work. Because of these unavoidable delays , not due to fault on his part,
Bond had produced only 9 "9K3" false bottoms by 2 p in., when Schoen came by with
Pate, who remarked he was "going pretty slow " and would not be able to complete 16 that
day. Bond actually completed 12 to 14 that day, according to his testimony . Further
according to Bond , neither Pate nor Scohen asked him why he had completed only nine
by 2 pm and Bond did not volunteer the reason why, since the reason was known to
Scohen, who had assisted Bond in obtaining the needed bar stock , and perhaps at least
in part also known to Pate, who had told the crane operator to bring the bar stock inside.
The next day, February 13, Bond's work on "9K3" false bottoms was uninteriupted, so
that by 2 p .m. he had completed 13, eliciting a commendatory remark from Pate The
February 12 incident does not impress me as extraordinary in a plant or operation of
this type , nor, under the circumstances , such as to merit censure, suspension , or other
disciplinary measure, nor upon the entire record can it fairly be regarded as having been
causally related to Bond ' s discharge 2 months later , on April 6
62 Pate , as well as to a degree Schoen , was mistaken or confused as to dates Thus,
Pate referred to the events of February 12 as having taken place on February 13, al -
though it is clear from the context of his testimony , the fact that 'Bond worked all day
on "9K3s," and also Pate 's own written 3-day suspension notice to Bond, that February 12
was the date involved , as testified to by Bond Schoen was similarly mistaken, or, rather,
inconsistent on the subject of the date February 12, which he variously referred to as
February 12 and February 13 As already indicated , Respondent ' s own letter of suspen-
sion of Bond corroborates Bond 's testimony that the described events occurred on
February 12.
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the subject of Bond's explanations , as described above, for production inter-
ruptions on February 12, Pate did not deny them 53 Schoen first broadly testified
that there were no problems to interfere with Bond's production that day, but then
admitted that Bond "said he ran out of bar stock, and everything else " 54
With regard to February 13,55 although Schoen in his testimony indicated Bond
produced only 9 "9K3s ," Pate-in agreement with Bond-testified that by 1:30 p m.
Bond had produced 13 "9K3s" and Pate conceded that on that day his "production
was excellent "
On February 14, Bond was assigned to "175" false bottoms . In Schoen's own
words, "he [Bond] had never worked on 175's before " According to Schoen , Bond's
"production record was even worse than the day before . That was on the
14th .... The 14th he was working on the 175 bucket . The 13th he was working on
the 9K3 bucket " 56 While conceding that Bond had never worked on " 175s" before,
Schoen nevertheless insisted at the hearing that the "175s" are "very similar to the
9K3 false bottoms . . . the similarity is terrific . 57 There is no difference except in
the length " 58 Asked on direct examination whether on this day Bond came to him
with "any particular production problem," Schoen 's answer 59 was , "There is no
such thing ." According to Pate, since Bond had produced only four "175s " by 1:30
p.m., he laid him off for 3 days and handed him the written 3-day suspension which
53 Pate did testify , however , that after Schoen reported to him that morning that Bond
was "dragging his feet" on " 9K3s ," Pate told him he knew and then went to see Bond,
who asked him (Pate ), " Well, show me [ how to do it ]" and Pate did. This seems un-
likely, since Bond was concededly working on "9K3s, " with which he was thoroughly
familiar It seems more likely that , as Bond testified , it was on February 14, when Bond
was assigned to the unfamiliar job on "175s ," that Bond asked Pate and Pate showed
Bond how these could be welded faster.
64 Schoen did not explain what he meant by "and everything else " According to
Schoen , when Bond told him that he had run out of bar stock, Schoen told him, since it
was "laying by his feet ," that "All you had to do was pick it up ," and Bond ' s response
was merely , "Oh, I didn ' t see that there ." Being dubious as to this , considering also the
way it was testified to, the Trial Examiner asked Schoen whether he had ever previously
had the same difficulty that Bond "ran out of material ." Schoen's answer was,
"Consistently "
55 Again with regard to this date, both Pate and Schoen were confused or mistaken,
and at odds with the dates set forth in Respondent 's own written suspension notice to
Bond ( Bond ' s testimony was consistent with the dates in that suspension notice). Pate
referred to events on February 13 as having occurred on February 14 It is apparent that
Pate was wrong, not only from his own written suspension notice to Bond but also
because Pate testified about Bond 's working on "175s " on the following day (which ac-
cording to Pate ' s system of reckoning would have been February 15), the date Bond was
suspended , but February 15, 1964 , was Saturday and there is no question that Bond was
suspended on Friday ( February 14, 1964 ). Furthermore , Pate ' s written suspension notice
to Bond expressly refers to February 12 and 14 , the same dates as testified to by Bond as
recounted above , corroborating the accuracy of Bond 's testimony and the inaccuracy of
Pate ' s (and Schoen 's) as to those dates Schoen was similarly confused , since on direct
examination he initially testified that on February 13 Bond was assigned to "175" false
bottorns , but then testified this was on February 14, then initially on cross-examination
reverted back to February 13, and then finally-in seeming agreement with Bond ' s testi-
mony-testified that on February 13 Bond worked on "9K3s " and on February 14
on "175s "
59 With regard to Schoen 's broad characterization of Bond's "production record" on
February 14 as "even worse than the day before " it is to be noted , first , that Pate him-
self agreed that on February 13 Bond 's "production was excellent" and, secondly, that
Bond was working on a different article ( namely , 175s , with which he was concededly
unfamiliar ) on February 14 than he had been on February 13 (9K3s).
5-, Even if this were true , it could well be that this would not be known to a person
who, like Bond , had never before worked on a "175 ," but only to a person familiar with
it. Indeed , bland assumption on the part of an employee unfamiliar with the "175"
that because it looked superficially similar to the "9K3" In certain ways it should
therefore be welded in the same way as the "9K3" might well result in totally wrong
work as well as spoilage of material and waste of time and money . See footnote 58, infra.
5s This seems a characteristic , broad and inaccurate generalization on the part of this
witness These articles are simply not the same . The undisputed evidence is that at
least the weld pattern , plate size , heaviness of bars, weld surface , and number of welds
are different.
69 Again, characteristically , a sweeping generalization
THE ROSE COMPANY 255
is in evidence.60 In denying at the hearing that he had produced only four "175s" by
1.30 or 2 o'clock on February 14, as claimed by Respondent, Bond pointed out-in
addition to the newness of the job to him, and its attendant early complications as
recounted above-that his fellow employee, Casey Grams, had in the meantime
removed one of the "175s" from Bond's stock, which could have explained a wrong
count by Schoen and Pate of Bond's "production." This was undisputed by Respond-
ent, which did not produce Grams to testify.
Based upon a careful evaluation of the testimony , including contradictions and
internal inconsistencies therein, weighed in the balance of demeanor comparisons, and
considering the probabilities of the situation in terms of such objective evidence
(e.g., Respondent's suspension notification of February 17, 1964) as has been made
available and Respondent's failure to produce (or to account for the nonproduction
of) objective production records and other documentation, all viewed in the frame of
reference of the surrounding circumstances (see appended Chronology), I accept and
credit Bond's version of the events of February 12, 13, and 14, 1964.61
61 Here, again, notwithstanding Pate's testimony, It is to be observed that Respondent's
written 3-clay suspension notice to Bond is not dated February 14, but February 17, so
that Pate's testimony about giving Bond the suspension notice on February 14 was in this
further aspect inaccurate unless that notice was postdated, which is not claimed I do
not believe Bond fabricated his described testimony regarding his telephone conversation
of Saturday (February 15) with Pate and his visit to the plant on Monday, February 17,
when he was given the written suspension notification which is dated that day
61 Respondent also attempted through Schoen, Pate, and a few other witnesses, to
establish Bond's "slowness" prior to February 12, 1964 These attempts, however, were,
again, characteristically vague, general, and conclusory, not factually supported or equiv-
ocal Thus, although Pate testified that he "had discussed the amount of work that
Mr Bond did off and on two or three times a week for a year because he was very
slow . . . . And he did not perform up to his capabilities . He could do a lot better,
and he proved it on various occasions ," Pate refrained from specifically stating that these
presently alleged discussions were with Bond, and it is of course the fact that Respondent
had retained Bond in its employ, without any disciplinary measure notwithstanding any
such slowness or other failing It seems unlikely that if Pate really discussed Bond's
being so "very slow" two or three times weekly for a year, Pate would not have dis-
charged Bond or subjected him to disciplinary measures or at least severe warning, if
Respondent took these alleged shortcomings seriously Schoen made his usual comments
about Bond's performance prior to February on 76-inch buckets, here again stating that
"every day something went wrong This didn't fit, that didn't fit, the other thing didn't
fit, consistently , day after day . . . Schoen 's sweeping generalizations seem out of
keeping with Pate's testimony that the quality of Bond's work was unexceptionable.
Furthermore, it is difficult to believe that if Bond's work was "consistently, day after
day" so bad, he would have been retained in Respondent's employ for so long and even
given raises. Although Schoen attempted to compare Bond production-wise with Ogle,
this does not seem an entirely fair comparison, since there is indication that Ogle was,
if not a "speed demon" in the plant perhaps because of earlier work conditioning else-
where , at least by Schoen's admission , "almost as good as I [Schoen] am . . . . And
that is very good . I am an excellent welder," and so according to Schoen was Ogle
also an "excellent welder," 1 of only 8 excellent welders out of 25 to 30 first-shift weld-
ers. Ogle was 1 of perhaps 100 or more welders, even assuming arguendo that Bond was
"slower" than the "average," Ogle may have been-and, according to Schoen's testimony,
seems to have been-substantially faster than the average, for any of various possible
reasons Although presumably available-as indicated in the testimony of Respondent's
witness Van Ryzin-no comparative welder production records, data, or studies were
produced by Respondent. Welder Leach, testifying as Respondent's witness, vaguely
characterized Bond's "work habits" as "I can't say it was too good" and without "interest
in his work to speak of," describing Bond's duties as "lots of fit up work [sic] . . . .
And set up work," and that after the election he (Leach) "thought he [Bond] slowed
down pretty well," although Leach then only worked "some" with Bond Leach never-
theless testified that he rated 'Bond at all times as a "pretty good welder " Leach on the
whole corroborated Bond's testimony-hotly contested by Respondent-regarding the
necessity and common practice among welders to go to the office for blueprints to check
weld patterns (as Bond had done on February 14 when assigned to the "175s") and that
"varnish board" drawings in the plant itself were an innovation (which may not have
been in effect yet on February 14) or for various other reasons not available to or
utilizable by Bond.
Considering the testimony of all witnesses, the question of "standard," "normal," "aver-
age," or "prevailing" setup, setup and welding, or welding "production" speed on "9K3,"
"175," and "72-inch" bucket false bottoms in this plant is shrouded in conflict, ambiguity,
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pate conceded at the hearing that there is no question or doubt in his mind that
during the period from February 20 (i.e , date of return from the described 3-day
suspension) to April 6, 1964 (i.e., date of his discharge), Bond "did a very good job"
and that Schoen was aware of this and so reported to Pate.
We now come to the events immediately preceding Respondent's discharge of Bond
on Monday, April 6, 1964. After Bond's return to work on February 20 following
his described 3-day suspension, there was no handbilling until April 3. On Friday,
April 3, for about three-quarters of an hour before reporting to work at 7 a.m., Bond
handbilled at a public walk just outside the plant gate, which is located about 30 yards
from the plant, at an access drive through a wire fence After work that day, Bond
resumed the handbilling, assisted by Femas and Fetzer. According to Bond and
Feinas, while thus handbilling, Bond narrowly, and only by lumping out of the way
when warned by Femas, avoided being struck by a rapidly moving car which turned
in abruptly and came to a sudden stop. The car was driven by Earle Rose, Ji., who
according to Bond said, "Get out of here . . move . . . you are on my property, and 1
want you to leave." When Bond indicated that it was a public sidewalk and that he
intended to continue to use it to handbill and requested Rose to move his car (stopped
at an angle across the sidewalk so as to block one lane of plant traffic) so as not to
interfere with this, Rose "jumped out of his car and he put his chest right into my
chest, and he said again, `What did you say,' and he started pushing not with his
hands but with his chest. We were chest to chest, and he was pushing me that way "
Rose did not move his car, but left it parked in that way, removed the ignition key,
and went into the office Bond continued handbilling A few minutes later Earle
Rose, Jr., returned with his brother, Donald Rose, and shortly thereafter said to the
latter, while Bond was handbilling, "I think we are going to need a couple of chippers
and grinders next week, would you make a note of that " As Bond continued hand-
billing, Donald Rose made notes. One of the incoming drivers, after looking at
Earle Rose standing there, refused to accept a handbill from Bond. According to
Bond, Earle Rose moved on to the sidewalk and said to Bond, "You are a punk, you
know that . . . Rose Company got where it is today because of Earle Rose . . . not
because of punks like you " After repeating three or four times, "You are a punk,"
Rose called Bond "a bastard " At this Bond said, "All right, Earle, if I'm a punk and
if I'm a bastard, or if you say I'm all these things . . . then I'll be all those things just
to make you happy " A few minutes later, Rose remarked to Bond, "You'll probably
try and organize the next place you work at, won't you," to which Bond responded,
"I don't hardly think so because I'm not going to be working anyplace else but the
Rose Company." Rose thereupon walked over to his brother Donald and said, "Be
sure to make a note that we are going to need a couple of chippers and grinders next
week when we lay off all the welders " While Bond was thus handbilling, Rose was
out there for about 20 to 25 minutes, at times standing right next to Bond. Except
for portions of some colloquies between Rose and Bond not within Feinas' hearing,
Feinas in essential essence corroborated Bond's version of the handbilling episode of
April 3.
Since neither Earle Rose, Jr., nor Donald Rose (nor any other witness on behalf of
Respondent) was called to testify with regard to the April 3, 1964, handbilling episode,
Bond's version thereof stands uncontradicted
and doubt It seems at least in part to be dependent upon individual speed factors and
capabilities, which suggests a range rather than an absolute, rigid standard. Even
Respondent 's witnesses were in conflict among themselves , as well as inconsistent in their
own testimony , with regard to these matteis In the absence of factual data upon the
basis of which comparisons could be made of worker speeds and production yields of
the same articles under the same conditions , Respondent has not succeeded in persuading
me that Bond 's performance was in any way regularly substandard or atypical , much less
that it was regularly such to the degree that it was the real cause for his suspension
or subsequent discharge. As indicated below , such production data or records available,
according to Respondent 's witness Van Ryzin , were not produced nor was their non-
produetion explained
Respondent ' s suggestions that Bond was an unsatisfactory employee long prior to the
described incidents of February , in effect partake of the character of warmed -over por-
ridge. Vague and conclusoiy to begin with, they are factually unsupported. Further-
more , Bond was not only retained in Respondent 's employ but was given raises and even
mentioned by Earle Rose as being under consideration for a welding supervisor ' s job as
late as January 1964 Moreover , Respondent used him as a welding instructor And,
finally , Pate testified unequivocally that , in any event , Bond "did a very good job," with
no question or doubt in his mind from February 20 that his work was "satisfactory up
to April 6" and that Schoen was aware of this and so reported to Pate.
THE ROSE COMPANY 257
On Monday, April 6, 1964, the next workday following the handbilling incident of
Friday, April 3, Bond arrived at the plant at 7.16 a.m. (16 minutes after starting time)
because his car pool driver failed to pick him up. Since under plant rules he would
not be paid before 7:30 even though he clocked in at 7 16, he took his time changing
clothes in the lockerrooni. When he arrived at his work place, Schoen asked him
why he was late. Apparently not satisfied with Bond's explanation, although there
is no claim of previous lateness on his part, Schoen asked him why he could not drive
his own car. Bond pointed out that this was how he had gotten to work, causing his
wife to be late to her work because she had to drop him off Schoen then assigned
him to complete somebody else's unfinished welding on a bucket When he attempted
to start to do this, Bond found that the ground cable was broken and had to be
replaced, involving use of the cutting torch, which was "tied ... up in a bunch of
knots", and he also had to obtain welding equipment located elsewhere in the plant.
Further, since this particular job required the stress plates be placed on the bearings,
he had to find the stress plates and chamfer them so as to fit over the weld in the
bearing, and it was necessary to procure a clamp for this purpose. This combination
of unavoidable but necessary tasks, according to Bond, took until about 8 30, at
which time he obtained a cup of coffee from the coffee machine and returned with
it to his job location, where he sipped the coffee while chamfering-according to
Bond, "standard procedure" in the plant 62 At this, Schoen came up from behind
and asked hint what he was doing Bond replied that he was "taking a drink of my
coffee." According to Bond, the following ensued:
And he [i e , Schoen] says, "Well, why aren't you working." I said, "I told you
because I'm taking a drink of my coffee,' but I says, "I'll be working right now,
you know " And so he said that I should be working, and I told him that I was
going to be, and then I also told him, too, I said, "For crying out loud, Bob,"
1 says, "You should try to use a little common sense ," and he told me, he says,
"What do you mean by that," and I says, "`Well, just what I say. You should
use a little common sense , Bob " 1 says, "For crying out loud all the guys drink
coffee all the time around here." 63 So he got real peeved at that .... He was
holding his welding helmet in one hand ... and his welding gloves in his right
hand, and he . . . threw his gloves into his helmet and put his helmet down ...
and ... went up the aisle towards the office.
Bond then proceeded with his job, and after more chamfering of the stress plate and
clamping it on, he took a few steps toward a fellow worker and quickly (about a
minute ) told him what had happened. He then stepped back to his work place.
Schoen returned at this time (about 10 or 15 minutes after he had left) and said to
Bond, "Well, are you ready to go to work now" Bond replied, "Bob, I been working
ever since I been here this morning . . . . By the way, where's Tony [Pate]?" 64
Schoen stood there, his face started to get red, and he said to Bond, "All right, you
are fired." 65 After changing his clothes, Bond picked up his pay and asked Pate why
63 Bond 's characterization of coffee drinking while working , or at work places, as
"standard procedure " at the plant is fully supported by other witnesses , including those
of Respondent
0 On cross -examination , Bond elaborated on this slightly , testifying that he told Schoen
he was already working, that he had "just taken a few seconds out to get a cup of
coffee," and that he (Bond) "already was working" and "for crying out loud . . all
the guys in the shop drink coffee on the job . . . you should know that." Bond fur-
ther testified that it has always been the practice in the plant for employees to obtain
coffee at the coffee machine without restriction , even apart from the officially scheduled
coffee break , so long as not overdone . In this, as shown below , Bond is fully supported
by other witnesses , including Respondent ' s managerial and supervisory personnel Fur-
thermore , Bond's conduct regarding coffee on the morning of April 6 was not essentially
different from the habitus of other plant employees ( including Schoen when he was a
rank -and-filer ) on other days, with no indication or claim of any disciplinary reaction
from Respondent on any other occasion or toward any other employee
84 Bond's explanation for asking this question was that on prior occasions when Schoen
had had disagreements with him, Schoen had invariably returned with Pate or had sent
him to Pate ; and that on this occasion Bond merely assumed Schoen had again promptly
reported him to Pate.
° On cross -examination , Bond testified that after reporting at his work place he spent
a total of about 15 or 20 minutes in repairing and obtaining equipment , as described
above, and about 35 minutes at work. He was fired by Schoen around 8.40 or 8.45 It
was Schoen also who had fired Fetzer on November 5, 1963 Schoen testified that Fetzer
and Bond were the only two employees he had fired since becoming a supervisor
206-446-66-vol. 154-18
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he had been fired, requesting a letter giving the reason. Pate said he would send him
such a letter in a few days. He never received any letter.
Respondent's version of the discharge of Bond is as follows. Schoen testified that
on April 6 Bond reported for work a half-hour late and Schoen assigned him to
welding bearings on a bucket "A little while later" he saw Bond with a cup of
coffee in his hand, but "not a thing" in the way of work "done as of up to yet." On
direct examination, Schoen testified
I says, "Lyle, aren't you going to go to work9" "Yes, I am going to work " A
little while later I come there, Lyle is standing with a cup of coffee in his hand,
not one bit of weld was on the bucket yet. I said, "Lyle, won't you please go to
work?" And he just looked at me. I said, "What are you doing9" He said,
"Aw, you haven't got any sense " I walked away from him because I was getting
a little angry by that time, and I came back, and he still wasn't working, and
I came back and I fired him .... The man did not do one bit of work. There
was no work to be seen .... There was one little bar that he did a little chamfer-
ing in, from that length of time, 7.30 in the morning on, he did absolutely nothing
but stand around with a cup of coffee in his hand, and chew the rag with Casey
[Grams] .... Between 7.30 and 9.20 . . . It was a long length of time, the
guy didn't do anything during the time he was there . . . . Between 7.30 and
8.40. .. Approximately 8:40.... I came up to Lyle Bond and I said, "You
haven't done anything yet . . . You are fired. Get out of here." He said
"Good," [with] a very happy, silly look.
It will have been noted, among other things, that Schoen's version on his direct
examination omits mention of the difficulties Bond was having with the equipment
that morning. On cross-examination, however, Schoen-describing this date as
Friday, April 3-testified that when Bond got to work at 7.30 and reported to him,
Schoen did not ask him why he was late but Bond "started to tell me why" and he
assigned Bond to complete a welding job which somebody else had not completed.
Schoen conceded that the welder would have to employ gloves, helmet, and equipment
for this purpose, and that on this particular piece of equipment there was a reinforc-
ing plate or stress plate which, in order to fit over the weld, might require chamfering
on the weld location radius to the right size with a torch. Also under cross-
examination Schoen conceded that Bond had told him that the stress plate on this
job required more chamfering.66 Then asked, on cross-examination, whether Bond
had also told him that he had to replace a defective ground cable or plate on the
ground wire from the welder to the bucket, Schoen's answer was, "He might have ...
but that is not his job ... we have a maintenance man to do that for us ...."; 67 and
in rapid succession Schoen then said that Bond did not make "that statement," and
then that he did not remember whether Bond said it. Also on cross-examination,
Schoen finally conceded that when he returned and saw Bond with coffee, Bond did
indeed tell him that he "had started to work" and that he "had to chamfer the bar."
After testifying repeatedly that as of this time Bond had done no work and "had not
started the job," 68 Schoen then conceded that as of this time Bond had in fact already
chamfered the bar (in addition to telling Schoen that the welding equipment needed
repair or replacement). Also according to Schoen on cross-examination, when he
returned 15 minutes later and saw Bond still drinking coffee, Schoen did not know-
or apparently try to ascertain-whether by this time the welding equipment was
operable or whether anything had been done to make it operable.69
Pate had little to add to the foregoing, but the little he did add is of interest in
assessing the comparative weight and credibility of the conflicting versions. and the
more basic issue as to the bona-fides of Respondent's contention that it discharged
Bond for nondiscriminatory reasons. To begin with, asked (of course in relationship
to the rancorous episode of April 3 between Rose and Bond ) whether Earle Rose, Jr ,
had mentioned Bond to him (Plant Superintendent Pate) within a week prior to his
April 6 discharge, Pate's first reply was, "I see Mr. Earle Rose very seldom," and he
08 According to Schoen, this would take 11, minutes "at the most."
87 Schoen did not deny that the need for such equipment repairs or replacement would,
however-regardless of by whom done-delay the worker's operations
68 Respondent's witness Ogle testified that on the morning in question (April 6), al-
though he saw Casey Grams and Bond talking "by the bucket," he saw them both work-
ing-"I seen them work"-and that he did not see Bond with any coffee in his hand but
only with a welding iron There is no indication that Grams was in any way dis-
ciplined ; nor was he produced to testify.
°B Also on cross-examination, Schoen testified that before he discharged Bond he went to
the office and spoke to Pate and Kollentz, who consulted an attorney.
THE ROSE COMPANY 259
then added, "he [Earle Rose] did not speak to me about Mr. Bond or anybody," nor
did Donald Rose, but then Pate promptly further added , "No, not that I recall" and
"I don ' t recall talking to anybody in regards to Mr. Bond outside of Mr. Schoen."
Asked on direct examination whether he was "aware " of Bond 's discharge or termina-
tion in April , Pate's answer was, "It was brought to my attention , yes," and that he
had received a report about Bond from Schoen "a day or two before " April 6 and had
told Schoen "to take care of it himself ." On cross-examination , Pate testified that it
was his ( Pate 's) decision on April 6 to discharge Bond since "Mr. Schoen didn't have
it in his power to discharge any body at that time."
Ample comment has already been made about the testimonial quality of Schoen
and Pate, to render unnecessary a further particularization of the conflicts and inter-
nal inconsistencies in their testimony as to the events of April 6. I find Schoen's ver-
sion of the events of April 6, as given on his direct examination , to be essentially
incredible . I credit Bond 's denial that he ever made the remark ascribed to him by
Schoen about Schoen not having any sense. The making of such a remark by Bond,
and his indulging in the behavior described by Schoen , under the total circumstances
of the existing situation, would be incomprehensible , and upon the entire record,
including demeanor comparisons , I credit Bond 's version of the events of April 6.
After careful analysis of the entire record, with the myriad of factual facets and
incalculable reflections and cross -reflections educed through skillful litigation by able
counsel, there is no real doubt in my mind that it was not Bond's "dogging" his work
but rather his dogged persistence in leading his fellow employees in their attempts to
exercise their rights under the Act , and immediately and most specifically his ran-
corous encounter with his boss, Earle Rose , Jr., while handbilling on Friday afternoon,
April 3-as described by Bond and in no way disputed by Respondent-which caused
his discharge on Monday morning , April 6. Viewed , as it realistically must be , within
the matrix of the surrounding events ( see appended Chronology ) of which it was a
part, and considering Earle Rose 's undisputed reaction to the April 3 handbilling
episode as evidenced by his actions and words , the coincidence between his angry
reaction to the April 3 episode and the immediately ensuing April 6 discharge is too
great to ignore , particularly when the inferences to which it inevitably gives rise have
not been dispelled by the proof adduced Ignoring the coincidence between the
April 3 handbilling episode 70 and the April 6 discharge , Respondent contends that
Bond was discharged because of his poor "production" and specifically his actions
and inattention to work on April 6. Although I ani far from persuaded that Bond's
"production" was as poor or his inattention to work as serious as is now claimed, I
am wholly unconvinced that these factors or either of them were the real reason for
his summary discharge . It is, of course , settled, that where discriminatory reasons
combine with other reasons to bring about a discharge , the discharge will be regarded
as discriminatory and therefore illegal under the Act.71
To begin with, the substantial credible evidence-including the length of Bond's
employment , the raises he received , Respondent 's utilization of him as an instructor
of other welders , and as recently as January , 1964, Earle Rose 's indication of his can-
didacy as a welding foreman-indicates that the quality of Bond's work was not
unacceptable to Respondent Indeed-excepting the contrary testimony of Schoen,
who was hardly unbiased toward Bond , and who was contradicted by Pate-Respond-
ent's witnesses largely so conceded, and Respondent in its brief indicates no issue is
raised concerning this.
With regard to Respondent 's contention as to Bond's alleged poor "production,"
the testimony adduced in support thereof was vague , equivocal, conclusory , and con-
flicting. It was not of a character calculated to persuade , viewed against the total
70 Since Respondent makes no claim that any insouciant , disrespectful , or improper be-
havior on Bond's part toward Rose caused the discharge , it is unnecessary to deal there-
with. It is not illegal for an employee , at least within the bounds of reasonably ac-
ceptable behavior ( measured in terms including any possibly provocative stimulus or
counterbehavior), to point out or explain to his employer that he is exercising rights
secured under the Act. Cf. Latex Industries, Incorporated , 132 NLRB 1. All circum-
stances considered , there is no proof that Bond 's actions or words on the described
occasion were beyond the pale, nor is his discharge predicated or defended upon such
ground
71 See , e.g, Nachman Corp . v. N L R B ., 337 F. 2d 421 (C.A. 7) ; N.L. R.B v. West Side
Carpet Cleaning Co., 329 F. 2d 758, 761 (C.A. 6) ; N L R.B v. Great Eastern Color
Lithographic Corp , 309 F. 2d 352 , 355 (C A 2), cert denied 373 U S 950 ; N.L R B. v.
Jamestown Sterling Corp , 211 F. 2d 725, 726 (CA 2). That this would be true even
in the case of a "dissident and annoying employee ," see Duo-Bed Corp. v. N.L R B., 337
F. 2d 850, 851 (C A. 10).
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
background of the entire case Furthermore, no facts were adduced to establish that
other employees doing the same type of work as Bond were discharged for "produc-
tion" as poor as Bond's allegedly was, nor that the "production" of other employees
retained in its employ was not just as poor as, or poorer than, that of Bond. Although,
to be sure, various witnesses testified in general, conclusory terms that Bond was in
their opinion "slow," at least sometimes, this is vague talk as distinguished from the
factually definitive demonstration which may be made by producing actual produc-
tion records and data in order to derive a factual norm, against which a given
employee's production may be measured or compared to establish the presence or
absence of significant deviation. Respondent's witness Van Ryzin indicated in his
testimony that precise timecard records were maintained on job orders performed for
accounting and billing purposes. Under these circumstances, considering Respond-
ent's unexplained failure to produce such records or a factual resume or analytical
compendium thereof, at the hearing, the assumption would be unjustified that if
those records had been produced they would have supported Respondent's conten-
tions regarding Bond's productivity level. It is further to be noted that out of the
entire period of Bond's employment only a very few specific days of allegedly poor
production on his part were attempted to be established by Respondent. Although
a few such days would not appear necessarily to be unusual, considering the total
span of time involved, nevertheless they were satisfactorily and credibly accounted
for by Bond, as recounted above. In my opinion, they would not have resulted in the
drastic personnel measures taken against him by Respondent unless they masked dis-
criminatory intentions. Although Respondent now contends Bond's performance
had been extremely unsatisfactory in various respects, including what would seem to.
be the overwhelmingly important aspect in a nonprofessional factory worker of
"production," the fact is that he was kept on the payroll for a considerable length
of time and was given raises. The circumstance that in Respondent's estimation
Bond's "work apparently became intolerable only after [he] had joined the union"
is a circumstance properly to be considered in determining the true reason for his
suspension and discharge. N.L R.B v. Elias Bros. Big Boy, Inc , et al., 325 F 2d
360, 366 (C.A. 6). It seems improbable that if Bond's "production" was consistently
as bad as Respondent now vaguely claims it to have been, he would not have been
discharged or other adverse personnel action taken against him at some time before
he sought to exercise, and led his fellow employees in seeking to exercise, rights
guaranteed to employees under the Act.72
Much is now also sought to be made of Bond's coffee drinking and conversational
habits, as indicia of inattentiveness to work. As to this, it need merely be said that
there is no indication that Bond was the only coffee drinker or talker in the plant,
or that he exceeded any established or understood standards or limitations in either
of these respects. On the contrary, the evidence is overwhelming that coffee drink-
ing, apart from official coffee break time, by employees was open and widespread
if not universal, to Respondent's knowledge and utilizing the coffee machinery pro-
vided by Respondent itself. As Pate himself testified, "They [employees] are free
to go up and have coffee any time during the day. There are no scheduled hours
for it, but an abuse of the privilege, of course, would dispense with the [coffee
machine] dispenser " Foreman Schultz agreed that the entire matter of coffee drink-
ing at the plant was "kind of a loose practice," permissible "at anytime." It has not
been established by substantial credible evidence that Bond on April 6, 1964, or any
other occasion violated or abused any plant rule, policy, or practice in this regard,
and I find that he did not.73 Nor is there any proof that Bond did an undue, unusual,
72 Cf. Nachman Corp v N.L.R.B., 337 F. 2d 421 (C A. 7) ; N.L.R.B. v. Electric City
Dyeing Co., 178 F. 2d 980, 983 (C A 3)
73 In making this finding , I am mindful of the testimony of Respondent ' s unimpressive
witness, Paras, a peripatetic or episodic welder with employment punctuated over a
period of 10 years, who testified that after the October 8, 1963, election he noticed Bond
walking past Paras' work area "a good 15, 20 times . . . just about every day " Par-
ticularly in the light of his other testimonial productions as observed, it may be doubted
whether Paras' alleged recollection represents anything like an accurate count. Further-
more, in the absence of proof to the contrary , there is no reason for doubting that just
as Paras' work requited him to walk past Bond's work area-as Paras testified, "It I
got to find fifteen parts, I'll take fifteen walks . . . If I'm looking for fifteen, twenty
different parts and I can't find them , yes [I 'll take 15, 20 walks a day]"-Bond's work
likewise required him to walk past Paras ' work area , accounting for some if not all of
the allegedly observed passings -by or supposed meanderings of Bond Moreover, as a
matter of simple arithmetic , subtraction of two passings -by for reporting to and leav-
THE ROSE COMPANY 261
or unreasonable amount of talking on the job, nor that he was ever disciplined or
warned about it. Since the punishment of summary discharge meted out to Bond
seems in any event disproportionate to the alleged offense, suspicion would appear
to be justified as to whether it really was punishment for that offense rather than for
some other, more substantial offense in his employer's eyes, namely, his persistent
union activity and specifically his encounter with boss Earle Rose, Jr., at the end of
work on Friday.
With regard to Bond's "attitude" toward Schoen on the morning of his discharge,
it is necessary that this be evaluated in terms of credibility determinations herein
made, and also Schoen's attitude toward Bond. I have already indicated that on
credibility lines I accept Bond's, rather than Schoen's, version of the events of that
morning. In this connection, it is again noted that Respondent's own witness Ogle
testified that he observed Bond working that morning. Even aside from what I am
impelled to regard as clearly preponderant credibility weight in favor of Bond, the
latter's responses to Schoen on April 6 on the subject of coffee should in fairness be
evaluated in terms of what appears to have been Schoen's provocative and nagging,
hard-riding attitude toward Bond, against whom he avowedly entertained a long-
smoldering hostility because of his union views. Furthermore, since the incident as
described and here found would hardly have merited discharge in any event, the
inference is strongly suggested that the summary discharge-early Monday morning,
following on the heels of Bond's handbilling encounter with Earle Rose late Friday
afternoon-was upon a manufactured pretext 74
Taken in totality, the evidence relating to Bond persuades me that the real reason
he was discharged on April 6 was that his persistent leadership of the union organizing
drive in the plant was a continuing thorn in Respondent's side which the preceding
workday afternoon just pricked Earle Rose too hard. To begin with, Bond had
started the unionization effort. Bond pursued the unionization effort over Respond-
ent's open, bitter opposition. Bond rallied the unionization effort even after the
Union's defeat in the election of October 8, 1963. Bond's disciplinary suspension
on February 14, 1964, occurred the very next day after the Board's Hearing Officer
issued his report on the hearing (at which Bond had testified against Respondent)
on the Union's objections to that election, sustaining the objections and recommend-
ing that a new election be held. After his return to the plant from that suspension,
on February 20, Bond refrained from handbilling until Friday, April 3. It was during
his resumption of handbilling at the end of that afternoon, April 3, that Bond experi-
enced the violent anger of Earle Rose, as described And it was about an hour after
he came to work on the following Monday morning that Bond was summarily
discharged
In view of the chronology of events considered in the light shed by the entire
record, I am unable to subscribe to the view that Respondent's suspension and dis-
charge of Bond were merely coincidental to the union organizational activities which
were occurring. Rather, as I believe and find, it was those activities and events
ing work, two for lunch, and two for each of even only two coffee breaks, would alone
account for eight passings-by, not to mention the possibility that Bond might occasionally
have taken a drink or visited the toilet for what may be assumed to have been the usual
purposes. Also, it seems unlikely that Paras could remember this with any degree of
precision after a year. On the subject of the much-discussed "coffee breaks"-both
"official" and "unofficial," or formal and informal-herein, Paras also agreed that he as
well as "everybody" else leaves his work station and machine for coffee in addition to
regular ("official") coffee break time[s], without adverse action or reprimand by the
Employer Paras further testified-in effect corroborating Bond-that with regard to
coffee obtained by employees during unofficial coffee break time, some (including Bond at
times with others) drink it at the machine, while others take it back to their work places ;
and that Paras himself takes the coffee back to where he works, as is the general rule,
since the coffee is too hot to drink as dispensed by the machine.
I also am unable to ascribe significance to the testimony of Respondent's witness Ogle,
that Bond appeared to be urging him to slow down in his work The testimony on this is
not unequivocal, a credibly different light is thrown upon it by Bond, and this was not
the reason for Bond's discharge Seach for or dredging-up of assorted freshly discovered,
supposed derelictions on the part of a discharged employee is sometimes suggestive of
an attempt to justify a discharge which has already taken place or been decided upon
for unjustifiable reasons, such as union organizational activities. Cf. N L R B. v. Chicago
Apparatus Company, 116 F. 2d 753 (C A. 7).
74 Cf Thor Power Toot Company, 148 NLRB 1379; Kohler Co., 148 NLRB 1434; Bur-
lington Industries, Inc., Vinton Weaving Company Plant, 144 NLRB 245 and 144
NLRB 272.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which brought about the suspension and discharge of Bond, the leader of the unioni-
zation effort in the plant over Respondent 's bitter opposition . Earle Rose testified
that in one of his preelection speeches to his assembled employees he had remarked
that he had "learned an awful lot " from Bond "that I wouldn 't soon forget"; and that
"I considered the Rose Company a family unit ... we have lived together for twelve
years and we are starting to get a nice little company going here ... I don't think
we need any outsiders from Detroit coming over here now that we have a successful
little company to try and tell us how to run it." 75 As has aptly been observed,
. where the discharge in question involves the `key' employee in an organizational
drive, it may supply shape and substance to otherwise equivocal circumstances."
N.L R B. v. Davidson Rubber Co, 305 F. 2d 166, 169 (C.A. 1). See also N.L R.B.
v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 275-276 (C A. 5),
cert. denied 344 U.S. 865 And "The abruptness of a discharge and its timing are
persuasive evidence as to motivation." N.L.R.B. v. Montgomery Ward & Co., Inc,
242 F. 2d 497, 502 (C.A. 2), cert. denied 355 U S. 829. See also E Anthony & Sons,
Inc. v N.L R,B., 163 F. 2d 22 (C.A.D.C.), cert. denied 332 U.S. 773.
I find that, as alleged in paragraph VIII of the complaint, Respondent on Febru-
ary 14, 1964 (effective February 17-19, 1964), suspended and on April 6, 1964,
discharged Lyle Bond from his employment because of his union sympathy, member-
ship, and activities in violation of Section 8 (a) (3) and (1) of the Act.76
With Bond's discharge, the cemetery plot-gravestones sign displayed in the plant,
with the gravestone-in-chief for the Union and smaller gravestones for each of the
union committeemen (Stergar, Bond , Wegher, and Feinas ), thus turned out to be
a rather remarkable prognostication of the employment demise of the leaders of the
union movement in Respondent 's plant . 77 Respondent denies responsibility for or
connection with the gravestones sign, as do its supervisors and Schoen and Schubert.
Accepting these disclaimers arguendo at face value, this would then seem to indicate
the uncanny accuracy of the feeling among the rank-and-file employees as to the
fate to befall those who sought to lead Respondent 's employees in assertion and
exercise of rights guaranteed under the Act
If Respondent 's contention that any connection between Bond 's suspension and
discharge ( and their timing ) and his union activities were merely coincidental taxes
my credulity, as I have indicated it does, the contention that Respondents' discharge
and other adverse personnel actions against all of the foregoing employees (Oresnik,
Fetzer, Stergar, and Wilder, as well as Bond) were also merely coincidental and
totally unconnected with their union activities , places an even greater strain upon
my credulity. None of these employees was established to have had an adverse
75 In its posthearing brief, Respondent candidly avers : "We [Respondent ] make no
pretense about being lily white or Simon pure . . . The heart of this case thins
around the discharge of Lyle Bond-no question about it "
78 Paragraph VIII of the complaint further alleges that Bond ' s suspension and dis-
charge also occurred by reason of his having given testimony under the Act If estab-
lished, this would comprise a violation of Section 8(a) (4) of the Act. As shown above,
Bond was one of several employees who testified adversely to Respondent before the
Board 's Hearing Officer in January 1964 in support of the Union ' s objections to the elec-
tion of October 8, 1963. Although suspicion is justified that Bond ' s so testifying may
have played a role in his suspension and discharge , nevertheless, upon the record presented,
in my opinion, this allegation has not been established by substantial evidence and a
finding against Respondent in this respect would be speculative This allegation of the
complaint should accordingly, in my view, be dismissed
77 Insofar as Wegher was concerned-characterized by Donald Rose as '-a very good
worker" when "he decided to leave us"-be left following such expressions to him by
Earle Rose , "pound[ing] his fists . . . and point [ ing] to the door ," as "Billy [Wegheri,
you'll be out . . . you don 't really think the Union is going to get in tomorrow" .
Are you going to be able to face us tomorrow when you come in to work and after you
lose , are you going to be able to face everybody here'' . . . I wouldn't if I were you . . .
I hope you like it at the next place you work at better than you do here " Weulier then
left a few days after the Union lost the October 8 election . Of the four gravestone
designees, only Feinas was still employed at the plant as of the time of the instant
hearing, the two primary leaders of union activity (Bond and Stergar) having been
discharged and the third , Wegher, having left when he saw the handwriting on the wall
That Feinas , a lesser figure , was not also discharged as of the date of this hearing is
not of determinative significance here. The fact that an employer does not weed out
every last union adherent does not disprove the employer ' s discriminatory motivation in
ridding himself of other union adherents . Cf. Nachman Corp. v. N L.R . B., 337 F. 2d
421 (C A. 7).
THE ROSE COMPANY 263
employment history prior to his engaging in protected concerted activity; that each
of these union organizing committeemen should for the assortment of alleged non-
discriminatory reasons here advanced , be discharged or otherwise disciplined, after
he commenced to lead fellow employees in an attempt to exercise employee rights
under the Act, seems unlikely.78 In the context of Respondent 's avowed , bitter hos-
tility to the Union, and Respondent 's other unfair labor practices , such quintuple
coincidence does not square with probability and simply does not "stand under
scrutiny ." ( N.L R.B. v. Thomas W. Dant, Robert E. Dan!, et al., d/b/a Dant &
Russell, Ltd ., 207 F. 2d 165 , 167 (C.A. 9 ), and cases cited.)
C. Miscellaneous interference , restraint , and coercion
1. Surveillance
The amended complaint alleges that on or about April 3, 1964 , Earle and Donald
Rose engaged in surveillance of employees ' union activities . This refers to the actions
of Earle and Donald Rose in connection with Bond 's handbilling outside of the plant
gate on April 3 , which has already been described.
It will be recalled that the uncontradicted credible evidence established that in
addition to the rancorous encounter of Bond with Earle Rose on the occasion in ques-
tion , Earle Rose stood next to or near Bond for about 20 to 25 minutes, observing
the incoming employees at the change of shift who accepted handbills from Bond,
and also that Earle Rose instructed his brother Donald to "Be sure to make a note
that we are going to need a couple of chippers and grinders next week when we lay
off all the welders ," whereupon Donald Rose made written notes . Femas also testi-
fied credibly and without contradiction that on this occasion he heard Earle Rose say,
"Next week we are going to start laying off around here. " Whether these remarks
were intended to refer to the handbillers or to the employees who accepted the hand-
bills, or to both , is beside the point . What is not beside the point, however, is the
question of the possibly coercive or intimidating effect upon employees who were
offered handbills , of their two chief bosses standing there, one taking notes . Bond's
testimony is uncontradicted that an incoming employee, after taking in the picture,
refused to take a handbill.
Although it is probably true that the Roses could have observed the handbilling
activity , and made note of who were accepting handbills, from the nearby plant
building, this would not have had the inhibitive and coercive effect upon the employ-
ees that their more direct , open, and avowed surveillance may reasonably be deemed
to have been calculated to have. It cannot be assumed that the two Roses acted as
they did, for the exact time that they did, in the precise place where they elected to
position themselves , without purpose . The purpose could, it would seem , only have
been to observe while making visibly obvious to their incoming employees their
presence and the message it plainly carried . Particularly against the background of
Respondent 's open hostility to the Union , which it made no attempt to conceal from
its employees , the watchful presence of its two principals-itself indicative of the
importance attached by them to what was going on-was calculated to suggest to
takers of the handbills that they were under scrutiny and might be marked men.
It would seem that at the very least such close scrutiny was calculated to cool if
not "chill " 79 the ardor of the aspirations of Respondent 's employees to exercise
rights guaranteed to them by Congress under the Act.
I find that, as alleged in paragraph V(j) of the amended complaint , Respondent
engaged in surveillance of employees ' union activities in violation of Section 8(a)(1)
of the Act.so
2. Public vilification of employee for engaging in protected
concerted activity
The complaint alleges that , in further violation of Section 8(a)( I), Earle Rose, Jr.,
on or about April 3, 1964, vilified an employee in the presence of other employees
for engaging in union activities.
78 Cf. N L R B. v. Halsey Taylor Co , 342 F. 2d 406 (CA 6).
70 Cf. Harlan, J., in N.LR.B. v. Darlington Manufactnrniq Convpany, 380 U S. 263
80 Cf R.E.D.M. Corporation, 149 NLRB 1029 ; Hunt Electronics Company, 146 NLRB
1928 ; Bannon Mills , Inc, 146 NLRB 611; Gordon Mills, Inc, 145 NLRB 883 ; The Triple
AAA Water Co., 142 NLRB 803.
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This also refers to the handbilling episode of April 3, involving Earle Rose's
described actions toward Bond. As already indicated, Rose's actions and words on
the occasion in question, as credibly narrated by Bond, were uncontradicted. That
Rose's menacing actions were observed and his words heard in part 81 by at least
Feinas and Fetzer was likewise uncontradicted. I do not believe it can reasonably
be doubted that infuriated employer display such as here occurred is calculated to
have not only a directly intimidatory effect upon the employee at whom it is directed,
but also an inhibitory and coercive effect upon other employees who observe or are
told about it
I find that, as alleged in paragraph V(g) of the complaint, on April 3, 1964, Earle
Rose, Jr., vilified Respondent's employee Lyle Bond in the presence of other employ-
ees because Bond was engaged in protected activities on behalf of the Union; and
that Respondent thereby intimidated, restrained, and coerced employees in the exer-
cise of rights guaranteed by Section 7, in violation of Section 8(a)(1) of the Act.
3 Promises of benefits for abstaining from protected concerted activity
The amended complaint further alleges that on or about September 2 and 16 and
October 7 and 14, 1963, Respondent promised and granted wage increases to employ-
ees for refraining from union or concerted activity or union support.
Richard Feinas, who began working for Respondent in January 1959 and was still
in its employ as a setupman and welder at the time of the hearing herein, testified
that on October 14, 1963, about a week after the election of October 8 which the
Union had lost, he was approached by Donald Rose, who remarked on the lost elec-
tion, asked Feinas what benefits the employees thought they would get out of a union,
and stated that the employees "will never succeed" in getting the shop unionized and
that "it doesn't pay to continue trying ...." Several days prior to this (October 11,
1963), the Union had filed objections to the election, indicating it was seeking a new
election About a week after Rose's remarks to him, Feinas, according to his testi-
mony, was told on or about October 21 by Pate, who was observing him welding,
"That's pretty good welding." Feinas agreed, pointing out that he had been working
there for 5 years. Pate referred to the fact that Feinas was "on the [Union] orga-
nizing committee" and that if Feinas "took the union button off maybe [you] would
be making more money." When Feinas said he should have been making about a
half dollar more an hour, Pate said that "if [you] would take the union button off
[you] might be making that much more." Feinas told Pate, "If I take the union but-
ton off in order to get that much money, [you] could keep the half dollar, I [don't]
want any raise." Feinas characterized Pate as being serious when he made the fore-
going remarks Since then, Feinas has continued to wear the union button and his
job and wages have remained unchanged.
Pate denied telling Feinas he might make more money if he took his union button
off However, he conceded that he had "needled" Feinas about it-"To the best of
my recollection, I was kidding him about the color, that it wasn't loud enough."
I was extremely favorably impressed by the testimonial demeanor of Feinas, who,
it is to be remembered, in a sense testified contrary to his own interest since, being
still in Respondent's employ, such testimony could invite retaliation. I have already
commented upon Pate's quality as a witness, and the nature of his alleged recollection
of his conversation with Feinas will have been noted. I do not believe that Feinas
fabricated the conversation he testified he had with Pate, as recounted above, and
I credit his version thereof. I accordingly find that Respondent thereby, through
Plant Superintendent Pate on or about October 21, 1963, offered or held out the
prospect of a wage increase to employee Richard Feinas if he would stop supporting
the Union, as alleged in paragraph V (h) of the amended complaint, in violation of
Section 8(a)( I) of the Act.
The allegations of paragraph V(c) of the complaint regarding promises by
Respondent to its employees on or about September 2 and 16 and October 7, 1963,
of wage increases to induce nonsupport of the Union, have not been established As
to the further allegation therein that on one or more of those dates Respondent
granted such wage increases for the same purpose, Respondent's former employee
'George Fetzer testified that he received a 10 cent hourly wage increase from Pate
about a week and a half before the October 8, 1963, election, Pate then telling him
ft Although the proof does not establish that the reviling epithets employed by Rose
toward Bond were overheard by Feinas or Fetzer , Rose's belligerently menacing actions
toward Bond were observed by them, and some of his other words were heard. What
was observed and overheard by these employees was sufficient to convey to them a clear
picture of the employer ' s intense displeasure and the flavor of the situation.
THE ROSE COMPANY 265
that he "appreciated the good work I was doing." However, on cross-examination
Fetzer admitted that this raise was at his request, which he had made to Pate in
June 1963 (i.e., prior to the inception of the union petition), at which time Pate had
promised it to him if he increased his production and versatility; and that when he
received the raise, around mid-September, Pate told him it was because of his
improved attendance, work attitude, versatility, time since last rate, good job on front
axles, and because he had proved he could do three different kinds of welding. Con-
sidering the foregoing, the large number of employees in the plant, and the absence
of any substantial evidentiary basis for inferring that Fetzer was singled out for this
raise in order to dissuade him from union activity, I find that it has not been estab-
lished that Respondent granted wage increases to its employees to induce them to
refrain from union or concerted activity, assistance, or support. The allegation to
that effect in paragraph V(c) of the complaint should therefore also be dismissed.82
4. Threats of detriments and reprisals for engaging in protected
concerted activity
Various paragraphs of the complaint additionally allege that on various dates from
July 8, 1963, to April 3, 1964, Respondent through Earle Rose, Jr., Pate, and Schultz,
threatened its employees with discharge or loss of jobs or benefits for union member-
ship, activity, or support, or if the Union won the election.
It will be recalled that following Respondent's confiscation of Bond's union petition
notebook and its return thereof to Oresnik on July 3, 1963, it posted the Chudnow
notice and fired Oresnik on July 8. On July 11 the Union filed its initial charge,
based upon the discharge of Oresnik. On July 11, according to testimony of Wegher
which I credit, Donald Rose told a group of employees consisting of Stergar, Wegher,
and Herzog, that "if the union comes in here, we'd all be out of jobs. There would
be nobody even working eight hours." 83 A few days later, on July 17, Pate
approached Bond at work and asked him "what is all this about the union." When
Bond said he "really didn't know," Pate replied, "Just what do you mean, you really
don't know . . . . I know better than that . . . Don't try to kid me." When Bond
persisted that he did not know "any more about it than you do," Pate said that the
employees were "really nuts or crazy for wanting to get a union in because .... all
you are doing is supporting these .... big union guys down town .... to make them
$25,000.00 a year . . . who's paying that? .... All you guys that want to belong to
the union ... they are down there smoking those great big long black cigars while
we have to smoke these [cigarettes] . . . . If you really want to have a union ... .
I don't really have anything against unions, you understand . . . take my advice .. .
form an independent union of your own just among you guys in the shop." The
following week, on July 26, Pate again approached Bond, telling him, "Lyle, what
is this I hear about your still promoting the union?" When Bond denied promoting
it, Pate said, "Don't b- s- me. I know better." When Bond continued to
deny it, Pate said, "I know better than that, and ... let me tell you this . . . if you
think that you are going to be a steward in the union ... don't count on it because
you'll be on the outside looking in by then ... don't take me wrong. This isn't a
threat ... But ... you better watch your step that you be outside looking in before
the union gets in." 84
On September 12, 1963, Earle Rose, Jr., addressed assemblages of each shift of
his employees in the plant, on company time and expense. He told them 85 that
the employees "had received a lot of Union b- s-" which he would answer.
82 Respondent 's motion at the conclusion of the entire case, upon which decision was
reserved, to dismiss paragraph V (c) of the complaint as not established, is accordingly
granted in all respects other than the October 21, 1963, promise of benefit by Pate to
Feinas, as to which it is denied.
83 In N.L.R.B. V. Harold Miller, Herbert Charles and Milton Charles, Co-Partners,
d/b/a Miller Charles & Co., 341 F. 2d 870, 873 (CA. 2), the court recently characterized
similar statements (there, too, coupled with suggestions to employees regarding forma-
tion of an independent shop committee , as herein advanced by Pate contemporaneously)
as "a threat disguised as a prediction," violative of Section 8(a)(1).
$4 Pate denied these discussions and testified that he was unable to recall any conversa-
tion with Bond regarding the Union. For reasons herein fully explicated in other con-
nections, involving comparative memory powers and demeanor, I credit Bond.
85 Based upon the credited composite testimony of Earle Rose , Jr, Stergar, Bond,
Wegher, and Feinas. According to Earle Rose's testimony, he made substantially the
same remarks to each shift.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stergar remarked that the employees were now "going to get a lot of b- s-
from you." Tracing his development of the business from meager beginnings, Rose
asked why the employees "wanted to do such a thing as they were doing"; that he
"didn't think he deserved such a thing "; that the employees did not need a union and
there was no reason for them to pay union dues ; that if "the Union wanted the busi-
ness, he would be willing to sell it to them at a fair price "; that his objectives were
to get more business , better equipment , and "make the labor of his employees easier";
and that "the Union had ... come in here and agitated their employees and that he
was going to put an end to the agitation by having an election which would settle the
issue." 86 When Stergar asked him if, in that event, he would have the election right
away, Rose said , "I don't care about unfair labor charges , heads will roll." Rose
then spoke of "what Unions were really like," referring to a person "blinded by
Union goons who had thrown acid ... in his face." When Stergar asked him what
he was going to do about antiunionist Schubert 's vicious assault on prounionist
Eschedor just a few hours before this speech, as a result of which Eschedor had to
be removed to the hospital , Rose's reply was that "there would be no trouble if the
Union hadn 't come in here ." Bond asked Rose what he had against unions. Rose
asked Bond whether he was "from a union shop," "why [are you] working at the
Rose Company ," and "have you learned anything at the Rose Company." When
Bond stated that he had learned and that he ( Bond ) thought that Rose had "learned
a few things from me, too ," Rose replied , "Yes, I have . And ... I'm not going to
forget it , either." When Rose remarked that part-time workers were an essential
part of the work force in the plant , Wegher pointed out that this was "because you
pay them two bucks an hour ." Rose stated that "if the Union would come in, that
we'd probably all lose our jobs , and he'd probably be welding next to one of us
someplace else." Rose remarked that he "considered The Rose Company a family
unit . . we have lived together for twelve years and we are starting to get a nice
little company going here . . . . I don't think we need any outsiders from Detroit
coming over here now that we have a successful little company to try and tell us
how to run it." After the speech, Rose told Wegher, "... we 're going to miss you."
When Wegher said he was going to have this remark written down , Rose replied,
"You go ahead and do that." 87
On September 24, 1963, while Bond was handbilling at the plant gate after work,
Earle Rose , Jr., stopped his car as he was driving in, declined a handbill proffered
to him by Union Representative Gerber, and stated he already had one on his desk.
After a brief pause , Rose, pointing to the sidewalk , said to Bond, "You better take
good care of that sidewalk because you are going to have to enjoy it pretty soon."
Rose then drove through the gate.
On October 4, 1963, a few days before the election of October 8, Earle Rose, Jr.,
again addressed assemblages of his employees at the plant . On this occasion,88 he
singled out and addressed various individual employees in the audience. For exam-
ple, pointing to one and addressing him by name , he said:
you are an alcoholic, I have had to put up with all kinds of s-t
from you.
You wouldn ' t have a job any place else .... You are lucky to be working here.
"'Before the Board's Hearing Officer , Respondent opposed an election and sought "that
the petition be dismissed in that an election at this time would be premature and un-
timely since the Company is undergoing a program of reorganization by which there will
be a drastic reduction in the total number of employees . " ( Respondent's brief to
Board 's Hearing Officer, Case No. 13-RC-9584 ; General Counsel 's Exhibit No. 4, p 1
It appears , however , that the work force has increased rather than been reduced
17 Since there is reason to believe Rose's remark (and a similar one made by him to
Wegher during the speech ) was provoked by what seems to have been an impertinent
observation made by Wegher during Rose ' s speech-when Rose had stated of himself
that he had "lied and cheated " to get where he was at , Wegher had interjected, "You
still do"-I do not regard this particular remark by Rose to Wegher as being a dis-
criminatorily motivated threat of discharge , but rather as a more or less natural reaction
under the circumstances . I so find , even though it may well be that Wegher ' s tart interjec-
tion ( as well perhaps , as Stergar ' s indelicate heckle quoted above , echoing Rose's own in-
troductory remark to his employees on September 12) may have been triggered by
Respondent ' s seemingly uncompromising hostility to the principle of collective bargaining
and the exercise by its employees of their lawful rights under the Act.
88 Based upon the credited composite testimony of Earle Rose , Jr , Stergar , and Bond.
THE ROSE COMPANY 267
Rose waited for a response from , who did not respond . Turning to another
employee, Rose said to him:
You were too old elsewhere , weren't you9 You couldn 't get a job no place
because of your age, but you got a job here. Isn't that right, Charlie?
Charlie shook his head to agree. Rose publicly reminded another employee that he
had assisted him financially during illness:
when you had no prospects at all, and wasn 't it papa, wasn 't it Earle Rose
who came and brought you this check at this time? And didn 't you and your
wife cry, you didn't expect this, you didn ' t know this?
The employee agreed this was true. Rose addressed several others in this fashion,
stating that they could not obtain jobs elsewhere . He then said that "what the union
was doing to him" was "really hurting him ," so that he and his wife were unable to
sleep , but that his wife had told him "that his employees were loyal and he shouldn't
doubt them . . . . And . . . now that he was face to face looking at his employees
that he should have every confidence in them, that the union wasn 't going to get any
votes ...." Continuing, Rose told the employees that:
. the customers had become concerned , they had seen all this agitation and
heard about it, and that the customers had inquired about the Union and he
[Rose] had assured the customers that they had nothing to worry about, they
were going to defeat the Union , but nevertheless , the customers told him that
if the Union gets in, they will have to put their orders elsewhere.89
After indicating that he would never agree to a union shop or to a dues checkoff, and
that if the Union won the election he would just talk for months without agreeing,
Rose added that as a result of all this the plant could be down and he himself out,
and that he.
... will be the foreman at the next shop or maybe he will be the welder in the
next plant because this plant will be out of business when the Union gets in
.... you vote with your right hand no, and that way you will have your jobs.
Also, that "if you vote the union in ... it's going to cost all of us our jobs."
On October 7, 1963-the day before the union election-around 6 : 20 p.m., Earle
Rose walked through the plant telling employees to use the right hand to "Vote no"
the next day. When he reached Wegher's work place, the latter asked him whether
he was going to tell him also to vote no. Pounding his fists and pointing to the door,
Rose said , "Gilly [Wegher], you'll be out .... Are you going to be able to face us
tomorrow when you come to work and after you lose ....?" Wegher replied, "Sure,
I'll still have a job and I don 't see why I shouldn 't come in ." Rose said , "Well, I
wouldn't if I were you . . . . I hope you like it at the next place you work at better
than you do here "
Bond 's experience when he resumed handbilling on April 3, 1964, has already
been described in detail . It is unnecessary to repeat Earle Rose's angry reaction,
including his scarcely veiled statements indicating Bond's discharge was imminent,
as indeed it turned out to be
Particularly when considered in the totality of the events touched off by Bond's
union petition of July 3 , 1963 , it is reasonably clear that on various dates from on
or about July 11, 1963 , to April 3, 1964, as detailed above, Respondent through its
managerial and supervisory personnel threatened its employees with discharge, job
loss, and loss of economic benefits in the event of continued union membership,
activity, or support, or in the event of union success in the election , substantially as
alleged in paragraphs V(b), V(f), and V (d) of the complaint , in violation of Sec-
tion 8 (a) (1) of the Act . 90 I so find.
5. Threats of refusal to negotiate in good faith with Union if it won election
The complaint also alleges that on or about October 4, 1963, Respondent through
Earle Rose, Jr., threatened its employees that if the Union won the election Respond-
ent would refuse to negotiate in good faith with the Union.
&' It was not credibly established that such consequences ensued or that there was any
real factual basis for indicating they would ensue
00 Cf Nebraska Bag Company and Robert H. Silver, etc., d/b/a Nebraska Bag Process-
ing Company, 122 NLRB 654. Cf. also Storkline Corporation, 135 NLRB 1146; R. D.
Cole Manufacturing Company, 133 NLRB 1287
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his speech to Respondent's assembled employees on October 4, 1963, shortly
before the October 8 election, Earle Rose, Jr., told them that:
... there will never be a union shop at the Rose Company; there will never be
a [union dues] checkoff system at the Rose Company; if a union does get in
... that only means I'm going to have to go down to the Central YMCA and
negotiate with these outsiders for two or three months and when the talks break
down . , . then the union's going to say strike .... I'm going to tell you guys
something. As long as the Rose Company is in business . . . any man who
wants to work can come in the Rose Company and work, and any man who
wants to stand out on the picket line and strike can stand there and strike ...
if you vote the union in . . . it's going to cost all of us our jobs .... [I] might
very possibly be [y]our foreman at the next place [you] work[ed] or [I] might
even be just the guy welding next to [you] 91
On the same day as he made these remarks to his assembled employees, October 4,
1963, Earle Rose, Jr., also wrote them a letter in which, soliciting their rejection
of the Union in the election of October 8, among other things he reminded the
employees that "I would never agree to a union shop" or to a checkoff.
Through these statements to its employees, obviously intended to be taken seri-
ously and to influence their vote in the upcoming election, Respondent announced a
mind closed to bargaining on the subject of union security (union shop), an impor-
tant mandatory subject of collective bargaining. Through its indication of inten-
tion to bargain for months until a breakdown in talks occurred, Respondent evi-
denced its disdain for the process of collective bargaining. These statements were
calculated to present to the employees a picture of the futility of their unionizational
efforts through putting it to them bluntly that even if the Union won the election
Respondent would merely go through the motions of bargaining but would never
agree or even consider altering its fixed position on key required bargaining issues-
The coercive intent and effect of such announced predetermifiations not to deal or
agree are apparent and have repeatedly been condemned 92 Particularly in the
context of the other events taking place in this factory since the outset of the
01 As credibly recounted by Bond and in susbtantial essence corroborated by Stergar
Earle Rose conceded at the hearing that he told his assembled employees on October 4
that a "union shop" or a "closed shop" is "something I just don ' t believe in" ; that al-
though he uses the expressions "closed shop" and "union shop" interchangeably, "in my
speech , I used Union shop, because Counsel advised me to use the words Union shop and
not closed shop" ; that he told his employees that he "would never have a [union] shop
at the Rose Company" ; that he told them that "anybody that doesn ' t want to belong to
a Union does not have to belong to the Union for the privilege of working at the Rose
Company. They can work, if they want , without being forced to join a Union . . .
This is not going to be one of the requisites to work at the Rose Company " ; and that
he told them they would "never have a check off system ," and that "I didn't believe in
the check off system , that any man should have to pay for the right to work " Rose also
conceded that he told the assembled employees that "I would have to possibly be going
down to the YMCA and sit down there months on end and bargain."
°a Notwithstanding Rose's announced adamant position that "there will never be a
union shop at the Rose Company ," Congress has authorized the union shop unless pro-
hibited by State law ( Act Sections 8(a)(3) and 14 ( b)), and Wisconsin has no such
law. Under Rose's view , Respondent would never agree to a union -shop provision even
if all of the employees wanted it. The Andrew Jergens Company, 76 NLRB 363, enfd.
175 F. 2d 130 ( CA. 9), cert. denied 338 U S. '827, involved employer refusal to negotiate
on union security even though there was substantially a meeting of the minds on all other
issues In holding the employer in violation of the Act, the Board stated , 76 NLRB at
366: "Such complete foreclosure of discussion of a proper subject of collective bargain-
ing is a negation of the good faith bargaining required by the statute ." It is difficult
to comprehend a good -faith basis for announcing in advance the intention never to agree
to a union -security provision in a State , such as Wisconsin , where such provisions are
sanctioned under the statute Cf. Reed & Prince Manufacturing Company , 96 NLRB
850, 855, enfd 205 F. 2d 131 (CA 1), cert. denied .146 US 887; Wigwam Mills, Inc.,
149 NLRB 1601; Hunt Electronics Company, 146 NLRB 1328
Although the Act does not require employers and unions to agree, it does require them
to bargain in good-faith attempt to agree. Announcement in advance of negotiation of
predetermination to "negotiate" for 2 or 3 months until the talks break down, is in prac-
tical effect announcement of intention not to bargain in good faith . Cf. Daniel Construc-
tion Company, Inc., 145 NLRB 1397
THE ROSE COMPANY 269
'employees' attempts to exercise their rights under the Act, I find that these state-
ments by Respondent were coercive ,93 in violation of Section 8(a)(1) of the Act,
.as alleged in paragraph V(e) of the complaint.
6. Prohibition of union card solicitation
At the hearing, the complaint was amended so as to allege that on or about
August 22, 1964-i.e., during a recess in the hearing sessions herein-Respondent
further interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act, through the conduct of Pate in forbidding
employees to distribute union authorization cards on company premises 94
Respondent's employees Feinas and Chindamo testified credibly that on August 22,
1964, before the 7 a.m. shift started, on their own time, before commencing
work, they solicited for the Union by giving out union authorization cards to fellow
employees at the plant. Around 10 that morning, Pate approached Feinas and said,
"I hear you boys are out campaigning again signing workers up," and that he under-
stood that was being done on company premises. Agreeing this was so, Feinas
explained that although on company premises it was being done on the employees'
own time as permitted by law. Pate insisted the employees were not permitted to
do this. Feinas suggested that Pate talk to the company attorney. Around the
same time, Pate gave Chindamo about the same warning, telling him that "it's Com-
pany policy not to allow the men to give out authorization cards on Company
property." When Chindamo attempted to explain to him that he thought he had
the right to do this on his own time, Pate replied, "Whether you have the right to
do it or you haven't, it's Company policy not to let any authorization cards be
handed out on Company property, and drop the subject." 95
Pate's described prohibition upon solicitation was too broad and therefore invalid,
.encompassing as it did actions by the employees themselves on nonworking time in
nonworking areas96 No attempt was made to show any necessity for such an abso-
03 Cf N L.R.B. v. E. S. Kingsford, d/b/a Kingsford Motor Car Co., 313 F. 2d 826, 832
(C.A. 6) ; Hunt Electronics Company, 146 NLRB 1328 Cf. also The Trane Company
( Clarksville Manufacturing Division), 137 NLRB 1506, 1510.
04 Over Respondent ' s opposition , I permitted this amendment , dealing with alleged con-
duct subsequent to issuance of the complaint, because it appeared to be closely related to
and a mere extension of the unfair labor practices being litigated herein ; and also so as
to avoid the necessity for a fresh proceeding and the consequent multiplicity of proceed-
ings and hearings which would be further delaying and burdensome to all parties includ-
ing Respondent itself. No surprise was claimed by Respondent and adequate time was
afforded to it to prepare and litigate this issue fully . Under the circumstances , I believe
that allowance of this amendment was a proper exercise of discretion . Cf Peyton Pack-
ing Company , Inc, 129 NLRB 1358, 1360.
Os Wegher testified to a comparable experience with Earle Rose, Jr., who had told him
around the preceding August, "I don't want you handing out any Union literature on
Company time or on Company premises" or that "there was to be no solicitation of Union
cards on Company time or property." [ Emphasis supplied.] When Wegher denied doing
this , Rose continued , "If it happens any more, you will be fired . I wouldn ' t want that
to happen to you. You got a nice wife , nice daughter " Bond had a like experience
on December 27, 1963, when, after he was observed by Schoen giving a fellow employee
a union card at lunchtime in the plant, he was called into the office and Donald Rose
told him he would be subject to a 5-day disciplinary layoff for "solicitation on company
time or company premises ." [ Emphasis supplied .] When Bond attempted to explain
his right to do this on his own time, Rose said, "I know what your rights are . . . you
do what I say do or you are going to be subject to a disciplinary, a five-day disciplinary
layoff." The foregoing incidents involving both Roses indicate the prevailing thinking
at the plant and show that Pate was not alone or mistaken in his interpretation and
application of plant policy with regard to solicitation in his dealings with Wegher on
August 22, 1964. Under these circumstances, I also do not regard the fact that Feinas
and Chindamo have not been disciplined or further rebuked for continuing to solicit union
memberships by handing out union cards on their own time after August 22, 1964, to
have cured, or to be effective as an all-time cure for, Respondent's apparent basic policy
as exemplified by the conduct of both Roses as well as Pate.
06 Of. N L .R.B. v. Harold Miller, et at ., d/b/a Miller Charles of Co , 341 F 2d 870, 873-
874 (C.A. 2) ; N.L It B. v. United Aircraft Corp. and Whitney Aircraft Div., 324 F. 2d
128 (C.A. 2), cert. denied 376 U.S. 951; Whitfield Pickle Company, 151 NLRB 430;
Atkins Saw Division, Borg-Warner Corporation , 148 NLRB 949; Hunt Electronics Com-
pany, 146 NLRB 1328 ; Bannon Mills, Inc, 146 NLRB 611
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lute prohibition . 97 Moreover , the record is replete with instances of antiunion and
nonunion solicitation by employees with the knowledge and even participation of
supervisory and management - identified personnel , so that Pate 's prohibition was, in
addition to being too broad, discriminatorily applied 98 I accordingly find that, as
alleged in paragraph V (l) of the amended complaint , Respondent , through Plant
Superintendent Pate, ordered employees Feinas and Chindamo not to distribute union
authorization cards in solicitation of union membership on its premises , in violation
of Section 8 (a) (1) of the Act.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices , I shall recom-
mend that it be required to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act . Having found that Respondent
discriminatonly suspended , laid off, discharged, and failed and refused to reinstate or
reemploy certain employees , I shall recommend that Respondent be required to offer
the employees thus discriminated against ( other than Fetzer and Wilder , who left
Respondent 's employ voluntarily) immediate and full reinstatement to their former or
substantially equivalent positions , without prejudice to their seniority or other rights
and privileges , and to make all of said employees thus discriminated against ( including
Fetzer and Wilder ) whole for any loss of earnings they may have suffered by reason
thereof, by payment to them of sums of money equal to that which they normally
would have earned as wages from the dates of said unlawful discriminations to the
date of Respondent 's offer to reinstate them, together with interest thereon, less their
net earnings if any during such period and less any sums heretofore received from
Respondent by way of settlement . Appropriate provision shall be made in the
Recommended Order and posted notice to employees, for the notification of each of
the discriminatorily discharged employees as may now be in the Armed Forces of
the United States, of his right to full reinstatement upon application after discharge
from the Armed Forces, in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended. I shall further recom-
mend that in the case of employees herein found to have been discriminated against
by temporary suspensions , Respondent shall make them whole by payment to them
of sums of money equal to that which they normally would have earned as wages
during the periods of such discriminatory suspensions , plus interest , less their net earn-
ings if any during such periods . Backpay and interest should be computed in the
manner prescribed by the Board in F W. Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co , 138 NLRB 716 . Respondent should also be required
to make available necessary records for computation of backpay.
Because of the nature , extent, and repetition of the unfair labor practices engaged
in by Respondent, indicative of an attitude of continued opposition to basic principles
of the Act and the exercise of employee rights guaranteed by the Act , I deem it neces-
sary to recommend that Respondent be required to cease and desist from infringing
in any manner upon the rights of employees guaranteed in Section 7 of the Act.
I shall further recommend that Respondent be required to post an appropriate
notice.
Upon the foregoing findings and the entire record, I state the following:
CONCLUSIONS OF LAW
1. The Rose Company , Respondent herein , is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile , Aerospace and Agricultural Imple-
ment Workers of America , AFL-CIO, is a labor organization within the meaning of
Section 2 ( 5) of the Act.
97 Cf. Republic Aviation Corporation v N L R B , 324 U S 793 , 803, footnote 10, 804-
805; N.L.R.B. V . Miller Charles & Co., supra, footnote 96; N.L R B v. United Aircraft
Corp , etc, supra, footnote 96
08 Cf. Revere Camera Co . v. N L.R B ., 304 F. 2d 162 , 165 (C.A 7) ; NLRB v. Hall
& Hill Truck Line, Inc., 266 F 2d 883, 886 ( C A 5) ; Wigwam Mills, Inc., 149 NLRB
1601 ; Standard Manufacturing Company , 147 NLRB 1608; Bannon Mills . Inc, supra;
Burlington Industries , Inc., Vinton Weaving Company Plant, 144 NLRB 272. Memphis
Publishing Company, 133 NLRB 1435 See also Republic Aviation Corpoi ation v.
N.L R B , 324 U S 793 , 803, footnote 10; Peyton Packing Company , Inc, 49 NLRB 828,
843-844 , enfd. 142 F . 2d 1009 ( CA. 5 ) , cert denied 323 U S 730
THE ROSE COMPANY 271
3. By its suspensions, layoffs, and discharges, and its failures and refusals to rein-
state employees Edward Oresnik, George Fetzer, Albert Stergar, Floyd Wilder, and
Lyle Bond, as set forth in section II, supra, because of their union membership,
sympathy, and activities, Respondent has discriminated and is continuing to discrimi-
nate against its employees in regard to the hire and tenure of their employment, in
violation of Section 8(a) (3) and (1) of the Act.
4. By the conduct set forth in section II, supra, which has been found to constitute
unfair labor practices, Respondent has interfered with, restiamed, and coerced its
employees in the exercise of rights guaranteed to them by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a)( 1 ) of the Act.
5. The aforesaid unfair labor practices are unfaii labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6 The evidence fails to establish that Respondent has violated Section 8(a) (4) of
the Act by discriminating against any of its employees for giving testimony under
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby recommend that the Respondent, The Rose Company, its
officers, agent, successors, and assigns, shall:
1. Cease and desist from.
(a) Confiscating, seizing, taking, or retaining in its possession unlawfully and
without the authorization or consent of its employees, any union petition or list of its
employees who are members of or who desire to affiliate with a union; or displaying,
flaunting, or making known to its employees in an intimidating or coercive manner
that it has possession or knowledge thereof.
(b) Engaging in surveillance of lawful union or organizational activities of its
employees.
(c) Engaging in public vilification of any employee for engaging in union or lawful
organizational activities, calculated to intimidate or interfere with, restrain, or coerce
him or any other employee in the exercise of employee rights under Section 7 of
the Act.
(d) Discriminatorily or otherwise unlawfully promulgating, maintaining, or enforc-
ing any no-solicitation or no-distribution rule for the purpose of impeding union
organization, or lawful union or organizational activity.
(e) Promising, granting, or holding out to any employee any wage increase or
other benefit or thing of value to induce him or other employees to refrain from
union or lawful organizational membership, affiliation, sympathy, support, assistance,
or activity.
(f) Threatening, directly or indirectly, any employee with discharge, loss of
employment, layoff, loss of benefit or other thing of value, or any discriminatory
reprisal or retaliation or act, because of union or other lawful organizational mem-
bership, affiliation, sympathy, support, assistance, or activity.
(g) Threatening, directly or indirectly, to refuse to bargain, or to refrain from
bargaining, in good faith with any duly designated collective-bargaining representative
of its employees.
(h) Discouraging membership in, and lawful activities on behalf of, International
Union, United Automobile, Aerospace and Agricultural Implement Workers of
America, AFL-CIO, or any other labor organization of its employees, by discharging,
laying off, suspending, or failing or refusing to reinstate or rehire, or by threatening
to do so, any employee, or by otherwise discriminating or threatening to discriminate
against any employee in regard to hire or tenure of employment or any term or condi-
tion of employment.
(i) Interfering in any other manner with, or restraining or coercing, any employee
in the exercise of his right to self-organization, to form, join, or assist any labor
organization; to bargain collectively through representatives of his own choosing; to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection; or to refrain from any and all such activities, except to the
extent that such rights may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8(a)(3) of the Act as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act:
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Offer to Albert Stergar, Lyle Bond, and Edward Oresnik immediate and full
reinstatement to their former or substantially equivalent positions , without prejudice
to their seniority or other rights and privileges , and make them whole for any loss of
pay, in the manner set forth in the section of this Decision entitled "The Remedy."
This shall include any loss of pay not previously compensated , by Lyle Bond and
Edward Oresnik in connection with discriminatory temporary suspensions , as herein
found, prior to the discharge of Bond and prior to the making of any proper offer of
reinstatement or reemployment to Oresnik following his discriminatory layoff. In the
event any of the foregoing is presently serving in the Armed Forces of the United
States, notify him of his right to full reinstatement upon application after discharge
from the Armed Forces, in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948 , as amended.
(b) Make George Fetzer and Floyd Wilder whole for any loss of pay suffered dur-
ing the periods of their discriminatory temporary suspensions , as herein found, in the
manner set forth in the section of this Decision entitled "The Remedy."
(c) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records , social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Decision.
(d) Post in its factory in Milwaukee , Wisconsin , copies of the attached notice
marked "Appendix B." 99 Copies of said notice , to be furnished by the Regional
Director for Region 13, shall, after being duly signed by Respondent 's authorized
representative , be posted by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter , in conspicuous places , including
all places where notices to empolyees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify said Regional Director , in writing , within 20 days from receipt of
this Decision and Recommended Order, what steps have been taken to comply
therewith.100
I further recommend that the complaint be and the same is hereby dismissed as to
all violations alleged but not herein found.
UD In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a 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"
101In 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 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith"
APPENDIX A
CHRONOLOGY
Date Event(s)
July 3, 1963__ _________ 1. Bond gives fellow employee Oresnik union petition
notebook , drafted by Bond, signed by Bond and others.
2. Respondent confiscates union petition notebook, re-
tains it temporarily , and displays its possession thereof
to plant employees.
3. Respondent holds top management conference regard-
ing its discovery of union petition notebook , and re-
turns it to employee Oresnik.
July 8, 1963___________ 1. Respondent discharges Oresnik.
2. Respondent issues broad no-circulation -distribution
rule (Chudnow notice).
3 Bond procures and starts distributing union authori-
zation cards.
THE ROSE COMPANY
Date
July 11, 1963__________
July 1963________-____
(various dates through-
out the month).
July 30, 1963__________
August 1, 1963________
August 14, 1963_______
August 29,
APPENDIX A-Continued
CHRONOLOGY
273
Event(s)
Union files charge relating to Respondent's discharge of
Oresnik.
Respondent engages in miscellaneous threats to employees
of economic detriment or reprisals for union activity.
Union files representation petition.
Bond executes affidavit for NLRB.
Union writes Respondent that employees have selected
Bond, Stergar, Feinas, and Wegher to represent them
at NLRB representation case hearing on August 19,
1963.
1963_______ NLRB representation case hearing. Respondent opposes
September 11, 1963____
September 12, 1963____
September 13, 1963____
September 24, 1963____
September 27, 1963____
September 30, 1963____
October 3, 1963________
October 4, 1963________
October 7, 1963________
October 8, 1963________
October 11, 1963______
election before November, indicating that speedier
election would be premature in view of operational
changes and in view of reduction in force taking place.
NLRB Regional Director issues Decision and Direction
2.
of Election for October 8, 1963.
Employee Schubert assaults employee Eschedor who
participated in union discussion with Stergar and
others, Eschedor is removed to hospital with broken
nose, broken teeth, etc.
1.
2.
Earle Rose, Jr., addresses assembled employees against
Union, warning of loss of employment, discharge, or
economic detriment for union activity or in case of
union victory.
Respondent issues notice forbidding violence on Com-
pany premises, but takes no action against Schubert,
who, known to Respondent, continues threats of vio-
1.
lence against Stergar.
NLRB Regional Director
Respondent.
issues complaint against
Earle Rose, Jr., threatens Bond with discharge for union
activity.
Earle Rose, Jr., sends employees letter against Union,
mentioning Bond, Stergar, Feinas, and Wegher by
name.
Respondent transfers Bond from "setup" work to miscel-
laneous welding, predicting "other measures" if he
shall "fail to perform."
NLRB issues order denying Respondent's request for
review of Regional Director's Decision and Direction
of Election to be held on October 8, 1963.
1. Earle Rose, Jr., threatens employees with loss of jobs
or benefits if Union wins election.
2. Earle Rose, Jr., threatens employees that if Union wins
election, Respondent would, in effect, refuse to nego-
tiate in good faith.
Earle Rose, Jr., threatens Wegber with discharge or eco-
nomic detriment for union activity if Union wins
election.
NLRB holds representation election. Bond and Wegber
are the union observers. Union loses 74 to 54 out
of 140 valid votes cast, with 12 challenged and un-
counted.
Union files objections to election based upon alleged
misconduct by Respondent.
206-446-66-vo1 154-19
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Date
October 14, 1963_______
October 16, 1963_______
October 28, 1963_______
November 5, 1963_____
November 7, 1963_____
November 8, 1963_____
November 11, 1963____
November 22, 1963____
November 27, 1963____
November 29, 1963____
December 27, 1963_____
December (late) 1963 or
January (early) 1964_
January 3,1964 (?)_____
January 6-7, 1964______
January 8, 1964________
January 11, 1964______
January 13, 1964______
January 22-23, 1964___
February 13, 1964______
February 14,1964______
February 17 , 1964______
February 18,1964______
February 19,1964______
APPENDIX A-Continued
CHRONOLOGY
Event(s)
Plant Superintendent Pate holds out
Feinas to stop supporting Union.
wage increase to
Bond and Wegher execute affidavits for NLRB.
Respondent announces promotion of Schoen to foreman.
Respondent discharges Fetzer.
Union files first amended charge, adding Fetzer to Oresnik
discharge, etc.
Fetzer executes affidavit for NLRB.
NLRB Regional Director issues amended complaint.
Respondent discharges Stergar.
NLRB Regional Director issues supplemental decision on
objections , consolidating them for hearing with "C"
case.
Union files second amended charge, adding Stergar to
other discharges, etc.
Respondent suspends Wilder for 5 days for solicitation.
Respondent issues booklet , "Employee Rules, Benefits,
Policies and Plans."
Pate issues broad no-solicitation , no-distribution notice
(Pate notice).
1. Respondent enters
Union.
into settlement agreement with
2. Earle Rose, Jr., announces economic benefits to em-
ployees.
NLRB Regional Director issues second supplemental de-
cision on objections , approving informal settlement
agreement , withdrawing amended complaint, and sev-
ering union objections to election of October 8, 1963,
for hearing before Hearing Officer.
Respondent posts NLRB notice and its own notice along-
side of ( and for a time partially obscuring) NLRB
notice, re Oresnik and Fetzer reinstatements, etc.
Respondent reinstates Oresnik and Fetzer under informal
settlement agreement.
NLRB Hearing Officer holds hearing on union objections
to election of October 8, 1963. Employees Bond,
Stergar, Fetzer, Feinas, Wegher, and Herzog testify
against Respondent.
NLRB Hearing Officer issues report on hearing on union
objections to election of October 8, 1963, sustaining
certain objections and recommending that election be
set aside.
Respondent suspends Bond for 3 days, effective Febru-
ary 17 through 19, 1964.
Respondent refuses to permit Oresnik to return to work
without written medical certificate in advance.
Respondent suspends Fetzer for 3 days for handing out
union card ( s) ("distributing literature "), to return on
February 24, 1964.
Union files new charge, based upon Bond's suspen-
sion, etc.
February 24, 1964 ______ Respondent "lays off" Oresnik for "lack of work."
February 27, 1964 ______ Bond and Fetzer execute affidavits for NLRB.
March 3, 1964_______ __ Union files first amended new charge , pertaining to Bond,
Stergar, Oresnik, Fetzer , Wilder, etc.
March 4, 1964_________ Respondent files exceptions to Hearing Officer's report of
February 13, 1964, sustaining union objections to
October 8 , 1963, election.
THE ROSE COMPANY 275
APPENDIX A-Continued
CHRONOLOGY
Date Event(s)
March 16, 1964_______ Wilder executes affidavit for NLRB.
April 3, 1964_________ Earle Rose, Jr., observes Bond handbilling at outside
gate to Respondent's premises, and engages in an angry
scene with him, vilifying and threatening him with
loss of employment for his union activity.
April 6, 1964_________ Respondent discharges Bond.,,
a For convenience of reference, the following completes the chronology of events beyond
the date of Bond's discharge.
Date Event(s)
April 7, 1964______ Union files second amended new charge, adding Bond's dis-
charge of April 6, 1964.
April 13, 1964_____ Bond executes affidavit for NLRB.
July 2, 1964------- NLRB Regional Director consolidates "C" cases for hearing
on consolidated complaint
August 22, 1964___ Plant Superintendent Pate orders employees not to hand out
union authorization cards on Company premises.
November 10, 1964_ NLRB Regional Director issues third Supplemental Decision
and Direction of Second Election, adopting Hearing Offi-
cer's February 13, 1964, recommendations sustaining cer-
tain union objections to October 8, 1963, election, setting
that election aside, and directing a new election.
December 15, 1964_ New Representation election held. Union wins, 66 to 52, with
130 eligible voters and 10 challenged.
December 21, 1964_ Respondent files objections to election of December 15, 1964.
December 31, 1964_ Respondent notifies Regional Director it cannot establish its
objections and requests dismissal thereof.
January 6, 1965___ NLRB Regional Director dismisses Respondent's objections to
the election of December 15, 1964, and certifies Union as
exclusive bargaining representative.
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that.
WE WILL offer Albert Stergar, Lyle Bond, and Edward Oresnik immediate
and full reinstatement to their former or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges, with backpay and
interest, for any wages they lost as a result of our discriminatory actions against
them because of their union activities and our suspensions, layoffs, discharges,
and terminations of their employment, and our failure and refusal to reinstate
or reemploy them.
WE WILL also make George Fetzer and Floyd Wilder whole for any loss of
pay, plus interest , which they suffered because of our discriminatory temporary
suspensions of them because of their union activities.
WE WILL NOT again confiscate, seize, take, or retain in our possession without
the authorization or consent of our employees who are members of or who desire
to affiliate with a union; nor will we again display, flaunt, or let our employees
know in an intimidating or coercive manner that we have possession or knowl-
edge thereof.
WE WILL NOT engage in any surveillance of any lawful union or organizational
activities of our employees on their own time when they are not on our premises
or when they are in nonworking areas of our premises.
WE WILL NOT publicly vilify any employee for engaging in union or lawful
organizational activity, so as to interfere with, restrain, coerce, or intimidate him
or any other employee in the exercise of any employee rights under the National
Labor Relations Act, as amended.
WE WILL NOT promulgate, maintain , or enforce any rule which unlawfully
prohibits our employees from engaging in solicitation , discussing union activities,
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or distributing literature on behalf of International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any
other labor organization.
WE WILL NOT promise, grant, or hold out to any employee any wage increase
or other benefit or thing of value to induce him or any other employee to refrain
from membership, affiliation, sympathy, support, assistance, or activity in or for
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, or any other labor organization.
WE WILL NOT directly or indirectly threaten any employee with discharge, loss
of employment, layoff, loss of benefit or other thing of value, or any discrimi-
natory reprisal or retaliation or act, because of membership, affiliation, sympathy,
support, assistance, or activity in or for International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any
other labor organization, or in case of union representation of our employees.
WE WILL NOT directly or indirectly threaten or indicate that we will refuse
or fail to bargain in good faith with International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO, or any
other duly designated collective-bargaining representative of our employees; nor
that we will not permit or agree under any circumstances to a union shop; nor
that we will engage in long drawn-out negotiations with a union without good-
faith intention to attempt to arrive at agreement, but with the advance intention
of arriving at a breakdown in negotiations.
WE WILL NOT discourage membership in and lawful activities on behalf of
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, or other labor organization of our employees,
by discharging, laying off, suspending, or failing or refusing to reinstate or
rehire, any employee, or threatening to do so, or by otherwise discriminating or
threatening to discriminate against any employee in regard to hire or tenure of
employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce employ-
ees in the exercise of their rights guaranteed to them by Congress, to self-
organization, to form labor organizations, to join or assist any labor organiza-
tion, to bargain collectively through representatives of their own choosing, to
engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection, or to refrain from engaging in any or all such activities,
except to the extent that such rights may be affected by an agreement requiring
membership in a labor organization as authorized in Section 8(a)(3) of the
Act as modified by the Labor-Management Reporting and Disclosure Act of
1959.
THE ROSE COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-If any of the above employees is presently serving in the Armed Forces of
the United States we shall notify him of his right to full reinstatement upon application
after discharge from the Armed Forces, in accordance with the Selective Service Act
and the Universal Military Training and Service Act of 1949 as amended.
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.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Second
Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, Tele-
phone No. 272-8600, Extension 3860.
Industrial Platers, Inc. and District 52, of the International
Association of Machinists, AFL-CIO. Case No. 9-CA-3389.
August 4,1965
DECISION AND ORDER
On May 13, 1965, Trial Examiner Eugene E. Dixon issued his Deci-
sion in the above-entitled proceeding, findings that the Respondent
154 NLRB No. 21.