Alberto-Culver Co.

156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Alberto-Culver Company and Local 478 , International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 22-CA-4610 September 20, 1972 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On April 19, 1972, Trial Examiner George Turitz issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a sup- porting brief, and the General Counsel filed an an- swering brief. 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 au- thority 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 2 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Trial Examiner and hereby orders that Respondent, Alberto-Culver Company, Bound Brook, New Jersey, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order. 'Whereas the Trial Examiner admitted testimony at the hearing with respect to a union petition filed in 1970 and the circumstances surrounding its subsequent withdrawal , such events, having occurred beyond the 10(b) penod, may not serve as the basis for an unfair labor practice finding. However, this testimony is relevant background evidence that "may be utilized to shed light on the true character of matters working within the limitations penod . .." Local Lodge No 1424, International Association of Machinists, AFL-CIO [Bryan Manufacturing Company] v N L.R B, 362 U S 411, 416. 2 In concluding that Respondent had knowledge of the Union's organiza- tional activity, we also rely on the fact that organizational activity was conducted within Respondent's small plant. Quest-Shon Mark Brassiere Co, Inc, 80 NLRB 1149, 1150, N L R.B. v. Abbot Worsted Mills, Inc, 127 F 2d 438, 440 (C.A 1) TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE Tuiuiz Trial Examiner: Upon a charge filed by Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) on October 4, 1971, and served that day on Alberto- Culver Company (Respondent and, at times, the Company), the General Counsel of the National Labor Relations Board (the Board), through the Regional Director for Region 22, on November 11, 1971, issued a complaint and notice of hearing which was duly served on Respondent. Respondent filed its answer-in which it denied all allegations of unfair labor practices. A heanng on the complaint was held before me in Newark, New Jersey, on December 14 and 15, 1971, and January 4, 1972, at which the General Counsel, Re- spondent, and the Union were represented by their re- spective counsel. The General Counsel and Respondent have submitted briefs. Upon the entire record' and from my observation of the witnesses, I make the following: FINDINGS OF FACT I BUSINESS OF RESPONDENT Respondent, Alberto-Culver Company, is a Delaware corporation having its principal office at Melrose Park, Illi- nois, and various other places of business, including a distri- bution center at Piscataway, New Jersey ("the Bound Brook plant" or, at times, "distribution center"), where it is en- gaged in the sale and distribution of toiletries, foods, and related products. In the course and conduct of its operations at the Bound Brook distribution center, Respondent annu- ally sells and distributes products valued at in excess of $50,000 directly to customers located in States of the United States other than the State of New Jersey. I find that Re- spondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations Act, as amended (the Act). II THE LABOR ORGANIZATION INVOLVED Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2 (5) of the Act. III THE UNFAIR LABOR PRACTICES The principal issue litigated at the hearing was whether Respondent discharged four employees on October 1, 1971, in order to reduce costs or in order to discourage member- ship in the Union, and, if the purpose was to reduce costs, whether the selection of any of the discharged employees was discriminatory. 1 In his brief, the General Counsel moves to correct the transcript by changing the word "unseen" on p 26 to "unsatisfactory " the motion is hereby granted Respondent submitted a motion to correct the transcript with respect to 59 items. As to item 12 the motion is hereby denied. The remainder of the motion is granted as made with the following modification: Item 10, the word "wasn't" shall read "was sent" Respondent's motion, marked Resp Exh. 4, has been received in evidence and placed in the exhibit file All the above changes have been made in the transcript . I have also corrected certain typographical errors by changing 1 8, p. 441, to read as follows ".076 and on September 21 .045, and on the 22nd .050." 199 NLRB No. 22 ALBERTO-CULVER COMPANY 157 A. The Union Activities; Respondent's Knowledge and Animus In late 1970, the Union started an organizing cam- paign among Respondent's employees at the Bound Brook plant. Carlo Tromello, the plant manager, promptly called Hoff, Respondent's vice president for industrial relations, and, commenting that he "had a problem," told him of the campaign. At that time, Tromello told Olga Thomas and Walter Szymonowicz, employees, that if the Union got in the Company would not permit two members of the same family to be employed; and he also told Szymonowicz that if the Union got in a timeclock would be installed. In De- cember 1970, the Union filed a petition for certification of representatives in Case 22-RC-485 1. However, some of the designation cards submitted with the petition were undated, and when Szymonowicz, who was one of those who had collected designations, was requested to get others, he did not do so, and the petition was withdrawn. Szymonowicz told Tromello that he could thank Mrs. Szymonowicz for the petition's failure, since she had told a caller, who wanted Szymonowicz to get some new signatures, not to bother him at the plant. Tromello commented that that was a wonderful Christmas present for him and that he would let the home office know, which he did. Hoff was on vacation at the time. When he returned, he called Tromello and complimented him for having "made out very well with the union situ- ation," and he asked how the withdrawal had come about. Tromello told him of the undated cards and said that he had persuaded the employees who had done the organizing that it was to their best interest not to get dated cards and to drop the attempt to bring in the Union. Hoff asked who the men were and Tromello named Szymonowicz.2 The following month George Marshall, vice president for manufacturing, and William Walsh, director of distribution, went to Bound Brook and held a meeting of the employees. George Mar- shall informed them that the Company had made a survey of wages and that, effective February 1, which was only a day or 2 away, all wages would be increased by 10 cents an hour. He also told them that certain improvements in work- ing conditions would be made to protect employees who worked in exposed areas, that better facilities would be provided for coffee, and that the employees would be pro- vided with lockers. On August 9,197 1, Respondent installed William Mar- shall 3 as plant manager in place of Tromello, who remained for a time to discuss the running of the plant. Tromello told Marshall of events in the past involving unions, advised him that it would be no great surprise if union problems arose in the future, and discussed the duties and capabilities of each employee. In the course of one of these conversations, Marshall asked Tromello, "who are Murphy and Szymo- nowicz?" Tromello asked what Marshall meant by the question, and how he had gathered from Tromello that they were "some sort of leaders." Tromello said, "Don't kid 2 Tromello testified that be also mentioned Murphy to Hoff, but I have credited Hofrs testimony that he named only Szymonowicz. There is no substantial evidence that Murphy was involved in the dropping of the peti- tion. However, I have credited the testimony that Murphy and Agnostak, as well as Szymonowicz, participated in obtaining the designation cards in 1970 3 References to Marshall, without given name , are to William Marshall me. You didn't just pick this up in passing. You know from some place else." 4 On August 16, Szymonowicz returned from a vacation. Employees urged him to contact the Union and procure application cards. That was done and, in the last week of August, Murphy and Szymonowicz again solicited signa- tures among the employees. Approximately 20, representing 85 percent or more of the eligible employees, signed. Meanwhile, overtime work was substantially reduced, and the employees, formerly assigned to handle only certain product lines, were required to handle all without distinc- tion. On September 1, Walsh again came to the plant and addressed the employees. He told them that operating costs at Bound Brook were considerably higher than at Respondent's two comparable distribution centers and that operations would have to be placed on a more efficient basis. He said that he understood the employees' concern that overtime had been substantially done away with. How- ever, he said, the Company could not continue with the amount of overtime that had been worked in the past; and he pointed out that at Melrose Park the presence of a union facilitated layoffs, and that the work force had been reduced from 60 to 37.5 Walsh testified that he told the employees that he "did not anticipate any drastic change," but that "if we did not improve, if we did not operate on a profitable basis, that we could make some drastic changes," such as shipping some orders to individual customers through dis- tributors in Boston and Philadelphia, instead of doing so through Respondent's own distribution center at Bound Brook. He explained that he did not consider the layoff of 7 or 8 employees a drastic change. Several employees testi- fied that what Walsh said was that there would be no layoffs at Bound Brook. I find that, irrespective of whether Walsh used the word layoff in his speech, its import in the context was that layoffs were not anticipated, and it was calculated and intended to assure the employees to that effect. Walsh made a written report on the meeting to George Marshall. On September 23, 1971, the Union filed a petition for certification of representatives in Case 22-RC-5090. Re- spondent learned of the filing that same day and, on Sep- tember 30, Respondent received a notice of hearing on the petition. B. The Discharge and the Strike On October 1, 1971, at about 1 p.m., Murphy, Szymo- nowicz, Garrity, and Thomas were summoned to the office. William Marshall, the plant manager, and Walsh, who was normally stationed in Chicago, were present. Marshall stat- ed that Respondent had 28 individuals working in the ware- house but found it could be run with 24, and that in order The findings as to this conversation are based on Tromello's testimony, which Marshall did not contradict. 5 This finding is based on the testimony of several employees. Walsh testified that the presence of a union and a bumping process at Melrose Park made it feasible to interchange employees as needed between the plant and the warehouse, he neither affirmed nor denied that he mentioned that union in his speech 6 Pursuant to a stipulation executed on October 12 an election was held on November 11, which was won by the Union by a vote of 15 to 1, with 3 challenges. 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to bring costs into line the four employees present were being terminated as of that time. There was a stunned si- lence. Then Murphy asked on what basis the four had been selected and Marshall replied that the basis was unsatisfac- tory performance and attitude.? Murphy, who was a forklift operator, challenged the charge of unsatisfactory perfor- mance as applied to him, pointing out that he had 20 years of experience with forklifts, whereas Respondent was re- taining some employees with only 6 months' experience. Marshall did not disagree with Murphy, but he said that Murphy's attitude was poor, that he had asked Murphy to work overtime a few nights before and Murphy had refused. Murphy replied that Marshall had not asked him to work overtime but had inquired whether he wanted to work overtime; that when Marshall said it was a busy time, he had replied that since the plant had not been working overtime, he had made a previous commitment, whereupon Marshall had said all right and walked away. Murphy told Marshall that so far as any personality conflict was con- cerned, it did not keep him from doing his job. Syzmonowicz asked why he had been discharged, com- menting that he worked all the overtime he could possibly get; Thomas asked in what way her performance, after 3 years, was unsatisfactory. Walsh replied to Thomas that there was no complaint about her, but her job was being abolished. Szymonowicz got no explanation. Garrity asked if they weren't going to be given a warning or a second chance. Marshall said that the matter was "finished," and he asked them to clean out their lockers and vacate the premises as soon as possible .8 After leaving the office, the four were asked by their fellow employees what had happened., Informed that the four had been discharged and ordered to vacate the prem- ises, the employees, after a short discussion, decided to walk out, and they went out into the parking lot. Walsh invited them back in to the coffee room to consider what to do, including the four dischargees in the invitation. In the coffee room, he told the employees that the work force had been reduced by four and the center was going to be operated "as a business." He said that the four dischargees had been "terminated because of attitude and performance," and he suggested that they not make any rash decisions. He told them that they had until 4:30 to decide what to do and then left. Murphy and Szymonowicz got in touch with the Union, which advised the employees to strike. The employees then left the plant. As they were leaving, Walsh warned them that if they left they would be subject to replacement.' The strike i I have accepted Respondent 's version of the statement, which omitted "personality," testified to by the General Counsel's witnesses s Szymonowicz worked for Respondent since September 1969, Murphy since February 1969, Thomas since December 1968, and Garrity since No- vember 1968. Respondent states in its brief that the Bound Brook center came into being in the fall of 1968. 9 Several employees testified that what Walsh said was that they would be subject to termination I am convinced that Walsh was aware of the possibly different legal consequences flowing from "termination" as opposed to "re- placement " So far as the employees were concerned the immediate impact of either word would have been the danger that striking would subject them to possible loss of job I am not convinced that the employees were aware of the difference at the time Walsh made the remark I find that the General Counsel has failed to prove by a preponderance of the evidence that Respon- dent warned the employees that they might be terminated for striking and shall recommend that par. 5 (b) of the complaint be dismissed was still in effect at the time of the hearing. C. Respondent's Stated Reasons for the Four Terminations 1. The personnel action reports Respondent's personnel department in Chicago com- pleted personnel action reports, a regularly used company document, for the four discharged employees. Each report showed as the effective date September 30, 1971; showed under "remarks" the words "termination-reorganization"; and indicated approval by George Marshall, vice president, on October 4, 1971, by Kunser on behalf of the personnel department on October 7, 1971, and by Walsh as depart- ment manager, with no indication of date. The boxes mark- ed "originated by" were left blank. Hoff, vice president for industrial relations, explained that the reason was that the person who originated the terminations was William Mar- shall, plant manager at Bound Brook, whereas the personnel action forms were made up in Chicago. Asked the meaning of "termination-reorganization," he testified: Well, you have terminations due to lack of work. You have terminations for cause. You have quits, but in the light of our history, where we have had-we have grown so much, we have developed a phrase to describe that for ourselves, which is termed reorganization. 2. The unemployment reports The discharged employees applied for unemployment insurance to the New Jersey Division of Employment Secu- rity, which in due course informed Respondent and sent report forms to the Bound Brook plant. Marshall sent the blank forms to Chicago, where they were completed and sent on to the Division of Employment Security. In e: .h case the reason for termination was stated by Respondent to be "unsatisfactory performance." Hoff explained this as follows: Well, they were not terminated for cause. That would have appeared the P-1.10 The term "termination-reorg- anization" is used in, perhaps a third of all our termina- tions and it comes about because of management changes that have occurred. They have historically used that term and what happens is we get a new man- agement in a department, as was the case in Bound Brook. The old employees that were satisfactory are deemed under a new manager to be unsatisfactory. So, they start getting replaced. So, we start responding to unemployment compensation enquiries, in terms they understand. If we use "termination-reorganization" it would confuse them. 3. The need for a reduction in force Respondent operated three distribution centers, one at Melrose Park, Illinois, I1 one at Sparks, Nevada, and one at Bound Brook, New Jersey. All three centers handled the 10 The P-I was the personnel action report already referred to 11 Respondent's central office and its largest distribution center were in Continued ALBERTO-CULVER COMPANY same products except that Melrose Park did not handle certain articles constituting approximately 10 percent of Respondent's business. George Marshall, who became vice president for man- ufacturing in September 1970, testified as follows: He found the Sparks center well run but the Melrose Park operation poorly organized. A new manager was appointed at Melrose Park and by June 1971, with the same volume of work, personnel were cut from 69, including 6 supervisors, on two shifts, to 41, including 4 supervisors, on one shift; and overtime, previously high, was cut to an insignificant level. Meanwhile, in late January 1971, he made his first visit to the Bound Brook plant, accompanied by Walsh. Certain changes were made in the location of stock, but the reduc- tion of overtime accomplished was unsatisfactory. As already stated, William Marshall replaced Tromello as plant manager on August 9, 1971. At that time there were approximately 32 warehouse employees, including 7 student part-time employees.12 Early in September, the seven stu- dents left, but an eighth was taken on, with the under- standing, according to Marshall, that he would not remain more than 2 or 3 months. The number of warehouse em- ployees was 22 in September 1970, except for 1 week, when it was 24; in September 1971, the number was 23. In Sep- tember 1971, the clerical staff was reduced from five to three. Overtime, which had been 1458.5 hours in September 1970, was reduced to 433.5 hours in September 1971. Sep- tember shipments totaled $3,520,104 in 1970 and $3,290,880 in 1971. Respondent placed in evidence a certain cost-per-car- ton comparison for the three distribution centers for July through September 1971, showing the following, expressed in dollars: 1971 Melrose Bound Park Sparks Brook July Administrative & Indirect .034 .034 .054 Direct .025 .027 .045 Total .059 .061 .099 Aug. Administrative & Indirect .020 .034 .040 Direct .026 .025 .037 Total .046 .059 .077 Sept. Administrative & Indirect .012 .021 .019 Direct .025 .025 .026 Total .037 .046 .045 The "administrative" labor referred principally, if not en- Melrose Park, a suburb of Chicago. " Melrose Park " and "Chicago" were used interchangeably in the testimony and are so used in this Decision . ii The record does not show whether the 32, a figure testified to by Mar- shall, included the leadmen. 159 tirely, to clerical employees. Most of the "indirect" labor was performed by the same warehouse employees who per- formed the "direct" labor. It included the work involved in receiving, storing, straightening out, and rearranging mer- chandise, and cleanup work. "Direct" labor involved only order picking and shipping out of merchandise. Walsh testi- fied that the "direct" labor cost was not as reliable as the total labor cost because the warehouse employees could not be depended on to report their "indirect" labor hours accu- rately. The above figures were derived from daily figures which were telephoned to Melrose Park each day. About a dozen of the daily figures for total cost are in evidence. These include a low of $.025 (September 24) and a high of $.082 (September 23). Walsh testified that the cost per car- ton was substantially affected by the volume of units ship- ped on a given day, that the first 2 months of each quarter were a low volume period, and that except in the third month of each quarter orders were filled within a day or 2 of their receipt. Walsh testified that he had instituted the practice of reducing the work force in periods of low volume, and that in October the work force in the Melrose Park warehouse had been reduced by 11 and that at the Sparks warehouse by a net of 3. He and William Marshall both testified that starting round September 1 they discussed the inefficiency and high cost of Bound Brook operation and decided that there would be a reduction in force effective October 1, and they said that Walsh favored terminating eight employees but they ultimately decided to terminate only four, the num- ber favored by Marshall. Walsh testified that they discussed the identity of the putative dischargees starting about Sep- tember 1, and that he was sure that they "firmed up" the decision to terminate the Jour named in the complaint "somewhere around the middle of September." Marshall testified that they made no decision as to how many were to be discharged or their identity until after September 23, the date the representation petition was filed. Hoff, the vice president for industrial relations, testi- fied as follows: He first learned of the impending termina- tion when George Marshall, Walsh, and Schmitz, another official, asked him whether the terminations would cause any problems in view of the pending representation petition. Such consultation was not normal; they came to him solely because of the union organizing. They informed him that the Bound Brook plant had too many employees and a cutback was necessary, and the four proposed dischargees were named. Hoff asked how they had been selected, and when they told him William Marshall's reasons, he said, "You shouldn't have any problem." The conference lasted 5 or 10 minutes. He had previously been told that Szymo- nowicz had been involved in the 1970 organizing campaign. However, in another connection he testified that he had been told that Szymonowicz was the man responsible for the failure of the 1970 petition "and as far as I was con- cerned, he was not a problem." The record contains no evidence of any consultation by Walsh or William Marshall with George Marshall, vice president for manufacturing, about the need for a reduction in force. 160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The selection of the four dischargees (a) Murphy. William Marshall explained his choice of Murphy for discharge on the basis, primarily, of two factors. First, while Murphy "was probably one of the best forklift operators in the house,"13 he "got the impression ... that this man was somehow resisting" him. He stated, further: I got the impression ... it's difficult to put in words, but I was trying to communicate and the man was not receiving. He obviously didn't want to communicate. I got the impression ... that the man did not like me, that he resented me, that he had something against me. I don't know what the reason was. It could have been anything. But in simple pleasantries of the day-don't get me wrong, the man was nice. The man was courte- ous, but he would go to a certain extent and there would always be the line and he would not cross it. Second, Murphy was averse to working overtime, thus plac- ing a greater burden on those who did work overtime. Re- ferring to September, he testified: And on numberous occasions Murphy would not work overtime. I approached him on this once and I ex- plained ... that I ... needed the kind of people I could depend upon. That our business was seasonal, and that we had peaks and valleys, and when I needed someone to work overtime, I needed them. And that if I couldn't get this kind of action out of him, that I would certainly be looking to improve the kind of people that I had in the future that would work overtime when I needed it. Marshall further testified that some of Murphy's refusals to work overtime came after that talk. He conceded that Mur- phy had worked "one Saturday when everybody in the house had to come out and work." Murphy testified that on two occasions in about the third week of September his leadman asked him, "Do you want to stay tonight, Jim?" and that he declined. He agreed that Marshall, himself, had approaced him about overtime, testifying that it was on September 28 or 29. His account of what Marshall said did not differ substantially from Marshall's account, but he testified further that he replied to Marshall, "We haven't been working any overtime to speak of and I made a previous engagement, and I could not work that night," and that Marshall said, "O.K." Murphy testified categorically that that conversation at the end of September was the only one he had with Marshall about working overtime. I found Murphy's testimony about the overtime issue convincing, and I find, contrary to Marshall's testimony, that Murphy declined overtime dur- ing September a total of three times, that Marshall's conver- sation with Murphy took place on September 28 or 29, and that Murphy was not thereafter requested to work overtime by Marshall or any one else. (b) Szymonowicz. Marshall testified that Szymonowicz was an average order picker, that some were better than he, some the same, and only one, Garrity, inferior. He ex- plained his choice of Szymonowicz for discharge on the basis of three factors. First, he testified, Tromello had told him that he had 13 Murphy was an acting leadman throughout Marshall's tenure, filling in for one who was ill. He was not a supervisor. previously suspected Szymonowicz of stealing, but "he felt like he had the situation corrected." Marshall testified: "This planted a seed in my mind that if this was something I had to watch for, it was another problem." Tromello testi- fied that in early 1971, finding a cache of company products near one of the doors, he suspected and questioned several employees, including Szymonowicz, and, unable to prove anything, had let Szymonowicz off with a warning. He fur- ther testified that he did not recall informing Marshall of his suspicions, but that he did tell him that in about June, in order to discourage such practices, the Company had insti- tuted a policy of selling its products to employees at reduced prices. As to the second factor, Marshall testified as follows: Shortly after he became plant manager, he was informed that Szymonowicz did the Company's printing, whereupon he asked Szymonowicz to print him some personal business cards. Szymonowicz delivered 1,000 cards and charged $12.50, which he paid forthwith. While that "wasn't a big deal," he felt that the price was excessive and wanted to find out if Szymonowicz had the same "attitude" with respect to the Company's printing. He therefore submitted some pack- ing lists printed by Szymonowicz to another printer, who gave him a price which was about half of what Szymonow- icz had charged. "So on that basis I decided not to give any more printing to Mr. Szymonowicz." However, he admitted giving a printing order to Szymonowicz in September. He testified that "It should have been at the beginning or the middle" of that month, but he could not recall whether it could have been at the end of September. As to the compari- son shopping expedition, he finally testified that it "was either at the very end of September or the very first thing in October," but that he could not recall "right off" whether it was before or after the discharge. Szymonowicz testified that he quoted the price of the business cards to Marshall in advance and that Marshall said, "That sounds fair enough to me. Make me a thousand business cards." He also testified that about 3 or 4 days before his discharge he solicited the order of packing lists from Marshall, who in- structed him to print the usual amount, but that he was discharged before he started work on the order. I found Szymonowicz' testimony convincing and have credited him over Marshall. I do not credit Marshall's testimony that he found the price of the cards excessive, his testimony that such excessive price caused him to investigate other prices, or his testimony that on the basis of the lower quote for the packing slips he decided not to give any more printing to Szymonowicz. As to the third factor, Marshall testified as follows: He noticed that Szymonowicz, who used to make coffee for the employees, left the plant every morning between 9 and 9:30 and was informed that it was to get rolls and doughnuts. He called Szymonowicz to his office and asked him if he made coffee. Szymonowicz told him that he did, but that he did it before starting time, whereupon he told Szymonowicz that he had no objection to his making coffee before 8 o'clock, the starting time, but he was to fill orders for 8 hours. Subsequently, Walsh informed him that there was no coffee in the coffee room, that Szymonowicz had reported that Marshall had stopped it, and that the employees were upset. This happened about September 1. Thereafter another em- ALBERTO-CULVER COMPANY 161 ployee, Gartland, made coffee and did so on company time, i.e., after 8 o'clock. He felt that Szymonowicz' action in stopping the coffee and accusing him of having ordered it had inflamed the men against him, and that he did not need such a detractor from good management -employee rela- tions. Walsh corroborated Marshall with respect to what he had reported. Szymonowicz did not touch upon the incident in his testimony. (c) Thomas. Thomas was a redress worker, apparently the only one in the plant. Her principal task was to gather damaged cartons and repack the merchandise so that it was in saleable condition. In the first part of September, Mar- shall was informed that Thomas was interested in becoming an order filler, since the pay was higher. He told her he would have no objection, but advised her to think about it. A week later she told him that she had decided that the job would be too strenuous.14 Marshall testified as follows: Thomas' discharge had nothing to do with the quality of her work. However, Respondent had difficulty obtaining the necessary printed cartons for repacking, and those on hand in Bound Brook were out of date and useless. The result was a piling up of merchandise in the damaged cartons. It was therefore decided to discontinue the practice of trying to keep a stock of cartons on hand, but to order them periodi- cally from Melrose Park on the basis of specific need, and then have the redress work done during slow periods by whoever was available. (d) Garrity was among the earliest employees hired at the Bound Brook center. Marshall testified that he was the slowest of all the order fillers and he gave a detailed descrip- tion of some of his faults on the job. This testimony was not denied. Concluding Findings Murphy and Szymonowicz were the employees re- sponsible for the "problem" which Tromello discussed with Hoff in 1970-the Union's first organizing effort. Hoff was pleased by the failure of the 1970 petition; he testified that since he understood that Szymonowicz had been respon- sible for its failure, he "was not a problem" so far as Hoff was concerned. For that reason, he testified, he told Mar- shall nothing about Szymonowicz. However, when Tromel- lo was familiarizing Marshall with the operation and the employees in August 1971, Marshall specifically requested Tromello to point out both Murphy and Szymonowicz, ex- plaining that he understood they were "some sort of lead- ers"; when Tromello told him he must have gathered that impression "some place else," he remained silent. Whether the source was Hoff or some other person, therefore, it is plain that Marshall carried in his mind the warning that Murphy and Szymonowicz were problem employees in that they were potential leaders in any union organizing cam- paign. 14 Respondent contends that the above conversation resulted from Marshall's initiative in seeking an alternative job for Thomas , but I find that this was not the case. Marshall testified that no decision was made as to which, or how many, employees would be discharged until after September 23, but he placed his conversation with Thomas "probably closer to Septem- ber the Ist" than to September 30. More important, his testimony read as a whole discloses that he spoke to Thomas only after learning that she was interested in the order filler job because of the higher pay Respondent's basic defense is that the four employees were discharged because of the need for a reduction in force. Whether to enlarge or reduce a labor force, especially for an operation like Respondent's, is not an open and shut question. It involves judgment and prognostication, and competent plant managers could come to different conclu- sions on the same set of facts. A fortiori it is not for me to second-guess Respondent in this area. At the same time, I note that the objective facts testified to by Respondent's officials do not compel the conclusion that any reasonable employer would have reduced his work force in the circum- stances described. The gist of Walsh's speech on September 1 was that layoffs were not anticipated, but the Bound Brook operation had to "get in line" or drastic changes would be made. That goal was accomplished: the overall per carton cost, based on figures telephoned in daily, was brought down to 4.5 cents, as compared with 3.7 and 4.6 cents at the other two centers; and the "direct" cost, which included only the efforts of the warehouse employees, was substantially the same for all three centers. The staff num- bering 30 or 32 in August 15 had already been reduced in early September, after the speech, to 23. While Thomas' redress work allegedly was planned to be on a different time schedule, it was still to be performed at Bound Brook. The fact that the work forces at the Melrose Park and Sparks warehouses were reduced does not necessarily indicate the need for similar reductions at Bound Brook.16 Finally, a reduction in force in the middle of a workday represents a departure from the more usual business practice. Before coming to any conclusion as to Respondent's belief that a reduction in force was needed, therefore, it is necessary to consider the credibility of its officials who professed that belief. In explaining his choice of the two unionization leaders for discharge, Marshall testified to some things which I find did not take place. First, after exaggerating the number of instances when Murphy declined overtime in September- he described the three which occurred as "numerous occa- sions"-he testified that "some of these occasions" were after he had warned Murphy that Respondent needed the kind of employee who would work overtime. This was un- true. The warning was given very late in September and no overtime was requested of Murphy after the warning, whether by Marshall or anyone else. Marshall conceded that Murphy had worked overtime when it was a require- ment. The importance of this misrepresentation by Mar- shall lay in the fact that overtime had been considered, at least by many employees-Szymonowicz, for instance-vir- tually a bonus, and Walsh had apologized to the employees for its curtailment. Rather than throwing an extra burden on other employees by declining overtime, as Marshall testi- fied, Murphy, in many, if not all,17 instances, did them a favor. Marshall thus knew that prior to his talk with Mur- phy the latter had no reason to think that Respondent ob- jected to his declining overtime. Second, Marshall first testified that after learning from an outside printer that 15 See In 12 16 Thus, Walsh testified- "We also have an advantage at Melrose Park in that . . we can draw from the plant . Why I said it, because of the bumping process we don't necessarily lose all our shipping people " 17 Marshall was testifying about September, when overtime was especially scarce. 162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Szymonowicz had been overcharging the Company, he de- cided "on that basis" not to give him any more printing business ; he cited this as one of the three factors persuading him to select Szymonowicz for discharge . This, too, was untrue. Marshall gave Szymonowicz an order for company printing only a few days before the discharge . Moreover, he in effect finally admitted that his check with the outside printer had had nothing to do with the selection, since he testified that he could not recall whether it had taken place before or after the discharge . Respondent's attempt to jus- tify the discharge of Murphy and Szymonowicz upon these factually unsupported grounds tends to show that Respondent's actual motivation was discriminatory. The additional reasons urged by Respondent in justifi- cation of the selection of Murphy and Szymonowicz, while not so demonstrably nonfactual , do not bear scrutiny. As to Murphy, the second of the two reasons advanced by Mar- shall was his impression that Murphy did not like him and "resisted" him, an impression gathered from the fact that, although "nice" and "courteous," Murphy would not "com- municate" with him beyond a certain point. Marshall made no claim that the other employees overwhelmed him with friendly communication, and this does not seem probable in light of the celerity with which they turned to union representation so quickly after he took over as manager. Indeed, in another connection-the coffee episode-Mar- shall testified that the employees were "inflamed" against him. The Act does not prevent employers from discharging employees for arbitrary or for personal, even selfish, rea- sons. However, as Marshall claimed that the terminations represented an effort to reduce costs, and as some degree of suspicion or hostility towards Marshall was widespread, I do not credit his testimony that he was influenced to select one of his top forklift operators for discharge by the fact that the man was reticent and demonstrated, albeit in a "nice" and "courteous" manner, that he did not like Mar- shall. I find that he attempted to use the situation as a pretext to justify a discharge which I find below to have been discriminatory. As to Szymonowicz',alleged attempted stealing, the only information Marshall had was what Tro- mello had imparted to him, namely, (1) he had suspected others along with Szymonowicz; (2) this had taken place "previously," i.e., he did not think it a current problem; and (3) the problem appeared to have been remedied by allow- ing employees the privilege of buying Respondent's prod- ucts at reduced prices. The implication of Marshall's testimony as to the coffee-making is that he felt that Szymo- nowicz had deliberately misrepresented his instructions in order to paint him a villainous boss. However , Marshall made no attempt to get an explanation from Szymonowicz; he did not even mention to him his dissatisfaction. More- over, he proceeded to allow another employee to make the coffee on company time, which he admittedly had ordered Szymonowicz not to do . I do not credit Marshall's testimo- ny that these matters caused him to feel that Szymonowicz was an undesirable employee. I find that he attempted to use these matters as a pretext to justify a discharge which I find below to have been discriminatory. The manner in which the discharges were camed out throws doubt on Respondent's professed motivations. At the discharge interview , Marshall gave all four employees as the reason for their selection a single pat formula that on its face sounded contrived-unsatisfactory performance and attitude . According to Respondent's own testimony at the hearing, the formula was grossly inaccurate. "Unsatisfacto- ry performance," according to Respondent , applied, if at all, 18 only to Garrity, and Respondent's attempt to establish an undesirable "attitude" was limited to Murphy and Szy- monowicz. At the discharge interview Respondent did even less; when Szymonowicz asked for an explanation of his selection, since, unlike Murphy, he tried to get all the overtime possible, Marshall gave no reply. Then he abruptly ordered all four to vacate the premises. Marshall's use of the inaccurate formula was not the result of mere carelessness or lack of ability to say what he meant . Walsh did the same thing: only a few minutes after telling Murphy he was a good forklift operator and telling Thomas that the formula did not apply to her, he told the strikers that all four had been selected for discharge on the basis of performance and attitude. Indeed, Respondent made unsatisfactory perfor- mance official by reporting it as the reason for the discharge of the four employees to the Division of Employment Secu- rity. Respondent has not explained why it did not inform the New Jersey Division of Employment Security that a reduction in force, as it now claims, was the reason for the discharge. I do not credit Hoff's testimony that an order filler as efficient as retained employees, a perfectly satisfac- tory redress worker, and a top forklift operator, all had to be labeled "unsatisfactory" as to performance in official documents in order that some state employees in New Jer- sey would get responses in terms they could understand.19 In this connection, I note that the record contains no expla- nation of why Marshall, who allegedly originated the dis- charges, could not have filled out those forms ; nor is there an adequate explanation of why he never initialed the "orig- inated by" blank of the personnel action forms, or why Walsh's approval was not dated . Also significant is the fact that Marshall and Walsh differed as to when the selection of the dischargees was made, Walsh testifying that it was "firmed up" around the middle of September , and Marshall saying that no decision was made as to the identity, or even the number, of the dischargees until after the petition was filed, which was on September 23. This is a discrepancy of material import. Finally, Respondent has not explained why a previously planned reduction in force was placed in effect in the middle of a workday , or why the personnel action forms named September 30 as the effective date of the termination of four employees who worked up to I o'clock in the afternoon on October 1 . The artificiality of Respondent's documentation of the terminations , and the other matters mentioned in this paragraph , together with the manner, already discussed, in which the discharges were camed out, make it appear doubtful that Respondent 's offi- cials testified truthfully as to the procedure by which the 18 Garrity had worked for Respondent virtually, if not actually, since the plant opened in 1968. 19 Nor do I credit Hoff's testimony that he advised Walsh , George Mar- shall, and Schmitz that the discharges would cause no problem. According to him, those three officials departed from customary procedure by consult- ing him about the discharges because they were to follow so quickly the filing of the petition, but he, the company expert, was able to assure them after a conversation of 5 to 10 minutes that their fears were groundless. ALBERTO-CULVER COMPANY 163 discharges were decided on, or as to the time of the decision. These various circumstances point, rather, to a hasty deci- sion carried out in a rush. It is not material whether Respondent's decision to discharge the employees was reached on September 23, when it learned that the petition had been filed or, as is more probable in the light of the circumstances described in the preceding paragraph, on September 30, when it received the notice of hearing in the representation case 20 Walsh and William Marshall were not credible witnesses, and I do not credit their testimony that they thought a reduction in force or the elimination of the job of redress worker was economi- cally desirable, or that they discussed such reduction start- ing around September 1 or at any time prior to the filing of the, petition. In view of the above finding and of the findings already made that Respondent's explanations of the selection of Murphy and Szymonowicz were untruthful or pretextual, it is unnecessary to demonstrate by further discussion that the discharge of those two "leaders," whom Marshall asked Tromello to point out, was discriminatory. As to Thomas and Garrity, it is not material that they were no more active in promoting the Union than other employees who were not discharged. Whether Respondent discharged them in an effort to conceal the plainly discriminatory discharge of Murphy and Szymonowicz, see N.L.R.B. v. Dorn's Trans- portation Co., 405 F. 2d 706 (C.A. 2), enfg. in relevant part 168 NLRB 457, or in an effort to demonstrate to the em- ployees that Respondent had it in its power to retaliate against a work force which had the temerity to lean to unionization, see Arnoldware, Inc., 129 NLRB 228, 229, its purpose was to discourage membership in the Union. I therefore find that by discharging Murphy, Szymonowicz, Thomas, and Garrity, Respondent violated Section 8(a)(1) and (3) of the Act. The circumstances of the strike establish plainly that it was caused by the discriminatory discharge of the four em- ployees. I therefore find that it was an unfair labor practice strike from its inception. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE I find that the activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY As I have found that Respondent has engaged in cer- tain unfair labor practices, I recommend that the Board 20 The 1970 experience proved to Respondent that the mere filing of a petition did not mean that the Union was necessarily in a position to obtain an election The issuance of the notice of hearing was the crucial element that established that the Union had succeeded in obtaining an adequate and valid showing of interest so that, under established and well-known Board policy, the Regional Director would process the petition issue the recommended Order set forth below requiring Re- spondent to cease and desist from said unfair labor prac- tices and to take certain affirmative action which will effectuate the policies of the Act. I recommend that Respondent reinstate James Mur- phy, Walter Szymonowicz, Olga Thomas, and Hugh Garrity to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and that they be made whole for any loss of earnings suffered by reason of, the discrimination against them. The amount of backpay shall be a sum of money equal to what they would have earned from October 1, 1971, to the date of Respondent's offer of reinstatement, with interest at 6 percent per annum, less their respective net earnings during said period, com- puted in accordance with the Board's usual practice. See F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. I have found that the strike which commenced on Oc- tober 1, 1971, was caused by Respondent's unfair labor practices. Accordingly, I recommend that, upon their appli- cation, Respondent offer all its employees who joined the strike reinstatement to their former positions of employ- ment or, if those positions no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, all per- sons employed by Respondent on or after October 1, 1971. I further recommend that Respondent make said employees whole for any loss of pay they may suffer by reason of Respondent's refusal to reinstate them in accordance with the recommended Order, if such refusal eventuates, by pay- ment to each of them of a sum of money equal to that which he would normally have earned as wages from a date 5 days after the date on which he applies for reinstatement to the date of Respondent's offer of reinstatement, less net earn- ings during such period, with interest thereon at 6 percent per annum, in accordance with the Board's usual practices referred to above. I further recommend that the Respondent preserve and, upon request, make available to the Board and its agents for examination and copying all payroll, time, work, sales, shipping, and other records to facilitate the computa- tion of backpay and to ensure the proper carrying out of the reinstatement provisions of the recommended Order. As Respondent has warned the employees that products nor- mally distributed through the Bound Brook distribution center could be distributed through other means, thereby reducing available employment, such records shall not be limited to records of the Bound Brook distribution center, but shall include all such records of Respondent relating to products of the kind which have been distributed at the Bound Brook distribution center. The discharge of the four employees was considered not only by William Marshall, the plant manager, but also by George Marshall, vice president for manufacturing, by William Walsh, director of distribution, by John Schmitz, group vice president, and by Robert Hoff, vice president of industrial relations. The discharge of four employees for the deliberate purpose of defeating unionization shows a dispo- sition on Respondent's part to thwart the basic policies of the Act. I am, therefore, recommending that Respondent be 164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ordered to cease and desist from infringing in any manner upon the employees' statutory rights, Upon the basis of the foregoing findings of fact and on the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent, Alberto-Culver Company, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent is, and at all times material has been, an employer within the meaning of Section 2(2) of the Act. 3. Local 478, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 4. By discriminatorily discharging James Murphy, Walter Szymonowicz, Olga Thomas, and Hugh Garrity, Re- spondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 5. By interfering with, restraining, and coercing em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 6. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended:21 ORDER presently serving in the Armed Forces of the United States, of their right to full reinstatement as provided in this Order in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Make whole the employees referred to in para- graphs 2(a) and (b), above, in the manner set forth in section V of this Decision, entitled "The Remedy." (e) Preserve and, upon request, make available to the Board and its agents, for examination, copying, and repro- duction, all social security payment records, payroll records, time records, sales records, shipping records, and all other data necessary or helpful to analyze and compute the back- pay required by this Order and to ensure the proper rein- statement of employees as required by this Order. (f) Post at its Bound Brook, New Jersey, distribution center copies of the attached notice marked "Appendix ."22 Copies of the notice, on forms provided by the Regional Director for Region 22, shall, after being signed by a repre- sentative of Respondent, be posted immediately upon re- ceipt thereof and be maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken to ensure that said notices are not altered, defaced, or covered by any other material. (g) Notify said Regional Director for Region 22, in writing, within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply here- with.23 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges that Respondent warned employees that Respondent might terminate their employment because of striking. Respondent Alberto-Culver Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging employees or otherwise discriminating against them because they join or assist Local 478, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization, or because they engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. (b) In any other manner interfering with, restraining, or coercing employees in the exercise of rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer James Murphy, Walter Szymonowicz, Olga Thomas, and Hugh Garrity immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges. (b) Upon their application, offer immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges, to all employees who went on strike on or after October 1, 1971, dismissing, if necessary, any persons hired by Respondent on or after October 1, 1971. (c) Notify any of the above-mentioned employees, if 21 In the event no exceptions are filed as provided by Sec 102.48 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, automatically become the findings, conclu- sions, and Order of the Board, and all objections thereto shall be deemed waived for all purposes 22 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 National Labor Relations Board" shall be changed to read "n Posted pursuant to a Judgment of a United States Court of Appeals enforc- ig an Order of the National Labor Relations Board." In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read - "Notify said Regional Director for Region 22, in writing, within 20 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 WE WILL, upon application, offer all employees who went on strike on or after October 1, 1971, imme- diate and full reinstatement to their former jobs, with- out prejudice to their seniority or other rights and privileges, and, if necessary, WE WILL dismiss any per- sons hired by us on or after October 1, 1971. ALBERTO-CULVER COMPANY WE WILL offer James Murphy, Walter Szymonow- icz, Olga Thomas, and Hugh Garrity immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and WE WILL pay them backpay which they lost, as provided in the Board Order. WE WILL pay backpay to the employees who went on strike on or after October 1, 1971, if we fail to reinstate them upon application, as provided in the Board Order. WE WILL NOT discharge employees or discriminate against them in any other manner because they join or assist Local 478, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or because they engage in other concerted activities for the pur- pose of collective bargaining or other mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights to self-organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except 165 insofar as these rights might be affected by a contract with a labor organization, if validly made in conformity with Section 8(a)(3) of the National Labor Relations Act, as amended. ALBERTO-CULVER COMPANY (Employer) Dated By (Representative) (Title) WE WILL notify any of the above-mentioned employees, if presently serving in the Armed Forces of the United States, of their right to full reinstatement as provided in the Board Order, in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, Federal Building, 16th Floor, 970 Broad Street, Newark, New Jersey 07102, Telephone 201- 645-2100.