Hildebrand Co.

674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hildebrand Company and General Drivers, Ware- housemen and Helpers, Local No. 89, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Cases 9-CA-6189 and 9-CA-6306 August 3, 1972 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On February 23, 1972, Trial Examiner Ivar H. Peterson issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respon- dent filed exceptions, a supporting brief, and an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, and conclusions only to the extent consistent with the following: 1. The Trial Examiner found that Respondent terminated employee Shelby Hayes in violation of Section 8(a)(3) and (1) of the Act. We do not agree. Respondent hired Hayes on February 22, 1971, as a forklift operator. Hayes had a speech defect which made it difficult to understand him. When he started working for Respondent he was assigned to the dock under Supervisor Fields. The latter complained to President Hildebrand that fellow employees could not understand Hayes. Two days later, at the request of Fields and Warehouse Superintendent Mayes, Hildebrand transferred Hayes to working with stockman Zimmerman in warehouse 3. Zimmerman also, according to Hildebrand, complained about inability to understand Hayes. In April and May, Respondent suffered a sharp decline in business which resulted in work running out in warehouses 2 and 3. On April 2, Respondent laid off two office employees, an assistant buyer, and an assistant bookkeeper, layoffs which are not claimed to have been discriminatory. On April 2, Respondent also terminated Hayes. In a letter of that date to Hayes, Respondent stated: Due to a decline in business at this time, it is necessary for us to release a few of our employees both in our office and warehouse . We regret therefore to advise that your employment is terminated at this time. You were advised [at the time of transfer to the warehouse ] . . . that you would be retained as long as there was work for you to do since the job was an extra position being made up for your retention. Unfortunately, the work we now have must be distributed with our older employees. We now have no choice except for a limited reduction of personnel. Respondent laid off one other warehouse employee on April 2, and two others on April 16 . The Trial Examiner found that these layoffs were not discrimi- natory, but were brought about by a marked decline in business . All three of these employees had seniority over Hayes. Hayes' sole union activity consisted in his having signed a union card and having worn a union button. There is no evidence that Respondent was aware of Hayes' having signed the card. The Trial Examiner concluded that Respondent had discriminatorily discharged Hayes upon the basis that Respondent had taken the position that Hayes was discharged "solely" because of his communication problem and the Trial Examiner had formed the opinion that none of the parties at the hearing had any difficulty understanding him "al- though, it was evident, that his speech was not altogether normal." Respondent denies that, as stated by the Trial Examiner, it asserted that Hayes was terminated "solely" because of his speech defect. On the contrary, it contends that Hayes was laid off both because of his speech impairment and lack of work. We conclude that there is not a preponderance of evidence to establish that Respondent terminated Hayes for discriminatory reasons. We note first that the Trial Examiner credited Respondent's evidence that there was a marked decline in incoming business beginning in April, that several nonunit employees were laid off at the same time as Hayes , and that three other warehouse employees who were senior to Hayes were laid off for economic reasons during April, one of these on the very day that Hayes was terminated. Secondly, the record does not support the Trial Examiner's statement that Respondent contended Hayes was discharged "solely" because of his speech communication difficulty.' Respondent's 1 Respondent's counsel made the following statement explaining the at a time when other people were being laid off, but he was laid off termination of Hayes mainly because-and not recalled-because of his speech impediment He was terminated at a time when business was slack Mr Hildebrand Now that very simply is the Company's position. Mr. Hildebrand did didn't want to hurt the man's feelings He laid him off because of an not want to hurt the man's feelings. extreme difficulty we had in communicating with him. He laid him off 198 NLRB No. 96 HILDEBRAND COMPANY 675 termination letter to Hayes on April 2 explicitly stated that the termination was caused by a decline in business which, as the Trial Examiner found, was a fact. Finally, Hayes' union activities were minimal. It is difficult to perceive in these circumstances why Respondent should have singled him out for a discriminatory discharge. Inasmuch as we have concluded that Respondent did not discharge Hayes for discriminatory reasons, we shall dismiss this allegation of the complaint. 2. The Trial Examiner found that Respondent had violated Section 8(a)(1) of the Act by President Hildebrand's statement to employee Kress that there would be no merit increases during the pendency of the Union's representation petition. We do not adopt this finding. In March 1971, employee Kress, who had then been employed only for about 5 weeks, asked President Hildebrand for a merit wage increase. Hildebrand replied, according to Kress, that at one time Respondent had given merit wage increases, but had discontinued the practice because it created animosity among the employees; that Kress would receive automatic wage increases as they became due, but that Kress was not then entitled to such increase; and that as far as he knew "the wages were frozen as far as merit increases were concerned by the NLRB during a Union petition." The Trial Examiner found that in withholding a customary wage increase for the reason that the Union was engaged in organizational activity and implying that the Union was responsible therefor, Respondent violated Section 8(a)(1). As the above recital of what Hildebrand told Kress makes clear, Respondent did not withhold any customary wage increase from Kress in March 1971. Respondent had abandoned the practice of making merit increases before the Union's organizational efforts began. As for the substituted automatic wage increases, Hildeb- rand told Kress that he would receive them when he became entitled to them. (There is no contention that any automatic wage increase was withheld from Kress). In the circumstances, Hildebrand's quoted statement that wages were frozen during the penden- cy of the Union's representation petition was a correct statement of the law. Accordingly, we find that Hildebrand's statement to Kress was not unlawful. 3. The Trial Examiner found that President Hildebrand threatened an employee with surveil- lance of his union activities, thereby violating Section 8(a)(1) of the Act. We do not agree with this finding. Employee Proctor was laid off for economic reasons on April 16 and recalled to work on June 1. On his recall, President Hildebrand called him into his office together with his foreman, Warren Hile, and read to him the following message: When you were here last, we were advised by some of the employees that you were soliciting cards and discussing union matters during work- ing hours. You were told during a warehouse meeting that union problems could be discussed at any time except during working hours. Since you did not heed this policy, I must tell you that we are glad to have you back on the job but must advise that if you work on union matters during working hours when you are paid to do work for the company, that we will consider this cause for discharge. According to Proctor's credited testimony, Hildeb- rand also told him that he would be under surveil- lance. The Trial Examiner found that this surveil- lance statement was unlawful. At the hearing, the General Counsel amended the complaint to allege that the above June 1 statement of President Hildebrand to employee Proctor con- tained an unduly broad no-solicitation rule since there was no explanation of what constitutes "work- ing hours" and that Respondent thereby violated Section 8(a)(1). The Trial Examiner failed to pass on this amended allegation of the complaint. The statement read to Proctor referred to a warehouse meeting at which the employees were told that they could discuss union problems at any time except during working hours. At the warehouse meeting mentioned, which Proctor attended, Presi- dent Hildebrand specifically told the employees that they could discuss union business "during breaks, lunch time and before and after work but not during working hours." In view of the specific referral to the warehouse meeting in the June 1 statement, we believe that the latter must be read as having incorporated therein the earlier statement that employees could discuss the Union during nonwork- time and so read the June 1 statement is lawful. If the statement was, as we have found , lawful, there was nothing unlawful in Respondent 's further statement that it would police the rule against violations. In context, this is all the meaning we can ascribe to the surveillance statement of President Hildebrand. Accordingly, we find that neither of the June 1 statements violated Section 8(a)(1) of the Act. As we have reversed the Trial Examiner's above findings of Section 8(a)(1) and (3) violations , and the Trial Examiner recommended dismissal of the other allegations of the complaint, which we adopt, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint be, and it hereby is, dismissed in its entirety. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Trial Examiner: This case was tried at Louisville, Kentucky, on August 24 through 27, 1971, and at Jeffersonville, Indiana, on September 21. The charge in Case 9-CA-6189 was filed May 7 and the charge in Case 9-CA-6306 was filed on June 6. The Regional Director for Region 9 issued a complaint in the first case on May 28; a complaint was issued in the second case on July 19, together with an order consolidating the cases and a notice of hearing. The Respondent filed answers to the complaints. Breifly stated, the case involves the following issues: Whether the Respondent engaged in conduct violative of Section 8(a)(1) of'the Act in various respects, and whether it laid off employees, discharged employees, reduced the pay of an employee and suspended another employee all because of their activities on behalf of General Drivers, Warehousemen and Helpers, Local No. 89, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein referred to as Local 89 or the Union. Upon the entire record,' including my observation of the demeanor of the witnesses, and after due consideration of the able briefs filed by counsel for the General Counsel and counsel for the Respondent on November 19, I make the following: FINDINGS OF FACT 1. JURISDICTION The Respondent, at its Louisville, Kentucky, location is engaged in the wholesale sale of general merchandise. It employs about 75 employees. The Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that the volume of its business meets the Board's jurisdictional standards. I further find that the Umon is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background There have been several attempts in the past to organize the Respondent's warehouse employees. In 1968 the Union filed a petition for an election, but an election was never held. In February of 1971, the Union began another organizing campaign and on March 9 demanded that the 1 At the hearing, counsel for the Respondent moved to revoke the subpena calling for the production of its profit and loss statements. I demed the motion, the Respondent refused to permit these to be received in evidence, and thereafter the Board sustained my action and they were submitted 2 Among the cards were those signed by Elery Stroup, Donald Kress, Shelby Hayes, Melvin Osborne, Lynn Oswalt, Harold Farrow, and Larry Proctor 3 Riggs did not testify McCracken had sent a letter demanding Respondent recognize it. On March 29 Leonard McCrack- en and Carleton Riggs, both business agents of the Union, met with Sidney Hildebrand and Lee Hildebrand, presi- dent and secretary-treasurer, respectively, of the Respon- dent. At the outset of the meeting McCracken, so he testified, placed 13 union membership cards on the desk around which the four men were sitting. The meeting lasted approximately a half hour and during that entire time the cards were in full view.2 Although there is testimony from witnesses for the General Counsel that the two Hildebrands looked at the cards, they, vigorously denied so doing. About the last part of March or the first part of April several employees began to wear union buttons at work. The Respondent immediately reduced the wages of Osborne and on April 2 laid off Oswalt and discharged Hayes. On April 8 Kress was terminated and Proctor and Stroup were laid off on April 16. Farrow was suspended on June 7 for a week. At the opening of the hearing, counsel for the General Counsel amended the complaint to reflect that Proctor was offered reinstatement on May 28 to be effective June 1 and that he reported for work but declined reinstatement. In addition, Stroup was offered reinstatement by letter dated May 28, to be effective June 3; he accepted the offer and was working at the time of the hearing. In addition, the complaint was amended to reflect that about the last of March, Sidney Hildebrand violated Section 8(a)(1) in telling an employee that there would be no merit increases because the Union was trying to organize; and that on or about June 1 Sidney Hildebrand told an employee that his activities on behalf of the Union were under surveillance and on the same date promulgated and adopted an unlawful no-solicitation rule for the purpose of discourag- ing employees from engaging in union activity. B. Alleged Interference, Restraint, and Coercion McCracken, on behalf of the Union, initiated an organizational campaign among the Respondent's employ- ees during the latter part of February and early March. On March 29 he and another business agent of the Union, Riggs, called on Sidney Hildebrand. He laid some union cards on Hildebrand's desk and spread them out, so he testified, where they remained for the approximate 30 minutes that the interview lasted. McCracken testified that he and Hildebrand rose from their chairs and looked at the cards. However, both Sidney and Lee Hildebrand, who is secretary-treasurer and merchandise manager, said that McCracken did spread the cards on the desk but that both refused to look at them and Sidney stated that he would not recognize the Union until it had been selected in an election.3 With respect to the allegation that the Respondent told recognition on March 8 to which the Respondent replied on March 10 pointing out that the bargaining unit had not been specified A second letter was sent by the Union setting forth the bargaining unit In the conversation between the business agents and the Hildebrands, Sidney Hildebrand stated that Harry Mayes, the former general superintendent, had in some way been involved in obtaining the signed union cards Counsel for the Respondent, in a letter of March 31 responding to the visit by the business agents to the Respondent on March 29, stated that it was the Respondent's position "that any authorization cards which your Union may have HILDEBRAND COMPANY an employee that there would be no merit increases because the Union was trying to organize, the testimony is largely undisputed. Kress testified that on one occasion he asked for an increase in wages and that Sidney Hildebrand told him that because of the union activity the Respondent was freezing all wages and benefits. Hildebrand testified that this meeting with Kress occurred about the middle of March and that he told Kress "that as far as I knew the wages were frozen as far as meat increases were concerned by the NLRB during a union petition." The Respondent's policy is to grant periodic wage increases automatically after specified time periods. In this regard, counsel for the General Counsel contends that it is "well established Board law that employers, during the course of an organizing campaign, must give employees the wage increases that would ordinarily be given." In support he cites Sylgab Steel & Wire Corp., 162 NLRB 303, and Reno's Horseshoe Club, Inc., 162 NLRB 268. On June 1 Sidney Hildebrand read a message to Proctor, in the presence of Warren Hile, which stated in part as follows: When you were here last, we were advised by some of the employees that you were soliciting cards and discussing union matters during working hours. You were told during a warehouse meeting that union problems could be discussed at any time except during working hours. Since you did not heed this policy, I must tell you that we are glad to have you back on the job but must advise that if you work on union matters during working hours when you are paid to do work for the company, that we will consider this cause for discharge. Proctor testified that the day he returned to work he was called into Sidney's office along with Hile, that Sidney read from a piece of paper and in substance stated that if Proctor were to solicit union members or work on union business on company time he would be terminated. He further stated that Proctor would be under surveillance, and that he then worked 2 hours and punched out at noon and never returned to work. The Respondent first learned of the organizing campaign when an employee telephoned Sidney Hildebrand at home the night of March 8. According to the Respondent, this employee (who was named but did not testify) stated that Warehouse Superintendent Mayes had forced him to sign an authorization card by threatening that if he did not he would lose his job. The following morning Hildebrand made a talk to the warehouse employees, speaking from notes he had prepared. Following the talk, Hildebrand, at the suggestion of counsel, made a memorandum of what he had said. Witnesses who testified regarding this talk in obtained from Company employees, regardless of when they were signed, are ineradicably tainted by the unlawful and improper supervisory intimidation, coercion and threats of former Company Warehouse Superintendent Harry Mayes and that therefore any such cards are invalid for any purpose It is the Company's further position that the effects of Mayes' unlawful and improper activities and statements had not been and cannot be eradicated, both because of his former position with the Company and because of his threats and violence on behalf of your Union " Mayes was not a witness " In the course of his talk Hildebrand stated that his attention had been called to the fact that "an effort to organize this firm is being made and that union cards have been passed around for signature", that employees had "a 677 substance agreed that the memorandum substantially sets forth the content of his talk? C. The Layoffs of Oswalt, Proctor, and Stroup Lynn Oswalt had worked for the Respondent for 2 months in 1970 and then returned the following February 8. He was laid off on April 2. He worked as a packer in warehouse 4, part-time, inasmuch as he was a student at the Southern Theological Baptist Senunary, under the supervision of Harry Mayes and also James Hornback. He signed a union card on March 11 or 12, attended some union meetings, and wore a union button about the first of April. Noticing the button, Hornback commented "that he saw that I had one too." On March 26 Oswalt was asked by Sidney Hildebrand to come to his office. According to Oswalt, Hildebrand stated that he intended to give Oswalt a 10-cent raise, which was customary for student help after 7 or 8 weeks of employment. Hildebrand stated that since Oswalt was a part-time employee and had not been present at the meeting where Hildebrand had discussed the Umon, he would tell Oswalt that he was opposed to having a umon in the business. Oswalt asked Hildebrand why he was opposed to a union and stated that he felt the men might well desire union representation. Hildebrand replied that he felt that he could provide the men with the benefits that a union might obtain for them. Oswalt responded by stating that the Respondent had not provided two matters that the employees desired, namely, higher pay and job security. To this, Hildebrand stated that he did not feel that a union would bring higher pay to the employees and, concerning job security, said that no layoffs were anticipat- ed in the near future. On April 2 Hildebrand again called Oswalt to his office and stated that work had slacked off to the point where he had to let Oswalt go. According to Oswalt, three employees, Robert Heltsley, John Campbell, and William Paine, who did work similar to that which Oswalt had performed, were junior to him and were not laid off. On May 20 Oswalt was offered reemployment. In response, Oswalt stated that he would be able to return for only a week since he had another job in Louisiana beginning June 1. Larry Proctor was employed in May 1970 and was laid off on April 16, 1971. He worked as an order filler but also served as a stockman and packer. According to Proctor, both Hildebrand and Mayes had told him sometime in February that he was being groomed for a supervisory position. Proctor signed a union card sometime in February, attended Union meetings and also wore a union button. perfect right to sign a union card without objection from the company if he feels that a union will be to his advantage", that no one "has the right to coerce or threaten or force an employee to sign against his will", that union business may be conducted "during breaks, lunch time and before and after work but not during working hours", that this effort was the fourth effort for organization", that the company had "instituted the benefits that were in this process prior to the organizational effort that were frozen", that he wanted the employees to know "that the company can live with the union but the question is, can you", and that the Respondent felt "that a union will cause a rift between management and union personnel that may be unfortunate " 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the first of April Hildebrand came to Foreman Homback's desk in Proctor's presence. Proctor was wearing his union button and testified that Hildebrand said to Hornback, "Jim, I understand some of the men are wearing Union buttons" and then walked over to Proctor and asked him if the button he was wearing was one of them. Quite frequently Proctor ate lunch with two other employees, Melvin Osborne and Harold Farrow; occasion- ally Hornback joined them. According to Proctor, on one such occasion Hornback told him that he (Proctor) had better watch out because "Sidney has a list of names" and further related that Hilderbrand had called him (Horn- back) into the office on the day that Proctor first wore his button and that Hildebrand said he had some 8 to 11 names on the list and that Proctor and another employee, George Duggins, were at the top of the list. About a week after receiving this information from Hornback, Proctor was called into the office by Hildebrand and told that he was being laid off because "business has been bad." Hildebrand stated that Proctor could expect to be called back in June. As related above, Proctor returned to work on June 1 and was then told that if he were seen soliciting for the Union or working on union business on company time he would be terminated. In addition, according to Proctor, Hildebrand stated that he would be under surveillance . He then worked about 2 hours, punched out, and never returned. Elery Stroup had worked for the Respondent something over 2 years as a packer and stockman prior to his being laid off on April 16. He signed a union card on March 29 and first wore a union button on April 1. On that day Hornback came over to him and, referring to the union button, stated "you surprised the old man. You have hurt him because he didn't think you would be in the Union." On April 5, according to Stroup, he had a conversation with Sidney Hildebrand who expressed surprise at his having joined the Union, commenting that he thought Stroup "liked it there and was happy there and why would I change over." Stroup answered that he liked his job and had not changed over, but had joined the Union in order to obtain $500 additional insurance for his wife because at his age he could not purchase insurance. On the day of his layoff Hildebrand told him that business was bad and that the Respondent had about 8 people "running around" the warehouse trying to look busy. Stroup was called back on June 3 and was working at the time of the hearing. Stroup had worked in several warehouses and about 2 weeks before his layoff he was sent back to warehouse 728, and at that time noticed that there was some decline in the number of orders being filled. He was also aware of the fact that, when returning to warehouse 728, four employees had been laid off because of a slack in business. According to Stroup, he had more seniority than Robert Auker, Paine, Heltsley, Campbell, and George Duggins. He stated that Heltsley, Paine, and Campbell did not wear union buttons and had not joined the Union. Sidney Hildebrand testified that an average of 25,000 orders are filled each month. Documentary evidence concerning this reveals that the number of orders filled in the months of February through July were as follows: February 21,322 March 28,673 April 16,983 May 18,396 June 25,000 July 19,599 Hildebrand was asked to produce records to support his statement that business was worse in 1971 than it had been for years, but in response stated that those records had been destroyed. He acknowledged that the number of employees in the office is a fair indicator of the general level of business, and testified that the number of office employees was as great in 1971 as it had been the previous year. Hornback admitted that he often ate lunch with Farrow and Proctor, but denied that he had said anything concerning a list of employees maintained by Hildebrand. D. Suspension of Farrow Harold Farrow had been employed since April 1967 and at the time he testified was working as an order filler. He signed a union card in March and was the first employee to contact the Union. He spoke to employees in favor of the Union and attempted to have them sign union cards. He also wore a Union badge. On May 31, a holiday, Farrow's 6-year-old brother-in- law died. After receiving the news, Farrow telephoned the home of Elmer Hennessey, his immediate supervisor. He did not speak to Mr. Hennessey but talked to his son Don, also an employee, and testified that he asked Don to relay a message to his father "and tell him I would be gone until Thursday or Friday of that week." He also telephoned Melvin Osborne, with whom he had been riding to work, and told him that he would be off until Thursday or Friday. The journey from Farrow's home to the funeral site was about 200 miles. Farrow and his wife left for the funeral the morning of June 1. The funeral was Thursday afternoon, June 3, and they returned the afternoon of Friday, June 4. When Farrow reported for work Monday, June 7, he found that his timecard was not in the rack. He obtained a substitute card from the timekeeper and punched in. Later, Vice President Ralph Voss spoke to him and stated that he thought that Sidney Hildebrand wished to see him. When he saw Hildebrand the latter "offered his condolences and then he said that I hadn't lived up to my obligations to the Company." Farrow asked him to explain and thereupon Hildebrand stated that he had not obtained the proper permission to be off and further related that Hennessey had told him (Hildebrand) that Farrow would be in on Tuesday, June 1. Farrow replied that there must have been some misunderstanding, whereupon Hildebrand called in HILDEBRAND COMPANY Hennessey and asked him if he had not stated that Farrow would be in on Tuesday. Hennessey stated that he could have misunderstood Farrow. Hildebrand then said that he was going to give Farrow a temporary layoff for probably a week as discipline.5 E. The Discharge of Shelby Hayes Hayes was employed by the Respondent on February 27 as a receiving clerk on the dock. About March 4 he was transferred to the warehouse as a stockman and on April 2 he was discharged. Hayes signed a union card on March 11 and during the last part of March began wearing a union button on his cap. F. Concluding Findings With respect to the conduct of the Respondent in withholding the customary wage increase for the reason that the Union was engaged in organizational activity, the law seems clear that in impliedly stating that the Union was responsible for the failure to grant increases is violative of Section 8(a)(1) of the Act. Thus, in Reno's Horseshoe Club, Inc., supra, the Board adopted a finding by the Trial Examiner that "by attempting to convey to the employees the impression that the union was responsible for the failure of the Respondent to grant increases in wages and other benefits ...... the Respondent in that case violated Section 8(a)(1) of the Act. See also Hermann Equipment Manufacturing Company, Inc., 156 NLRB 716, and Ameri- can Freightways Co., Inc., 124 NLRB 146, 147. Concerning the allegation that the Respondent threatened Proctor with surveillance of his union activities, there is a conflict in the testimony. It should, in this connection, be observed that Proctor had been laid off and had been recalled to work. He did return on the day appointed and it was then that the conversation in question took place with Hildebrand. Following the conversation, and apparently because of what was told him, he left his job. If, in fact, the conversation contained only what appears in the text of Hildebrand's memorandum (Resp. Exh. 9) it would appear that there would be little or no reason for Proctor to leave the plant. However, if Hildebrand stated that Proctor would be under surveillance, the reason for his sudden departure appears to be more understandable. On balance, I am of the opinion that Proctor would not have left the plant if the conversation was as represented in the memorandum written by Hildebrand. Accordingly, I find that Hildebrand did say that Proctor's activities would be under surveillance. This, I find, constitutes a violation of Section 8(a)(1) of the Act. Concerning the layoff of Oswalt, Proctor, and Stroup, it is the Respondent's position that the customary seasonal decline in business that occurs in April and May was, in 1971, the worst in 15 years, and resulted in work running out in warehouses 2 and 3 (the only ones here involved). A compilation from the daily work sheets kept by the order fillers was prepared by the Respondent for the months of February through July, inclusive, and on the following 5 The Respondent's published rules provided that in the event "it is necessary to take time off , request should be made in advance with an explanation for the request (Illness excepted) If illness or an 679 table the number of warehouse workers, by classifications, is stated. Week Feb. 1 8 15 22 Mar. 1 8 15 22 29 Apr. 5 12 19 26 May 3 10 17 24 June 1 7 14 21 28 July 12 19 26 Warehouse Employees February through July 1971 Order Fillers Packers Stock- men Items Filled* 4 4 3 5504 4 4 3 4991 4 4 3 5584 4 4 4 5243 4 5 4 6046 4 5 4 6176 4 5 4 5823 5 5 4 6195 6 5 5 6607 4 2 2 3219 2 2 2 2758 3 2 2 3476 4 3 2 5356 4 3 4 4803 4 3 4 4528 4 3 4 4503 4 3 4 4562 5 3 4 3718 5 3 5 5344 5 3 5 5302 5 4 5 6569 5 4 5 4802 5 4 5 6092 5 4 5 6826 5 4 5 5946 *This reflects the separate kinds of items filled, regardless of the quantity of each particular item. The Respondent filled 28,673 items in March whereas in April it filled only 16,983 items in these two warehouses, or a decline of some 40 percent. During this time some of the warehouse employees were performing miscellaneous work other than their customary classification. On April 2, the Respondent laid off two office employees, an assistant buyer and an assistant bookkeeper. Business in May was only slightly better than in April, the Respondent filling 18,396 items. As we have seen, Oswalt was a part-time employee and had been hired on a temporary basis. When Proctor and Stroup were laid off on April 16, a Friday, they were told that it was because of a drastic decline in business, but that they would be recalled when business picked up, probably in June when the spring show opened. Both were recalled. Oswalt was offered reemployment but he declined. Witnesses for the General Counsel testified that a number of employees, whom they claimed had less seniority than those terminated or laid off, were retained. emergency should occur, be sure to call in or have someone else call in to explain your absence and when you expect to return " 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees named as falling in this category were Warfield, Auker, Frermann [incorrectly spelled Furman in the transcript], Heltsley, Paine, Duggins, Campbell, and Hile. Warfield, a packer, had worked for the Company about 11 years except for a 2-month penod when he was employed elsewhere. When he returned, he was given the top wage scale for his classification and credit under the Respon- dent's pension plan for his entire period of service. Auker, an order filler, was hired shortly after Stroup. The latter admittedly had previously demonstrated that he could not fill orders and, in consequence, the Respondent maintains that he could not have assumed Auker's job. Frermann, also an order filler, has been employed about 8 years and was at one time a supervisor. Presently, he is in charge of the room where the Respondent keeps its expensive merchandise, such as 'watches and radios. Heltsley is the son of a bookkeeper employed by the Respondent. He was a student and worked about 3 hours per day as a stockman, making records and displays and putting stock in bins in the same order as in the Respondent's catalogue and order form. Paine is the only qualified truckdriver employed by the Respondent and was hired when the Respondent bought a new truck and needed an employee who knew how to handle it. Duggins is a dock employee and his job involves carrying many heavy cases. It was plain that Stroup could not have handled that heavy job. Campbell had had experience as a retail store supervisor and, the Respondent testified, was hired for training as an outside representative. Hile formerly worked for the Company for about 4 years and had substantial experience in the Respondent's warehouse. According to the Respondent, Hile worked out so well that he was made an assistant supervisor in warehouse 4. It will be recalled that Proctor testified that in a conversation with supervisor Hornback the latter stated that Proctor and Duggins were at the top of the list of union button wearers that Hildebrand had and that Hornback warned Proctor to watch his step and avoid making mistakes. Proctor testified that Hornback made these statements in the presence of employees Farrow and Osborne. As previously stated, Hornback denied that he made any such statements. Farrow testified that at lunch on April 2, Hornback joined himself and Osborne and Proctor and stated that Sidney Hildebrand "had made a list of all the guys that wore the buttons and that he was out to get us." On cross-examination, Farrow testified that Hornback did not single out Proctor and say that Proctor had better watch his step and not make any mistakes.6 Osborne did not testify as to any such conversation. Considering all the testimony, I reach the conclusion that Homback made no such statement. While the matter is not free from doubt, and the timing of the layoffs appears suspicious, on the whole I am not satisfied that the General Counsel has made out a case of unlawful discrimination. Accordingly I shall dismiss this aspect of the complaint. The case of Hayes stands on a somewhat different footing. He had signed a union card on March 11 and during the latter part of March began wearing a union button on his cap. The Respondent asserts that Hayes was terminated because he had "extreme difficulty" communi- cating with others because he had a harelip. As we have seen, Hayes worked for Winn-Dixie as a receiving and shipping clerk for some 11 years, a job which necessitated speaking to others. I found no difficulty in understanding him, and from my observation neither did counsel for the Respondent or counsel for the General Counsel. It would seem obvious that Hildebrand did not regard his speech defect as disqualifying, since he interviewed Hayes before hiring him.7 The Respondent takes that position that Hayes was discharged solely because he had a problem communicat- ing with others by reason of the fact that he had a harelip. On the other hand, counsel for the General Counsel contends that this reason was plainly a pretext and that the real reason for his discharge was his activities on behalf of the Union. Hayes had worked some 11 years for Winn- Dixie as a shipping and receiving clerk, a position which required him to deal frequently with others. He voluntarily terminated his employment with Winn-Dixie and was shortly thereafter hired by the Respondent. I observed Hayes very closely as he testified and I formed the opinion that neither counsel for the parties, myself or anyone else, so far as I could observe, had any difficulty in understand- ing him although, it was evident, that his speech was not altogether normal. In this connection, it might be observed that he worked for 11 years for Winn-Dixie as a shipping and receiving clerk where, obviously, on a day-to-day basis he had to deal with a considerable number of other people. G. The Reduction of Osborne's Wages Osborne had been employed for about 15 years. For some 5 or 6 years prior to February 1971, he had been a supervisor over the shipping and receiving department. Early in February, he asked Sidney Hildebrand to relieve him of his supervisory duties for personal reasons; Hildebrand told him that he would do so if Osborne insisted, but that this necessarily would involve a reduction in wages. At the time, Osborne received a salary of $150 per week. After some discussion it was decided that he would be relieved of his supervisory duties, and he was told that in order to avoid a substantial reduction in wages, a new classification of maintenance man would be created and he would be paid $3.45 per hour. Osborne thereafter performed maintenance work and other miscellaneous duties. After some 2 weeks of employment in this capacity, his work on maintenance projects dropped to about 10 or 15 percent of his worktime. He still continued to receive the hourly rate that had been established. However, about April 1 Hildebrand called Osborne into his office and told him that he intended to reduce his hourly pay to $2.95 per hour, explaining that most of Osborne's work was in the stockman's classification and it was not fair to pay regular stockmen less than he was being paid. However, Hildeb- rand informed Osborne that he would still receive $3.45 for maintenance and that he was to keep a record of his work 6 Nothing in Farrow's prehearing affidavit alludes to Hornback's time he interviewed Hayes that he had a speech difficulty but that he should statement 7 1 have not overlooked that Hildebrand noted in a memorandum at the be hired on a "try out" basis HILDEBRAND COMPANY time and the nature of the work so that he could be paid at the proper rate. Counsel for the General Counsel contends that the reduction from $3.45 to $2.95 was made in retaliation for the union activity engaged in by Osborne and that consideration of the sequence of events confirms this. He argues that the record shows that Hildebrand directly supervised and authorized all maintenance work and, in consequence, it "necessarily follows" that Hildebrand would know whether or not there was enough work to justify establishing a maintenance classification. He also points out that "the timing of the events" is critical, in that the new classification and pay rate was established about February 11, before there was any union activity; that Osborne signed a union card on March 11, wore a union button thereafter, and that his wages were reduced about April 1. I must note, however, that there is no dispute that after the first 2-weeks or so during which I infer that Osborne caught up on the maintenance work that needed to be done, it required considerably fewer hours of his time to keep current with maintenance problems. H. The Discharge of Donald Kress Kress began working for the Respondent on February 8, being assigned to the dock where he operated a forklift truck about 80 percent of the time removing merchandise from trucks and boxcars. He testified that he had operated a forklift truck for his previous employer, Winn-Dixie, for about 4 years and had never received any complaints. His immediate supervisor was Sewell Fields. Kress signed a union card on March 11 and wore a union button beginning April 1. He was terminated on April 8, by Sidney Hildebrand, for the stated reason that he had been operating the forklift in a reckless manner, driving, it too fast, and had repeatedly left the overhead door between warehouse 2 and the dock open, causing discomfort to employees working in the warehouse and allowing heat in the warehouse to escape. Shortly after Kress went to work, General Superintend- ent Mayes, so Kress acknowledged, reprimanded him for driving the forklift too fast. On another occasion Sidney Hildebrand "admonished me about closing an overhead door." Kress testified that on one occasion he had an accident which resulted in damage to merchandise. He related that he was moving a pallet which was precariously stacked with merchandise and when he hit a slight dip the load shifted and a carton fell off with the result that one or two units in the package were broken. On another occasion, as he was moving some merchandise the pallet hit the corner of a wooden crate but caused no damage. He also ran into a pushcart and, during his last week of employment, while moving a high load, he hit a display rack and several pieces of china fell on the floor and were broken. He had frequent occasion to pass through the doorway between the warehouse and the dock and by his estimate he failed to close the door only three to five times during the entire period of his employment. Sidney Hildebrand testified that within 2 weeks after 8 Hildebrand testified that one Irving Zimmerman, an employee with whom Hayes had worked, complained to (Hildebrand) that he had 681 Kress had been employed he heard from supervisors Fields, Mayes, and Hornback that Kress was leaving the overhead door open and driving the forklift recklessly. Hildebrand made a memorandum, dated February 25, to the effect that Fields told him that day that he had asked Kress several times to close the overhead door but he was constantly leaving it open. The memorandum also states that Kress told Hornback that he would not close the door because it was too much trouble to get on and off the lift truck. Fields, the supervisor in the shipping and receiving department, testified that the biggest problem he had with Kress was that he left the warehouse door open. In addition, he was careless in driving the forklift truck. Fields estimated that he spoke to Kress on 20 or 25 different occasions about closing the door. On one occasion foreman Hornback reprimanded Kress about closing the door and Kress told Hornback "to go jump in the lake." Although Kress estimated that the maximum speed of the forklift was such that a man walking as fast as he could would be able to keep up with it, Fields stated that the maximum speed was 25 miles an hour. Fields related that on one occasion he observed Kress come around a curve too fast and knock part of the load off. He also received complaints from Mayes and Hornback to the effect that Kress knocked over and hit a hand truck or a flat truck in the warehouse. Supervisor Hornback related that on many occasions he talked to Kress about closing the warehouse door, which had a sign adjacent to it that read "please close door if heat is on." William Redding, an order clerk and assistant supervisor in warehouse 2 (an agreed nonsupervisory position), testified that the ware- house is laid out in aisles at right angles, and that coming into intersections at a fast speed there is danger that someone might step in front of the forklift and be hit. He also stated that Kress drove the forklift with the fork two or three feet off the ground, which increased the danger to persons who might step in front of it. Upon a weighing of all the evidence, I am persuaded that the Respondent terminated Hayes not because of his speech defect but because of his activities on behalf of the Union. I note that in the letter given Hayes, the Respondent referred to a business slowdown and made no mention of his speech problem. However, at the hearing the Respondent defended his termination solely on the basis of his speech inpediment. As I have noted, no one had any difficulty understanding Hayes when he testified and I am at a loss to understand, therefore, why the Respondent would take the position that Hayes could not communicate or be understood by other employees or customers .8 In his brief, counsel for the Respondent reminds me that I "made a tape recording of Hayes' testimony, and we are sure that if he will play this recording back, it will vividly recreate Hayes' problem in this respect." I have played the recording back and after doing so I have no reason to alter what I have stated above. As noted above, Osborne for some 5 or 6 years prior to February had been the supervisor of shipping and receiving. He requested that he be relieved of his supervisory duties and Hildebrand told him that if he difficulty understanding Hayes. Zimmerman did not testify. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insisted on this it would necessitate a reduction in wages. However Osborne was told that, in order to avoid a substantial reduction in wages, a new classification of maintenance man would be created and he would be paid $3.45 an hour, compared to his previous salary of $150 a week. After working substantially all of his hours on maintenance projects for the first 2 weeks, the current maintenance problems occupied only 10 or 15 percent of his time; his other work involved driving the truck, dock work, and stockman. Osborne was called into Hildebrand's office and told that it would be necessary to reduce his pay to $2.95 per hour, Hildebrand explaining that since most of his work was in the stockman's classification it was not fair to pay the other stockmen less than he was being paid. However, Hildebrand said that Osborne should keep track of his work time and he would receive $3.45 for maintenance work. While the timing renders the Osborne case somewhat suspicious, I conclude on the record and the probabilities of the situation that Hildebrand did not unlawfully discriminate against Osborne by reducing his wages. Therefore, I shall dismiss this allegation of the complaint. 1. The Termination of Donald Kress Without repeating what has been said above regarding Kress' brief employment with the Respondent, I think no other conclusion is permissible except that Kress was reckless and accident-prone, and that he disregarded instructions about closing the overhead door. I have not overlooked the fact that for a portion of the time he was employed the overhead door was not operating properly and it was necessary that he use the fire door. However, the overhead door could normally be opened by pushing an electric button reachable from the driver's seat and closed by pulling a cord that was hangmg down. On the basis of the evidence, I shall dismiss the allegations in the complaint relating to Kress. THE REMEDY In order to effectuate the policies of the Act, I find it necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and from like or related invasions of Section 7 rights , and to take certain affirmative action. The Respondent having discriminatorily discharged employee Hayes, I find it necessary that it be ordered to offer him full reinstatement, with backpay computed on a quarterly basis, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1960), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from the date of the discharge to the date reinstatement is offered. Upon the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Hildebrand Company, Louisville, Kentucky, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. General Drivers, Warehousemen and Helpers, Local No. 89, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, is a labor organization, within the meaning of Section 2(5) of the Act. 3. By stating that wages were frozen insofar as merit increases were concerned during the pendency of a union election petition, and that employees would be under surveillance the Respondent engaged in unfair labor practices within the meaning of Section 8(1) of the Act. 4. By terminating Shelby Hayes on April 2, 1971, the Respondent committed an unfair labor practice violative of Section 8(a)(3) and (1) of the Act. 5. By laying off Lynne Oswalt, Larry Proctor, and Elery Stroup, the Respondent did not commit any unfair labor practices. 6. By terminating Donald Kress the Respondent did not commit any unfair labor practice. 7. By suspending Harold Farrow for I week the Respondent did not commit any unfair labor practice. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]