Omico Plastics, Inc.

OMICO PLASTICS, INC. 767 Omico Plastics, Inc. and United Steelworkers of America, AFL-CIO. Case 25-CA-3440 July 31, 1970 DECISION AND ORDER By MEMBERS FANNING, BROWN , AND JENKINS On January 22, 1970, Trial Examiner Josephine H. Klein issued her Decision in the above-entitled proceeding, finding that Respondent 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 Examiner's Decision. The Trial Examiner declined to find, however, that Respondent had engaged in certain other unfair labor practices on the ground they were not alleged in the complaint. Thereafter, the General Counsel filed exceptions to the Decision and a supporting brief. No exceptions were filed by Respondent. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers' in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the modifi- cations noted below. The General Counsel excepts to the Trial Ex- aminer's failure to find Section 8(a)(1) violations predicated on coercive threats by Respondent's Vice President and Manager Williams to employee Alexander, and by Supervisor White to employee Cooper. Although specifically crediting employees Alexander and Cooper in these respects, the Trial Examiner declined to make any specific findings thereon because of an erroneous assumption that the complaint contained no allegations with respect thereto. In view of the fact that the complaint does contain such allegations, the matters were fully litigated, and credibility was specifically resolved in favor of the employees involved, we find merit in the General Counsel's exceptions to the Trial Ex- aminer's failure to find that the threats in question were violative of Section 8(a)(1). We also find, in agreement with the General Counsel, that the unfair labor practices committed by Respondent strike at the very heart of employee rights guaranteed by the Act and demonstrate Respondent's hostility to the policies of the Act. Therefore, we shall order Respondent to cease and desist from infringing in any manner upon em- ployee rights safeguarded by the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below, and hereby orders that Respondent, Omico Plastics, Inc., Owensboro, Kentucky, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete the phrase "in any like or related manner" in paragraph 1(a), and substitute therefor the phrase "in any manner." 2. Delete the phrase "In any similar or related manner" in the last paragraph of the notice, and substitute therefor the phrase "In any manner." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPHINE H. KLEIN, Trial Examiner: Upon a charge filed against Omico Plastics, Inc. (Respondent), by United Steelworkers of America, AFL-CIO (the Union), on July 1, 1969,' a com- plaint was issued by the Regional Director for Re- gion 25 on August 20 and amended on October 2 and 13. Pursuant to due notice, a hearing was held in Owensboro, Kentucky, before the Trial Ex- aminer on October 30 and 31. The General Coun- sel and Respondent were represented by counsel and the Charging Party by its staff representative. All parties were given opportunity to present evidence and to examine and cross-examine wit- nesses. The parties waived oral argument and thereafter the General Counsel and Respondent filed briefs. Upon the entire record,' observation of the wit- nesses, and consideration of the briefs, the Trial Ex- aminer makes the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTIONAL FINDINGS A. Respondent, a Kentucky corporation with its principal office and place of business in Owens- boro, Kentucky, is engaged in the manufacture, sale, and distribution of plastics and related products. During the past year, a representative ' Except when otherwise noted , all dates referred to herein are in 1969. 2 As corrected by order issued January 7, 1970 184 NLRB No. 86 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD period, Respondent, in the course of its business operations, purchased, transferred, and delivered to its facility, goods and materials valued in excess of $50,000 which were transported to said facility directly from points outside Kentucky. During the same period Respondent shipped products valued in excess of $50,000 directly from its facility to points outside Kentucky. Respondent is now, and was at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act.' B. The Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE UNFAIR LABOR PRACTICES A. The Issues The complaint alleges that in April Respondent interfered with its employees' exercise of their Sec- tion 7 rights by interrogating them concerning their union sympathies and activities, and by threatening employees with reprisals for union activity and with plant closure in the event a union came into the plant. Additionally, the complaint alleges that in the period April through October Respondent dis- criminated against employee Brenda Alexander in various ways because of her union sympathy or ac- tivity. Respondent denies that any of its conduct was coercive or otherwise violative of Section 8(a)(1) and denies that any of the action admit- tedly taken against Alexander was discriminatorily motivated.4 B. The Alleged Violations of Section 8(a)(1) 1. Interrogation Respondent's is a small plant, having only four machines. Its number of production employees va- ries from around 8 or 10 to 30 or 35, depending on the volume of business. It normally operates two shifts per day, but from time to time maintains three shifts. On or about April? employee Mary Helen Young commenced efforts to organize the em- ployees through the Union. Respondent was aware of the existence of union organizational activity from its inception . Young spoke to Alexander, who signed a union card on April 7. At Young's request, Alexander spoke to several employees and asked them to join the Union. Young arranged a preliminary meeting at her home on Saturday, April 12.5 On the morning of National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U S C Sec. 151, et seq ). 4 At the hearing , Respondent moved to dismiss an allegation that Alex- ander had been discriminatorily laid off on April 15 The ground for the motion was the fact that a prior charge based on this allegation had been filed and withdrawn , without prejudice , and the Regional Director had ap- proved the withdraw] . The Trial Examiner denied the motion to dismiss but suggested that Respondent present argument thereon in its brief Respon- April 12, Alexander visited the home of Supervisor Vivian Sue Sharp White, who is a cousin of Alex- ander's husband and a social acquaintance of Alex- ander. Alexander asked White how she felt about unions and invited her to attend the upcoming meeting. White declined the invitation, saying she did not want to become involved with the Union and, according to Alexander, that Alexander was not doing anything "smart." The meeting, attended by five employees, was held, as scheduled, at Young's home. On Monday morning, April 14, White reported to Billie Jean Magruder, Respondent's personnel manager, concerning the Alexander-White conver- sation on Saturday. Magruder passed this informa- tion on to Larry Williams, who is the son of Respondent's president, W. J. (Jerry) Williams, and who was then Respondent's vice-president and manager. On April 15, Larry Williams called Alexander into his office, where he asked her what she knew about the union organizational activity. She dis- claimed any knowledge. Later that day Alexander was discharged by Jerry Williams. (This discharge is discussed below section, II, C, 1.) Around this time, apparently on April 14, Jerry Williams asked Supervisor White to find out what she could about the union activities and report to him. White thereupon individually questioned each of the employees on her shift about the Union. Larry Williams, Respondent's vice president and manager at the time here involved, conceded that on April 15 he called Alexander into his office and asked her what she knew about union organiza- tional activity in the plant. He maintained that, to the best of his recollection, he had called Alex- ander in because she "just happened to be the first person that [he] could see as [he] walked out" of his office. However, he further acknowledged that before calling Alexander into his office he had learned about the Union's activity from Magruder. Magruder testified that she had relayed to Larry Williams White's report that Alexander had invited White to the union meeting held at Young's home. On the basis of this evidence, it is clear that when Larry Williams called Alexander into his office he knew that she was involved with the Union. This fact provides corroborative detail for Alexander's testimony that Williams said to her: "I want to hear about this union talk that's been going around, and I want to hear about the meetings that you've been having." According to Alexander, when she dis- avowed any knowledge, Larry Williams said: "You tell me some things or else it's going to cost you dent's brief does not mention the issue, and it is therefore deemed waived In any event, the prior charge, withdrawn without prejudice , is no bar to the present complaint DeTray Planting Works, Inc, 155 NLRB 1353, 1360 " The witnesses did not explicitly date the meeting on April 12 However, that date is established by the demonstrated temporal relationship of the meeting to other events. OMICO PLASTICS, INC. 769 your job, and maybe some other girls." This testimony has the ring of truth, not only because of Alexander's demeanor, but also because the state- ment would reflect a natural reaction to Alex- ander's denial of knowledge, which denial Williams knew to be false. According to Alexander, when she persisted in her protestation of ignorance, Larry Williams, with the use of obscenity, referred to a prior event in- volving Jolly, the Union's representative. While Williams denied having used the obscene language attributed to him, he conceded that he might have mentioned Jolly and an incident which had previ- ously occurred during a strike by the Union at Faith Tool & Die Company, which at the time was located directly across the street from Respondent. The Trial Examiner credits Alexander's testimony in this regard. The reference to an apparently very unpleasant occurrence at Faith Tool & Die could have left no doubt as to the fervor of Respondent's opposition to the Union. Of necessity it contributed to the coercive atmosphere in which Williams questioned Alexander concerning the Union's or- ganizational activities. Along with the statement that Alexander's refusal to talk might cost her and other employees' jobs, it establishes union animus.' Supervisor White corroborated the testimony of several employee witnesses that she had questioned all the employees individually concerning their union sympathies. She conceded that she had done so in response to Jerry Williams' request that she find out what she could about the union activities of the employees, but both White and Williams de- nied that Williams had instructed or asked her to question individual employees. Employee Judy Cooper on the other hand testified that White had introduced her questioning with a statement that she had instructions "from the office" to "ask everybody if they want a union." According to Cooper, White said that Cooper would be fired if she answered in the affirmative, whereupon Cooper, "naturally," said "No."' Despite White's denial, on the basis of the demeanor of the wit- nesses, the Trial Examiner credits Cooper's testimony. Larry Williams also testified that he asked em- ployees Hattie Duvall and Glenna Robinson, separately, how they felt about "unions in general." While there is no evidence that these questions were posed in a coercive or threatening manner, there is equally lacking any suggestion of a legiti- mate reason for the questioning. While these in- cidents, if standing alone, might not constitute violations of the Act, they form part of a pattern of systematic interrogation of all employees by super- visory personnel. As such, they are part of the total evidence on which a finding of unlawful interroga- tion is made. Employer Cooper also credibly testified that Jerry Williams called her into his office and asked her if she knew "who started" the Union , and that, when she disclaimed knowledge , he told her that they did not need a union; that the Company was losing money; and that they would "be better without the union." This conversation , occurring in the "boss"' office, could have no effect other than to impress upon the employee the Company's strong opposition to unionization and the possible danger to/ the employees inherent in any such course . It formed part of an overall course of con- duct calculated to restrain the employees in the free exercise of their Section 7 rights. Koch En- gineering Co., 155 NLRB 1272, 1273. On all the evidence , the Trial Examiner finds that, as alleged, Respondent coercively interrogated employees on their union sympathies and activities in violation of Section 8(a)(1). 2. Threat The complaint alleges that on or about April 24 Jerry Williams threatened plant closure if the em- ployees supported the Union. In support of this al-. legation, the General Counsel produced evidence concerning employee meetings conducted. by Wil- liams on April 17 and 24. There is no dispute that, prompted by the incep- tion of the union campaign, Jerry Williams called an employee meeting on April 17. At this meeting he read from a lengthy list of "Do's and Don't's" governing employers' statements during union organizational campaigns. Williams testified that he read only the "Do's" but other witnesses, including some called by Respondent, indicated that he also read the "Don't's." For example, Supervisor White testi- fied that "mainly he was telling us what he couldn't say. This book gave him all of the rules, I guess, that he could -what he could and what he couldn't say to the girls." 8 In his brief, the General Counsel apparently ob- jects to Williams telling the employees what he was not permitted to say. However, at the hearing, in response to the General Counsel's request, Wil- liams produced the seven-page document, entitled "What Management Can Say to Employees to Counter an Organizational Drive," from which he had read. After examining it, the General Counsel returned it to Williams, did not offer it in evidence, and did not move to amend the complaint. Ac- cordingly, no finding is warranted that the portions 6 Neither of these statements is alleged as independently violative of the Act. Accordingly, no specific finding is made with respect thereto ' No specific finding is made as to any threat by White since no such al- legation is contained in the complaint ' Williams' secretary, Deborah Sapp , testified , improbably, that "he said he could not tell them anything about a union , he couldn 't express his opinion about a union , the only right he had was if they were threatened, that he could help them then " 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of this document which Williams read included any threats or other violative statements. On April 22 the Union filed a charge alleging dis- criminatory discharge of Alexander on April 15. As is more fully discussed below (section II, C, 1), on April 23 Jerry Williams asked Alexander to return to work . When she reported the next morning, she and Williams had a conversation and then Williams called a meeting of all the employees on the day shift.9 He informed the employees that he had re- called Alexander voluntarily because she was a good machine operator and he needed her. He had with him an unopened communication from the Board . He said that he knew what was in the en- velope and that he had no intention of opening it, since the charge had nothing to do with his having recalled Alexander ; there was no outside force or pressure which could compel him to do something he did not want to do. When several of the em- ployees expressed a desire to have the Board com- munication read to them , he handed it to his secre- tary, Deborah Sapp , to open and read . When Sapp came to legal terminology she could not un- derstand, Williams took over and finished, ap- parently reading both the charge and the Board's covering letter. Williams concededly took this opportunity to state the reasons why he believed the employees should not choose to be represented by a union. He testified that at this meeting he explained that Respondent "couldn 't economically afford a strike" and that, in the event 'of a strike , the customers could take their molds away , 10 "and if that hap- pened [ he] doubted that there would be any reason to come back to work." Several witnesses corroborated Williams' testimony as to the statements, but two of them (Magruder and Aaron ) said they were made at the April 17 meeting , when Williams denies having said anything of significance other than reading from the "Do's and Don't 's." Because the two meetings were held only a week apart, and obviously became intertwined in the minds of all concerned , it is un- derstandable how either Williams or the employees might incorrectly recollect the precise date on which particular statements were made . Analysis of the evidence , however, indicates April 24 as the correct date . In any event, the allegation in the complaint that the threat was made "on or about . April 24" would be sufficient even if the relevant conduct occurred at the April 17 meeting. Cf. J. A. Olson Company, 180 NLRB 438 (TXD). Employee Young, the prime mover in the union campaign , testified that at the April 24 meeting Williams said that "before he would let a union come in there he would shut the plant down, and that the next day if we went on strike the men that Apparently another similar meeting was held of the evening shift em- ployees owned the machines would come there and taken them out." Similarly, Alexander testified: Mr. Williams brought the charge that I had-the Labor Board had sent to him, and he read the charge, the letter in front of us girls. And he kind of got a little mad over it. And that's when he said there wasn't no union, or nobody else, he would shut the doors before any union would come in.... Williams denied having made any direct threat to close the plant before allowing a union to come in. 'No witnesses other than Young and Alexander testified to any such direct statement. But all the witnesses on this point, both the General Counsel's (Alexander, Young, and employee Glenna Robin- son) and Respondent's (Supervisor Jane Aaron, Personnel Manager Magruder, and Supervisor White), corroborated Williams' testimony that he said, in effect that if there was a strike Respon- dent's customers could, and undoubtedly would, take their molds back so that, with no work to per- form, the employees would be out of jobs. It is unnecessary to determine whether Williams actually made the direct threat of plant closure at- tributed to him by Alexander and Young, since, in the Trial Examiner's opinion, under the circum- stances presented, the statements as reported by Williams himself amounted to an unlawful threat. There is no suggestion in the record that a strike was contemplated by the employees or the Union. The prospect of a strike was conjured up by Wil- liams solely as the predicate for the syllogistic con- clusion that unionization would eventuate in the closure of the plant. Williams' "prediction" of dire consequences following on unionization took on plausibility only from his tacit, gratuitous assump- tion that organization inevitably involves strikes. Because the assumption was unwarranted, the argu- ment constructed thereon constituted an imper- missible threat. As the Supreme Court recently stated in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 619-620: ... In this connection, we need go no further than to point out' (1) that petitioner had no support for its basic assumption that the union, which had not yet even presented any de- mands, would have to strike to be heard... and (2) that the Board has often found that employees, who are particularly sensitive to ru- mors of plant closing, take such hints as coer- vice threats rather than honest predications. [Footnotes omitted.] See Kellwood Company, 178 NLRB 20 (TXD), and cases there cited. Accordingly, the Trial Examiner finds and con- cludes that, as alleged in the complaint , Respon- 10 The Company's operations consist of making plastic objects with molds provided by and belonging to its customers OMICO PLASTICS , INC. 771 dent, through W. J. Williams, its president, violated Section 8(a)(1) of the Act by threatening plant clo- sure in the event the employees chose to be represented by the Union.11 C. The Alleged Violations of Section 8(a)(3) The complaint alleges a series of discriminatory actions directed against employee Brenda Alex- ander, consisting of a discharge on or about April 15, a layoff on June 3, written reprimands on Sep- tember 18 and October 1 and 4, and denial of a wage increase on October 3. Respondent admits that the enumerated was taken but denies that any of it was discriminatorily motivated. 1. The discharge on April 15 Brenda Alexander was originally hired by Respondent in November 1967. She was later promoted from a machine operator on the day shift to floorlady on the night shift (12:30 to 8:30 a.m.), with a wage increase from $1.70 to $1.80 per hour.12 Sometime in March, at her husband's in- sistence, she requested a transfer to the day shift. Her request was granted and she was scheduled to commence work as a machine operator on the day shift on Monday, April 7. Alexander became angered when Magruder would not allow her to work the night of April 3, just before the plant closed for the Good Friday weekend. Jerry Williams, Larry Williams, Sapp, and White, all appearing on behalf of Respondent, testified that Alexander at that point walked into the office and announced to Jerry Williams that she was quitting. So far as appears, Williams, who was engaged in a conversation, made no reply and ex- hibited no reaction to Alexander's statement. Alex- ander then proceeded into Magruder's office. Alexander maintains that she did not say she was quitting but rather that she was thinking of quitting. Whatever her actual words to Williams, Magruder and Alexander both testified that, in speaking to Magruder, Alexander said she was "thinking of quitting." Magruder testified that she told Alex- ander to go home and think it over and call Magruder back about her decision. According, to Magruder, Alexander left the plant and later telephonically announced her decision to quit, whereupon Magruder immediately hired a replace- ment, Bobbie Jean Welch, who commenced work on the next regular working day, Monday, April 7. Alexander denied that she had ever announced (or even made) a final decision to quit. She maintained that when she telephoned to say she was not quitting, Magruder announced that she had already hired a replacement. Because of subsequent events, as detailed below, the Trial Examiner finds it un- necessary to determine precisely what language Alexander used or whether she actually "quit" on April 3. On Friday or Saturday, April 4 or 5, after unsuccessfully attempting to reach Jerry Williams, she telephoned Larry Williams at his home. He told her to report to work on Monday. She did so and worked as a machine operator on the day shift until April 15. It was just at this time, around April 7, that the Union's organizational campaign commenced. Alexander signed a union card on April? and thereafter solicited several employees, including two supervisors, to join the Union. As previously set forth, on Saturday, April 12, Alexander invited her husband's cousin , Supervisor White, to attend a union meeting . On the morning of Monday, April 14, White reported this fact to Magruder. Magruder relayed to Larry Williams the informa- tion that she had received from White about Alex- ander. The next morning, April 15, Larry called Alexander into his office and questioned her about the Union, as set forth above (supra, section II, B, 1). Later that same day she was summoned to the office of Jerry Williams, who peremptorily told her that he was "accepting [her] resignation." It is conceded that Respondent's representatives knew of the -union campaign from its inception. The inference is inescapable that Jerry Williams, when he called her into his office, personally knew of Alexander's involvement, at least to the extent of her having invited White to the union meeting.13 Alexander's version of her dismissal, uncon- tradicted by Williams, was: ... Mr. Jerry Williams called me in the of- fice, and he sat me down, and he said, "Brenda," he said, "I'm accepting your resignation." And I said, "What resignation?" And he said, "You quit." And I says, "I haven't quit." And he said, "Well," he said, "here's your pay check," the weekly pay check, "and here's your vacation pay I owe you." And I said, "Jerry," I said, "I know why you're firing me." I said, "It's on account of this union talk that's been going around." And he said, "What union talk?" And I said, "Well, just forget it."And he said, "Well," he says, "Brenda," he says, "why don't you just go on and clock out and leave?" Even if we were to assume, as maintained by Respondent's witnesses, that she had "quit" on 11 The General Counsel apparently also contends that a violation of Sec- tion 8(a)(1) should be found on the basis of employee Young's testimony that Williams said that "whoever started this talk about the union, if they weren 't satisfied with their job he wished they'd get up and walk out the door" and Cooper's testimony that Williams said "the Union would hurt us " As the complaint contains no relevant allegation covering these mat- ters and they were not specifically litigated, no finding is made in connec- tion therewith. 12 In addition to the established shift differential 13 Alexander had also solicited memberships in the Union from a few em- ployees at work Thus, as the General Counsel argues, even absent evidence of actual knowledge , knowledge would be inferred under the small plant doctrine Malone Knitting Co, 152 NLRB 643, 647, enfd. 385 F.2d 880 (C.A 1) 427-835 0 - 74 - 50 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 3, the indisputable fact is that she had recon- sidered and had been reinstated by mutual agree- ment with the loss of only one day, April 3, when Magruder sent her home. There is no suggestion in the record that Larry Williams, manager, did not have authority to "reinstate" Alexander on April 7. Jerry Williams testified that he did not know that Alexander had been rehired until he saw her on April 15. He said he believed he had been out sick and possibly out of town in the interval between April 3 and 15. However, his testimony in this con- nection was vague and Alexander credibly testified that she had spoken to him at work on Monday, April 7. Manifestly, Alexander's separation on April 15 was involuntary and constituted a discharge. Indeed, in testifying, Jerry Williams sought to jus- tify a discharge for cause, as follows: Now, we had considerable difficulties there, I suppose you call them difficulties, with Brenda, these continual shift changes, and so forth. I just simply made the decision that we couldn't tolerate that any longer, and accepted her resignation. Williams did not elaborate on the phrase "these continual shift changes, and so forth." As a matter of fact, Alexander had had four shift changes. Only one, the most recent, had been at her request, which so far as appears, had been readily granted.14 Indeed, when she was transferred to the day shift as a machine operator, she retained the wage rate she had been receiving as a floorlady. And in May, after her recall on the day shift, she was trans- ferred, at Respondent's request, to the midnight shift, as a floorlady, for 2 weeks. White testified that she reported to Magruder about Alexander on April 14 because Magruder asked White to keep an eye on Alexander because of her unsatisfactory performance. According to White and Magruder, Alexander had been guilty of leaving her machine too often and had displayed an insubordinate manner when orally reprimanded therefor by White. Alexander denied that she had ever been reprimanded or spoken to about leaving her machine or about low production. Alexander testified that her production was generally somewhat higher than that of other employees. Although Magruder testified that daily production records are maintained for each employee, no such records were produced. To support its claim that Alexander's production had been low in this period, Respondent refers to the fact that it was con- siderably higher in September. However, Magruder acknowledged that the production rate of all em- ployees had increased in that period, a fact which Alexander credibly attributed to a new method of handling the material which had been devised by one of the employees. On all the evidence, the Ex- " While she had been working as a floorlady on the midnight shift at Wil- liams' request, her husband had complained. She was then permitted to work from 10 p in. to 6 a in . This bridging of shifts made it impossible for aminer discredits Magruder and White and finds that prior to April 14 Alexander's performance had not been unsatisfactory and she had not been repri- manded. Even if one were to credit the testimony of Magruder and White that Alexander had been reprimanded, it would not provide a plausible ex- planation for the April 15 discharge because there is no evidence that this fact was considered by, or even known to, Jerry Williams. In its brief, Respon- dent maintains that Alexander's dismissal was simply incident to "the termination of an entire shift," which was economically dictated on April 15. It may be noted that Alexander was not "laid off" as some other employees were at that time. Robinson, for example, was not called into the of- fice, but simply received with her paycheck a pink slip announcing her "indefinite suspension." There is no indication that Williams explained to Alex- ander that there was an economic layoff, that her work was unsatisfactory, or that her shift changes made her an undesirable employee. The very fact that Jerry Williams personally let Alexander go is most significant, in light of Jerry Williams' own testimony that the selection of em- ployees for layoff "is made by other people that [he] feel[s] maybe closer to any particular problems." Yet, so far as appears, Jerry Williams selected Alexander without consulting Larry Wil- liams, who had reinstated her on April 7, after her alleged " resignation " of April 3. Jerry Williams' subsequent conduct reinforces the conclusion that Alexander did not quit and was not discharged for cause. Early in the evening of April 23, Jerry Williams telephoned Alexander at her home and told her to report back to work the next day. Later that evening he telephoned Alex- ander's home again and, in the absence of Mrs. Alexander, spoke to her husband. Williams asked Mr. Alexander to tell his wife to return to work the next day. According to Mr. Alexander, Williams ex- plained, at some length, that he had discharged Mrs. Alexander because he believed she was the chief "agitator" for the Union, but having learned that he was wrong in that opinion, he was voluntari- ly recalling her. Williams originally denied having spoken to Mr. Alexander on the telephone at all. On further questioning by the General Counsel, Williams admitted having had the telephone con- versation, but his memory was vague. The next day, when called as a witness by Respondent, Williams could recall unequivocally that he had not men- tioned union activities to Mr. Alexander. But Wil- liams never advanced any reason for the second telephone call to Mrs. Alexander's home. Despite Williams' denial, the Trial Examiner credits Mr. Alexander's testimony as to the content of the telephone conversation. her to maintain proper production records , as is required of floorladies. Magruder apparently questioned Alexander's inadequate records, but withdrew any criticism when the situation was explained OMICO PLASTICS, INC. Williams' conduct on April 24 confirms the in- ference that he was bent on avoiding any ap- pearance that the recall of Alexander indicated a "condonation " of union activities . When Alexander arrived at work on April 24, Williams informed her, and then all the employees assembled , that he had recalled her voluntarily because he needed her and that nobody could compel him to reinstate her if he did not want to. Such statements were certainly in- consistent with his present position that Alexander had been discharged for poor performance. In the absence of any explanation , one can infer only that Williams was determined not to allow Alexander's reinstatement to serve as encouragement to the em- ployees' exercise of their Section 7 rights. On all the evidence , the Trial Examiner finds that Brenda Alexander was discharged on April 15 because of her union sympathies and activities. 2. The June 3 layoff On June 3 Alexander was laid off along with three other employees . Respondent contends, and there is no directly contrary evidence , that the layoff of four employees at that time was economi- cally motivated. The General Counsel maintains that Alexander was chosen for layoff for dis- criminatory reasons. In support of this view, the General Counsel points primarily to the undisputed fact that Alexander was the most senior nonsuper- visory employee at the plant at the time of the layoff. Respondent maintains that Alexander was in- cluded in the persons laid off because her produc- tion was low and she frequently left her machine. In its brief, Respondent says: "The evidence is also clear that Brenda's production remained low in April and May 1969 due to what cousin White called continued fooling around ...... However, on direct examination White testified that Alexander's production in April and May "was fairly good production-11, 12 boxes a day at the time." Lead- ing questions on redirect examination of White by Respondent 's counsel then produced the following colloquy: 0. Was it during April and May 1969 that you were aware that Mrs. Alexander 's produc- tion was low? A. Yes, sir, it was. 0. And was it during that period when she was leaving her machine? A. Yes, I beleive it was. Q. ... Now, for what reason , if you know, was her production low during May of 1969? A. I don 't really know . I couldn't say for- sure. But like I said , she was off her machine quite a bit , I mean fooled around. When , on recross-examination, the inconsistency within her testimony was called to her attention, White said that Alexander 's production was erratic: "Maybe two or three days a week she had good production, and a couple days a week her produc- 773 tion would be low." Significantly, although Magruder testified that daily production records were maintained and were considered in making the layoff, none were produced at the hearing. It will be recalled that on April 24 Jerry Williams proclaimed that Alexander had been recalled because she was a good worker . So far as appears, between April 24 and June 3 Alexander received no reprimand, written or oral, for low production or "fooling around." In May she worked as a floor- lady for a period of 2 weeks , an assignment hardly consistent with a low opinion of her performance. While it is probably true, as Respondent main- tains, that the Company has not always determined layoffs strictly according to seniority , it is clear that seniority has customarily played an important part in these decisions . Yet in the June layoff employee Barri Jean Reynolds, who had worked for Respon- dent only 4 or 5 days , was retained over Alexander. The Trial Examiner discredits Magruder's testimony that this situation resulted from Magruder's supervisory judgment that the recent employee was a better operator , particularly since Magruder also testified that she usually judges em- ployees' ability on the basis of production figures for a full month and "it takes a while to apply your- self to a machine ... [a girl ] should know how to run the machine well within a month 's time." Magruder further testified that she had not been consulted or advised concerning the June layoff. Alexander credibly quoted Williams as having said that he was laying her off while retaining Reynolds for "personal reasons." Respondent contends that the choice of Alex- ander for layoff in June could not have been dis- criminatorily motivated because there were no union activities going on at the time , all organiza- tional activities apparently having been abandoned by the end of April. It is unnecessary to determine whether the quiescence of the union campaign reflected the employees' wishes or the success of Respondent 's coercive antiunion campaign. What- ever its cause , the absence of union activity does not of itself disaprove discriminatory motivation in the Alexander matter. As the General Counsel observes , employee Young, the instigator of the union activity, had left Respondent's employ early in May . Two other em- ployees who had been identified as prounion had also quit by the beginning of June. Alexander and Glenna Robinson were the only two remaining em- ployees identified as prounion . Robinson had started to work on April 14. On April 15, Larry Williams asked her how she felt about unions and she replied that she was in favor of them. At the end of that day she was given her check and a "pink slip," which stated that she was being "indefinitely suspended." Her husband thereupon called Jerry Williams and said that Mrs. Robinson badly needed the work . Williams then said to have Robinson return the next day to see him . When she arrived , Williams asked her what her conversation 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had been with Larry Williams. After she told him, Jerry Williams said "that wasn't the reason [she] was fired. And he said he wasn't at all sure that [she] was fired." She returned to work the next day. Robinson could hardly have remained unmind- ful of her narrow escape. Unlike Robinson, Alex- ander had engaged in union activities and was "unrepentant." When she was discharged in April, the Union filed an unfair labor practice charge on her behalf.15 She thus remained as a constant threat-a potential instigator of renewed union ac- tivity. In the absence of any credible explanation of Respondent's choosing to lay off a competent ex- perienced worker, the Trial Examiner can conclude only that Alexander's layoff on June 3 was dictated by her known union sympathies. 3. The written reprimands a. September 18 Before the inception of the union organizational campaign early in April 1969, Respondent had no formal or announced system of disciplinary action and did not give any written reprimands for em- ployee derelictions. According to Respondent, writ- ten reprimands were instituted on the advice of the counsel. is Alexander was recalled to work on September 9.17 On September 18, Magruder sent the following typewritten memorandum to Alexander: On September 17, 1969-the 4:30 to 12:30 Shift-each of the Boxes had every kind of part we make in it. We can not tolerate this. You must keep each part in its own box. ALSO, your production on this machine went down by 30 percent. Continued poor work or carelessness may result in further disciplinary action. A copy of this will be placed in your personal [sic] file. Below this typewritten message were two lists of figures, one marked "Day Production," the other "Night Production," the latter being Alexander's. Alexander testified that the box in question was in- deed in disarray but, as she told Magruder, she had cleaned her boxes at the end of the shift in question and her foreman, Darrel Walker, had seen her doing so. Alexander further testified that Walker " The complaint does not allege Respondent 's conduct toward Alex- ander in June and thereafter as violative of Section 8(a)(1) Thus, while there is reason to believe that Williams ' obvious displeasure at the original charge motivated Respondent 's subsequent treatment of Alexander, no specific finding to that effect is being made . In any event, the affirmative remedy to be recommended would be the same whether Section 8 (a)(3) or (4) was involved 1° The evidence is confused as to when written reprimands were in- stituted At one point Jerry Williams testified that they had been recom- mended by Attorney Rice, who had been consulted after the complaint was issued on July 1. Magruder indicated that the system was instituted on or about April 19, when she received telephonic advice to that effect from Mr. Rice However, there are in the record a memorandum dated March 18 from Magruder to a foreman concerning two employees (one of whom had confirmed this statement to Magruder. Alex- ander's testimony in this regard was uncon- tradicted18 and is credited. Alexander further testified that she then noted on the memorandum the times the machine had been down during her shift. Allowing for the periods of downtime, which totaled almost 3 hours, shows Alexander's production as roughly equivalent to that on the day shift.'9 Respondent did not question Alexander's report of downtime and did not suggest that there had been any downtime in the day shift. On all the evidence, the Trial Examiner cannot escape agreeing with Alexander's remark, made to Magruder at the time in question, that "Somebody [was] trying to mess [her] up around here." Although both points covered by the reprimand were shown to be unwarranted, so far as appears, Alexander's personnel file still contains the dual reprimand unmodified. b. October 1 On September 30, Alexander arrived at work some- time around 4 p.m. and was signed in at 4:30, when the shift was to begin. Around 4:15 employee Robinson telephoned the plant and spoke to Sapp, the secretary. Robinson said that her car would not run and asked Sapp if she would send Alexander to fetch her, since Alexander, having transported Robinson a few times before, knew where Robinson lived. Sapp said that she did not know if Alexander was in yet and took Robinson's address. Sapp asked employee Jerri Rudd to fetch Robinson. Rudd then asked Alexander to take her because Rudd did not have sufficient gasoline and Alexander knew where Robinson lived. Alexander and Rudd thereupon left the plant and returned with Robinson. On October 1, the following memorandum was addressed by Magruder to Alexander: It has been brought to my attention that you were 10 minutes late for work on Tuesday, September 30, 1969. Any reoccurrence of this will be met by disciplinary action. A copy of this note is being placed in your personal [sic] file. Sapp testified that she looked at the clock when she saw the three girls come in. However, the evidence clearly showed that the girls arrived only 4 minutes late. was being discharged ) and memorandums in the nature of reprimands dated April 7 and 8 , which coincide with the beginning of the Union's cam- paign. Since the complaint does not allege the institution of written reprimands as independently violative of Section 8(a)( I ), it is unnecessary to deter- mine precisely when it occurred and if it was an immediate retaliatory mea- sure for the initiation of the union campaign. " She was then treated essentially as a new hire See infra, "The Remedy." Walker did not testify. Since three different parts had been produced, in varying quantities, it is impossible , on the basis of the record evidence, to make a precise com- parison. OMICO PLASTICS, INC. On October 3, the following memorandum signed by Magruder, but actually dictated by Jerry Wil- liams, was addressed to Darrel Walker, Alexander's foreman: It has been duly noted that the night shift foreman, Darrel Walker, had stated to Miss Deborah Sapp and Mrs. Billie Jean Magruder that he did not know what time Mrs. Alex- ander arrived for work on Tuesday, September 30, 1969. However, he now states that he did make note of how late Mrs. Alexander was to work. He now says she was only five minutes late reporting to her machine for duty. This in no way alters the fact that disciplinary action will be taken if Mrs. Alexander is late again without showing just cause or notifying in ad- vance that she will be late. It is also to be noted here that simple notification in advance of being late will not necessarily be considered just cause. Alexander was advised that the matter of her tardi- ness has been "straightened out," but she was not given or shown the sternly worded memorandum of October 3 to Walker. So far as appears, the Oc- tober 1 memorandum stands unmodified in Alex- ander's personnel file. Respondent maintains that any tardiness, no matter how short, is a matter of major concern because the machines are kept in operation con- tinuously and that if a machine is shut down for any period, no matter how short, reactivation entails considerable nonproductive time . The evidence establishes that if an operator is late on the second shift, one from the first shift must stay on. Because the employees, naturally, do not like having to stay on after the end of their shifts, tardiness is frowned upon. However, it is clear that tardiness of just a few minutes has generally been ignored. Alexander testified that when she first went to work for Respondent Larry Williams advised her and a fellow worker that if they were only a few minutes late (apparently up to 10 or 15 minutes), they should sign in as of the beginning of the shift, with no note of minor tardiness. Larry Williams did not deny Alexander's testimony. Magruder's records show Alexander as having been 10 minutes late on September 30, but do not have any similar notation about Robinson or Rudd. Further, Magruder's record shows Alexander as having been 5 minutes late on October 1. Robinson testified, without contradiction, that she was 15 or 20 minutes late on that day and had been unsuc- cessful in her attempts to reach Respondent by telephone before the shift began. The entire incident leaves no doubt in the Trial Examiner's mind that Respondent was bent on building a record against Alexander. Sapp's con- duct in the matter reinforces this conclusion. She In its brief Respondent apparently recognizes the inconsistency between Williams' testimony and the employment records . It there says: "Each of the employees who were given the five-cent increase were em- 775 was apparently waiting to "catch" Alexander and reported a 10-minute tardiness. This was corrected only when Foreman Walker came forward with the contrary information. The readiness to accept Walker's statement strongly suggests that Sapp did not, as she testified, look at the clock but rather merely reported a figure which would be con- sidered substantial. On all the evidence, the Trial Examiner finds that the written reprimands given to Alexander and placed in her personnel file on September 18 and October 1 were violative of Section 8(a)(3). 4. The denial of a wage increase On October 3, a 5-cent-per-hour wage increase was given to 14 of the 16 hourly paid production workers, including supervisors. Pat Howard, who had been hired only about 2 weeks earlier and who was receiving 10 cents per hour less than any other employee, was not granted this raise. The only other person denied the raise was Alexander. Magruder first mentioned the possibility of a raise early in September. As an incentive for in- creased production, she told the employees that if they reached production of $25,000 during the month of September they might receive a raise. Around September 23, Magruder spoke to Jerry Williams about the matter. According to him, after having the operating figures analyzed, he informed Magruder that there would be a 5-cent raise at the end of the month if production continued at its cur- rent rate. Magruder transmitted this information to the employees. At that time Magruder indicated that all employees would receive the raise, with no qualifications. At the hearing, Magruder and Jerry Williams testified that because the raise was based on Sep- tember production figures, which would reflect some production actually performed in August, the raise was restricted to those employees who had been working during the last week of August. Williams' testimony was: And I said, "Well, I think the fair thing, since the raise was predicated on the produc- tion that was maintained in September ... ", or "reached in September," which would of course include a part of the production in the last week of August, "Then anyone that was here from the first day to the last day is enti- tled to that raise." And I said, "How many are there that aren't?" And it turned out there were two that hadn't been there from the first to the end. But the record shows that Robinson was not re- called from layoff until September 2, yet she received the October 3 increase.20 ployed at a minimum of three weeks during the period used for calculation of gross production in determining raise eligibility ." Not a word was ut- tered at the hearing about a 3-week qualifying period. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In any event, as heretofore found, Alexander's failure to work during the last week of August or for 3 full weeks in September was the result of her discriminatory layoff in June. Accordingly, it could not serve to justify Respondent's denying her the general wage increase on October 3.21 Magruder added, and Respondent's brief emphasizes, the unrelated explanation that Alex- ander "was already making as much as ... some of the girls was out in the plant. "22 The increase was announced as being an across-the-board reward for the group effort and included the supervisors. It was not designed to remove or narrow wage dif- ferentials, and did not do so for any employees other than Alexander and the very new, inex- perienced Pat Howard. Respondent does not maintain that Alexander's production or performance was deficient in Sep- tember. On the contrary, the supervisors testified that her work had been eminently satisfactory since her return to work in September. Absent any credible legitimate explanation for singling Alexander out, the Trial Examiner is com- pelled to conclude that her union sympathies and activity were in considerations motivating Respon- dent in withholding from her the wage increase granted to other employees on October 3. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in com- merce within the meaning of Section 2(2) and (6) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section , 7 of the Act, and thereby committed unfair labor practices affecting com- merce within the meaning of Section 8(a)(1) of the Act, by coercively interrogating employees con- cerning their union sympathies and activities and the union sympathies and activities of other em- ployees, and.by threatening plant closure and loss of jobs if the employees should choose to be represented by the Union. 4. Respondent engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act by discharging Brenda Alexander on April 15, 1969; by laying her off on June 3, 1969; by issu- ing reprimands to her on September 18 and Oc- tober 1, 1969; and by failing to grant her a wage in- crease on October 3, 1969. 5. The unfair labor practices found in paragraph 3 and 4 above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8(a)(1) and (3) of the Act, the Trial Examiner will recom- mend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act., Respondent will be required to remove from its records and files and destroy all copies of the repri- mands given to Brenda Alexander on September 18 and October 1, 1969, as well as the related memorandum of October 3, 1969, addressed to Darrel Walker, her foreman. Although Mrs. Alex- ander was recalled to work on September 9, 1969, and was employed by Respondent at the time of the hearing herein, it does not appear that she was fully reinstated without any prejudice. On the contrary, it affirmatively appears that, as of the time of the hearing, she had not been restored to coverage under Respondent's employee insurance program. Accordingly, the usual reinstatement order will be recommended, reinstatement to be at the rate of pay she would be receiving had she not been discharged on April 15, 1969, or laid off on Sep- tember 2, 1969. The Trial Examiner will thus recommend that Respondent be required to reim- burse Brenda Alexander for any loss she may have suffered by reason of Respondent's discrimination against her, by paying to her a sum of money equal to the amount she would normally have earned as wages from the dates of her discharge and layoff to the date of Respondent's offer of full reinstatement, less her earnings during that period. Such payment shall include the amount of her loss, if any, caused by discontinuance of her insurance coverage. The reimbursement here recommended shall be com- puted on the basis of calendar quarters, in ac- cordance with the method ,prescribed in F. W. Wool- worth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum in accordance with Isis Plumbing & Heating Co., 138 NLRB 716. RECOMMENDED ORDER Upon the entire record, and pursuant to Section 10(c) of the Act, the Trial Examiner recommends that Respondent, Omico Plastics, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully questioning employees, threaten- ing them with plant closure or loss of employment if they choose to be represented by a union, or in any like or related manner interfering with, restraining, or coercing them in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist United Steel Workers of S1 Otherwise viewed, a make-whole remedy for the June 3 layoff would in itself carry with it a 5-cent per hour increase after October 3, even if Alexander had never been recalled " Rudd was raised to $ 1 85 per hour on October 3. White, who for per- sonal reasons had stepped down from supervisor to machine operator in August or September, was raised from $1 85 to $1 90 per hour on October 3 OMICO PLASTICS, INC. America, AFL-CIO, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in other con- certed activities for the purpose of collective bar- gaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, or to refrain from any or all such activities. (b) Discouraging membership in United Steel Workers of America, AFL-CIO, or any other labor organization of its employees, by discriminating in regard to the tenure of employment or any term or condition of employment. 2. Take the following affirmative action in order to effectuate the policies of the Act: (a) Offer to Brenda Alexander immediate and full reinstatement to her former or substantially equivalent position, without prejudice to her seniority and other rights and privileges. (b) Make whole Brenda Alexander for any loss of pay and benefits she may have suffered by reason of the discrimination against her, in the manner set forth in the section of this Decision en- titled "The Remedy." (c) Remove from its records and destroy all co- pies of written reprimands addressed to Brenda Alexander on September 18 and October 1, 1969, and of the memorandum dated October 3, 1969, from Billie Jean Magruder to Darrel Walker relat- ing to Brenda Alexander. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to the determina- tion of backpay due and to the reinstatement pro- vided under the terms of this Order. (e) Post at its Owensboro, Kentucky, plant co- pies of the attached notice marked "Appendix."23 Copies of said notice, on forms provided by the Re- gional Director for Region 25, after being duly signed by Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.24 21 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 777 24 In the event that this Recommended Order is 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 Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties had the opportunity to present their evidence , the National Labor Rela- tions Board has found that we violated the law and has ordered us to post this notice telling our em- ployees what we have been ordered to do and not to do in the future. The Board has ordered us to tell you that: WE WILL offer Brenda Alexander immediate and full reinstatement to her former job, or a substantially equivalent job, without any loss of pay, seniority or other rights and privileges, in- cluding insurance coverage , and repay her, with interest , for any loss she may have suffered because we fired her or laid her off. WE WILL remove from our records and destroy written reprimands given to Brenda Alexander on September 18 and October 1, 1969, and a memorandum from Billie Jean Magruder to Darrel Walker dated October 3, 1969, concerning Brenda Alexander. The Board has ordered us to tell you that: WE WILL NOT question you about your union sympathies or activities or about the union sympathies or activities of other employees. WE WILL NOT threaten that the plant will be closed or that you will lose jobs if you choose to be represented by United Steelworkers of America, AFL-CIO or any other union. WE WILL NOT in any similar or related manner interfere with, restrain , or coerce you in the exercise of your right to self-organiza- tion , to form, join , or assist a labor organiza- tion , to bargain collectively through a bargain- ing agent chosen by you, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condi- tion of employment as authorized in Section 8(a)(3) of the National Labor Relations Act. OMICO PLASTICS, INC. (Employer) 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dated By This notice must remain posted for 60 consecu- tive days from the date of posting and must not be ( Representative ) (Title ) altered , defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market This is an official notice and must not be defaced Street, Indianapolis, Indiana 46204, Telephone by anyone. 317-633-8921.