Vacuum Platers, Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1965

154 N.L.R.B. 588 (N.L.R.B. 1965)

588 DECISIONS OF. NATIONAL LABOR RELATIONS^,BOARD
Local Union No. 781, AFL-CIO, shall,notify the Regional Director-
for Region 3, in writing, whether it will or will, not refrain from
forcing or requiring the Employer, by means proscribed by Section
8(b) (4) (D) of the Act, to assign the work in dispute to members of
IBEW rather than to its electrical department employees.
Vacuum Platers, Inc. and Local Union No. 199 , International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case No. 30-CA-91. August 19, 1965
DECISION AND ORDER
On May 21, 1965, Trial Examiner Leo F. Lightner issued his
Decision in the above-entitled proceeding, findings that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed exceptions to
the Trial Examiner's Decision.
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 [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner,' and orders
that the Respondent, Vacuum Platers, Inc., Mauston, Wisconsin, its
officers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order with the following
addition :
IAs the Respondent engaged in other 8 ( a) (1) conduct , we find it unnecessary to, and
we do not , rely upon the Trial Examiner ' s findings that the statements made by Super-
visors Vanetta and Stoughtenger to various employees during the organizational drive
constituted violations of Section 8(a) (1) of the Act.
2 The telephone number for Region 30 , given at the bottom of the notice attached to the
Trial Examiner 's Decision , is amended to read: 272-3866.
154 NLRB No. 48.
VACUUM PLATERS, INC. 589
Insert the following as paragraph 2(d) of the Order and reletter
the subsequent paragraph accordingly.
"(d) Notify any of the above-named employees presently serving
in the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the" Universal Military Training and Service Act of 1948,
as amended, after discharge from the Armed Forces."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Leo F. Lightner in Mauston,
Wisconsin, on December 16 and 17, 1964, on the complaint of General Counsel,
as amended, and the answer, as amended, of Vacuum Platers, Inc., herein referred
to as Respondent.' The issues litigated were whether the Respondent violated
Section 8(a)(3), (4), and (1) and Section 2(6) and (7) of the Labor Manage-
ment Relations Act of 1947, as amended, 61 Stat. 136, herein called the Act.
Briefs filed by the General Counsel and Respondent have been carefully considered.
Upon the entire record,2 and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Wisconsin corporation , maintaining its place of business and
plant in Mauston, Wisconsin, where it is engaged in the vacuum plating of metals.
During the year preceding the issuance of the complaint, on September 3, 1964,
a representative. period, the Respondent has had a direct outflow of its products,
in interstate commerce, valued in excess of $50,000, which it shipped to points
outside the State of Wisconsin. The complaint alleges, the answer admits, and
I find that Respondent is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 199, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, herein called Teamsters, is a labor
organization within the meaning of Section 2(5) of the Act .3
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The principal issues raised by the pleadings, as amended , and litigated at the
hearing are-whether the Respondent: (a) interfered with, restrained , and coerced
its employees in the exercise of rights guaranted in Section 7 of the Act, in
violation of Section 8(a)(1), by interrogation of its employees concerning their
union membership and activities, and, in addition or alternatively, by threats by
various supervisors or corporate officers and agents, being specifically, (1) Alfred
Gabower at various times in June 1964, George Stoughtenger and Charles
Vanetta on various dates in June 1964, and Harold Steiner on or about Novem-
ber 14, 1964, (2) by creating an impression of surveillance by Charles Vanetta in
June, 1964, or (3) engaging in surveillance by Alfred Gabower on June 22,
'A charge was filed on July 9 , 1964. The complaint herein issued on September 3,
1964, and was amended during the hearing.
2 On May 13, 1965, a motion to reopen the record, to receive a stipulation, Identified
as Trial Examiner 's Exhibit No. 1, was received. It Is hereby granted.
On February 5, 1965, General Counsel filed a motion to correct the record, no opposi-
tion to said motion has been received The motion is granted.
a Respondent, by answer, asserted that It was without knowledge that the Teamsters
are a labor organization as defined in Section 2(5) of the Act . The finding herein re-
sults from the undisputed testimony of Harold Fluekieger, assistant business agent of
Teamsters.
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1964; (b) whether the layoffs of Catherine Greene,4 Wayne Vanderhoof, and
LeRoy Fox, on June 16, 1964, were discriminatorily motivated and constituted
unfair labor practices in violation of Section 8(a)(3) and (1) of the Act; (c)
whether the failure to recall Jean Dykman on or after July 30, 1964, and prior
to October 12, 1964, was discriminatorily motivated because of her membership
in and activities on behalf of the Teamsters, or, alternatively, because unfair labor
practice charges had been filed on her behalf, in violation of Section 8(a)(3),
(4), and (1) of the Act, and whether Respondent's offer of reinstatement, on or
about October 11, with respect to hours of work was neither - the same nor
substantially similar to the position she occupied prior to her layoff, and accord-
ingly not a bona fide offer of reinstatement; or (d) whether Respondent reinstated
Catherine Greene on or about October 19, 1964, but assigned her to a more
onerous job with less desirable working conditions than she had previously
enjoyed, because of her membership in, and activities of behalf of, the Teamsters,
or, alternatively, because unfair labor practice charges had been filed on her
behalf, in violation of Section 8(a)(3), (4), and (1) of the Act, and whether
Catherine Greene's separation from employment on November 30, 1964, con-
stituted a constructive discharge in violation of Section 8(a)(3), (4), and (1) of
the Act. It is undisputed that LeRoy Fox and Wayne Vanderhoof were recalled
on October 12, 1964, as further set forth infra. Respondent generally denied
the commission of any unfair labor practices, and asserts that the layoffs were
economically motivated.
B. Supervisory personnel and agents
It is alleged, and Respondent admits, that: Alfred Gabower is president , direc-
tor, and general manager; Harold Steiner is vice president and director; and Alice
Howe is secretary. It is alleged and Respondent generally denies that said officers
are agents of Respondent, or, alternatively, supervisors within the meaning of
Section 2(11) of the Act.
It is undisputed that Gabower is in complete charge of the day-to-day operations
of Respondent , and is an agent of Respondent within the meaning of Section
2(2) and (13) and a supervisor within the meaning of Section 2(11) of the Act.
I find accordingly.
It is undisputed that Harold Steiner is a stockholder, in addition to being vice
president and a member of the board of directors. Steiner asserted that while
he has no direct duties at Respondent's plant in its operation, he attends meetings
of the directors once a month, sometimes every 2 or 3 months. On occasion,
sometimes once or twice a week, sometimes once a month, he walks through the
plant "to see how things are going." It is undisputed that the bulk of Steiner's
time is occupied in other activities, unrelated to Respondent' s operation, at Wis-
consin Dells and Lyndon, Wisconsin.
It is undisputed that Fritz Eltag is production manager, and has been since
September 1, 1964, and is a supervisor within the meaning of Section 2(11).
Eltag was in complete charge of the plant in the absence of Gabower, and acted
as a supervisor while Gabower was present. I find accordingly.
It is alleged that Charles Vanetta is the shipping supervisor, that George
Stoughtenger is a foreman, and that both are supervisors within the meaning of
Section 2 (11) of the Act. Respondent denies that these named individuals have
the titles indicated and denies that they are supervisors. Resolution of this
conflict is next considered.
Respondent, in effect, contends that President Gabower and Plant Superin-
tendent or Production Manager Earl Larson, replaced in September by Eltag,
were the only two supervisors in the plant. Gabower asserted that the total
employment of Respondent, inferentially including Gabower, Larson, Eltag,
Stoughtenger, Vanetta, and Howe, averaged from 16 to 30 employees. Gabower
asserted there were 28 employees in April and it is undisputed that Maxine Blair
and Helen Gohr were hired in May .-5 In addition to the employees retained
after the May and June layoffs, Respondent hired 12 full-time and 8 part-time
new employees between July 21 and November 9 and reemployed 8 of those
laid off-the recalls were between July 21 and October 19. It is thus found that
the total employment on November 9 approximated 42.
* Also identified in the record as Cassie Greene and Cathie Greene.
5All dates herein are 1964 unless otherwise indicated . Between May 29 and June 16,
inclusive, 12 employees were laid off and 1 quit ; 18, including the 6 named , were retained
after June 16.
VACUUM PLATERS, INC. 591
Gabower described Respondent 's operation as placing a "luster" on parts
assembled by other manufacturers , such as lamp bases , radio tuning knobs, and
decorative furniture parts, by vacuum plating. Parts arrive covered with a film
of grease and progressively are treated in various departments described as:
wash department (a degreasing process ); hookup department (part of various
weights and sizes were attached to a jig or fixture); plating department (parts
are lacquered, baked, and vaporized aluminum attached); dye department (color
dyes are applied and parts rinsed); paint department; and shipping department
(where -parts are unhooked from the jig, inspected, packed, and. shipped).
Gabower described Vanetta as leadman in the shipping and inspection depart-
ment. Vanetta asserted there were seven employees in the department in May.
Gabower asserted the normal complement was four to six. However, it appears
there were nine employees in May.6
Gabower acknowledged that he customarily gave his orders, relative to work
schedules, to Fritz Eltag, and when Eltag was not available he gave his orders
directly to Vanetta. He acknowledged that Vanetta checks the work of employees
in the shipping department. While Gabower first testified that Vanetta did not
have the authority to hire and fire, he later acknowledged having asserted, in a
pretrial sworn statement, that Vanetta did have such authority.?
Gabower acknowledged that when he was considering the employment of a
prospective employee for the shipping department he would obtain Vanetta's
views, and would not hire the individual if Vanetta recommended that the person
not be hired. Gabower first denied that Vanetta could effectively recommend that
an employee be fired, then acknowledged that in his pretrial sworn statement he
had stated to the contrary. Gabower acknowledged that the statements in his
pretrial sworn affidavit were true at the-time they were made August 7, 1964.
Catherine Greene, alleged discriminatee, related that prior to her layoff, on
June 16, it was Vanetta who assigned work to her and on one occasion disciplined
her for being late, advising her that she had better work during her break
period because she was late. While Greene's normal job was running the packing
machine, occasionally Vanetta would transfer her to packing or inspecting parts.
If an employee in the shipping department was taken ill and left work, they would
advise Vanetta, and Vanetta would advise Gabower or Larson. Green related
that in May she asked Vanetta for a raise and Vanetta later advised her, having
talked to Gabower, that she would get a raise .8
LeRoy Fox, alleged discriminatee, related that when he reported to work
initially, in October 1963, Gabower took him to the dye tanks, which at that
time were in the shipping department, introduced him to Vanetta, and told him
that Vanetta was in charge of the shipping department. Fox related that Gabower
and Vanetta showed him what to do and how to do it and Gabower told him if
he had any questions to ask Vanetta, or if Gabower was there to ask him. Fox
related that he was later transferred to the receiving room (wash department) and
was advised by Gabower that Stoughtenger was his boss. Fox further related
that he was told what to do, while in the wash department, by Stoughtenger.9
Jean Dykman, alleged discriminatee, related that while she was employed in
November 1963 and April and May 1964, she worked, in part, in the shipping
department and her work- was assigned to her by Gabower or Vanetta. When
she was unable to report for work at her regular reporting time, because of a
babysitter problem, she would call Vanetta and he would advise her if it was
all right for her to report at a later hour.
8 Vanetta, Patrick Walsh, Irene Kelley, Maxine Blair, Helen Gohr, Jean Dykman,
Rosalie Fox , Louise Vanderhoof , and Catherine Greene.
' Gabower's explanation that at the time he made the statement he did not know what
a supervisor was "as stated in Section 2(11)" and that the Board investigator did not
explain to him what a supervisor was, is enlightening. However, how lack of knowledge
of the legal effect would alter the existence of delegated -authority, or Gabower's admis-
sion , is not explained.
8 While Vanetta appeared as a witness he did not dispute these assertions . Gabower
related that , in June, Greene advised Vanetta that she wished to be off every Tuesday.
Vanetta so advised Gabower, who then "talked to the two of them together." The re-
quest was denied . Why Vanetta participated in the discussion , if not a supervisor, is
unexplained.
8 While Gabower, Vanetta , and Stoughtenger appeared as witnesses , these assertions of
Fox were not disputed.
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Maxine Blair, who was employed' only for a period of 3 weeks in May 1964,
related that Gabower advised her that Vanetta would show her what to do, that
Vanetta did show her how to do her work, and that Gabower advised her that
she would be responsible to Vanetta.10 - ' ,
Vanetta acknowledged inspecting the work of employees in the shipping depart-
ment, reporting to Gabower if an employee was not working properly, advising
him what they were doing wrong, and assigning employees to various jobs in
May and June.
Gabower acknowledged that Vanetta and Stoughtenger "were in about the
-same category." Gabower acknowledged firing an employee in October 1963
because Stoughtenger "suggested" it. Gabower acknowledged that Stoughtenger
made the suggestion because Stoughtenger believed the employee was not a good
employee. Stoughtenger's explanation was "if a man was dragging his feet, I
didn't intend to do his work for him." He related that in such an event he would
complain to the front office and the- front office would investigate. Gabower
described Stoughtenger as the "elder man" in the wash department, which had
from four to eight employees in May and June. Gabower acknowledged that
both Vanetta and Stoughtenger reported to him when employees reported late or
did not do their work properly.
Vanetta was initially hired by the Respondent in February 1962. He asserted
that he was promoted to shipping supervisor in June 1963. In January 1964
Vanetta and Stoughtenger were placed on a weekly salary of $80. Subsequently,
approximately in April 1964, by reason of a ruling of the Wage and Hour Divi-
sion of the Department of Labor, they were placed on an hourly rate of $1.60.
Vanetta acknowledged that at that time the female employees in his department
were receiving $1.25 an hour and'he was the only one in the department receiving
$1.60.
Concluding Findings
It is undisputed that Gabower and Eltag are supervisors within the meaning
of Section 2(11) of the Act, the latter commencing September 1964.
It is patent that Steiner did not engage in daily plant operations. I consider
next his alleged capacity as an agent of Respondent.
Section 2(13) provides: "In determining whether any person is acting as an
`agent' of another person so as to make such other person responsible for his
-acts, the question of whether the specific acts performed were actually authorized
or subsequently ratified shall not be controlling." The Board has held that the
implication of this language, which is borne out by legislative history, is that the
common law rules of agency shall govern. United Shoe Workers of America,
C.I.O. (Perry Norvell Company), 80 NLRB 225, 243, and footnote 37.11 I find
that Steiner was an agent of Respondent and that Respondent is responsible for
the acts of its agent within the scope of the agent's general authority.12
General Counsel asserts that if it is found that only Gabower and Larson were
in the supervisory hierarchy in May and June, the resulting ratio of 14 employees
to supervisor is unrealistic for this type of plant, particularly in view of Gabower's
functions and responsibilities, which the evidence reflects took him away from
the plant for,substantial periods of time.
I find it unnecessary to rely upon this contention. However,'one of the circum-
stances considered by the Board in determining the supervisory status of an
individual, where the evidence does not fairly show that he possesses the power
to exercise independent judgment with respect to any of the authorities contained
in Section 2(11) of the amended Act, is the proportion or disproportion of super-
visors over rank-and-file employees in, the unit.' The Ohio Power Company, 80
NLRB 1334,-1339.13
, General Counsel urges that in his pretrial sworn affidavit Gabower acknowledged
that Vanetta had authority to hire and fire. Gabower acknowledged that
Stoughtenger's authority was identical to that of Vanetta. While Gabower may
not, in fact, have been aware of the legal effect of this admission such a circum-
stance does not modify the existence of a fact.
!'Blair acknowledged being a close personal friend of Secretary Alice lHowe She was
not an employee at the time of her testimony, and has no apparent interest in the outcome
of this litigation.
11 See also International Longshoremen's and Warehousemen's 'Union, C.I.O. (Sunset
Line and Twine Company), 79 NLRB 1487, 1507, and footnotes 37, 38, and 39.
12I find it unnecessary to make a similar finding relative to Alice Howe, who was the
office secretary as well as the secretary of the Respondent.
Is See, e g., Steelweld Equipment Company, Inc., 76 NLRB 831.
VACUUM PLATERS, INC. 593
The Board and courts have uniformly held that supervisory status is not
dependent upon the frequency of the exercise of, but upon the existence of, such
authority. Ohio Power Company v. N.L.R.B., 176 F. 2d 385 (C.A. 6), cert.
denied 338 U.S. 899; N.L.R.B. v. Leland-Giflord Company, 200 F. 2d 620 (C.A. 1).
Having found, on the credible evidence set forth, that Vanetta and Stoughtenger
had authority to hire and fire, to assign work, to discipline other employees, to
responsibly direct employees, or effectively recommend such action, and having
found that each had from four to eight employees in their respective department
in May and June, I find that they were supervisors within the meaning of. Section
,2(11) of the Act at that time.
C. Background and sequence of events
Catherine Greene credibly related that on an unspecified date, prior to May 7,
1964, inferentially in late April or early May, she, Jean Dykman, and Charles
Myers, Respondent employees, and an individual named Mike, a stranger, dis-
cussed the desirability of organizing Respondent's plant, and the latter undertook
to contact the Steelworkers Union for them. Several days later Greene discussed
organization of the plant with Patrick Walsh, LeRoy Fox, Wayne Vanderhoof, Gregg
DeLapp, Mike DeLapp, and Bill Lowe.14 These conversations were either in the
plant or adjacent thereto at a tavern directly across the street. Thereafter, on
May 7, 1964, Greene and Vanderhoof attended a meeting of the employees of
the Mauston Manufacturing Company, conducted by the International Ladies
Garment Workers who represented them. Vanderhoof's mother was an employee
of that firm and an officer in the local. Greene related to a union official her
efforts to contact the Steelworkers. Subsequently, on June 5, 1964, Greene was
contacted by Gene Tebo and another individual from the Steelworkers.
As a result of the visit with Tebo, a meeting was scheduled at the home of
Greene on June 8, 1964, which was attended by Vanderhoof, Rosalie Fox, LeRoy
Fox, Patrick Walsh, Greene, and the two Steelworker representatives. Preceding
this meeting, about 2:30 p.m., at the plant, Greene advised Vanetta that they
were having a meeting with the Steelworkers at her house that evening and asked
him if he wanted to attend. He first replied in the affirmative and later in the
negative. His other comments are considered infra, section I. Greene asserted
that she talked to Stoughtenger on June 8 at Robinson's Tavern, advised him that
the were going to have a union meeting at her house, and inquired if he would
come. Greene asserted that Stoughtenger indicated that he would be present, but
did not appear.15
During the meeting, on June 8, the employees present signed authorization cards
for the Steelworkers. The same night LeRoy Fox, Vanderhoof, and Greene
went to the homes of Charles Myers and Maxine Blair and had them sign
authorization cards.
Wayne Vanderhoof related that during the early part of June he had a con-
versation with Vanetta, during which he asked Vanetta if he was going to join
the Union. He quoted Vanetta as responding that he would if Stoughtenger
would. Vanderhoof related that he had another conversation covering the same
matter and received the same answer the following day, and a third conversation
during the following week.16 The other comments of Vanetta during these con-
versations are considered infra, section I.
On Saturday, June 13, Greene and her husband visited the home of Jean Dykman
and her husband. Bob Dykman advised Greene that if they wished to organize they
should contact the Teamsters. Jean Dykman called Seebold, secretary-treasurer of
Local 199, at LaCrosse, and a meeting was arranged at New Lisbon, approximately
7 miles from Mauston, on Sunday, June 14. Three union representatives and
employees LeRoy Fox, Rosalie Fox, Wayne Vanderhoof, John Visgar, Jean Dykman,
and Greene attended this meeting. The employees named signed authorization cards
for the Teamsters and obtained other cards to obtain signatures of other employees.
11 The last three named are not reflected on a list of employees retained by Respondent
on June 25, 1964. However, the stipulation of May 10, 1965, reflects that Lowe was
not laid off
15 Vanetta corroborated the testimony of Greene that she advised him that they were
going to have a union meeting and would like him to come. Stoughtenger, who appeared
as a witness, was not questionel relative to the assertions of Greene.
16 While Vanetta appeared as a witness he did not deny these assertions of Vanderhoof.
206-446-66-vol. 154-39
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jean Dykman related a conversation with Stoughtenger, at Hoble's Bar, in the
presence of Greene, Vanderhoof, and Fox, at the time this group was attempting
to obtain signatures to union authorization cards from employees. Dykman asked
Stoughtenger if he would be interested in signing a card. She related that he at
first did not give her a definite yes or no, but upon her second inquiry asserted
he could not sign a card because he was a shop foreman and could hire and
fire and could not si:n. While uncertain of the dote of the conversation Dykman
placed it as being in the second week of June. Fox corroborated the testimony
of Dykman but asserted that the event was in the middle of the week commencing
Sunday, June 14. In view of the findings supra, I find it unnecessary to resolve
the conflict in the date of the conversation.tl
D. The layoff of Gicene , Vanderhoof , and Fox
It is alleged that the layoff of Greene, Vanderhoof, and Fox on June 16, 1964,
was discriminatorily motivated.
It is undisputed that two employees were laid off on May 29, six on June 5, and
one of June 13. One quit on June 13. The identity of these employees, the
dcpart ''ent in w'lic '1 they worked. and their seniority date were as follows' On
May 29 those laid off were Maxine Blair . shipping department , employed May 12,
and Helen Gohr, shipping department , described by Gabower as part time, em-
ployed May 13; those laid off June 5 in the shipping department were Louise
Vanderhoor , employed May 12, Jean Dykman , employed April 22, and Rosalie
Fox, employed November 14, 1963: those in the wash department were Walter
Hess. employed May 25, and Leo Steiner . described as a casual employee; Charles
Gainer. hookup department , employed April 27: and Gregory DeLapp was laid
off June 13, emnloyed May 13, a part -time dye department employee. Michael
DeLa-v. hired August 26, 1963, employed in both dye and plating departments,
quit June 11.
Tt is undisputed that the production employees of the plant did not work on
Monday. T"ne 15. Those who did work were Earl Larson , superintendent,
f'sal•ower, Elti,,i, who worked in maintenance , Vanetta , Stoughtenger , and Oscar
SS euiel . I credit the as ertion of Fox that he , and inferentially the other employees,
were advised the precedin ' Friday. when they passd out the checks , that he would
not have to come in on Monday, but that he should report at his regular time on
Tuesday 18
On the afternoon of June 15. Ci ibov'cr "ent to the home of Fox and advised
him that they were slack on work nnrl rill wt need him, and "I will call you
when we do." He left a similar for Ve- rhoof with the latter 's wife.
Unable to reach Greene , on June lz. C-bower c+ l'ed her at 6.45 a m . on June 16
and advised her they were temporarily short of work and would call her when they
needed her.
Greene was originally employed in February 1962 and '.vi'kcd only a half day
during the first week. On the second half day she s"cri-ed in the paint booth,
wiping parts , and on the other four half days she worked in the hookup depart-
ment On Friday of that week she advised Gabower that she had a back injury
as a child and found the work too heavy Gabower advised him that she would be
transferred to the inspection room or shipping department. Thereafter she con-
tinued, at all times, working in the shipping department , except for one-half of an
afternoon in the summer of 1963 when she worked in the hookup department.
However, there were times when she worked in the paint booth for an afternoon
when they were short of help. Greene credibly related that she continued work-
ing from February 1962 until her layoff on June 16, except for a 2-week layoff
during vacation period in the summer of 1962. There was no layoff in the summer
of 1963. It appears undisputed that Greene 's work, prior to her layoff , was the
operation of the plastic machine. Greene asserted that Irene Kelley was the
only female employee in the shipping department on June 16 , with more seniority,
and Mary Straka was the only other female employee with more seniority.is
17 Stoughtenger did not testify about this incident.
19 However , since the record establishes that Gabower was in Chicago on Friday,
June 12 , it appears that Fox was in error in asserting that it was Gabower who advised
him not to report on Monday However , I do not credit Gabower's assertion that Larson
decided on Saturday , June 13 , to suspend operations on Monday, June 15
19 Gabower acknowledge that Velva Nelson and Roberta Frank continued working after
June 16 and "on occasions" worked in the shipping department Nelson was initially
employed on April 1, 1963 , and Frank on April 23, 1963.
VACUUM PLATERS, INC. 595
Greene's assertion that there were never less than two female employees in the
shipping department stands undisputed. Charles Myers, who continued to work
until October, identified Irene kehey and Vclva Nelson, and sometimes Mary
Straka,20 as the employees in the shipping department after Greene was laid oft.
He corroborated Greene's assertion that there were never less than two women
working in that department.
Greene related the duties of the girls in the inspection department as being:
one ran the plastic machine, the otaer girl or girls would wrap parts in paper
and place them in boxes, with tissue, plastic, or cardboard eparations. Greene
asserted that one girl could not do both jobs. Greene's assertion that the male
employees in the shipping department unhooked parts from jigs, but did not prepare
(wrap) anything for shipment, stands undisputed.
Fox was initially employed by Respondent in October 1963 and continued
working until the layoff of June 16. Initially, for 3 or 4 months, he worked on
the dye tanks, which at that time were in the shipping department. He was then
transferred to the wash department 21
Vanderhoof was initially employed on September 11, 1963, in the wash depart-
ment.
Respondent contends these layoffs were economically motivated. Respondent's
defenses are considered infra, section J.
E. Other events between June 16 and October 12
On the morning of June 16, Robert Stein, a Teamster organizer, had a tele-
phone conversation with Gabower. Stein re'ated the reason for his call was that
some of the employees had been laid off. He advised Gabower that these
employees were represented by the Union and should have an opportunity to
have an erection. Stein related that daring the conversation he advised Gabower
that he thought it would only be fair for him to recall these people, to which
Gabower replied that he did not need Stein or anyone else to tell him how to run
his busine-s.
A letter advising Respondent that the Teamsters were in the process of organiz-
in; Re-pondent's employees was mailed June 15 and received by Gabower on
June 16.
Edmund Ludwig, a Teamster organizer, credibly related that on June 18 he
mailed copies of a notice of a meeting, to be held on Monday, June 22. to
Respondent's employees, including Vanetta and Stoughtenger. Tho events con-
cerning the meeting of June 22 and the allegations of surveillance, relating thereto,
are considered infra, section I.
On July 9, the Teamsters filed a charge herein alleging, inter alia. that Respond-
ent had discharged Fox, Vanderhoof, Dykman and Greene for discriminatory
reasons.
In the interim, on June 25, Respondent supplied to the Region lI Gflice a list
of the employees whom it had continued on its payroll. The list contains 14
names, including Vanetta and Stoughtenger, but not Gabower, Howe, Lar on. or
Lowe.22
Between the dates of July 21 and August 13 Respondent recalled five of the
employees previously laid off, all described by Gabower as part-time employees.
These employees and the dates of recall of each are: Jeanette Gabower, wife of
President Gabower, July 21; Kathleen Seidel, July 24; Leo Steiner, July 29; and
Rosalee Fox and Helen Gohr, August 13.23 Michael DeLapp, who quit June 13,
was recalled July 30. Maxine Blair asserted that she was recalled in the middle
of August but did not report.
In addition, between the dates of July 30 and September 23 Respondent hired
10 new employees and rehired a former employee who had quit the year before.
Between the dates of October 12 and November 9 Respondent hired nine additional
new employees, of whom all but two are described as part time.
20 Mary Straka quit on August 29, 1964.
21 John Visgar, hired April 24, 1964, employed in the dye department, was not laid off.
22 William Lowe, described as part time, hookup department, was erroneously omitted.
23 It appears undisputed, and I have found supra, that Gohr was Initially employed on
May 18 and worked part time in the shipping department, Fox, Initially employed on
November 14, 1963 , also worked in the shipping department , while Leo Steiner had been
a casual employee in the wash department.
596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Recall of Fox and Vanderhoof
It is undisputed that Fox and Vanderhoof were recalled on October 12, 1964.
Fox did not report; Vanderhoof did report.
G. The recall of Jean Dykman
There is no contention that the layoff of Jean Dykman on June 5 was dis-
criminatorily motivated. However, General Counsel contends that the failure
to recall Dykman on and after July 30, when Respondent recalled other employees
and hired new employees, was discriminatorily motivated because of her activities
on behalf of the Teamsters, or, alternatively, because unfair labor practice charges
had been filed on her behalf. General Counsel further alleges, by amendment, that
an offer of reinstatement, on or about October 11, was neither the same nor sub-
stantially similar to the position she occupied prior to her layoff, with respect to
hours of work, and accordingly was not a bona fide offer of reinstatement.
Dykman credibly related that she was first employed around November 1,
1963, worked about a month, and was laid off because of a shortage of work. Her
work hours at that time were from 8 a.m. to 3:30 or 4:30 p.m. Dykman was
recalled in April 1964. Dykman related that when Gabower asked her to come
back to work she advised him that she could not work prior to 8 a.m., and in fact
could not work at all unless she had a babysitter to stay with her two small children,
and would have to work accordingly. Her testimony is undisputed that if she did
not have a babysitter in time to permit her to report at 8 a.m., she would go to
work at noon, sometimes as late as 2 o'clock in the afternoon, and might work
as late as 9 or 9:30 at night. I have found supra, section B, that when she was
unable to report for work she would call the office or Vanetta, and Vanetta would
later advise her if it was all right for her to come to work at a later time. This
condition continued until her layoff on June 5.
Dykman asserted that she was laid off June 5 by Gabower. At that time
Gabower advised her there would be a shortage of work temporarily, that she
should not come back to work until she was called, that there was a vacation coming
up for the plant and she would not be recalled until after that time, possibly not
until July 15, "But I should be back to work by the 15th of July." 24 Gabower
did not dispute this evidence.
Dykman related that on October 10 she received a registered letter, from Re-
spondent, advising her to report for work at 7 a.m. on Monday, October 12. She
called Gabower the same day and advised him that if she could get a babysitter she
would be in on Monday. Dykman related that she did not specify any time as she
"took for granted" that he knew from previous experience that she could not
report at 7 a.m. She told Gabower she would let him know. She called Gabower
again, on Sunday, and told him she could not get a babysitter in time to report at
7 a.m., but would report at 8 a.m. Dykman related that Gabower responded that
if she could not be there at 7 he would have to hire someone to take her place,
as they were only working one shift 25
I do not credit Gabower's assertion that the reason that Dykman was not recalled
earlier than October 12 was that she was considered only a part-time worker, since
she sometimes came to work at 10 a.m., and sometimes at 8, and at various times.
On the contrary it appears that Dykman put in a full 8 hours whenever she re-
ported and was not a part-time worker. However, other part-time, casual, em-
ployees had been recalled in July and August, as set forth supra, section E.
Gabower first denied, then acknowledged, having asserted in a pretrial sworn
statement, given to a Board investigator on August 7, that "Wayne Vanderhoof,
Catherine Greene, and LeRoy Fox will not be called back. Jean Dykman will
not be called back. We will probably call back some of the other people who
were laid off if business picks up."
24 It appears that the vacation period commenced at the end of work on Friday, June 26,
and terminated at the beginning of work on Monday, July 7.
'l51 do not credit Gabower's testimony which is at variance with that of Dykman.
Gabower asserted that Dykman called on Saturday and advised that it was doubtful if
she could get a babysitter and it was doubtful if she could come to work on Monday.
Gabower asserted that, on the evening of October 11, Dykman called him and advised
that she could not get a babysitter and therefore would have to forget about coming
to work and that no mention was made of the fact that she could get a babysitter for
8 o'clock but could not get one for 7 o'clock.
VACUUM PLATERS, INC. 597
The assertion of Catherine Greene that when she reported on October 19, and
thereafter, Jean Babcock, Kathleen Seidel, Jeanette Gabower, and Irene Kelley
reported to work each day at 8 a.m., while the other employees reported at 7
a.m., stands undisputed. It is inferred that the same condition relative to these em-
ployees existed on October 12, and Gabower's assertion that all employees re-
ported at 7 a.m., is inaccurate . I so find.
H. The recall of Greene and her alleged constructive discharge
It is alleged that Respondent reinstated Green on October 19, 1964, but assigned
her to a more onerous job with less desirable working conditions than she had
previously enjoyed because of her activities on behalf of the Teamsters, or, alterna-
tively, because unfair labor practice charges had been filed on her behalf, and that
as a result, Catherine Greene was constructively discharged on or about Novem-
ber 30, 1964.
I have found, supra, section D, that when Greene was initially employed by
Respondent in February 1962 she worked half days in the hookup department
during 4 of the first 5 half days she worked. At that time Greene advised Gabower
that if she had to work in the hookup department she would quit, explaining that
she had a back injury as a child and the work was too heavy for her. As a result
Gabower transferred her to the shipping department where she worked on a
plastic machine, her work being the wrapping of small parts in plastic bags. She
continued, with minor exceptions, running this machine until her layoff. Greene's
assertion that only two girls in the plant, Irene Kelley and Mary Straka, had more
seniority stands undisputed. Mary Straka, prior to June 16, it appears, worked
in the paint department.
Greene acknowledged that she received a letter requesting her to report for
work on October 12. For personal reasons with which we need not be concerned,
she reported on October 19. When she reported she went to the shipping depart-
ment and was advised by Vanetta that she was to work in the hookup department,
as there was not enough work in the shipping department. Greene related that
she was standing next to Helen Gohr.26 When Gohr started to accompany Greene
to the hookup room, Vanetta recalled Gohr and told her he was not referring to her.
Greene related that Jean Babcock was working on the plastic machine, on which
Greene had been previously employed, on October 19. Gabower acknowledged that
Babcock was initially hired on September 1, 1964, and corroborated Greene's state-
ment that Babcock worked at the same job on which Greene had worked prior to
her layoff. Thereafter, until the separation of Greene, Babcock continued operating
the plastic machine in the shipping department and Greene continued working in the
hookup department.
Greene described her job in the hookup room as attaching parts to jigs, then
lifting the jig and attaching it to an overhead conveyer. Greene asserted that some
of these jigs weighed 25 to 30 pounds loaded, and that she had to lift from 64
to 80 jigs during the course of a day.27 Greene related that the heaviest part that
she wrapped on the plastic machine approximated one-half pound in weight.
Greene related that she inquired of Superintendent Eltag, on October 20, as
to how long she would have to work in the hookup room, complaining that the
work was too heavy. Eltag responded that he did not know.28
Greene recited other changed working conditions at the plant, including those
relative to the receipt of personal telephone calls during worktime, inferentially
directed primarily at her after her return on October 19. Greene asserted that
prior to her layoff, June 16, whenever she received a telephone call she was called
to the telephone. She related that about 10 days after she had returned to work
on October 19 she received a note from Gabower telling her to call a telephone
number during her break period. She received a similar message on November 6
and again on November 8. On the latter date Greene was called .to the tele-
phone during the break period. At that time her husband advised that he had
tried to reach her a half hour earlier and they had refused to call her to the tele-
26I have found , supra, that Gohr was hired initially on May 18, laid off on May 29,
and recalled August 13. Gohr was described by Respondent as a part-time worker.
n Respondent's evidence is that the jigs weigh from 161/ to 40 pounds loaded. Respond-
ent asserts that the girls were instructed to call one of the male employees to place the
jig on the conveyer when it was too heavy. It appears there were three or four women
and two men employed in the hookup department.
28 Eltag did not appear as a witness.
593 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phone.23 After the telephone conversation with her husband, Greene inquired of
Gabower why she did not receive her telephone calls as formerly, asserting that
unless it was important no one had called her at the plant. Gabower responded
that they had changed Respondent's policy because they had had so many tele-
phone calls during the summer , that Roberta Frank had a number of telephone
calls, and that the policy was changed to permit telephone calls during break
periods only. Greene related that same evening she advised her niece , Betty Jo
Greene, to call the plant at 8 o'clock the following morning and ask for Roberta
Frank, because Greene wanted to ascertain if she was the only one not receiving a
telephone call during working hours or if it was, in fact, plant policy. Greene
asserted that the following morning Roberta Frank was working next to her in the
hookup room and was called to the telephone about 7:50 during working hours.
When Frank returned from the telephone call, according to Greene, she was
upset because whoever had called her had hung up 30 Greene asserted that it
was Gabower or Alice Howe who customarily answered the telephone at Re-
spondent's plant 31
Greene related a conversation she had with Vice President Harold Steiner in
the early morning hours of Sunday, November 15, at a dance at the National
Guard Armory in Mauston, at which Gabower and others were present. Greene
related that Steiner approached her and inquired if she would dance with him, or
whether "The Labor Relations Board would think we were conspiring." During
an ensuing two dances and a period between dances an extended conversation
followed. Greene asserted that she first advised Steiner that she did not wish to
talk about the plant, the Union, or the Board. Steiner responded that he thought
they should talk about it, and inquired of Greene as to why she wanted to start
all the trouble, asserting that he would never let the Union into his plant because
as far as he was concerned the Teamsters were the lowest, filthiest union in the
country and he would never let them in his doors. She inquired what he meant
by "his doors," and he responded, "I run the plant." He advised her that he had
$135,000 invested in the plant and would not let the Union come in, asserting "he
would close his doors first." Steiner then asked Greene why she did not forget
"about all this" and asked her what she wanted. She advised that she wanted her
old job back, because the work in the hookup department was too hard, and she
would like a raise. Greene asserted that Steiner responded that if she would stop
this thing he would give her a 10-cent-an-hour raise and her old job back. Greene
responded that she could not stop it because she had not filed the unfair labor
practice charges. Steiner then advised her that he would never pay her $500
backpay, that he would spend $2,500 or $25,000 fighting her if he had to. He
then advised her that she knew that she was not laid off for union activities,
that she was next in line to be laid off in the shipping department. Greene
responded that Irene Kelley was the only one on the shipping department with more
seniority and that she did not believe that one girl should handle the shipping
department by herself. She then inquired why she was not recalled when they
hired a new girl to run the plastic machine, which she had been running. Steiner
responded that was probably the Company's fault, that he was sorry, but the matter
had gotten out of hand and they did not want to hire her back. She then inquired
why she was not given her former job when she was recalled. Steiner responded
that she was not recalled for any particular place in the plant and that they could
place her any place they wanted to. She asked him why, if that was true, Roberta
Frank and Velva Nelson were not laid off (inferentially if the plant did not have
departmental seniority).
Greene asserted that immediately following this conversation with Steiner she
asked her husband to join the conversation and to hear some of the things which
Steiner had said. Greene related that Steiner then repeated his statement that he
would not let the Teamsters Union in the plant, and "that he wouldn' t let a union
that came in the back door, like they did, come in. If they wanted to form a
union, they should have come up and talked to the management first." Steiner
then asserted that he would not pay Greene backpay because he would have girls
quitting, and asserted that he had dictated a letter to the Board telling them
20 Greene related that her husband was driving a truck from Chicago to St. Paul and was
passing through town at that time.
so Betty Jo Greene related that she had placed the telephone call as instructed, was
advised to hold the line while Roberta Frank was called to the telephone , and had hung up
when she heard her coming to the telephone.
Si Gabower's testimony is silent as to these events.
VACUUM PLATERS, INC. 599
that Respondent thought that Greene was a good worker and they were not going to
pay her $500 to quit, if she wanted to quit she would have to quit on her own.
Steiner then repeated this statement that she could have her old job back and a
iaise if she would drop the whole thing . Greene's husband then advised Steiner
that it was a matter of principle with Greene , to which Steiner responded it was
a matter of principle with him also.32
Greene related that she had a conversation with Gabower on Monday, Novem-
ber 30, about 6:45 a.m. She advised Gabower she did not feel ve1l and was not
coming to work. He advised her that she sounded as though she had a cold and
she told him that she did. Gabower then asked whether she would be at work
the following day and she advised him that she was quitting . Greene asserted that
her reasons for quitting were that the job was too heavy , the problems she had
experienced because of the refusal of Respondent to allow her to receive telephone
calls while allowing other employees to receive telephone calls during worktime,
and other conduct on the part of Gabower and Howe which , according to Greene's
testimony , she believed implied animus on their part toward her 33
1. Interference , restraint, and coercion
The complaint contains several allegations of conduct allegedly constituting in-
dependent violations of Section 8(a)(1) of the Act by several of Respondent's
Supervisory personnel or agents . The evidence relative to these events is con-,
sidered seriatim.
"Steiner acknowledged that he attended the dance , which started on the evening of
November 14, but disputed Greene's recitation as to the exact time when they
danced together . Steiner's version of the conversation was that Greene asserted
that she was getting sick and tired of being the fall guy at Respondent 's plant,
that everyone accused her of being the one who tried to bring the Union into the plant.
Upon his inquiry, she denied this accusation She asserted that all the employees were
down on her and that when she was recalled she was placed in a different job. Steiner
asserted Greene then said, "I know you have something to do with it , and we have always
been friends . Isn't there something you can do about it" Steiner responded that he
was a director , that he was certain if she had any grievances that Gabower would take
care of it . Steiner related that Greene implied that he was the owner of the plant and
was the one that hired and fired and ran the plant. Steiner asserted that be responded
that if anyone had given her that impression it was wrong because he was only a direc-
tor and vice president , that he was inactive and did not stick his nose into the policies
of the Company , that he had confidence in those who were running the plant , and that she
would have to take her complaint to them. Steiner denied making an offer of a wage
increase asserting he had nothing to do with policy relative to wages. Asked if anything
was said about her transfer to her old job, Steiner related that he told Greene that he
thought she had an easier job, that if she did not like it she should talk to Gabower,
or if she wanted him to he would talk to Gabower to get her old job back . He denied
that anything was said relative to the Board , after having stated , "I don ' t think that
anything was said in regard to that [the Board]. I don ' t think we discussed that."
Having asserted that he told Greene that he thought she had an easier job , after her
recall, Steiner then varied his testimony and asserted that he told her that he did not
know she had not been put back at her old job Having denied that the Teamsters were
mentioned , Steiner acknowledged there was a discussion about a union . He related a
conversation with 11Ir and Mrs . Greene , in which Mr Greene asked what objection he
had to a union in the plant. He asserted he responded that if the employees wanted a
union he would not object to it, but "I don't want a union to sneak in the back door
like this one is trying to do." He then asserted that the identity of the Union was not
mentioned . He also asserted that he did not know what union was involved I find
the latter assertion highly improbable in view of the fact that it was the Teamsters who
had filed the charge herein on July 7, 4 months before this event. In contrast Steiner
explained his expression "sneak in the back door" as meaning that the Union had accused
the Company of unfair labor practices when the Company had no knowledge that there
was an effort to organize a union.
On the basis of demeanor , the inherent improbabilities and conflicts in his own testi-
mony, and the fact that he was convicted of an offense against the United States, as set
forth in the record , it may be concluded that Steiner is not a reliable witness . I do not
credit Steiner ' s testimony where it is in conflict with that of Greene.
331 find of no consequence the fact that Greene, in late November , began a part-time
evening job selling Avon products.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Charles Vanetta
It is alleged that Vanetta interrogated employees as to what the Union could
do for them, threatened employees with plant closure, and interfered with em-
ployees' activities by telling them they were getting everybody into trouble. It is
also alleged that in June Vanetta advised an employee that Gabower had known
about the employees' union activities for 3 weeks.
I have found supra, section C, that on June 8, Greene advised Vanetta of the
union meeting which was scheduled for her home that evening and invited him to
attend. Greene asserted that during that conversation Vanetta advised her that
he thought the plant was too small for a union and "I was going to monkey around
until Al (Gabower) found out and he would close the plant because he said he
wouldn't let a union in here." Greene asserted that Vanetta also said that they
would then all be out of a job and inquired as to what a union could do for them
anyway, asserting that "all you do is pay dues." Vanetta then inquired as to who
was going to feed them if they lost their jobs. Greene asserted that she responded
that she did not know what the Union could do but the way to find out was to
hear both sides of the story. Greene asserted she had another similar conversation
with Vanetta, with a similar reaction from him, prior to June 16, when she was
laid off.
I have found supra, section C, that Vanetta corroborated the testimony of
Greene relative to being invited to the union meeting. Vanetta first asserted that
he probably said it was too small a place for a union, but could not recall any-
thing else. Having his memory refreshed, by a pretrial affidavit, Vanetta then
acknowledged that he had stated that the plant would close because they could not
stand the demands of the Union at that time.
Vanetta related that, about 3 days after his June 8 conversation with Greene,
Gabower asked him if he had heard anything about a union trying to get into the
plant. He advised Gabower that he had heard something to that effect but had
not heard anymore about it. Vanetta acknowledged his conversation with Gabower
was prior to the time that Greene asked him to sign an authorization card for the
Steelworkers.
I have found supra, section C, that Vanderhoof had a conversation with Vanetta
in the early part of June in which he inquired if Vanetta was going to join the
Union. Vanderhoof credibly related that at that time Vanetta advised him that
Gabower would not let the Union come into the plant and would close the plant
down first. Vanderhoof related that he had a conversation with Vanetta on June 13,
in Hobles' Tavern, about 9 or 9.30 p.m., at which time Vanetta advised him
that Gabower had known about the Union for 3 or 4 weeks. Vanetta advised
Vanderhoof that they were just hurting themselves 34
2. Stoughtenger and Vanetta
It is alleged that on June 9 Stoughtenger and Vanetta interrogated employees
concerning their union activities and the union activities of other employees.
I have found supra, section C, that Stoughtenger as well as Vanetta had been
apprised of the meeting to be held at the home of Greene on the evening of June 8.
Fox credibly related that the following day Stoughtenger and Vanetta inquired
of him as to what had happened at the meeting the prior evening and asked him
who was present and how the matter "sounded" to him. Fox related he did not
give any names but advised them that it "sounded" pretty good. Neither Stought-
enger nor Vanetta disputed this recitation of Fox.
3. Alfred Gabower
It is alleged that during the first 3 weeks of June Gabower interrogated em-
ployees and threatened the closing of the plant if the employees selected the Union
as their bargaining representative. It is also alleged that Gabower engaged in
surveillance of a meeting the employees had with union representatives on June 22.
Howard Wohlrab, employed by Respondent as a truckdriver, credibly related
that he had a conversation with Greene, in which Greene advised him that a
Steelworkers representative was coming to her house that evening. Thus this
conversation is established as having occurred on June S. He asserted that about
a week after that conversation he had a conversation with Gabower, in the
84 While Vanetta appeared as a witness he did not dispute these assertions of Vander-
hoof. I find of no importance Vanderhoof' s admission that Vanetta signed an au-
thorization card for the Teamsters, the date of which is obscure.
VACUUM PLATERS, INC. 601
presence of Alice Howe and Wohlrab's wife . At the latter time Gabower in-
quired if Wohlrab at any time had been contacted by anyone in regard to joining
a union . He responded that he would rather not say and did not wish to implicate
anyone by mentioning any names. Gabower then advised Wohlrab that it did
not make too much difference because "they knew anyhow."
Gabower acknowledged having a conversation with Wohlrab about 10 a.m. on
June 16. Gabower asserted the event occurred shortly after he had received the
letter from the Teamsters. Gabower acknowledged asking Wohlrab if he had
heard anything of a union , and Wohlrab 's response that he did not want to get
involved in it.
Charles Myers was employed in the plating department at Respondent's plant,
but quit on October 1, 1964. Myers credibly related that he had a conversation
with Gabower, upon Gabower's return from a trip to Chicago, on June 12, 1964,
in the evening . Myers related that at that time Gabower asked him if he had
heard anything about the Union and he responded in the affirmative . Nothing
else was said at that time . Myers related that 3 or 4 days later he had a further
conversation , also in the evening , with Gabower , at which time something was
said, by Gabower, about the Union coming in and they probably would have to
close the shop down. Myers asserted that he had a third conversation with
Gabower, about a week after the June 16 layoff, at which time Gabower asked
Myers who had come to his house, inferentially relative to the Union, because
Gabower had heard of employees going around places and asked who it was.
Myers advised him that it was LeRoy Fox, Catherine Greene, and Wayne Vander-
hoof. At that time, Gabower advised Myers "something about [them] being
instigators and he said, `I don't know if I will call them back or not."'
Gabower asserted that he made a trip to Chicago on Thursday, June 11, and
returned to Mauston about 8 p.m. on Friday, June 12. He asserted he did not go
to Respondent's plant and did not see Myers on that date. Greene and Dykman,
called as rebuttal witnesses, related they passed the plant around 8 p in. on June 12
and saw the cars of Al Gabower and Charles Myers parked near the plant. I
do not credit Gabower 's denial. Gabower did not deny the other events related
by Myers.
I have found supra, section E, that on June 18 the Teamsters advised Respond-
ent's employees of the meeting to be held on Monday, June 22, at 8 p.m., at
National Truckdrivers Building in Mauston. A copy of this notice was sent to
Vanetta and Stoughtenger. Gabower acknewledged that he knew of this meeting,
that one of the employees had shown him "a handbill of some kind." Greene
asserted that she arrived at the building about 7:45 p.m., that she, Vanderhoof,
LeRoy Fox, Rosalie Fox, and two Teamsters representatives were standing in front
of the building when they saw Gabower drive by, accompanied by his wife, in a
red Ford, traveling west, and a few minutes later saw him drive by again traveling
in the opposite direction . A little later , while the group was still outside she
saw Gabower again traveling west, passing the building , and in a few moments
again pass in the opposite direction . Greene asserted she saw Gabower make
either three or four round trips, some after the group had entered the building.
Vanderhoof and Fox corroborated the testimony of Greene, except they approxi-
mated the total number of times that Gabower passed by as four, two round trips.
Gabower offered no explanation of his conduct on this occasion. However,
Jeanette Gabower, his wife, asserted that she accompanied her husband from
their home in the southwest section of the city to the home of her parents which
is on East State Street , the main street, and the same street on which the building
in question was located . She related that her parents were not home and that
on the return trip she saw Greene's car parked in a parking lot and Vanderhoof
was leaning against the front fender . She asserted she waved at him as they
passed by and mentioned seeing these two to her husband . She asserted they
went to an ice cream parlor, had a sundae, and drove back to her parents' home.
Finding her parents still not at home they returned to their home . I do not
credit Jeanette Gabower.
4. Harold Steiner
It is alleged that on or about November 14 Steiner threatened employees with
a plant closure if the Union got in, and interfered with the rights of employees by
promising benefits if the charge herein would be withdrawn.
I have found supra, section H, that during a dance on the early morning of
November 15, Greene had an extended conversation with Steiner, during which
Steiner advised Greene that he would never let the Teamsters enter the plant and
would close the doors first . I have also found that Steiner advised Greene that if
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she would "stop" the unfair labor practice proceeding he would give her a 10-
cent-an-hour raise and her old job back. I have set forth supra why Steiner's
denials are not credited.
J. Respondent's defenses
1. Re: June 16 layoffs
Gabower asserted the first time he heard of the Steelworker Union's interest
in the employees was during the hearing herein. I have found supra, section C,
that Greene invited both Vanetta and Stoughtenger, supervisory personnel of Re-
spondent, to the June 8 meeting of the Steelworkers. I have also found supra,
section I, that Vanetta admitted he advised Gabower of the union activity of the
employees about June 11. Thus, as a minimum it must be concluded that Gab-
ower's memory of his knowledge of the activity of the employees relative to the
Steelworkers organizing effort is faulty, inaccurate, and unreliable. I do not
credit Gabower's denial of knowledge, either of the activity, or, inferentially,
of the participants.
Respondent asserted that economic considerations motivated these layoffs. Ini-
tially Gabower asserted that: The dollar volume of sales in March 1964 was greater
than in March 1963, $14,292.09 and $13,338.70, respectively, but the profit in
March 1964 was less than the profit in March 1963, $1,172.14 and $1,312.87,
respectively; in April 1964 the dollar volume of sales was larger than in April 1963,
$15,60135 and $15,268.30, respectively, and the profit in April 1964 was larger
than the profit in April 1963, $2,626.91 compared to $2,337.50, respectively; the
dollar volume of sales in May 1964 was greater than in May 1963, $16,044.63 and
$15,097.78, respectively, however, in May 1964 there was a loss of $677.57, com-
pared to a profit in May 1963 of $1,012.43; and the dollar volume of sales for
the month of June were represented as $8,784.50 in 1964 compared to $10,720.30
in June 1963. Gabower asserted there was a loss of $5,115.91 in June 1964 com-
pared to a loss of $2,094.82 in June 1963. On cross-examination, Gabower
acknowledged that Respondent was in the custom of losing money and that as
a matter of fact it lost more money in the period from January 1 to June 1, 1963,
than it did in the same period in 1964. Gabower acknowledged that in the
fiscal year ending June 30, 1963, Respondent lost $7,036.49, while in the same
period ending June 30, 1964, there was a profit of $13,379. Gabower acknowl-
edged that the net sales figures presented in Respondent's exhibits at the hearing
were lower than the net sales figures supplied to the Board previously. Gabower
could not explain these differences of approximately $300 in March 1964, $1,000
in April 1964, and $500 in May 1964, asserting that he was not a bookkeeper.
While this evidence establishes that Respondent did, in fact, suffer an operating
loss in June 1964, it also establishes that Respondent made a profit in the fiscal
year ending June 30, 1964, compared to a loss in the prior fiscal year. There is
no evidence of a layoff in the prior fiscal year.
Respondent made no effort to relate its profit or loss to any increase or decrease
in work force as a matter of practice. The assertion of Greene that she had not
been laid off previously is undisputed. Respondent made no effort to explain why
less senior employees than Greene were retained and transferred to work in the
shipping department. Greene was second in seniority in that department, and
third in the plan, of the female employees. Greene, in effect, asserted that Re-
spondent followed a practice of departmental seniority. She related that at times
the hookup department would close down, if they were short of work, and the
shipping department employees would continue working, and vice versa. This
evidence is undisputed.
In essence Respondent's assertion of an economic defense is predicated upon a
self-serving declaration of Gabower of his estimate of anticipated workload, re-
sulting from a trip he made to Chicago on June I1 and 12. At variance therewith
is Gabower's admission that Respondent's truck regularly left the plant each
Sunday and returned each Tuesday, and did so on Sunday, June 14, returning on
Tuesday, June 16, and he did not know, with accuracy, what the workload would
be until the truck returned. Albeit, his trip allegedly caused him to believe there
would be less work. It appears undisputed that June and July were consistently
slow periods in terms of workload. While Gabower asserted the determination
to substantially shut down the plant on Monday, June 15, was the result of a
conference he had with Larson on Saturday, June 13, I have found the employees
were advised not to report on Monday, and this advice was given to the employees
on Friday.
VACUUM PLATERS, INC. 603
Accordingly, for the reasons stated, I find the asserted economic defense with-
out merit, and that Gabower was not a credible witness.
2. Re: Recall of Dykman
Respondent sought to establish, initially, that in July it had established only
one shift for employees, commencing at 7 a.m., and Dykman accordingly was
recalled in October for that shift. While Dykman was advised that there would
be only one shift starting at 7 a.m., it is patent from the record that Genevieve
Babcock, a new employee hired September 1, Kathleen Seidel and Jeanette Gab-
ower,, both of whom were recalled in July, and Irene Kelley, who was never laid
off, regularly reported to work at 8 a.m.
Respondent then sought to establish that Dykman failed to report because she
could not get a babysitter, and did not mention that she could report at 8 a.m.,
but could not report at 7 o'clock. I have found these assertions of Gabower
incredible.
Gabower asserted Dykman was not recalled earlier than October 12 because
she was a part-time employee. Unexplained is the fact that others recalled, com-
mencing July 21, were also part-time employees, according to Gabower.
I have found these assertions of Gabower not credible 35 I find no merit in
these contentions.
3. Re: Failure to recall Greene
Gabower asserted the reason he did not recall Greene, prior to October 12,
was that she wanted to work part time. He explained that earlier, in June, Greene
had indicated that she only wished to work 4 days a week. Gabower acknowl-
edged that at that time he had advised Greene that he needed her full time as he
had already laid off all of the part-time help. There is no evidence that Greene
did not continue to work full time until her layoff.
Standing in sharp contrast to Gabower's inference that he recalled only full-
time employees is the admitted recall of those previously described, by him, as
part-time or casual employees. These individuals were recalled as follows:
Jeanette Gabower, July 21; Kathleen Seidel, July 24; Leo Steiner, July 29; Michael
DeLapp, August 1; and Helen Gohr, August 13. Gohr was a shipping department
employee.
It is undisputed that Genevieve Babcock, a new employee, hired September 1,
1964, was employed on the plastic machine, the job which Greene regularly per-
formed prior to her layoff.
In contrast, I have found supra, section H, that Gabower advised Myers, in
June, that Greene, Vanderhoof, and Fox were "instigators," and Gabower was
uncertain about their recall. It appears that in the period between his statement
to Meyers and August 7, when he gave a pretrial statement , Gabower determined
not to recall Greene, Dykman, Vanderhoof, and Fox, as set forth supra, section
G. I find no merit in this defense.
4. Re: Separation of Greene
Respondent sought to establish, through Jeanette Gabower and Walter Schultz,
that the work in the hookup room was not heavy work or difficult work. Mrs.
Gabower is a woman of slight build, weighing 97 pounds. She asserted that when
it was necessary to lift a heavy jig to the conveyer, she would call on Walter
Schultz or an employee named Butch. She acknowledged she had no back trouble.
I find no merit in Respondent's contention that the work was not heavy.
It is undisputed that in February 1962, during the first days of her employment,
Greene advised Gabower that she could not take the lifting in the hookup depart-
ment, because of a back injury she had suffered in childhood, and would quit if
she had to continue working in that department. She was transferred to running
the plastic machine in the shipping department, by Gabower, for this reason.
Respondent made no effort to explain why Greene was replaced on her old job
by a new employee, and transferred to work of a nature that she had previously
indicated was beyond her capabilities.
While Respondent sought to establish that Greene's acceptance of other employ-
ment motivated her separation, the credible evidence herein is to the contrary.
11 Gabower , unimpressive in demeanor , was evasive and self-contradictory
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
K. Concluding findings
I have found supra, section I, that on Monday, June 8, when Greene advised
Vanetta of the meeting, with Steelworkers representatives, scheduled for her home
that evening, and invited him to attend, that Vanetta advised her that if Gabower
found out about her activity he would close the plant. At the same time Vanetta
advised Greene they would all be out of a job and inquired as to what the Union
could do for them, asserting that all she would do would be to pay dues. Vanetta
at the same time inquired as to who would feel the employees if they lost their
jobs. I have also found that Vanetta had a similar conversation, voicing the same
threat, with Vanderhoof. I have also found that on June 13 Vanetta advised Van-
derhoof that Gabower had known about the union activity of the employees for
3 or 4 weeks, and advised Vanderhoof that the employees were just hunting them-
selves. I have found that on June 9 Stoughtenger and Vanetta interrogated Fox,
inquiring of him as to what had happened as the meeting at Greene's home the
prior evening, inquiring as to who was present, and how the matter "sounded"
to him.
I have found that Gabower interrogated Charles Myers on June 12 and Howard
Wohlrab on June 16, as to whether they had heard anything relative to the union
activities of the employees. When Wohlrab declined to comment, Gabower ad-
vised him it did not make too much difference because "they knew anyhow." I
have also found that 3 or 4 days after June 12 Gabower advised Myers that they
would probably have to close the shop down, in a conversation relative to the
organizing activity. I have also found that, about a week after the June 16 layoff,
Gabower interrogated Myers as to the identity of the employees who had come
to his house relative to the Union, and was advised by Myers that it was Fox,
Greene, and Vanderhoof. At that time Gabower advised Myers that the three
named were "instigators" and that Gabower did not know if he would recall them
or not.
I have found that, on the early morning of November 15, Harold Steiner advised
Greene that he would close the plant before he would let the Teamsters represent
the employees. At the same time Steiner advised Greene that he would give her
a 10-cent-an-hour raise and her old job back if she would withdraw the charges
herein.
In the Blue Flash case 36 the Board stated that interrogation is not per se
unlawful, but must be viewed in the context in which the interrogation occurred.
The Board stated its view of the test as being "whether, under all the circum-
stances, the interrogation reasonably tends to restrain or interfere with the em-
ployees in the exercise of rights guaranteed by the Act." In that case the Board
found that respondent communicated, to the employees interrogated, a legitimate
reason for the inquiry, coupled with an assurance that no reprisal would take place.
The questioning was in a background free of employer hostility to union organization.
On the other hand, there are numerous Board and court decisions where the
facts are parallel to those found herein, where there is no asserted legitimate
reason for the inquiry, where, as here, inquiries have been coupled with threats,
and where such conduct has been held to constitute interference, restraint, and
coercion, and thus violative of Section 8(a)(1) of the Act.37 Similarly a threat
of plant closure, such as engaged in by Gabower, Vanetta, and Steiner, or a
promise of a benefit, such as made by Steiner, to discourage activity protected by
Section 7, constitutes interference, restraint, and coercion, and is violative of
Section 8(a)(1) of the Act. I find accordingly.
I have found supra, section I, that Gabower had advance knowledge of the
meeting the employees were having with the representatives of the Teamsters on
June 22 at 8 p.m. It is undisputed that at approximately the time of the meeting
Gabower, accompanied by his wife, passed the place of the meeting at least four
times, without explanation on his part. I have found the explanation of Jeanette
Gabower, wife of Respondent's president, implausible. Selection of the precise
time of the meeting of the employees to twice visit parents who were not at home
does not impress me as a coincidence.
The unexplained presence of an employer's supervisors, parked in an auto-
mobile near a hotel entrance where a union meeting was being conducted, has
been held to create an impression of surveillance, and to be violative of Section
8 (a) (1) of the Act. Beiser Aviation Corporation, 135 NLRB 399.
as Blue Flash Empress, Inc., 109 NLRB 591.
sz See, e g., Waukesha Lime and Stone Co., Incorporated , 145 NLRB 973, enfd. 343 F 2d
504 (C.A. 7) (April 5, 1965).
VACUUM PLATERS, INC. 605
In view of the admitted knowledge of Gabower of the time and place of the
meeting and his appearance on four separate occasions within a period, which
the record indicates as approximately one-half hour, I am compelled to find, as
alleged, that he was engaging in surveillance. There can be no question that such
open surveillance of a union meeting would have the natural effect or tendency
of interfering with, restraining, and coercing employees, and therefore the in-
tention or motivation of Respondent in engaging in such conduct would be im-
material in view of such effect.38 It is patent that such conduct is violative of
Section 8 (a)(1) of the Act. I so find.
Next considered is the abruptness and timing of the June 16 layoffs and the
unconvincing character of the reasons adduced, by Respondent, in support thereof,
The Supreme Court in Universal Camera Corporation v. N.L.R.B., 340 U.S.
477, defined the "evidence" required by Section 10(e) of the Act as: "Such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. Accordingly, it must do more than create a suspicion of the fact
to be established . . . it must be enough to justify, if the trial were to a jury, a
refusal to direct a verdict when the conclusion sought to be drawn from it is one
of fact for jury."
The Board has found a discharge discriminatorily motivated by reason of the
unconvincing character of the reasons adduced to support the discharge, including
the timing of the discharge. Pacemaker Corporation, 120 NLRB 987, 991. See
also United Fireworks Mfg. Co., Inc., 118 NLRB 883, 888.
In numerous cases the Board has held that direct knowledge of an employee's
union activities is not a sine qua non for finding that an employee has been dis-
charged because of such activities, but may be inferred from the record as a
whole. The small number of employees, the abruptness and timing of the dis-
charge, and layoffs are among the factors considered. Wiese Plow Welding Co.,
Inc., 123 NLRB 616.
In the Nabors case 39 the court said:
It is well settled that membership in a union does not immunize an em-
ployee against discharge. An employer may discharge an employee, with
or without case, notwithstanding union membership, so long as his action
does not tend to impede or coerce the employees in their right of self-organiza-
tion and collective bargaining created by Sec. 7 of the Act. . . But em-
ployees may not be discharged because of, or to discourage, union member-
ship or activity. .
While union membership in itself is no bar to the discharge of an employee,
it sometimes discloses the real motive actuating an antiunion employer in
discharging such employees, notwithstanding other asserted reasons.
The timing of the layoffs, herein, is important. Exactly 7 days after the initial
organization meeting with the Steelworkers, on June 8, of which Vanetta and
Stoughtenger were apprised, Fox and Vanderhoof were laid off. Gabower, unable
to reach Greene on June 15, advised her of her layoff before work the following
morning. Vanetta admitted advising Gabower of the union activities in the
intervening period. There is ample evidence that Vanetta knew the identity of
these three as the union advocates, as I have found supra. Previously, it may be
inferred, the plant personnel had been reduced from a total employment of 30 to
a total of 21. Gabower described those previously laid off as part-time or casual.
The three discriminatees were full-time employees. It is undisputed that Mauston
has a population of approximately 3,500.
The inaccuracy of Gabower's memory, and the precipitate nature of the layoff
of June 16, are demonstrated by Gabower's recitation of the events surrounding
Greene's request that she be allowed to work 4 days a week, with Tuesdays off.
Gabower first asserted the request was "approximately a month" before Greene
was laid off. Then he related, "I did not tell her I wouldn't. I told her I would
prefer because as long as she was working, I needed-I couldn't have. I laid
all the part-time help off already." I have found supra, section D, from undisputed
evidence, that the layoff of the remaining part-time help occurred on Friday,
June 5, excepting Gregory DeLapp, William Lowe, and Arthur Taylor. Thus
the conversation between Gabower and Greene must have been during the fol-
' The Radio Officers' Union of Commercial Telegraphers Union, AFL (A. H. Bull
Steamship Company) v N.L R.B., 347 U S. 17. See also National Shirt Shops of Dela-
ware , Inc., et al., 123 NLRB 1213; Ja,mei, Inc., 129 NLRB 1191.
sa N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company, 196 F. 2d 272, 275 (C.A. 5),
enfg. 89 NLRB 538.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lowing week, Monday, June 8, to Wednesday, June 10, as Gabower asserts he
was in Chicago on June 11 and 12. Vanderhoof and Fox were advised of the
layoff on Monday, June 15, while the plant was substantially shut down, and
Greene early on the morning of June 15. Thus, the decision to lay off the three
leading advocates, and no one else, was within 1 week of Gabower's advice to
Greene that she could not have Tuesdays off because he needed her full time.
The motivation for these layoffs is revealed, glaringly, by Gabower's conversa-
tion with Myers within a week of the layoffs. I have found supra, section I, that
Gabower described Greene, Vanderhoof, and Fox as "instigators," and that
Gabower advised Myers that he did not know if he would call them back or not.
I have found supra, section G, that Gabower advised a Board investigator, on
August 7, that the three named and Dykman would not be called back. Re-
spondent has advanced no reason, in terms of work capabilities or inadequacies, as
justification for Gabower's determination not to recall these discriminatees. I
have found supra, section D, that after the layoff of Greene, as credibly related
by Myers, Respondent continued to use two female employees, as a minimum, in
the shipping department. One of these employees, Velva Nelson, has less seniority
than Greene and Respondent has not advanced any explanation of the selection
of a senior employee for layoff and her substitution by a less senior employee from
a different department.
Accordingly, I find the reasons asserted by Respondent as the underlying cause
of the layoff are pretextuous, that the layoff of Greene, Fox, and Vanderhoof was
discriminatory motivated, and thus violative of Section 8(a)(3) and (1) of the Act.
Next considered is the failure of Respondent to recall Greene, Dykman, Fox,
and Vanderhoof prior to October 12.
I have found, from undisputed evidence, that on July 9 the Teamsters filed a
charge herein alleging that Respondent had discharged the four-named employees
for discriminatory reasons. I have also found supra, section E, that between the
dates of July 21 and August 13, Respondent recalled six employees previously laid
off, all described by Gabower as part-time employees. In addition, between the
dates of July 30 and September 23, Respondent hired 10 new employees and
tchired a former employee who had quit the year before. One of these new
employees, Jean Babcock, it is inferred, was immediately placed on the job
formerly performed by Greene.
Gabower's assertion that he did not recall Dykman because she was a part-time
employee is transparent and implausible. While the record establishes that
Dykman did not always report at 8 a.m., it is undisputed that she put in a 7- or
8-hour day, even when she reported at a later hour. Respondent presented no
evidence relative to absenteeism of Dykman, when needed, or comparison with
the recalled part-time employees. Respondent's assertion that it did not recall
Greene because, in June, she requested Tuesdays off is likewise transparent and
implausible. The request was denied and was not pursued by Greene.
It is undisputed that Fox and Vanderhoof were recalled on October 12. Fox
did not report; Vanderhoof did report.40
Gabower's pretrial statement of August 7 establishes that Respondent did not
intend, at that time, to recall these four employees. Respondent advanced no
reason for this decision.
Absent any explanation by Respondent of the reason for its failure to recall
these employees at an earlier date, when it was recalling part-time employees and
hiring new employees, I find, that on the evidence in the record as a whole, that
such failure to recall was discriminatorily motivated, by reason of the known
organizing activities of these employees, or, alternatively by reason of the unfair
labor practice charges filed on their behalf, and was violative of Section
8(a)(4)(3), and (1) of the Act.
Next considered is the question of whether the recall of Dykman on October 12
was a bona fide offer of reinstatement. I have found supra, Section G, that
Dykman was advised by Gabower to report at 7 a.m., that unless she could
report at that time he would have to get some one to replace her. I have also
found that Dykman advised Gabower that she could not get a babysitter in
time to report at 7 a.m., but would report at 8 a.m., her normal reporting time.
40 While the allegation relative to the failure of Respondent to recall Fox and Vander-
hoof, on or after July 30, was eliminated, by amendment of the complaint , during the
hearing, the matter was fully litigated.
VACUUM PLATERS, INC. 607
Gabower's assertion that Respondent was undertaking to establish a single shift
commencing at 7 a.m. is demonstrably untrue and contrary to the facts. Re-
spondent did not dispute the testimony of Greene that Babcock, a new employee,
Seidel, Jeanette Gabower, and 'Irene Kelley reported to work each day at 8 a.m.
Accordingly, I find Respondent's offer of reinstatement to Dykman was coupled
with conditions which Respondent had reason to believe, from past knowledge,
Dykman could not meet and were at variance with prior conditions. Accordingly,
I find it was not a bona fide offer of reinstatement.
The Board has held that an offer of reinstatement must be made in good faith.
The Red Rock Company and the Red Rock Cola Company, 84 NLRB 521, 529.
The Board has also held that where a reinstatement was not made in good faith,
with the intention of fulfilling respondent's obligations under the Act, it did not
constitute reinstatement within the meaning of the Act. Selig Manufacturing
Company, Inc., 79 NLRB 1144, 1145.
There remains for resolution the question of whether the separation of Greene,
on November 30, 1964, constituted a constructive discharge.
I have found supra, section D, that when Greene was initially employed in
February 1962, she was assigned to the hookup department, and during the first
week of her employment she advised Gabower that she had a back injury as a
child and advised him the work was too heavy. She was thereupon transferred to
the shipping department and ran the plastic wrapping machine thereafter, sub-
stantially exclusively, until her layoff in June 1964.
I have found supra, section H, that when she was recalled, and reported on
October 19, a new employee, Babcock, was operating the plastic wrapping machine,
which Greene formerly operated. Vanetta advised her that she was to work in
the hookup department as there was not enough work in the shipping department.
Her assignment in the hookup department was precisely the same as that to which
she had objected during her initial employment, on the ground that the work
was too heavy. She inquired of Superintendent Eltag, on October 20 as to how
long she would have to work in the hookup department, complaining to him that
the work was too heavy, and being advised that he did not know. In addition,
Greene related changed working conditions which reflected discriminatory treatment
on the part of Respondent toward her, in the matter of receiving telephone calls
during worktime.
Respondent offered no explanation of the reason for the transfer of Greene to a
position where she had previously complained the work was too heavy for her,
nor was there any explanation of the discrimination against Greene in the matter
of telephone calls. I have also found supra, section I, that Steiner, on Novem-
ber 15, advised Greene that she would be restored to her old job and given a pay raise
if she would drop the charges herein. I have found credible Greene's assertion
that her reason for quitting was that the new assignment constituted work which
was too heavy for her and the discriminatory conduct toward her on' the part of
Gabower.
Numerous Board -and court cases have held that the failure to reinstate an em-
ployee to the same or an equivalent position to that from which he was dis-
criminatorily laid off cannot be considered an, offer of reinstatement to her former or
substantially equivalent employment.41 The offer of Steiner to restore her to her
former job, with a pay increase, on condition that she abandon her activity clearly
reveals what General Counsel has aptly described as "Respondent's overall hostility
toward Greene, clearly reveal[ingl a deliberate campaign of harassment designed
ultimately to force ' Greene to resign."
The Board has held: Not only does the Board have the authority to protect em-
ployees who participate in the Board's processes, but it has been held that the
Board has an affirmative duty to exercise that authority to its outermost limits
to protect such employees. Local 138. International Union of Operating Engineers,
AFL-CIO (Charles S. Skura), 148 NLRB 679.
Accordingly, I find that Greene's separation constituted a constructive discharge,
was discriminatorily motivated, and was violative of Section 8(a)(4),(3), and (1)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth'in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
41 See, e . g , Kolpin Bros . Co., Inc., 149 NLRB 1378.
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondent discriminatorily laid off Catherine Greene,
Wayne Vanderhoof, and LeRoy Fox, effective June 16, 1964, and discriminatorily
failed and refused to recall them, and Jean Dykman, on and after July 30, 1964.
It has also been found that the reinstatement of Catherine Greene on October 19,
1964, and the offer of reinstatement to Jean Dykman on October 10, did not con-
form to the requirements of the Act. Accordingly, I recommend that Respondent
offer to Jean Dykman and Catherine Greene immediate and full reinstatement to the
former or substantially equivalent position of each, without prejudice to seniority
or any other rights and privileges enjoyed at the time of their layoff, or failure and
refusal to reinstate, dismissing, if necessary, any plant employees hired on or since
July 30, 1964, having less seniority than that enjoyed by the discriminatees herein
named. It is further recommended that Respondent make whole Wayne Vander-
hoof and LeRoy Fox for the period of June 16 to October 12, 1964, Jean Dykman
from July 30, 1964, to the date of her reinstatement, and Catherine Greene from
June 16, 1964, to the date of her subsequent reinstatement, for any loss of pay
suffered by each by reason of the discrimination against each. Said loss of pay
shall be based upon earnings which each would normally have earned from the
date of said layoff, or failure or refusal of reinstatement, less the respective net
earnings of each during said period. Said backpay shall be computed on a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289. Interest on backpay shall be computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716.
It is also recommended that the Respondent be ordered to make available to the
Board, upon request, payroll and other records to facilitate checking of the amount
of earnings due.
In view of the nature of the unfair labor practices committed, the commission of
similar or other unfair labor practices reasonably may be anticipated. I shall
therefore recommend that Respondent be ordered to cease and desist from in any
manner infringing upon rights guaranteed to their employees by Section 7 of
the Act.
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Local Union No. 199, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, and United Steelworkers of America,
AFL-CIO, are each a labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminating with respect to the hire and tenure of employment, and
terms and conditions of employment, of Catherine Greene, Wayne Vanderhoof,
LeRoy Fox, and Jean Dykman, thereby discouraging the free exercise of the rights
guaranteed by Section 7 of the Act, and discouraging membership in the activities
for the above-named labor organizations, and because unfair labor practice charges
under the Act had been filed on their behalf, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (4), (3), and
(1) of the Act.
4. By engaging in the conduct set forth in the section entitled "Interference, re-
straint, and coercion," to the extent therein found, the Respondent has engaged in
and, is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
VACUUM PLATERS, INC. 609
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record of the case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, I recommend that the Respondent, Vacuum
Platers, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in, or activities on behalf of, Local Union No. 199,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other organization of its employees, or the filing of unfair labor
practice charges under the Act on their behalf, by discharging, suspending, laying
off, demoting, transferring, or failing or refusing to reemploy or recall employees
on layoff, or in any other manner discriminating against them in regard to their
hire and tenure or employment or condition of employment.
(b) Threatening economic retaliation if any employee engages in organizational
activities.
(c) Interrogating any of its employees concerning their organizational activities
in a manner violative of the provisions of Section 8(a)(1) of the Act.
(d) Engaging in surveillance of union meetings, or creating an impression of
surveillance.
(e) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right of self-organization, to form labor organizations, to
join or assist the above-named Union, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor or-
ganization as a condition of employment, as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act-
(a) Offer to Jean Dykman and Catherine Greene immediate and full reinstate-
ment to the former or substantially equivalent position of each, without prejudice
to the seniority or other rights and privileges previously enjoyed by each, and
make each whole for any loss of pay each may have suffered by reason of Re-
spondent's discrimination against each in accordance with the recommendations
set forth in the section entitled "The Remedy."
(b) Make Wayne Vanderhoof and LeRoy Fox whole for any loss of pay each
may have suffered by reason of Respondent's discrimination against each in accord-
ance with the recommendations set forth in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due and the rights of employment under the terms of the
recommendations herein.
(d) Post at its plant in Mauston, Wisconsin, copies of the attached notice marked
"Appendix." 42 Copies of said notice, to be furnished by the Regional Director for
Region 30, shall, after being signed by Respondent's representative, be posted by
the Respondent and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including each of Respondent's bulletin boards. Reasonable steps
shall be taken by the Respondent to insure that such notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director for Region 30, in writing, within 20 days from
the date of the receipt of this Trial Examiner's Decision, what steps the Respondent
has taken to comply with the foregoing Recommended Orders.
It is further recommended that unless, within 20 days from the date of the receipt
of this Trial Examiner's Decision, the Respondent shall notify the said Regional
41 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
206-446-66-vol. 154-40
,610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director, in writing, that it will comply with the foregoing Recommended Order,43
the National Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
43 In the event this Recommended Order be adopted by the Board, this provision shall
be modified to read: "Notify said Regional Director, in writing, within 10 days from
,the date of this Order, what steps the Respondent has taken to comply therewith."
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:
WE WILL NOT discourage membership in, or activities on behalf of, Local
Union No. 199, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization of our
employees, or the filing of unfair labor practice charges under the Act, by
discharging, suspending, laying off, demoting, transferring, or failing or refusing
to recall, employees, or in any other manner discriminating against them in re-
gard to their hire and tenure of employment or condition of employment.
WE WILL NOT threaten economic retaliation if any employee engages in
organizational activities.
WE WILL NOT interrogate any of our employees concerning their organiza-
tional activities in a manner violative of Section 8(a) (1) of the Act.
WE WILL NOT engage in surveillance of union meetings, or create an im-
pression of such surveillance.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their rights to self-organization, to join or assist
the aforementioned or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any and all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
WE WILL offer to Jean Dykman and Catherine Greene immediate and full
reinstatement to the former or substantially equivalent position of each, without
prejudice to their seniority or other rights and privileges, and make them
whole for any loss of salary or pay suffered as a result of the discrimination
against them.
WE WILL make whole Wayne Vanderhoof and LeRoy Fox for any loss of
pay each may have suffered by reason of the discrimination against them.
All of our employees are free to become or remain, or to refrain from becoming
,or remaining, members of a labor organization of their own choosing.
VACUUM PLATERS, INC.,
Employer.
Dated------------------- By-------------------------- -----------------
(Representative) (Title)
NOTE-We will notify any of the above-named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act and Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board' s Regional Office, Suite
230, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin, Tele-
phone No. 272-8600, Extension 3860.