Thomas Engine Corp.

National Labor Relations Board - Board Decisions

Dec 11, 1970

179 N.L.R.B. 1029 (N.L.R.B. 1970)

THOMAS ENGINE CORP. 1029
Thomas Engine Corporation and Upshur Engine Co.,
Inc., d/b/a Tomadur, Inc.' and International
Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
{UAW)
Thomas Engine Corporation and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America , UAW, Petitioner.
Cases 21-CA-7950, 21-CA-8013, 21-CA-8025, and
21-RC-10771
December 11, 1970
DECISION, ORDER , AND DIRECTION OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND JENKINS
On April 25, 1969, Trial Examiner E. Don
Wilson issued a Decision in the above-entitled
consolidated proceeding, finding that Thomas had
engaged in certain unfair labor practices and
recommending that both ,Thomas and Upshur cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He also made recommendations as to the
disposition of the challenges in the election held on
March 29, 1968. Thereafter, the Charging Party and
Upshur filed exceptions to the Decision and
supporting briefs, and the General Counsel filed an
answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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 , the briefs, and
the entire record in this proceeding, and hereby
adopts the findings, conclusions, and
recommendations of the Trial Examiner only to the
extent consistent herewith.
The Trial Examiner found, and we agree, that
Thomas, which operated an engine rebuilding plant
in the City of Industry, California, until September
9, 1968, violated Section 8(a)(1), (3), and (4) of the
Act by engaging in unlawful conduct, including
discriminatory warning notices to two employees
and the discriminatory discharge of employees
Richard Dickey, James Wilkins, Arthur Pollock,
and David Dick. The Trial Examiner also correctly
found that Upshur, which took over Thomas'
business with knowledge of the latter's unfair labor
practices,I and -resumed operation of the plant on
September 25, 1968, was the successor employer to
Thomas.
The Trial Examiner further found on the basis of
'Herein respectively called Thomas and Upshur
Perma Vinyl' that Upshur, as the successor
employer, has an obligation completely to remedy
Thomas' unlawful conduct; he accordingly
recommended that Upshur be ordered (1) to cease
and desist from committing such conduct, (2) to
expunge from any of its files the warning notices, (3)
to offer immediate reinstatement to the four
dischargees, and (4) jointly and severally with
Thomas, to make the dischargees whole by reason
of the discrimination against them. Although the
Board stated in Perma Vinyl that a successor must
take "appropriate steps . . . to mitigate the effects
of a predecessor's unfair labor practices," this
holding did not signify that a successor's remedial
responsibility should under all circumstances be as
extensive as that of the actual "perpetrator" of the
unfair conduct.4
As to (1) and (2), we find that Upshur, which was
not a party to the unfair labor practices of Thomas,
was under no duty to disclaim responsibility for
warning notices issued by Thomas or to promise its
employees that it would cease and desist from
engaging in unfair conduct committed by Thomas.
In our opinion, it would not further the public
interest involved in effectuating the policies of the
Act to impose such a duty upon Upshur. We shall
therefore modify the Order and Notices accordingly.
As to (3) and (4), the following special
circumstances necessitate the modification of the
reinstatement and backpay provisions recommended
by the Trial Examiner:
As noted above, the Trial Examiner found that
Thomas discriminatorily discharged Dickey,
Pollock, Wilkins, and Dick, and he recommended
that Upshur be ordered to offer them immediate
reinstatement and jointly and severally with
Thomas, to make them whole for loss of earnings
suffered as a result of the discrimination. In making
these findings, the Trial Examiner found Upshur has
"substantially the same work force" as Thomas. In
Perma Vinyl, on which the Trial Examiner relied,
the successor employed "essentially the same
personnel" as its predecessor. However, the record
herein shows that when Thomas closed down on
September 9, 1968, it had 120-130 production and
maintenance employees' and within a week after
Upshur reopened the plant on September 25, 1968,
the latter had taken on 97 production and
maintenance employees, 90 of whom were
employees of Thomas and 7 were outside employees.6
'There were no exceptions to the Trial Examiner's finding that Upshur
had such knowledge.
'Perms Vinyl Corporation . Dade Plastics Co, 164 NLRB 968, enfd. sub
nom United States Pipe and Foundry Company v. N L R B 398 F 2d 544
(CA 5).
In this connection, it is significant that the successor 's obligation in
Perma Vinyl was restricted to an affirmative reinstatement order and there
was no requirement therein that it cease and desist from either the 8(axl)
or the 8(ax3) violations of the predecessor
'The stipulated unit for the election conducted on March 29, 1968, was
composed of production and maintenance employees.
'The work force remained unchanged as of the hearing date of December
17,1968
379 NLRB No. 165
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The justification for ordering immediate and
unconditional reinstatement of the predecessor's
dischargees in Perma Vinyl and related cases' is that
but for their unlawful discharge by the predecessor
they would have been offered employment by the
successor, as were all or essentially all of the other
employees on the predecessor's payroll at the time
of the changeover. However, a like assumption
cannot be made in this case because Upshur hired
only 90 of Thomas' 120-130 production and
maintenance employees. Accordingly, as there was
considerably less than a total transfer of Thomas'
labor force to Upshur and as it cannot now be
determined whether the discriminatees would have
been among those offered employment by Upshur
had they not been discriminatorily discharged by
Thomas, we shall order Upshur to offer them
immediate and full reinstatement to their former or
substantially equivalent positions, but if employment
is not available, place them on a preferential list and
thereafter offer them reinstatement as such
employment becomes available and before other
employees are hired for such work. This remedial
order will effectuate the policies of the Act without
working "an unfair hardship" or "burden" on
Upshur, which as the successor employer is "the
beneficiary of the unremedied unfair labor
practices" and "is in the best position to remedy"
the discriminatory discharges of Thomas.'
We do not agree with the Trial Examiner's
finding of joint and several backpay liability for
Thomas and Upshur. As to Thomas, we find that as
the offending employer which unlawfully discharged
employees before the takeover by Upshur, Thomas
has the sole obligation to make whole the
dischargees for any loss of pay suffered by reason of
the discrimination until such time as they secure
substantially equivalent employment, or an offer
thereof, with Upshur or elsewhere. We shall limit
Upshur's backpay obligation to the period from 5
days after the date on which the dischargees apply
for reinstatement to the date of Upshur's offer of
reinstatement or placement on a preferential list.'
As noted above, an unresolved election was
conducted for Thomas' production and maintenance
employees on March 29, 1968, at which time there
were about 167 eligible voters and 158 ballots cast,
with 74 for the Union, 76 against the Union, 7
challenges, and I void ballot. Thereafter, the Board
directed that the challenges be determined in the
instant consolidated proceeding by the Trial
Examiner who recommended that 4 challenges be
sustained and that 3 ballots be opened in order to
ascertain whether the Union won the election and
should be certified as the bargaining agent for
Upshur, the successor of Thomas.
'Emerson Electric Co ,176 NLRB No. 98; American Auto Felt Co,158
NLRB1628.
'See Perma Vinvl, supra
IF. W Woolworth Co., 90 NLRB 289; Isis Plumbing & Heating Co.
138 NLRB 716
All production and maintenance employees
including truckdrivers, shipping and receiving
employees, and warehouse employees, excluding
office clerical employees, order clerks,
dispatchers, professional employees, guards,
watchmen, and supervisors as defined in the Act.
ORDER
In contrast to Thomas' work force of 167
production and maintenance employees at the time
of the election, Upshur in December 1968, as
already stated, had but 97 employees in the unit, of
whom only 90 were former Thomas employees.
Upshur contends, inter alia , that this was a
"substantial change" in the composition of the unit
and that the Board should therefore direct a new
election for a current unit of Upshur's production
and maintenance employees.
We find merit in Upshur's contention. Permitting
the prior election in March 1968, involving 167
Thomas employees now to determine the choice of a
bargaining representative for Upshur, which had
only 90 former Thomas employees and 7 new
e nployees as of December 1968, would give
improper weight to the wishes of those employees
who did not become part of the Upshur work force
and would disenfranchise all of Upshur's newly
hired employees. In view of this factor as well as the
20-month time lapse since the election, we believe
that it would best effectuate the policies of the Act
to set aside the earlier election and to direct a new
election10 in the following appropriate unit of
employees at Upshur's plant in the City of Industry,
California:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders the following:
A. That Upshur Engine Co., Inc., d/b/a
Tomadur, Inc., City of Industry, California, its
officers , agents , successors , and assigns, shall take
the following action which is necessary to effectuate
the policies of the Act:
1. Upon application , offer Richard Dickey,
Arthur Pollock, James Wilkins, and David Dick
immediate and full reinstatement to their former or
substantially equivalent positions , but if employment
is not available, place them on a preferential list and
make them whole, in the manner indicated in this
Decision.
2. Preserve and, upon request, make available to
the Board or its agents , for examination and
copying, all payroll records , social security payment
records, timecards , personnel records and reports,
and all other records necessary for determining the
amount of backpay due under the terms of this
"See United Transports , Inc., 107 NLRB 1150
THOMAS ENGINE CORP.
Order.
3. Post at its plant in the City of Industry,
California, copies of the attached notice marked
"Appendix A."" Copies of said notice, on forms
provided by the Regional Director for Region 21,
shall, after being duly signed by a representative of
Upshur Engine Co., d/b/a Tomadur, Inc., be posted
by it immediately' upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where
notices to employees are customarily posted.
Reasonable steps shall be taken by Upshur Engine
Co. Inc., d/b/a Tomadur Inc., to insure that said
notices are not altered, defaced, or covered by any
other material. Notify the Regional Director for
Region 21, in writing, within 10 days from the date
of this Order, what steps have been taken to comply
herewith.
B. That Thomas Engine Corporation, City of
Industry, California its officer`s, agents, and assigns,
shall:
1. Cease and desist from the following in the
event it resumes operation:
(a) Threatening that a management representative
would close the doors of the plant before he would
let a union in the plant; threatening that if the
Union was voted- in by the employees, the plant
doors would be closed; asking employees what
would happen if they got a union in the plant;
telling employees that if the Union comes in there
will be a strike and they will starve; asking
employees -how other employees stand with the
Union; and requesting employees to pretend secretly
that they are prounion to fellow employees and find
out how they feel about the Union and report back
to management representatives.
(b) Discouraging membership in the Union, or
any other labor organization, by discriminatorily
discharging, or issuing warning notices to, or in any
other manner discriminating against any employee
in regard to his hire, tenure or any term or
condition of employment.
(c) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of their rights to-join oc' assist the Union or any
other labor organization or otherwise engage in
activities protected by the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Make whole Richard Dickey, Arthur Pollock,
James Wilkins, and David Dick in the manner
indicated in this Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll- records, social security payment
records, timecards, personnel records and reports,
"In the event this Order is enforced by a judgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
1031
and all other records necessary for determining the
amount of backpay due under the terms of this
Order.
(c) Send to each former employee of Thomas
Engine Corporation, a copy of the attached notice
marked "Appendix B."12 Copies of said notice, on
forms provided by the Regional Director for Region
21, shall be duly signed by a representative of
Thomas Engine Co.
3. Notify the Regional Director for Region 21, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
[Direction of Election[' omitted from publication.]
I'In the event this Order is enforced by a Judgment of the United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted pursuant to a
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc , 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 21 within 7
days after the date of issuance of the Notice of Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election. No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our employees that.
WE WILL, upon application, offer to Richard Dickey,
Arthur Pollock, James Wilkins, and David Dick
immediate and full reinstatement to their former or
substantially equivalent positions, but if employment is
not available, place them on a preferential list, and pay
them for wages lost because of our refusal, if any, to
reinstate or place them on a preferential list 5 days
after application.
Our predecessor, Thomas Engine Corporation, has
been ordered by the National Labor Relations Board to
pay Richard Dickey, Arthur Pollock, James Wilkins,
and David Dick for wages lost from the time of the
discharge until the date they obtain substantially
equivalent employment, or an offer thereof, with our
Company or elsewhere. If Thomas Engine Corporation
goes back into business, it has also been ordered not to
interfere with the union activities of its employees by
discharge, making threats of punishment for engaging
in union activities, or promising benefits for refraining
from union activities.
WE WILL notify the foregoing employees, if presently
serving in the Armed Forces of the United States, of
their right to reinstatement or placement on a
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
preferential list, upon application, in accordance with Any questions concerning this notice or compliance
the Selective Service Act and the Universal Military with its provisions, may be directed to the Board's Office,
Training and Service Act, as amended, after discharge Eastern Columbia Building, 849 South Broadway, Los
from the Armed Forces. Angeles, California 90014, Telephone 213-688-5200.
Dated By
UPSHUR ENGINE CO.,
INC. D/B/ A TOMADUR,
INC.
(Successor Employer to
Thomas Engine
Corporation)
TRIAL EXAMINER 'S DECISION
Statement of the Case
(Representative ) (Title)
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.
Any questions concerning this notice or compliance
with its provisions, may be directed to the Board's Office,
Eastern Columbia Building, 849 South Broadway, Los
Angeles, California 90014, Telephone 213-688-5200
APPENDIX B
NOTICE TO EMPLOYEES
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
We hereby notify our former employees that.
WE WILL pay Richard Dickey, Arthur Pollock,
James Wilkins, and David Dick for wages lost from the
time of the discharge until the date they obtain
substantially equivalent employment, on an offer
thereof, with our successor, Upshur Engine Co., Inc.,
d/b/a Tomadur, Inc., or elsewhere.
WE WILL, in the event we resume operation, not
engage in the following conduct-
(a) Threaten that a management representative
would close the doors of the plant before he would
let a union in the plant; threaten that if the Union
was voted in by the employees, the plant doors would
be closed; ask employees what would happen if they
got a union in the plant; tell employees that if the
Union comes in there will be a strike and they will
starve; ask employees how other employees stand
with the Union, and request employees to pretend
secretly that they are prounion to fellow employees
and find out how they feel about the Union and
report back to management representatives.
(b) Discourage membership in the Union, or any
other labor organization, by discriminatorily
discharging, or issuing warning notices to, or in any
other manner discriminate against any employee in
regard to his hire, tenure, or any term or condition
of employment.
(c) In any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to
loin or assist the Union or any other labor
organization or otherwise engage in activities
protected by the Act.
Dated By
THOMAS ENGINE CO.,
INC.
(Predecessor of Upshur
Engine Corp. d/b/a
Tomadur Inc.)
(Representative ) (Title)
E. DON WILSON, Trial Examiner: A charge in Case
21-CA-7950 was filed by International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), herein the Union, on
February 14, 1968,' and amended on October 7, and
October 14. A charge in Case 21-CA-8013 was filed by
the Union on March 27, and amended on October 7, and
October 14. A charge in Case 21-CA-8025 was filed by
the Union on April 8, and amended on April 23, and
October 7, and October 14. On November 4, the General
Counsel of the National Labor Relations Board, herein
the Board, issued an Amended Order Consolidating
Cases, Amended Consolidated Complaint and Amended
Notice of Hearing, alleging that Thomas Engine
Corporation,2 herein Thomas, had violated Section 8(axl).
(3) and (4) of the National Labor Relations Act, herein
the Act, and further alleging that Upshur Engine Co.,
Inc., d/b/a Tomadur, Inc., herein Upshur, is a successor
employer to Thomas and is responsible for remedying the
unfair labor practices committed by Thomas.
On August 12, the Board issued an Order Directing
Hearing on challenged ballots in Case 21-RC-10771 and
this case has been consolidated with the hearing on the
unfair labor practices The Trial Examiner conducting this
hearing was directed by the Board to make
recommendations to the Board as to the disposition of the
challenges.
Pursuant to due notice, a hearing in this consolidated
matter was held before me in Los Angeles, California, on
November 19, December 17, 18, 19, and 20, and January
14, 1969. The parties, aside from Thomas, fully
participated. Briefs of General Counsel, Upshur and the
Union were received by March 19, 1969, and have been
fully considered.
Upon the entire record' in the cases, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESSES OF THOMAS AND UPSHUR
(a) Thomas is still a corporation. The record does not
reveal clearly whether it is now defunct or whether it now
has substantial assets under its own control or subject to
the control of creditors. Until September 9, it maintained
a plant located in the city of Industry, California. It
annually purchased and received, during the normal
course of its business, products valued in excess of $50,000
,Hereinafter all dates refer to 1968, unless otherwise stated.
'This counsel withdrew from representing Thomas on the first day of the
hearing , leaving Thomas unrepresented for the balance of the hearing
'General Counsel ' s unopposed motion to correct the Transcript is
granted and marked TX Exh I
THOMAS ENGINE CORP. 1033
directly from suppliers located outside the State of
California.
(b) Upshur is a corporation engaged , as was Thomas,
in the business of rebuilding engines and since some time
between September and October has maintained and
operated Thomas' prior plant in the city of Industry,
California. During the 12-month period beginning between
September and October, which period is representative,
Upshur, in the normal course and conduct of its business,
will purchase and cause to be delivered to its above plant,
materials valued in excess of $50,000 which will be
shipped from points outside California directly to Upshur.
Thomas and Upshur, at all times material , have been
employers engaged ' in commerce and in a business
affecting commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION
At all times material , the Union has been a labor
organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
There appears to be no doubt that by the end of 1967,
Thomas was heavily indebted to a factor named Tallcott
who was a secured creditor , and to a company named
Durabilt . When Thomas defaulted in its arrangements
with Durabilt , Durabilt assigned one Frederick Phinney,
in November 1967, to run Thomas as vice president and
general manager . Not long thereafter , Thomas obtained
the services of Roy Burslem as director of operations.
This was in January.
Burslem , in a short period of time , made a survey of
the operations of the plant, including costs, and concluded
that for economic reasons, Thomas should reduce its
quota of employees by 28 to 30 men. On January 24 and
25, Thomas reduced its work force by releasing about 20
employees.4 The employees were selected on the basis of
efficiency , attendance, and seniority . The 20 employees
were selected by Production Manager D. L. Van Gordon
and Plant Superintendent A. V. (Bob) Walker. It was
hoped that production would not be cut back.'
On January 25, Phinney wrote a letter to all the
employees who were retained in the January 24-25
reduction in force . The letter reads , in part:
Yesterday we had a cut-back of personnel . You were
not affected by this cut -back . We employed the services
of a highly professional expert in the field of production
to determine what we must do to improve our
scheduling of production and to help us evaluate the
performance of our employees so that we could have a
good working , trained crew to produce the engines that
we require . We then selected the employees who have
earned their place with us through their performance,
attendance and cooperation. I believe that you are a
member of our team that will make this Company
successful. We have trimmed down to a crew that we
expect will yield a good result in quality and quantity of
product produced so that we can both benefit from the
results . [Emphasis supplied.]
4Subsequently in this Decision I shall make findings as to whether some
of these men had a reasonable expectancy of recall.
B. Independent Violations of Section 8(aK1)
Robert Hollenbeck was the foreman of the crank
department and a supervisor within the meaning of the
Act.
Adam Bratton, an employee in the block repair
department, credibly testified that in January, in the
bathroom, Hollenbeck came in and said "There is that
union leader," and Bratton replied that Hollenbeck was
right. Hollenbeck then said, "Well, Mr. Phinney will close
the door before he will let the union come in." Bratton
replied that was up to Phinney and left. Hollenbeck did
deny having a conversation with Bratton in the rest room
about unions. I find Hollenbeck's denial unconvincing and
find Hollenbeck violated Section 8(a)(1) of the Act by his
statements to Bratton.
Ex-employee Lee Holder credibly testified that about a
month before he was laid off on January 23, Hollenbeck
told him that he had just left a meeting of supervisors and
was informed by Phinney that if the union were voted in'
the doors would be closed.' Holder further credibly
testified that in the week preceding January 23,
Hollenbeck said to him, "[I]f the union was voted in the
doors would be closed or the shop." I do not credit
Hollenbeck's general denial that he ever made such
statements to anybody. He did not specifically deny
making these statements to Holder. I find Hollenbeck's
statements to Holder violated Section 8(a)(1) of the Act.
Ex-employee John Howard testified that about three
weeks before January 24, he heard Hollenbeck tell an
employee named Fred Jeske, "Phinney said if the union
got in he would close the doors." Jeske, an Upshur
employee, denied that Hollenbeck had made such a
statement to him. Hollenbeck did not recall making such
statement. I credit Jeske's denial and find Hollenbeck did
not make the statement to him.
Howard also testified that during the same week, while
lunching with three men including one Louis Crane,
Hollenbeck stated, "Phinney said if you guys get the
union in here the plant will be closed." Howard recalled
nothing else that was said during this lunch period.
Hollenbeck denied making such a statement to a group in
which Crane was involved. Crane, rehired by Upshur, said
he did not hear Hollenbeck make such a statement and
testified he never heard Hollenbeck discuss the union at
any time. I do "not credit Howard's testimony. His
demeanor, and what I consider a faulty recollection,
impressed me unfavorably.
Ex-employee Wier was in the January 24 reduction in
force. About February 16, he received a letter from
Thomas calling him back to work. He went to the plant
on February 20 and reported for work on February 22.
He had a conversation with Van Gordon in the latter's
office that morning . Van Gordon started talking about the
union . He said, "What is going to happen if you get a
union in here? You'll have a strike and we will wait you
out and you will be starving." Van Gordon said he was
assigning Wier to the head department "which he called a
hot bed of union activity." Van Gordon did not testify
and I credit Wier's testimony. I find Van Gordon violated
Section 8(aXI) of the Act by asking Wier what was going
to happen if he got a union in and that there would be a
strike and he would starve.
Shortly after Wier started back to work, Bob Walker?
asked him how employee Larry Franz stood with the
'The above findings are made on the credited testimony of Phinney and `Holder 's recollection had to be refreshed from his pretrial affidavit as to
Walker . I here note that I do not credit all the testimony of Walker whose this conversation.
demeanor in general impressed me unfavorably . 'Plant Superintendent.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union Several weeks later, Walker asked Wier how he
would like to do something for Walker "on the Q.T "
When Wier asked, "What," Walker told him he knew he
was antiunion but Walker would like him to pretend he
was prounion to a fellow employee named John Roselli
and see how Roselli felt about the Union and then tell
Walker. Wier was shocked but said, "Yes," About a week
later, Walker asked Wier if he had spoken to Roselli and
Wier replied in the negative. A couple of days later
Walker repeated the inquiry and received the same
response. Walker, although he testified extensively, did
not deny Wier's testimony. I credit Wier's testimony as to
his conversations with Walker. I find Walker violated
Section 8(a)(l) of the Act by asking Wier to pretend to be
prounion and sound out Roselli as to his union feelings
and report to Walker, and by repeatedly asking Wier if he
had complied with Walker's request, and also by asking
Wier how Franz stood with the Union.
C. The March 18, Warning Notice to Frank Green
At the time he testified, Green was employed by
Upshur. He started working for Thomas in May 1966.
His foreman at Thomas was Wesley Brown . I found
Green to be an honest witness and credit his testimony.
On March 8, he attended a preelection conference at
Region 21. Also present were Burslem , Thomas' attorney,
Franzen, and the union organizer David Longmire.
On March 15, 1 week later, Green went to the office
and obtained some insurance papers to turn into his
doctor. As he started to leave, Van Gordon asked him
why he had been there and Green told him. Van Gordon
told him insurance was personal business and he did not
want to see Green in the office again Van Gordon said
the company handbook stated that if insurance papers
were needed the employees were to get them on their own
time. Van Gordon unsuccessfully looked for the company
handbook and then said, "Well, let it be a warning to you
not to come in here again."
On March 18, Van Gordon summoned Brown and
Green to his office. Immediately that they arrived, Van
Gordon told them they were each to sign a warning
notice, Green for coming into the office for the insurance
papers, and Brown for not watching his employees more
closely. Van Gordon stated it was in the company
handbook. Brown asked to see it, adding that he had
worked for the Company for 18 years and had never
heard of anyone being required to ask permission to go
into the office for insurance papers or being required to go
for insurance papers after working hours. Van Gordon
called Walker into the office and asked him if it had been
permissible before. Walker replied that perhaps it had.
Nothing had ever come up over it. No one could find a
company handbook Van Gordon kept insisting that
Green and Brown sign warning notices, adding that if they
didn't he and Walker would sign and it would mean the
same thing Green told Brown they might as well sign and
they did
Green testified that earlier in March, he had gone to
the office and in Van Gordon's presence had obtained
insurance papers. Van Gordon said nothing on that
occasion.
Richard Dickey testified credibly that he was employed
on January 3. Three days after he was hired he went to
the office to inquire about his wages, during working
hours, without permission of his supervisor. Van Gordon
passed by and said nothing to him.
David Dick credibly testified that around March 9,
during working hours and without permission of his
supervisor, he went to the office to see about insurance
papers. Walker saw him there and said nothing about his
activity. On another occasion, Dick and fellow employee
Joe Turner went to see Van Gordon, without permission,
and were with him 15 to 20 minutes to discuss the
company processing an engine for their own use.
Apparently Van Gordon said nothing about their being
away from their work without permission
I am convinced that the warning notice issued to Green
was because of his union activity in representing the
employees at the preelection conference. There is no
evidence that any other employee was even reprimanded
for engaging in the same activity for which Green received
a reprimand. There is substantial credible evidence that
other employees engaged in the same or similar conduct
as Green in going to the office, to the knowledge of
management who said nothing to them. That Thomas
issued a warning notice to Brown is consistent with a
purpose to conceal its unlawful motive with respect to
Green. I find that by issuing the warning notice to Green,
Thomas violated Section 8(a)(1) and (3) of the Act. The
warning notice was prompted by Green's appearance at
the preelection conference
D The Discharges of Richard Dickey, James Wilkins
and Arthur Pollock
The Union filed its initial charge against Thomas on
February 14, alleging the unlawful discharges of Adam
Bratton, Donald Coleman, Philip R Daigneault,
Theodore Hartman, Lee Holder, Harrol Lee, Charles M.
Mikel, Arthur F Pollock, James R. Wilkins, and John J.
Winston. It was served on February 14 and considering all
the credible evidence, I find it was received by Thomas on
February 15
1. Richard Dickey
Dickey' was hired on January 3. Van Gordon told him
when he was hired that if his work was satisfactory he
would get a 10 or 15 cents raise. Except for the first three
days of his employment he worked under the supervision
of Larry Wiggins' until his discharge on February 15.
Respondent contends that Dickey was discharged because
his production was very below par and a newer employee,
Joe Turner, was putting out twice as much work as
Dickey 10 Further, claims Upshur, Walker noticed Dickey
gazing off into space and instructed Wiggins to keep an
eye on Dickey. Wiggins testified that on one day he did
compare the work of Dickey and Turner and found that
on this occasion Turner's output doubled that of Dickey.
It is further Upshur's position that Dickey's termination
was but a part of Burslem's overall plan for a reduction in
force, and Dickey was selected because of his poor
production.
Upshur's advanced reasons for the termination of
Dickey are not credited but are considered mere pretexts
to cover the real reason, his union activities.
Although seniority was a factor considered in the
January 24 reduction in force, and although Dickey was
'I found Dickey to be an honest witness
'A supervisor within the meaning of the Act.
'Turner did not testify as to how his production compared with
Dickey's
THOMAS ENGINE CORP.
only hired 21 days earlier, he was not selected for layoff
and received the complimentary letter from Phinney
telling him that the employees retained had "earned their
place with us through their performance, attendance and
cooperation" and further stating that Dickey was
considered "a member of our team that will make this
Company successful." Further, in the week following the
January 24 reduction in force, Dickey received not a mere
10 or 15 cents an hour increase but a 25-cents-an-hour
increase. This was about two weeks before his discharge.
Of particular significance is that following the January 24
cutback he discussed, in the plant the need for a union,
got employees to sign union membership cards and
attended the weekly union meetings. He mostly got the
cards signed in the plant and kept them in his breast
pocket with the upper half and part of the address
showing. Moreover he carried a yellow pencil with him in
the plant with a UAW button on it showing outside on his
shirt. The button was about an inch in diameter and the
"UAW" could be seen at a distance of at least 10 feet. He
began wearing the button after the January 24, cutback.
When Dickey came to work on the morning of
February 15, his timecard was not in the rack. He saw
Wiggins who told him Van Gordon wanted to see him.
Dickey went to the office and Van Gordon came out and
spoke to him in the hallway. Van Gordon said they were
going to have a cutback in Dickey's department and since
he was low man on the totem pole he would be the first to
go." Van Gordon said the layoff might be two days or
two weeks. These findings have been based on the credited
testimony of Dickey. Dickey credibly testified he worked
approximately as fast as Turner.
It is noted that Walker testified it was Thomas' policy
to try a man out in some other department if he did not
work out at a specific job. I do not credit Wiggins'
uncorroborated testimony that he and Van Gordon spoke
to Dickey about his poor production. Thomas was plainly
opposed to the Union and its supporters. It has been
noted that Wier, who was considered by management to
be antiunion, was subsequently hired to work in Dickey's
department which was considered by management to be a
hotbed of union activity. I am convinced by all the
testimony concerning the discharge of Dickey, that Dickey
after being retained in the January 24 reduction in force
and being rewarded with a 25-cent raise within about 2
weeks of his discharge was not discharged for his poor
production or because of a further reduction in force,
mere pretexts, but because of his union activity including
the partially visible carrying of union membership cards in
his breast pocket and the open wearing of a rather large
UAW button on his shirt front. I find the discharge of
Dickey violated Section 8(a) (3) and (1) of the Act.
2. James Wilkins12
Wilkins started working for Thomas on September 17,
1967, and was caught in the January 24 reduction in force.
He had had the job of head merler. Following his release
on January 24, Wiggins tried to train another man for
Wilkins' job but was unsuccessful. Wiggins requested Van
Gordon to recall Wilkins who returned to work on
February 5. Wiggins told Wilkins that he had been
responsible for getting him back to work.
Ten days later, on February 15, Wilkins had a flat tire
and called the office about 8 a.m., and said he would be a
" In fact, Turner was junior to Dickey and performed the same work.
121 was faborably impressed by his domeanor and credit his testimony.
"Note that this is about the time Thomas received the Union 's first
charge
1035
little late because he was having car difficulties. He
arrived about 8:25 11 Wiggins smiled at him and said
"Well, I see you made it." Wilkins went to work. About
an hour later Wiggins came back and asked him how late
he had been. Wilkins said "about an hour." Wiggins
returned later and said Van Gordon wanted to see him.
He went to Van Gordon's office and Van Gordon spoke
to him in the hallway. Van Gordon said he realized people
had difficulties like this and that Wilkins had had them
before and that was the reason he had been released in
January. Van Gordon suggested Wilkins allow himself
more time to get to work. Van Gordon concluded, "You
are a good man. Larry Wiggins wanted you back and we
got you back. Now I want your body here. See if you
can't improve in the future." At the time of this
conversation Wilkins had his UAW button on and Ronnie
Byers, whose status will be discussed later, stepped out of
the office and pointing to the button asked him what he
was doing wearing "that thing " It is obvious that Van
Gordon had given Wilkins only a mild rebuke for being
an hour late."
About 2 p.m , on February 16, the day after Thomas
received the Union's charge alleging that Wilkins'
termination of January 24, had been discriminatory,
Wiggins came over to Wilkins and said "I don't know
how to tell you this, but we are going to lay you off again.
I am sorry but there is nothing I can do."
I do not credit Wiggins' testimony that Wilkins was let
go only about 10 days after he had been called back to
work because he was late about two or three times and
was about an hour late one day and was absent one day
and that he discussed this with Van Gordon about one
week after Wilkins was recalled. I specifically credit
Wilkins' denial that he had been absent one day or that he
had been late other than the one occasion on February 15.
Significantly, Upshur produced no payroll records to
corroborate Wiggins, whose demeanor impressed me
unfavorably.
I consider as mere makeweight pretexts testimony that
Wilkins had talked during working hours and had had his
wages garnisheed before his layoff on January 24. In spite
of these alleged factors, Thomas recalled Wilkins on
February 5, at Wiggins' request.
Upshur introduced no evidence that Wilkins was not
needed to perform the job for which he had been recalled
on February 5. The reasons advanced for terminating
Wilkins were pretextual. Thomas' management had
antiunion animus. Wier whom management considered
antiunion was soon hired to work in Wilkins' department.
Wilkins' discharge followed by one day Thomas' receipt
of the Union's charge naming Wilkins as having been
discriminated against for union activities. I am convinced
that the termination of Wilkins on February 16 was
unlawfully motivated and triggered by receipt of the
charge, and in violation of Section 8(a)(1), (3), and (4) of
the Act.
3. Arthur Pollock' 4
Pollock commenced working for Thomas in June 1966.
He was among the 20 men terminated on January 24.
Early in the morning on the next day, he received a phone
call from Thomas advising him that he had been
terminated by mistake and asking him to come back to
work. He agreed and reported for work that morning.
"I found Pollock to be an honest witness, and credit his testimony
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Van Gordon said he was to go back to his former job.
Within a week he was given a nickel an hour wage
increase and told there would be more in the future.
Shortly before noon on February 16, Pollock learned
his wife was ill and asked Van Gordon for permission to
go home, explaining the reason. Van Gordon said, "By all
means. Your wife comes first." He went home and took
his wife to the hospital. He returned to work, went to the
office, and asked for insurance papers. He was told they
had been taken care of but Van Gordon wanted to see
him. He saw Van Gordon who told him he was being laid
off. He was given a termination slip to sign which listed
"Lack of Work" as the reason for his termination.
As previously noted, Van Gordon did not testify.
Walker impressed me as a witness who was not as much
concerned with telling the truth as he was with serving
what he considered to be Upshur's best interests, and he
gave some hearsay testimony as to acts and statements of
Van Gordon. He testified that an irate customer phoned
Van Gordon and complained that a mistake had been
made on an engine which mistake should have been
eliminated in Pollock's department. According to Walker,
Van Gordon "got real hot" and investigated and found
Pollock had tested the engine. Again according to Walker,
Van Gordon made further investigation and later showed
Walker a list of rejects which showed that Pollock had
three or four times as many rejects as any other man in
Pollock's department. Walker testified that he wasn't
involved in Pollock's discharge. He testified that Pollock's
numerous rejects "triggered this discharge." I do not
credit this testimony
I credit Pollock's testimony that Thomas had a practice
of posting lists of rejects with the individual's name
responsible on the bulletin board over the timeclock. On
only one occasion during his entire employment, his name
was on such a list. No supervisor ever found fault with
Pollock for having too many rejects. When he was
discharged on February 16, he was not told it was because
he had too many rejects.
Pollock's name was listed as one of the discriminatees
because of union activities in the Union's charge which
Thomas received the day before it discharged Pollock.
I find the claim that Pollock was discharged because of
a poor work record to be a mere pretext. I have
considered the fact that he was given a raise about two
weeks before his discharge and told there would be more
to come and that there is no evidence that he was ever
reprimanded for poor work and that Upshur presented no
credible evidence that there was not still need for his
services after his callback on January 25, and that the
reasons given by Walker for the discharge are not
consistent with the mere "lack of work" statement on
Pollock's termination slip. Considering management's
antiunion animus, and the pretextual reasons advanced for
his termination, I find that what "triggered this
discharge" on February 16, was Thomas' receipt of the
Union's charge on February 15, listing Pollock as a
discriminatee because of union activities. The unlawfully
motivated discharge of Pollock violated Section 8(axl),
(3), and (4) of the Act.
E. The Three Warning Notices to and the Discharge
of David Dick
1. The first warning notice
Dick was hired by Thomas in September 1967, and was
employed until his discharge on April 16. On March 29,
he was the Union's observer at the election. On April 1,
to the knowledge of Thomas, Dick went to the union
office to give evidence with respect to the election. On
April 8, 8 days before his discharge, the Union filed a
charge (2l-CA-8025), alleging that Thomas had
unlawfully discriminated against Dick
There is no credible evidence that before March 29, the
date he was the Union's observer at the election, Dick had
ever been reprimanded for his work or that he was
anything but a satisfactory employee. Between March 29,
the day of the election, and April 15, Dick received three
warning notices.
Dick's first warning notice was given to him on April 2,
the day after Thomas learned that Dick had been at the
union office giving evidence to the Union. It was given to
him allegedly because he had made errors in taking an
inventory in the preceding week. There is no doubt that a
recount had to be made on a Sunday, at overtime,
because of the inventory in which Dick participated.
The form used by Dick is in evidence and shows errors
in the counting. During part of Dick's inventory, he was
working with a fellow employee, Joe Turner, as a team.
One man would do the counting and the other would do
the writing. There is no evidence that in connection with
the inventory in which Dick participated, and in which
errors were made, Thomas ever made any inquiry of Joe
Turner as to his responsibility for the errors or any of
them.'s
Early in the week of the inventory Wiggins had told
Dick all the usable parts were to be counted, and it was
important that they be counted accurately. Before he
finished counting them, according to Dick's undenied and
credited testimony, Van Gordon, in essence, told him he
could estimate rather than count individually.
On April 2, Dick was given a warning notice by Van
Gordon and Burslem because of the errors in the
inventory report which had necessitated an expensive
recount.
Wiggins, Walker, and Novak testified as to the
discovery of the errors and the recount which took place
on Sunday.
Sidney Novak testified he was with the auditors when
they came to the area where Dick had taken the inventory
and "it was full of errors." While in fact the recount took
place on Sunday after Dick left at 5 p.m., Saturday,
Novak testified the recount "started Friday night,
Saturday at time and a half and Sunday double time." He
then testified the auditor showed him Dick's errors on
Saturday afternoon. He said Dick's errors were brought to
his attention on Saturday afternoon, at "approximately
3:30 or 4:00 o'clock." There is no doubt that Dick was
still taking inventory at that time and did not leave until 5
p.m. Novak again testified he went into Dick's area to do
the counting on Friday night. Novak who was in charge of
the entire Thomas inventory did not know whether he
recommended any disciplinary action as a result of the
inventory made by Dick in which Turner participated.
Walker testified that the mistakes in the Dick inventory
were discovered Saturday evening after Dick had already
left. He testified he learned Dick's whole section would
have to be recounted around 6:30 or 7 p.m., Saturday
night. He said other employees were still there and he and
Van Gordon "grabbed those who were present before they
got help" to come in and do the recount on Sunday.
Dick testified credibly that about 4:30 on Saturday
Wiggins directed him to leave the plant at 5 even though
"Turner did not testify concerning the inventory.
THOMAS ENGINE CORP.
Dick had not completed the inventory and so advised
Wiggins. Wiggins told him "Get what you could finished
and go home. I had most of mine on rough copy and
recopied the sheets. I told him in the next hour or so I
could complete the whole section. We would not have to
rush around and double check everything. He said 5
o'clock was it and do what I could and leave."
Wiggins, contrary to Walker and Novak, testified that
the auditors did not check the area Dick had inventoried
with the help of Turner on Saturday. On direct
examination, Wiggins testified that the check of Dick's
area and the discovery of the errors was not begun until
between 8 and 8:30 on Sunday. He said it was then that
they looked for a crew to do the recount.
Dick credibly testified that when he began and
continued his inventory he wrote his figures on a yellow
tablet and it was not until Friday that he was given special
forms on which to record totals. He did not transpose the
items he had inventoried during the earlier part of the
week. "Wiggins took all the special inventory that was not
a normal production item. He transposed those." He
never worked directly from the form sheets at any time he
took inventory. He transferred only some of the figures on
his yellow pad to the form sheets. The first figures he had
transposed to the form sheets he had written on the yellow
pad on Friday. These were the ones where Turner and
Dick were working as a team.
Thomas' antiunion animus is evident. Thomas gave this
first warning notice to Dick four days after he was the
Union's observer at the election and one day after it
learned he took a day off to be at the union office in
connection with the election. The testimony of Novak,
Walker and Wiggins is contradictory concerning Dick's
alleged errors and the recount. If Novak's testimony as to
the discovery of the errors on Friday or on Saturday
afternoon before Dick left the plant is to be accepted, it is
incredible that his errors were not called to Dick's
attention at that time. Considering the timing of the
warning notice, Thomas' failure to determine Turner's
responsibility, if any, in any miscounts, Thomas' antiunion
animus, the lack of consistency in the testimony of
Walker, Novak and Wiggins, and the fact that Dick didn't
think some of the incorrect figures on the inventory form
were his, I am compelled to the conclusion that the
issuance of this first warning notice to Dick violated
Section 8(a)(3) and (1) of the Act.
2. The second warning notice
It has already been noted that on Monday, April 1,
Dick was not at work having gone to the union office in
connection with the election of March 29, at which he was
a union observer. On April 2, when he returned to work,
nothing was said by anyone to him about his April 1,
absence.
On Sunday, March 31, the union representative sent a
telegram to Thomas advising Thomas that Dick would be
absent on April 1, because he was attending a union
meeting. The notice of the telegram was put on the office
door of Thomas on Sunday. At 9:40 a.m., on April 1,
Western Union phoned Thomas and read the telegram
from the Union over the phone. Also, on April 1, before
work started, at 7:30 a.m., fellow employee Joe Turner
told Wiggins that Dick wouldn't be in to work that day
and there would be a telegram explaining why. Wiggins
said, "Okay."
On Wednesday, April 3, Wiggins told Dick to report to
the office. Dick did so and saw Van Gordon. Van Gordon
1037
had a warning notice made out for Dick's failure to phone
in on April 1, about his absence. Dick replied that there
had been a telegram sent to notify Thomas of his absence
and he didn't think that was failure to report. Van
Gordon replied that the telegram had not been received
until 9:30 and 9 was the deadline. Van Gordon said he did
not consider Western Union a sufficient source of
notification. Walker came in and acknowledged that a
notice of a telegram had been put on Thomas' door
Sunday evening. Dick signed the warning notice.
I do not credit Walker's testimony that company policy
dictated that the only means of reporting an absence was
by telephone. Walker insisted that Western Union was an
"outside concern" and not an employee. He further
testified in substance that if he received a registered letter
through the United States mail about an absence, the day
before the absence, he would not consider it adequate
notice because the company manual provided for nothing
but a phone call 16 He testified that if such registered letter
was received the day before the absence, but there was no
phone call, the Company would issue a warning notice. I
specifically discredit Walker's testimony and find it a
fabrication designed to cover up Thomas' illegal motive in
giving this second warning notice to Dick.
It is obvious from the record that the past practice of
Thomas had been not to insist on telephone calls
regarding absences. Only a few weeks earlier on March 5,
Dick's wife had a baby. He was absent for 2 lays. The
only notice he gave Thomas about his absence was
through Joe Turner's oral report to Wiggins that Dick
would be absent. Nothing was said to Dick about his
absence. Wiggins admitted these oral reports by Turner
and added that there was another time when Dick had
reported to him that Turner would not be in. Turner
credibly testified that he did not call in himself. Nothing
was said to Turner about being absent and failing to call
in.
I can conclude only that Tho nas was merely continuing
in its efforts to build a record against Dick, a known
union leader, in order to discharge him. Turner's notice to
Wiggins before 7:30 in the morning and the telegram were
ample notice, and it was only Thomas' antiunion animus
that dictated the second warning notice. That this was a
planned, deliberate act is demonstrated by the fact that
nothing was said to Dick on the day after his absence. I
find that by issuing the second warning notice to Dick,
Thomas violated Section 8(a)(3) and (1) of the Act.
3. The third warning notice
On April 8, the Union filed another charge against
Thomas naming Dick as a discriminatee. One week later,
Thomas issued a third warning notice to Dick for
breaking the "head" of an engine.
Ronald Beach testified that on April 15, he saw Dick,
with a load of heads, stand behind a trash barrel which
may have been full or empty, and at a distance of about 2
feet from the top shelf, "pitch," not "throw," a head on
the top shelf which was 5 or 6 feet from the ground. Not
long thereafter when Beach took the head from the shelf
to place on an engine, he discovered it was broken. He
concluded that Dick had broken the head by pitching it on
the shelf, because they found the broken part on the shelf.
Beach called Wiggins over to his station, showed him the
head and showed Wiggins what was broken. Beach told
Wiggins that he had seen Dick pitch the head on the shelf.
"The company manual was not offered in evidence.
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He did not tell Wiggins that Dick had broken the head
but said he "could" have. Wiggins sent for Dick who
came to Beach and Wiggins. Dick denied, according to
Beach , that he had broken the head. About 2 hours later,
Beach was called to the office and found Walker, Wiggins
and Dick. Beach had little or no memory of the
conversation in the office. In response to a leading
question on redirect examination he testified he repeated
in the office his story as given above. He gave no
testimony as to anything said by Dick on this occasion.
Later on that day, he was again summoned to the office.
Walker was present in the office. Beach again had a poor
memory as to what took place in the office. Walker asked
him to sign a statement as a witness . He did so. He didn't
remember what the statement said. He specifically denied
that he had any other conversations with anyone else
about the head incident other than with Byers.
Wiggins gave an account of his first encounter with
Beach and Dick which I find was heavily embroidered.
Further, Wiggins, contrary to Beach, stated that Van
Gordon and not Walker was in the office with him when
Dick and Beach were present on the first occasion.
According to Wiggins, Beach kept insisting that Dick
"threw" the head on the shelf and Dick denied it, saying
he "hoisted" it on the shelf and maybe it was broken
when it was taken off the shelf. Dick insisted he did not
throw it up and break it. Van Gordon, according to
Wiggins, then asked Dick, "Do you have a problem here
at work?"" Dick replied he thought they were picking on
him. When they wanted him to sign the written warning
notice,' 8 Dick refused , asking , "How many of these
notices do I have to receive before you terminate me?"
Wiggins testified he signed as a witness and Beach signed! 9
Wiggins continued testimony at variance with Beach
Whereas Beach had unequivocally testified he had only
had the two meetings as described above, Wiggins testified
that after the third warning notice was signed , there was a
third meeting at which Beach and Burslem were present.
According to Wiggins, Burslem called Wiggins into his
office on April 16, and wanted to know Wiggins' version
of the head incident. Wiggins testified, "I told him I was
in the middle. I did not see it. All I could go by was what
[R] on Beach said "20 This meeting was on the day after
Dick received his third warning notice 31 According to
Wiggins, Beach was called to the office and Beach
repeated the same story to Burslem . When Beach left the
office, according to Wiggins, Burslem decided to discharge
Dick without conferring with Dick.
Walker gave, in his testimony, still another version of
the head incident He testified he learned about the
incident from Wiggins, shortly after it was discovered, and
he immediately went to Beach and Beach narrated his
story to Walker. Respondent' s witness Beach did not
corroborate this testimony. According to Walker, he later
had a meeting in the office with Van Gordon, Byers and
Beach" where Beach related his story. Then they called
Dick in and again had Beach relate his side of the story.
According to Walker, Dick said he was unaware of
breaking the head and had not thrown the head and had
merely placed the head upon the shelf. Van Gordon asked
Beach to sign a written notice as to what had happened.
"After two warning notices had illegally been issued to Dick in 2 days.
"Already prepared before the meeting.
"Note that Beach testified he did not sign until Walker along asked him
to sign on his second and last visit to the office
"Significantly he did not say anything about what Dick had said
"Burslem did not testify
Not mentioned by Wiggins, according to Walker, after
Beach and Dick left the office, Van Gordon and Walker
discussed the situation and agreed that Dick's conduct was
a flagrant disregard of responsibility for which he should
be discharged. Walker admitted that the third warning
notice was made out before Dick was called to the office
to give his version of the incident.
As to the importance of the head, itself, Wiggins
testified that it was a unique type of head and was
difficult to obtain and Thomas did not have another head
like it. Beach on the other hand testified that there were
other heads on the shelf which were the same as the
broken one
Respondent's whole case in regard to the third warning
notice is filled with inconsistencies in the various
testimony given by its witnesses
Dick, on the other hand, testified in a straightforward
and honest manner and I credit his testimony.
He testified the weight of a head varies from 30 to 50
pounds. The shelf on which he placed the head was about
6 feet high, higher than he was tall. Heads are stacked on
a shelf like books in a bookcase. He flatly denied that he
threw the 30-50 pound head onto the 6-foot high shelf. He
denied the barrel was in front of the space where he
placed the head. He slid the head on the shelf. He
admitted that it was possible he might have broken the
head.23 The head had gone through the hands of maybe 10
or 12 people before he got it. It was not broken when it
went by him. It might have been cracked when he placed
it on the shelf. He had seen two or three broken heads a
day. If it's worth the cost, the broken heads are repaired,
if not, they are scrapped. About 10 a.m , on April 15,
Wiggins asked him if he had broken the head. Dick
replied that he did not know that he did. He admitted it
was a possibility but he didn't know that he had. After
that, Wiggins came to him and told him to report to the
office. Wiggins accompanied him to the office where Van
Gordon and Walker were present. Van Gordon asked him
if he had broken a head. Dick replied, "No, not
knowingly I hadn't." Then they told him there had been a
head broken that morning and he seemed to be the one
who had broken it. They had a warning slip ready for him
to sign. Dick asked them how they had determined it was
he who had broken the head. They said another employee
had seen him. He asked who it was and they said Beach.
They called Beach to the office and Beach said Dick had
stood behind a barrel and thrown the head up on the shelf
and deliberately broke it. Dick told them that wasn't the
way it happened. Dick told what had happened and
refused to sign the warning slip. Van Gordon signed it.
No one had ever spoken to him about breaking a head
before.
I find that this third warning notice to Dick, issued
only one week after the Union had filed a charge with the
Board alleging that Thomas had discriminated against
Dick (Case 21-CA-8025), also violated the Act. Before
Van Gordon had heard Dick's side of the story about the
head incident he had the warning notice prepared. It is
obvious that the head may well have been damaged in
some form prior to the time that Dick placed it on the
shelf. I have completely credited Dick's testimony about
the head incident and consequently do not believe Beach's
testimony that Dick "pitched" the head on the shelf. It is
possible that Beach, himself, broke the head while
"Note that Walker does not list Wiggins as being present
"There is no evidence the head was not cracked or otherwise defective
when he placed it on the shelf
THOMAS ENGINE CORP.
removing- it from the shelf. The many instances of
inconsistencies in the various versions given by
Respondent's witnesses demonstrate a desire to conceal
the genuine reason for issuing this third warning notice to
Dick. I find Thomas took advantage of the head incident
only to further bolster their record against Dick who had
been a wholly satisfactory employee until about 2 weeks
before, when he had been a union observer at the election
and a couple of days later attended a meeting at the union
office. It is significant that Walker testified Van Gordon
decided to discharge Dick on April 15, whereas Wiggins
testified it was Burslem who decided to discharge Dick on
April 16. Neither Van Gordon nor Burslem testified 2° It
is further significant that Wiggins acted surprised when
Dick told him of his termination, on April 16.
I conclude that in light of Thomas' antiunion animus
and the inconsistencies in the testimony of Upshur's
witnesses and the timing of the third warning notice, that
Thomas violated Section 8(a)(1),(3), and (4) of the Act in
issuing the third warning notice on April 15, and
discharging Dick on April 16. The discharge was
motivated by the fact that Dick had been a union observer
at the election, had attended a postelection meeting at the
union office and the fact that the Union filed a charge
with the Board naming Dick as a discriminatee.
F. The Challenges
On August 12, the Board directed the Trial Examiner
who heard these consolidated cases to make
recommendations to the Board as to the disposition of the
challenges to the ballots of James R. Wilkins, Richard C.
Dickey, Adam C. Bratton, Donald Coleman, Albert J.
Whitlock, Lester Byers, and Philip Stegmair. Thomas had
challenged the ballots of the first five on the grounds that
they had been permanently laid off or discharged with no
reasonable expectation of recall. The ballots of the latter
two of the seven were challenged by the union on the
grounds that they were supervisors.
1. The challenge to the ballot of Richard C. Dickey
I have already found that the discharge of Dickey
violated Section 8(a)(3) and (1) of the Act. Consequently
he was still an employee of Thomas on March 29, and
was eligible to vote. I recommend that his ballot be
opened and counted.
2. The challenge to the ballot of James R. Wilkins
I have already found that the discharge of Wilkins on
February 16, violated Section 8(a)(1), (3), and (4) of the
Act. Consequently he was still an employee of Thomas on
March 29, and was eligible to vote in the election. I
recommend that his ballot be opened and counted.
3. The challenges to the ballots of Adam C. Bratton
and Donald Coleman
Under Section A of this Decision I have reviewed the
bad financial straits of Thomas in late 1967 and early
1968. 1 found that Burslem , after a survey of Thomas'
operations, concluded that 28 to 30 employees should be
cut from the payroll. On January 24 and 25, about 20
employees were selected by Walker and Van Gordon in
'There is no evidence that Burslem ever made a decision to discharge
any other employee.
1039
the reduction in force. Phinney's letter to the remaining
employees of January 25, indicated that those retained
had earned their place with Thomas through their
performance, attendance and cooperation. He continued
that they had trimmed down to a crew that Thomas
expected would yield a good result The record reveals
that although several of those terminated on January 24
and 25 were recalled,25 the number of production
employees of Thomas was reduced from 167 on vlarch
29, to about 120-130 in September. I find that the
reduction in force on January 24 and 25, was not designed
to be temporary in nature. This was not a situation of a
seasonal layoff or anything of that nature but it was
intended to cut the costs of production by reducing the
number of production employees.
Bratton was told on February 25, that he was being laid
off and by mistake they missed calling him in the January
24, call. Bratton was told by Van Gordon that after a
survey they were cutting back here and there. Van Gordon
told him he would rather lose his right arm than lose
Bratton because he was a good block repairman. Van
Gordon told Bratton that since he was a good worker he
should have no trouble finding another job. Bratton asked
how long the layoff would be and Van Gordon replied he
had no way of knowing. "It could be three weeks, three
months, he had no idea how long it would be. He told me
not to go home and sit home and twiddle my fingers
waiting to be called." Van Gordon called him on the
phone later that evening and told Bratton he had just
talked with a man, naming him, who needed a good block
repairman. When Van Gordon laid him off, he told him it
was part of a reduction in force. Van Gordon gave him
the names of several rebuilders who needed good men.
On the morning of January 25, Donald Coleman was
told Van Gordon wanted to see him. He saw Van Gordon
who had his check and termination slip for him to sign.
Coleman asked Van Gordon what it was for and Van
Gordon said "it was a cutback in personnel." Coleman
signed the slip.
Both Bratton and Coleman signed slips for Van Gordon
that they were being let go in a "reduction in force."
Neither employee was told he would be recalled or
rehired. Neither has been recalled or rehired.
I find that neither Bratton nor Coleman had a
reasonable expectancy of recall in the foreseeable future,
as of the date of the election. I recommend that the
challenges to their ballots be sustained and that their
ballots not be counted.
4. The challenge to the ballot of Albert J. Whitlock
Whitlock was laid off by Thomas on February 16, with
about five other employees.26 He was rehired on August
19.
Whitlock was an employee of Upshur when he testified.
He impressed me as an honest witness and I credit his
testimony
On February 16, his supervisor, Bob Trevathon,27 told
him Thomas was going to have to let him go because
things were getting slow and Whitlock was one of about
six men to go. Hollenbeck later gave him the addresses of
some places he thought were hiring. Whitlock then went
to Trevathon and asked him if he thought there was a
chance of Whitlock's coming back to work. Trevathon
25Bottlenecks in production were found
36I do not credit Walker's uncorroborated testimony as to the
permanency of Whitlock's termination
37A supervisor within the meaning of the Act.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied he "could not see any reason why not." Whitlock
then spoke to Walker and asked him if there was a
possibility of his coming back and Walker said it was
mostly up to Bob Hollenbeck28 and Bob Trevathon
because they worked most closely with Whitlock. Walker,
in response to Whitlock's question, told him he didn't see
any reason why Whitlock would not come back as an
employee. When Trevathon told him of the layoff he said
he didn't know how long the layoff would be and
suggested that he try to look for a job. He gave no time
estimate of the layoff.
In view of Trevathon's and Walker's statements to
Whitlock that they didn't see any reason why Whitlock
would not come back as an employee, I find he had a
reasonable expectancy of recall as of the time of the
election. In making this finding, I have considered the fact
that Trevathon suggested he look for another job and the
fact that Hollenbeck gave him addresses of possible
employers. The fact remains that Trevathon and Walker
told him they saw no reason why he would not be called
back to work.
I find that Whitlock was still an employee of Thomas
on March 29, with a reasonable expectancy of recall, and
was eligible to vote. I recommend that his ballot be
opened and counted.
5. The challenge to the ballot of Lester R. Byers
The Union challenged the ballot of Byers on the
grounds that he was a supervisor within the meaning of
the Act. Upshur claims Byers was a utility leadman and
as such eligible to vote.
Byers was an hourly paid e-nployee. When he was
transferred from group leader in the head department to
the utility job in January, his hourly rate remained the
same. He benefited from the bonus system at Thomas as
did the production workers and not the so-called
"supervisors." He had been employed by Thomas for
many years and was quite experienced. Byers "expedited"
the "hot jobs" - those for which there was a specific or
urgent demand. Byers assigned employees to work on the
hot jobs. Byers trained employees but so did rank and file
employees. On occasion, Byers did the physical work of
rank and file employees but the record does not show that
this was usual.
Bratton and Laurence Tippen credibly testified that
shortly after Durabilt and Thomas were combined,29
Thomas posted a notice on the bulletin board stating that
Byers "would be over the head department" and would be
a supervisor who had authority to hire and fire. At no
time did Thomas post a notice that Byers no longer had
such authority. There is no credible evidence that Byers
actually hired or fired anyone.
Bratton further testified credibly that Byers would tell
the employees in the boring department what work to do.
Bratton further testified Byers would take over for Al
Hoferd, general foreman, when Hoferd was absent. There
were about six employees in the boring department and
about four in the block repair department. He told these
people what work to do plus the two more employees in
magnaflux. He saw to it that the work was "carried out."
Pollock credibly testified that he operated an engine
running stand. When Pollock came in, in the morning,
Byers told him "which engines had to be run out by a
" it was Hollenbeck who called him back on August 19.
"September 1967.
certain time." He would tell Pollock to get one engine out
before another one. He did this with the five or six
employees in Pollock's department. Byers would state
"this job should be completed such and such a date and
such and such a time." He checked to see that the work
was being completed on time. He authorized employees,
who were willing to work overtime, to work overtime.
Byers asked Pollock to work overtime once or twice a
week. Pollock didn't know whether Byers had to check
with anyone else before assigning overtime. It was Byers'
"job to make sure that certain engines which were out of
the norm would get through and get shipped."
Wilkins credibly testified that Byers "would come up
with special order heads and say, `do this one next.' Or he
would tell you what he wanted run, for the Chevrolets
run, or something like that and say what he wanted
done." Wilkins worked in the head department with five
or six other employees. Byers so directed Wilkins for a
month or two. After Wiggins became Wilkins' supervisor,
Byers would talk to Wiggins and then Wiggins would
come over and tell the employees "we'll need a couple of
heads" and the employees would get them out. That work
would take precedence over the ordinary work they were
doing.
Dick gave testimony about Byers' connection with an
alleged discharge which was too vague and garbled to
permit a finding.
Charles M. Mikel testified that there was a badge or
button hanging under the back of a cabinet stating,
"Ronald Byers, Tech Boring Supervisor." While I find
much of Byers' testimony was given with the motive of
supporting Upshur's position rather than to recite the
truth, I credit his testimony that this badge had been
made up years before only for the purpose of helping him
assist visitors to an "open house" at the plant.
Mikel testified credibly that while he was told what to
do in his work by Stegmair and occasionally by Hoferd, it
was Byers who most often told him what to do.
Ronald Beach was called by Upshur as a witness. He
testified that his only supervisors were Byers and Walker.
If they had a special engine they had to get out in a hurry,
he and his fellow employee would be given instructions by
Byers or Larry Franz. Byers gave him permission to take
a day off after checking with the front office. Byers or
Larry Franz assigned him overtime work. Beach usually
saw Byers when there was a special order to be handled.
Byers testified that when he needed men to work
overtime, he would check with Van Gordon" and Van
Gordon would inquire who was willing to work overtime.
When Byers asked, Van Gordon gave Byers authority to
tell willing employees they could work overtime. If a
person neglected to punch his card out and Byers was
there, he would sign an order to verify who had worked
overtime.
Byers admitted he had "in a way" disciplined an
employee named Francisco by telling him "to stay the hell
out of the head installation department" because he was
talking to employees and holding up their work. He
reported the incident to Van Gordon and Walker and
"told them to keep him the hell out of there." They
agreed to do so. I find they thereby approved his exercise
of authority to direct employees not to interfere with the
work of other employees. Byers further admitted that if he
saw an employee in a department he didn't belong in, he
would say, "Is this all you have to do? Why don't you go
back to work? . . . usually the minute that I walked away
"Uncorroborated
THOMAS ENGINE CORP.
they would go back to work."
Byers admitted that the following from his pretrial
statement was true:
After I go through the run-in area I go to Wes
Brown" to find out from him what engines are to go
out and that are not ready yet, and then we figure out
which ones we should do first. By we, I mean myself
and Wes Brown . Brown has the final decision as to
what engines are to go out.
Byers further testified that when he told employees
what to do and they said they wouldn't do it, he would
walk off because he knew they would do it right away.
"They knew I wouldn't ask them if it didn't have to be
done."
Van Gordon and Walker would ask Byers how an
employee was doing in his work.
Stegmair, a witness called by Upshur, testified that in
the bore department, Byers would come in looking for a
special order job that- was supposed to go out. He would
want to find out the progress with the boring of an engine
and how far along they were. He would want to see when
they could have the engine ready. If Stegmair's
department hadn't started on the job Byers would tell him
to expedite it next, to "get after it." Stegmair would
follow Byer's direction.
Beach worked in the head installation department along
with another employee. When Wiggins was asked on
direct examination by Upshur who was Beach's
supervisor, Wiggins testified: "He kind of worked under
Ronnie Byers." There is no credible evidence that anyone
else supervised Beach.
It has been noted that Upshur, in its brief, claims that
Byers was a leadman . Walker testified that when a
complaint of poor work was made to him by a leadman,
"I would tell him to ride herd on the guy and go ahead
and assign him to the other duties, and if he refused to do
them to bring him to the office, and I would give him a
written warning ; if that did not straighten him out, we
would fire him for insubordination." It is clear that
complaints by leadmen were effective as to warning
notices and terminations . Walker testified that Beach was
under Byers as a leadman, " because Byers was in charge
of the head installation as far as the leadman was
concerned."
On the entire record, I find Byers had authority
responsibly, by use of independent judgment, to direct and
discipline employees and grant overtime work, and that he
was a supervisor within the meaning of the Act. I
recommend that the Union' s challenge to the ballot of
Byers be sustained and that his vote not be counted.
6. The challenge to the ballot of Philip J. Stegmair
The Union challenged Stegmair's ballot on the ground
that he was a supervisor.
Stegmair, himself, testified that he is now employed by
Upshur, and had been employed by Thomas since 1952.
He was in the bore department for about 10 years. He
testified , " I was considered a utility leadman in the bore
department. My job was to bore engines. I spent
approximately 90 percent of my time boring engines in the
bore department. If Al Hoferd brought order jobs in that
were to go out on " a certain date , and he would bring
maybe five or six at a time, and orders for other
departments , and he would hand them to me , because I
knew where the engines were located in the department. I
" A supervisor within the meaning of the Act.
1041
would post those orders on the engines, and make sure
the work was done on them."32
Stegmair further testified that he would tell an
employee "this was a hot job, and it had to get out right
now." If an employee would fail to follow Stegmair's
directions, he would report it to Walker or Van Gordon.
He never had an employee fail to follow his directions. He
had four men in the bore department. He was hourly paid.
If Walker or Van Gordon or Hoferd told him they needed
men to work overtime, he would ask the employees if it
were possible to stay overtime. They would work overtime
at his request if they didn't have anything planned. He
shared in the bonus system. If an employee asked him for
a day off, he would go to Hoferd, or Van Gordon or
Walker to get their permission to let the man off.
Normally he would tell the men to go to management
themselves."
Wier and Stegmair both testified to an incident on May
7 when Wier received a warning notice for being absent
the preceding day. Stegmair signed the warning notice but
I find on all the credible evidence that he did so only as a
witness and I find that Stegmair's presence and his signing
of the notice are not substantial evidence that he was a
supervisor.
Wier credibly testified that on more than one occasion
Stegmair told him he had better be more careful about
tardiness and absenteeism because Wier had "been to the
office and they are going to get mad " I find this
consistent with a bit of advice from a fellow employee and
not substantial evidence that Stegmair was a supervisor.
There were, according to the credited testimony of
Wier, occasions that Stegmair, among others, asked him
to work overtime and he did so.
Charles Mikel credibly testified that on one occasion
Stegmair told him to leave his department "and match a
cap" in another department. There is no evidence of
similar action by Stegmair on any other occasion. I
consider this incident insignificant.
When Byers was asked who was the supervisor in the
bore department, he testified, "Phil Stegmair was the
group leader." In the bore department, Byers talked to
Stegmair for the purpose of getting "special jobs" Jone.
Regarding Hoferd bringing him work to be done in the
bore department, Stegmair testified "It was up to me to
see that this was done, and also the men who worked in
the department." It was his primary responsibility in his
department to see that these jobs were done.
Stegmair testified that if a new man came in, Hoferd,
Walker or Van Gordon would ask him "if he was cutting
the mustard or not." If he thought the man wasn't, he
would tell them. They would say maybe they should move
him to another department and see if he could do any
better. He believed they generally relied on his judgment
as to whether a person was or was not doing a good job.
If he felt the employee wasn't doing a good job or told
top management that, they would generally go out and try
to find another spot for him to fit in.
Stegmair testified that if employees in his department
felt sick, they would come to him and ask to go home. He
would see Hoferd, Walker, or Van Gordon. They would
ask Stegmair if the employee was really ill or just goofing
off. When he would tell them the man was really ill, they
would say all right and Stegmair would go back and tell
the man it was all right to go home.
"Note Walker's testimony as to the effectiveness of complaints by
leadmen.
"The above is based on the testimony of Stegmair
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, I find Stegmair had the
responsible authority to direct the work of the employees
in the boring department, by use of independent judgment,
to assign overtime work and to effectively recommend
transfers of employees who didn't "cut the mustard" in
his opinion, and to effectively recommend that employees
he believed to be ill be permitted to go home. I find he
was a supervisor within the meaning of the Act and
recommend that the challenge to his ballot be sustained
and that his ballot not be counted.
G. Upshur is a Successor to Thomas
While Thomas' attorney prior to withdrawing as
counsel at the hearing in this matter, stated, in effect, that
Thomas is now defunct, there is some evidence that it
continues as a corporate entity with assets in the hands of
creditors.
As of March 31, it appears Thomas had lost in excess
of $750,000 and according to some hearsay testimony by
Thomas Tracy, general manager of Upshur, it had lost
$1,500,000 by August. Again according to Tracy, after
Labor Day, under the direction of Tallcott, an inventory
was taken of Thomas showing an appraised value of
machinery, etc., at $1,300,000.
Thomas closed its doors on September 9, and Upshur
came in and restarted operations on September 25. The
deal for Upshur to purchase a substantial amount of the
assets of Thomas, including machinery, parts, etc., for
approximately $500,000, was closed on October 8.
Thomas took the remainder of the inventory to another
location, but apparently continued no operations. The
Thomas employees were terminated on September 9.
Thomas had a 20-year lease on its plant, with 18 more
years to run on September 9. Upshur entered into a new
lease for Thomas' plant for one year.
Thomas had been engaged in the business of rebuilding
engines at its plant in the City of Industry, California.
Upshur continued this same business in the same plant
When Thomas closed on September 9, it had in its
employ 120-130 production and maintenance employees
and about 25 clerical employees. At the time Thomas'
employees picked up their checks for work performed
until September 9, they were given application forms for
work with Upshur. Thomas' employees applied for work
with Upshur. As of December 17, Upshur had
approximately 97 production and maintenance employees
of whom 90 were employed by Thomas on September 9.
Also on December 17, Upshur had about 25 clerical
employees, 15 of whom had been employed by Thomas on
September 9. The production and maintenance employees
of Upshur have the same working hours, same lunch
periods and the same break periods as did the Thomas
employees. Walker became the plant superintendent at
Upshur and hired Thomas applicants for employment.
Walker was hired by Upshur on September 15. On the
entire record, I find according to the credible evidence,
that the Upshur employees exercise substantially the same
skills and perform the same jobs as they did for Thomas.
While some of the top supervision of Thomas were not
employed by Upshur,94 some of key supervision went over
to Upshur. These included Walker, Zalinski, Hollenbeck,
Peta, Wiggins, Byers and Stegmair. Fagardo and DeLeat,
who had been at least leadmen at Thomas, went with
Upshur The record is silent as to how many other
members of supervision went to Upshur from Thomas.
"e g., Phinney , Van Gordon and Burslem
After the Order Consolidating Cases and Consolidated
Complaint issued on May 21, Upshur engaged in
negotiations with Thomas and secured creditors of
Thomas for the purchase of Thomas or its assets. Walker,
who himself was guilty of unfair labor practices, and who
knew of the pendency of the unfair labor practice
complaint, was, as already noted, hired by Upshur as
plant superintendent before Upshur commenced
operations and before it consummated the deal to
purchase a very substantial portion of Thomas' assets.
Upshur made a few changes in the operations of
Thomas which I consider minor. For example, it put in a
new oil pump department with very few employees. It has
changed and improved quality control. Upshur has
discarded some of the Thomas machinery and has bought
some new machinery. It has changed the warranty policy
to a shorter period of time. Instead of having an employee
do security work, it has contracted with a security
company for the services of a guard. It no longer has a
night shift as did Thomas.
I find Upshur is a successor employer to Thomas and
as such must remedy the unfair labor practices of
Thomas. Upshur witnesses, other than Walker, denied
having knowledge of the unfair labor practice charges
pending against Thomas at the time it purchased assets
from Thomas and began continuing Thomas' operations
with only minor changes, but its plant superintendent,
Walker, who was hired by Upshur on September 15, had
such knowledge and I impute his knowledge to Upshur.
As a successor employer to Thomas, Upshur is to be held
responsible for remedying Thomas' unlawful conduct."
Upshur is the same "employing industry" as was Thomas.
There has been a continuity of the original business. The
same plant and substantially the same facilities have been
used. There has been substantially the same work force.
The business is the same Much of the same equipment
has been used. I have found that Upshur had knowledge
of the unfair labor practices and the pending complaints
at the time it took over Thomas' operations, at least
through Walker, Upshur's plant superintendent. " It is the
employing industry that is sought to be regulated and
brought within the corrective and remedial provisions of
the Act in the interest of industrial peace. "36
"Appropriate steps must still be taken if the effects of the
unfair labor practices are to be erased and all employees
reassured of their statutory rights. And it is the successor
who has taken over control of the business who is
generally in the best position to remedy such unfair labor
practices most effectively.""
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Thomas set forth in section III, above,
occurring in connection with the operations of Thomas
and Upshur described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
"Perma Vinyl Corporation , 164 NLRB No 119
"Perms Vinyl Corporation, supra
"Perms Vinyl Corporation, supra
THOMAS ENGINE CORP. 1043
V. THE REMEDY
Having found that Thomas engaged in certain unfair
labor practices, and that it no longer continues to operate
a business, and possibly controls no assets, I shall
recommend that Upshur, as the successor employer, cease
and desist from the unfair labor practices,38 and take
certain affirmative action designed to effectuate the
policies of the Act. Thomas and Upshur have a joint and
several responsibility in the matter of backpay and I
recommend that the Board determine in subsequent
proceedings whether compliance with an order that
Thomas pay discriminatees backpay is fully possible.39
Thomas' violations strike at the heart of the Act and
call for a broad order.
It has been found that Thomas unlawfully issued
warning notices to Frank Green and David Dick. I shall
recommend that Upshur expunge from any of its files
such warning notices if they exist.
It has been found that Thomas unlawfully, in violation
of the Act, discharged Richard Dickey, Arthur Pollock,
James Wilkins, and David Dick. I shall recommend that
Upshur offer them immediate and full reinstatement, and,
jointly and severally with Thomas, make each of them
whole for any loss of pay he may have suffered by reason
of the discrimination against him in the manner set forth
in F W Woolworth Company, 90 NLRB 289, with
interest computed in the manner described in Isis
Plumbing & Heating Co., 138 NLRB 716.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Thomas and Upshur are employers engaged in
commerce within the meaning of the Act.
2. The Union is a labor organization within the
meaning of the Act.
3. By issuing the March 18, warning notice to Frank
Green, Thomas violated Section 8(a)(1), (3), and (4) of the
Act.
4. By issuing a warning notice to David Dick on April
2, Thomas violated Section 8(a)(1) and (3) of the Act.
5. By issuing a warning notice to David Dick on April
3, Thomas violated Section 8(a)(1) and (3) of the Act.
6. By issuing a warning notice to Dick on April 15,
Thomas violated Section 8(a)(1), (3), and (4) of the Act
7. By discharging Dick on April 16, Thomas violated
Section 8(a)(1), (3) and (4) of the Act.
8. By discharging Richard Dickey on February 15,
Thomas violated Section 8(a)(1) and (3) of the Act.
9. By discharging James Wilkins on February 16,
Thomas violated Section 8(a)(1), (3), and (4) of the Act.
10. By discharging Arthur Pollock on February 16,
Thomas violated Section 8(a)(1), (3), and (4) of the Act.
11. By threatening that Phinney would close the doors
before he would let the Union in, by threatening that if
the Union was voted in the doors would be closed, by
asking an employee what would happen if he got a union
in the plant, by telling the same employee there would be
a strike and he would starve, by asking an employee how
another employee stood with the Union, and by requesting
an employee, on the "Q.T.," to pretend to be prounion to
a fellow employee and find out how he felt about the
"Note that Walker , plant superintendent of Upshur, participated in
unfair labor practices at Thomas.
'N L R B v. Rosatta Kostitntk , U S C.A Third Circuit, No 17121
Union and report back and by repeating the request,
Thomas interfered with, restrained and coerced employees
and committed unfair labor practices within the meaning
of Section 8(a)(1) of the Act
12. Upshur is a successor employer to Thomas and is
responsible for remedying Thomas' unlawful conduct.
13. The aforesaid unfair labor practices affect
commerce within the meaning of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record herein, it is recommended
that Upshur, as the successor employer to Thomas, its
agents, successors, and assigns, shall.
1. Cease and desist from
(a) Threatening that a management representative
would close the doors of the plant before he would let a
union in the plant; threatening that if the Union was voted
in by the employees, the plant doors would be closed;
asking employees what would happen if they got a union
in the plant; telling employees that if the Union comes in
there will be a strike and they will starve, asking
employees how other employees stand with the Union;
and repeatedly requesting employees to pretend secretly
that they are prounion to fellow employees and find out
how they feel about the Union and report back to
management representatives.
(b) Discouraging membership in the Union, or any
other labor organization, by discriminatorily discharging,
or issuing warning notices to, or in any other manner
discriminating against any employee in regard to his hire,
tenure or any term or condition of employment.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
join or assist the Union or any other labor organization or
otherwise engage in activities protected by the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act.
(a) Expunge from any of its files the warning notices
discriminatorily issued to Frank Green on March 18, and
to David Dick on April 2, 3, and 15, if they exist.
(b) Offer to reinstate fully and unconditionally, Richard
Dickey, Arthur Pollock, James Wilkins and David Dick
to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and, jointly and severally with Thomas, make
each of them whole for any loss of pay he may have
suffered by reason of the discrimination against him in the
manner set forth in "The Remedy" portion of this
Decision.
(c) Preserve and, upon request, make available to the
Board or its agents all records necessary to determine the
amount of backpay due under this Recommended Order.
(d) Notify said discriminatees, if presently serving in
the Armed Forces of the United States, of their rights to
full reinstatement upon application, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(e) Post at its city of Industry plant copies of the
attached notice marked "Appendix "°° Copies of said
"In the event that this Recommended Order is adopted by the Board,
the words " a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notice , on forms to be provided by the Regional Director
for Region 21 of the Board, shall, after being duly signed
by Upshur's authorized representative, be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such
notices are not altered, defaced, or covered by any other
material.
(f) Notify said Regional Director, in writing, within 20
days from the date of receipt of this Recommended Order
what steps Upshur has taken to comply herewith."
It is further recommended that Thomas, its agents,
successors, and assigns, shall:
Take the following affirmative action which is necessary
to effectuate the policies of the Act, jointly and severally
with Upshur make Richard Dickey, Arthur Pollock,
James Wilkins and David Dick whole for any loss of pay
they may have suffered by reason of the discrimination
against them in the manner set forth in "The Remedy"
portion of this Decision.
Recommendations as to the disposition of challenges in
Case 2l-RC-10771.
1. 1 recommend that the ballot of Richard C. Dickey be
opened and counted.
2. I recommend that the ballot of James R. Wilkins be
opened and counted.
3. 1 recommend that the challenges to the ballots of
Adam C. Bratton and Donald Coleman be sustained and
their ballots not be counted.
4. I recommend that the ballot of Albert J. Whitlock be
opened and counted.
5. I recommend that the challenges to the ballots of
Lester R. Byers and Philip J. Stegmair be sustained and
that their ballots not be counted.
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."
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 21 , in writing , within 10 days from the date of this Order, what
steps it has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended we hereby notify our
employees that:
You are free to join or not to join any union of your
choice. We do not have the right to interfere with your
choice.
WE WILL NOT threaten that any management
representative will close the doors of the plant before he
will let a union represent the employees in the plant;
nor threaten that if the International Union, United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW) or any other union
receives a majority of the production and maintenance
employees' votes in a Board election, the plant doors
will be closed; nor ask employees what would happen if
they got a union in the plant; nor tell employees that if
the Union comes in there will be a strike and the
employees will starve; nor will we ask employees how
other employees stand with the Union; nor will we on
any occasion ask employees to pretend secretly that
they are prounion to fellow employees to discover how
those employees feel about the Union, and report the
information back to management representatives.
WE WILL NOT discharge or issue warning notices to,
or in any other way discriminate against any of our
employees because of their activites in behalf of the
above-named Union or any other union or because of
other protected concerted activites.
WE WILL NOT in any other manner interfere with our
employees in exercising their rights to join or assist or
to refrain from joining or assisting any union, or
engaging in self-organization , or bargaining collectively
through a representative of their own choosing, or
acting together for collective bargaining or other
mutual aid or protection, or refraining from any or all
of these things.
WE WILL pay, jointly and severally with Thomas
Engine Corporation, Arthur Pollock, James Wilkins,
Richard Dickey and David Dick for the wages they lost
because Thomas Engine Corporation fired them in
violation of the Act.