Grismac Corp.

National Labor Relations Board - Board Decisions

Sep 7, 1973

205 N.L.R.B. 1108 (N.L.R.B. 1973)

1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grismac Corporation and Local 551, Service Employ-
ees International Union, AFL-CIO . Cases 25-
CA-5253, 25-CA-5322
September 7, 1973
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On May 8, 1973, Administrative Law Judge Joseph
I. Nachman issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting 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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge 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 Administrative Law Judge and hereby
orders that Respondent, Grismac Corporation, Indi-
anapolis, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Adminis-
trative Law Judge's said recommended Order.
DECISION
JOSEPH I . NACHMAN, Administrative Law Judge: This pro-
ceeding tried before me at Indianapolis, Indiana, on March
6-8, 1973, with all parties present and duly represented,
involves two complaints I pursuant to Section 10(b) of the
National Labor Relations Act, as amended (herein the Act),
and which as amended at the trial, allege in substance, that
in the course of an organizational campaign by Local 551,
Service Employees International Union, AFL-CIO (herein
the Union), among the employees of Grismac Incorporated
(herein Respondent), the latter (a) interfered with, re-
strained, and coerced its employees in the exercise of their
rights under Section 7 of the Act by interrogating and poll-
ing employees concerning their union sympathies and de-
sires, circulating an antiunion petition, and maintaining an
illegal no-distribution rule; (b) discriminatorily discharging
i In Case 25-CA-5253, the complaint issued December 20, based on a
charge filed November 3, 1972, and amended December 15 In Case 25-
CA-5322, the complaint issued January 31, 1973, based on a charge filed
December 15, 1972 An order of consolidation for trial issued January 31,
1973
eight employees because they assisted and supported the
Union, or were related to employees who assisted or sup-
ported the Union; and (c) refusing to recognize and bargain
with the Union as the duly designated collective-bargaining
representative of the employees in an appropriate unit. The
consolidated complaint additionally alleges that on Novem-
ber 2 and 3, 1972, certain employees engaged in a strike to
protest Respondent's unfair labor practices; that said em-
ployees thereafter abandoned their strike unconditionally
and offered to return to their former jobs, but that Respon-
dent failed and refused to reinstate them, although it hired
new employees to perform their duties. For reasqjis hereaf-
ter more fully stated, I find that except for two employees
hereafter identified (with respect to whom dismissal will be
recommended), the 8(a)(1) and (3) allegations of the com-
plaint to be sustained by the evidence, and will recommend
an appropriate remedial order. As to the 8(a)(5) allegations
of the complaint, I find and conclude that the General
Counsel has failed to establish that the Union was the ma-
jority representative when it made its demand for recogni-
tion, and will accordingly recommend that said allegation
of the complaint be dismissed.
At the trial all parties were afforded full opportunity to
introduce relevant and material evidence, to examine and
cross-examine witnesses, to argue orally on the record and
to submit briefs. Oral argument was waived. Briefs submit-
ted by the parties 2 have been duly considered. Upon the
entire record.3 including the pleadings, stipulations of coun-
sel, the testimony of the witnesses, and my observation of
their demeanor while testifying, I make the following:
FINDINGS OF FACT 4
I THE UNFAIR LABOR PRACTICES ALLEGED
Chronology of events
Respondent is engaged at Indianapolis, Indiana, in the
manufacture of boxes and related products pursuant to con-
tract with the Department of Defense. For that purpose it
operates two plants; the original plant where most of the
executive personnel is located, and where most of the pro-
2 To call the document submitted by the General Counsel a brief, is a
misnomer It is no more than a concise resume of the evidence the General
Counsel introduced, completely ignoring the effect of evidence, in many
instances uncontroverted, introduced by Respondent, which bear directly on
the ultimate decision to be reached. The so-called brief does not cite a single
case, nor argue any theory in support of a particular alleged violation, and
this notwithstanding that after the record closed, I outlined for the benefit
of all counsel what I regarded as the issues in the case, and that I wanted
those issued briefed Particularly with respect to the allegation that Respon-
dent had refused to reinstate unfair labor practice strikers, I told counsel that
what was needed was a full discussion of whether those employees had quit,
whether they were strikers, and if strikers, the nature of their strike and the
legal status of those individuals The General Counsel's so-called brief con-
tains no discussion of this basic and important problem in the case
3 The General Counsel has filed and duly served a motion to correct the
transcript of evidence in certain respects therein set forth. No opposition to
the motion has been received Deeming the requested corrections necessary,
the motion, identified for the record as "ALJ Exhibit I," is now granted.
4 No issue of commerce or labor organization is presented The complaints
herein allege facts which establish these jurisdictional elements, and by its
answer filed in Case 25-CA-5322, or by stipulation at the trial, Respondent
conceded that the allegations of the complaint in that regard were true I find
those facts to be as pleaded and stipulated as aforesaid
205 NLRB No. 128
GRISMAC CORP.
duction is performed, is on Delaware Street, and an addi-
tion facility, which began operations about July,5 located on
English Avenue. Its market for production personnel is pri-
marily in the hard core area, in many instances convicted
felons on parole or on a work-release program.
The rule prohibiting distribution of literature
Some 2 years prior to the hearing, Respondent promul-
gated and posted in the plant a set of rules governing the
conduct of employees while on the Company's premises. On
November 1, a revised copy of the rules was posted, but
according to Personnel Director Durham, the revision con-
sisted only in substituting the name of Assistant General
Manager Hensman for the former manager whose name
appeared on the prior document.
Section 4.041 of the rules provides that any violation
thereof shall be sufficient ground for discipline ranging
from suspension to immediate discharge, depending on the
gravity of the offense in the opinion of management, and
section 4.056, the only portion the General Counsel con-
tends to be violative of the Act, prohibits:
Distributing literature, written or printed matter of any
description on company premises
The employees initial attempt to organize
After work on the afternoon of November 1, employees
Herman Lloyd, Ralph Barnett, Dennis Mitchell, and Frank
Flenoy went to the union hall seeking its assistance in or-
ganizing the employees. After some discussion with Union
Representative Stone, the four employees signed cards, and
were given a supply of cards for signature by fellow employ-
ees. The four employees then called at homes of some em-
ployees, and as result five employees-Alfred Henry, Rita
Bess, Rufus Quinn, Vera Barnett, and Wanda Cole 6 signed
cards during the evening hours of November 1. During this
period Ralph Barnett also spoke by phone with Larry and
Marian Cole, James Cannon, and William Edmonson urg-
ing them to get cards from employees Lloyd, Mitchel or
Flenoy at the plant the following day, and to sign them.
These employees did so the following morning before begin-
ning work.
The next morning (November 2), Ralph Barnett and his
wife Vera took the bus to work. Also boarding the bus at
this stop was Ike Jackson, whose supervisory status is admit-
ted by Respondent. Apparently, Jackson, Barnett, and his
wife were the only passengers on the bus at this point. The
Barnetts took a seat about one-third the way back in the
bus, and Jackson took a seat two or three rows in back of
them. At the next stop employees Patricia and Marian John-
son boarded the bus, and took a seat toward the rear. Bar-
nett and his wife then joined the Johnsons, and Ralph
5 This and all dates hereafter mentioned are in 1972, unless otherwise
stated
6 Wanda Cole's testimony as to when she signed the union card, is confus-
ing and unreliable My finding in that regard is based on the credited testimo-
ny of Ralph Barnett that he saw Wanda Cole sign the card at her mother's
home the night of November I
1109
Barnett began discussing the Union with them, urging them
to sign cards. At one point in the discussion Vera Barnett
cautioned her husband to speak in a lower voice because
Jackson might hear him. Union Agent Stone had advised
the men that their activity in getting cards signed be kept
as quiet as possible. Both of the Johnsons signed cards as
Barnett had requested.
Eight Employees are discharged
About noon on November 2, Respondent discharged
Frank Flenoy, Hermon Lloyd, Alfred Henry, Ralph Bar-
nett, Vera Barnett, Charles Cole, Wanda Cole, and Marian
Cole .7 The complaint, as amended at the trial alleges that
said discharges were motivated by the fact that the employ-
ees had assisted and supported the Union, and because of
the relationship of some of them to Ralph Barnett, one of
the leaders in the union movement. As Respondent's de-
fense is that each of the aforementioned individuals was
discharged for cause, it is necessary to set forth in detail the
work history of each individual, the circumstances of the
discharge, and the alleged reason therefor, which now fol-
lows: 8
1. Alfred Henry
Henry was hired according to Respondent's records, on
August 3. At the time of hire Henry was told by Personnel
Director Durham that if his work proved satisfactory he
would receive a raise in 60 days. When the raise did not
come through within that time, Henry spoke to his foreman,
Ike Jackson, about it. Jackson told Henry that he was doing
good work, and to discuss the raise with Plant Superinten-
dent Roberts. About the third week in October, Henry was
called to Roberts' office where he found Roberts and Divi-
sion Manager Arbuckle. The latter told Henry that he had
been watching him; that he was doing good work; that he
was getting a raise of 15 cents an hour and being promoted
to group leader. As above-detailed Henry, at the request of
Ralph Barnett, signed a union card during the evening
hours of November 1. The following morning Henry called
in sick, saying that he would be at work the next day if he
felt well. When Henry reported for work the morning of
November 3, Jackson told him that he had been discharged.
Henry asked why and was told that it was for not doing his
work properly. When Henry argued that he must have been
doing his work properly because he had just been given a
raise in pay, Jackson told him to go see Roberts. Henry did
so, and asked Roberts why he was being discharged. Rob-
erts replied that there was something going on in the plant
that he could not discuss, and there was nothing he could
do but give Henry his check. At no time was Henry's work
criticized, nor was he warned that it was in any way defi-
cient.9
' Vera Barnett is the wife of Ralph Barnett Charles Cole, Wanda Cole, and
Marian Cole are the brother and sisters of Vera Barnett
8 Separately, for each employee, counsel for Respondent stated on the
record the reason for the discharge A personnel action form, giving the
reason for the discharge, and prepared on the date thereof were received in
evidence These will be discussed with respect to each employee
9 Based on the credited testimony of Henry, which is in large measure
Continued
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When requested at the trial to state the reason or reasons 3. Vera Barnett
for Henry's discharge , counsel stated:
Continuously left his post; often had to be called back
to work area; warned many times; poor quality of
workmanship; poor habits and inability to take orders.
However, the personnel action form, executed on Novem-
ber 2, checks "misconduct," "violation of rules," and "work
unsatisfactory," and under the heading "Exact Reason,"
states:
On numerous occasions employee has been verbally
warned about unsatisfactory workmanship & work
habits, there has been no response, therefor terminated.
2. Charles Larry Cole
Larry Cole was hired, according to Respondent's records,
on August 28. At no time during his employment was Cole
reprimanded or disciplined, nor was his work ever criticized.
fn fact, about a week prior to his discharge, Cole was told
by Division Manager Arbuckle that he was doing good
work, and could expect a raise in about 2 weeks.10 As above
stated Cole discussed the Union with Ralph Barnett over
the telephone during the evening of November 1, and on the
morning of November 2, obtained a union card from Her-
man Lloyd, which he then signed." About noon on Novem-
ber 2, Cole was called to the office of Personnel Director
Durham where he was discharged by the latter. After being
given his check, Cole asked Durham the reason for his
discharge. Durham replied that Cole would have to ask that
question of someone higher in authority.
There is no statement on the record from Counsel for
Respondent as to reason for Cole's discharge. As in the case
of Henry, the Personnel Action Report, which Patton testi-
fied he prepared, has check marks by the legends "Miscon-
duct," "Violation of Rules," and "Work Unsatisfactory."
Under the "Exact Reason" there appears:
On numerous occasions employee has been verbally
warned about unsatisfactory workmanship & work
habits, there has been no response therefore, terminat-
ed.
uncontradicted Neither Roberts nor Arbuckle denied the statements Henry
attributed to them Arbuckle testified that for a period of 2 or 3 weeks
following Henry's promotion to group leader "he did an excellent Job," but
claimed that thereafter Henry became lackadasical and fell into the habit of
running from machine to machine talking to people As Henry's raise fell in
the third week of October (16-20), and he only worked 2 weeks thereafter
until he was discharged, I do not credit Arbuckle's testimony in that regard
10 Based on the credited testimony of Larry Cole, Arbuckle admitted that
he complimented Cole a number of times, but claimed that in the last few
weeks of his employment he exhibited quite a fancy for the girls and spent
a lot of time talking As Arbuckle's conversation with Cole, above-referred-
to, took place about a week before the discharge, and as there is no evidence
that Arbuckle ever talked to Cole again, I do not credit his version of the
events Foreman Patton testified that he warned all the employees under his
supervision about a week or 10 days prior to November 2, with respect to
their absenteeism , tardiness , and poor workmanship For reasons hereafter
more fully stated, I do not credit his testimony in that regard
11 Cole and Lloyd testified that the card was signed in the bathroom to
keep anyone from seeing what was going on.
Vera Barnett, the wife of Ralph Barnett, was hired ac-
cording to Respondent's records, on August 7, and worked
until her discharge on November 2, as a machine operator
on the production line. She credibly testified that at no time
during her employment was her work criticized, or warned
that it did not comport with company requirements, but
rather on two or three occasions she was complimented on
her work by Division Manager Arbuckle,'2 and that at the
time of her discharge on November 2, she was told by
Personnel Director Durham that she did good work, and
that she should have no trouble obtaining other employ-
ment.13
As above-indicated, Vera Barnett signed a union card at
her home during the evening hours of November 1, and she
assisted her husband in soliciting Marian and Patricia John-
son to sign cards while on the bus to work the morning of
November 2. During that morning Vera Barnett was called
to Durham's office where she was handed her check and
told she was discharged. When she asked the reason for her
discharge, Durham replied that she would have to go to
someone higher in authority for an answer to that question.
Respondent has at no time even given Vera Barnett a reason
for her discharge. The personnel action form completed on
Vera Barnett on November 2, gives the "Exact Reason" for
the discharge in the following words:
On numerous occasions employee has been verbally
warned about unsatisfactory workmenship & work
habits, there has been no response therefore terminat-
ed.
Counsel's statement on the record as to the reason for the
discharge of Vera Barnett was as follows:
On numerous occasions warned about unsatisfactory
work; bad work habits; abusive language, failure to
comply with rules; poor quality of work.
Respondent offered no evidence with respect to abusive
language on the part of Vera Barnett, or that she violated
any company rule.
4. Wanda Cole
Wanda Cole, the sister of Vera Barnett, was initially hired
by Respondent, according to its records, on August 28, and
worked as a machine operator on the assembly line until her
discharge on November 2. Wanda Cole credibly testified
that during the period of her employment, her work was
never criticized, nor was she ever warned that her work was
in any manner deficient; that in fact she was complimented
on her work by Plant Superintendent Roberts, Division
Manager Arbuckle, as well as Foremen Jackson and Pat-
ton.14 Wanda Cole specifically denied that Supervisor Jack-
12 Indeed Arbuckle testified that based on his observation of Vera Barnett
he regarded her as "a darn good employee "
13 Durham did not deny that he made the statement so attributed to him
W Jackson did not testify Neither Roberts, Arbuckle, nor Patton denied
that they complimented Wanda Cole on her work Patton's testimony that
GRISMAC CORP. 1111
son ever discussed with her alleged insubordination, failure
to perform work properly, or inattention to her work. I
credit her denial in this regard. As above-found, Wanda
Cole signed a union card the evening of November 1. Dur-
ing the morning of November 2, Wanda Cole, along with
sisters Vera Barnett and Marian Cole, were summoned to
Durham's office where the latter handed each a check. Vera
Barnett asked what the checks meant, to which Durham
replied that the question would have to be put to someone
higher in authority than he.15 The personnel action report
completed on Wanda Cole gives the following "Exact Rea-
son" for her discharge:
On numerous occasions employee has been verbally
warned about unsatisfactory workmanship & work
habits, there has been no response, therefore terminat-
ed.
Counsel's statement on the record as the reason for the
discharge of Wanda Cole was:
Improper work; failure to follow directions; failure
to observe prescribed safety procedures; poor produc-
tion.
5. Marian Cole
Marian Cole was employed by Respondent, according to
its records, on October 11, and worked as a machine opera-
tor on an assembly line until her discharge on November 2.
She credibly testified that while so employed she was never
reprimanded for improper conduct or breach of company
rules nor was her work ever criticized, and that she was in
fact complimented on her work by Plant Superintendent
Roberts.16 As above-found, Marian Cole obtained a union
card from Herman Lloyd and signed it early in the day of
November 2. Shortly before noon of that day Marian Cole
was notified that she was wanted in the office of Personnel
Director Durham. Going there with her sisters Wanda Cole
and Vera Barnett, Durham handed each of them a check
and in response to Vera Barnett's question what the checks
meant , stated that someone higher in authority than he
could answer that question.17
6. Frank Flenoy
Flenoy was hired by Respondent about September 25 and
assigned to maintenance. At some undisclosed time he was
he warned Wanda Cole about her unsatisfactory work performance is hereaf-
ter considered
15 Durham did not deny that he made the statement so attributed to him.
16 Roberts did not deny that he complimented Marian Cole on her work.
Supervisor Patton's testimony that all employees terminated on November
2, were warned about unsatisfactory work , is hereafter considered
17 No reason was given Marian Cole for her discharge The personnel
action report on Marian Cole states
On numerous occasions employee has been verbally warned about unsa-
tisfactory workmanship & work habits, there has been no response
therefore terminated
In the case of this employee, counsel did not state the reason for her dis-
charge
transferred to production, and after a short period transfer-
red back to maintenance. About mid-October Flenoy was
absent for about 5 days without obtaining prior permission
or calling in. When he returned to work Flenoy claimed that
his absence was necessitated by his grandmother's death,
and Respondent demanded some proof of this fact. Flenoy
presented a letter which aroused Respondent' s suspicion
that Flenoy had sent it to himself, but nonetheless conclud-
ed that instead of discharging him, it would suspend him for
5 days. Accordingly, Flenoy was absent from work from
October 18 until 23. From that time until his discharge on
November 2, while the evidence shows Flenoy was repri-
manded on two occasions (once by Foreman Bains for im-
properly performing a welding job, and once by Foreman
Patton for failure to exercise proper precaution when using
acid), it also appears that Flenoy was complimented for his
work about 10 days before his discharge by Foreman Bains
for the manner in which he installed some pipe racks, and
by Plant Superintendent Roberts for his work in keeping
rust from forming on cans.ts
During the morning of November 2, Foreman Patton told
Flenoy that the latter was wanted in the office of Personnel
Director Durham. There Durham handed Flenoy a check
and asked if any explanation was necessary. Interpretating
the checks as a notice of discharge, Flenoy replied that the
check was all the explanation needed. The personnel action
form on this employee recites that the discharge was effec-
tive at noon on November 2; that the termination was invol-
untary because of "misconduct," "violation of rules," and
"work unsatisfactory," and under the heading "Exact Rea-
son," states:
On numerous occasions employee has been verbally
warned about unsatisfactory workmanship & work
habits, there has been no response therefore terminat-
ed.
At the trial when Respondent was asked the reason for the
discharge of this employee counsel stated:
He was continually leaving work station and bothering
other employees; he would talk back whenever given
work, and even refused work the very morning he was
discharged he refused to run a machine. He was asked
repeatedly to stop talking to the girls at their machines
when they reported back from their breaks. He repeat-
edly had to be hunted down in other parts of the plant
and brought back.t9
is Based on the credited testimony Flenoy Bains did not testify. Although
Patton testified , he gave no testimony with respect to his reprimand of
Flenoy, nor did he deny that he had complimented Flenoy on his work In
fact, although Patton testified that Flenoy worked under his supervision, that
it was on the basis of his recommendation that Flenoy was selected for
discharge, and that the sole reason therefor was absenteeism , tardiness, and
bad work habits and attitudes, the personnel action form on Flenoy (G C.
Exh. 14(e)) is signed by Foreman Jackson, for whom Flenoy did not work
Plant Superintendent Roberts did not deny that he complimented Flenoy on
his work , as the latter testified
19 However, contrast this with the testimony of Foreman Patton, Flenoy's
immediate supervisor, that Flenoy never refused to perform an assignment.
It may also be noted that although Patton claimed that absenteeism was one
of the reasons for Flenoy's discharge, when asked to relate an instance when
Continued
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Except for Herman Lloyd and Ralph Barnett, who were
discharged by Supervisors Hale and Herman, respectively
(the circumstances of their discharges being hereafter relat-
ed), Respondent's defense basically is predicated on the
testimony of Plant Superintendent Roberts and Foreman
Patton that about mid-October it was determined that pro-
duction had dropped to a dangerously low level; that em-
ployees in production generally and the six specifically here
involved were thereupon warned about "unsatisfactory
workmanship and work habits"; that when they failed to
show improvement in their work, they were discharged. I do
not credit the testimony of Roberts and Patton. In the first
place, no production records were introduced to establish
that production was in fact reduced. Secondly, the testimo-
ny of Roberts and Patton contains at least one inherent
inconsistency. Roberts testified that he directed Foremen
Jackson and Patton to prepare for him a list of those em-
ployees who where not properly performing their duties,
and that the two foremen prepared and submitted to him a
single list ; Patton, on the other hand testified that he and
Jackson prepared separate lists, and that he had no informa-
tion as to what appeared on the list prepared by Jackson,
except that it listed the employees he wanted to get rid of.
Thirdly, I deem it of great significance that the personnel
action forms prepared on these six employees all state the
reason for the discharge in identical language, notwith-
standing Patton's claim that he prepared the form only with
respect to the two employees who worked under his supervi-
sion (Flenoy and Larry Cole), and that Jackson prepared
the remaining four. Fourthly, my careful examination of
that portion of the personnel action forms which states the
"Exact Reason" for the discharge, particularly the "V" in
verbally, the "W" in warned, and workmanship, the amper-
sand, as well as the "t" in therefore and terminated, con-
vince me that the same person prepared all six forms, and
while unnecessary decide the point, I strongly suspect that
Durham is the one who wrote the legend, in view of his
admission that he wrote the word "other," which appears
circled on the form, and his explanation that the word was
used because there was another reason for the discharge,
that he did not want to put on the record; namely, that he
suspected all of the people to be involved in bringing drugs
into the plant. And finally, I note the obvious exaggerations
in the legend that the particular employee had been warned
"on numerous" occasions, notwithstanding Patton's testi-
mony that the employees were spoken to only once. Upon
the totality of these considerations, and the fact that neither
Roberts nor Patton impressed me as reliable witnesses, I do
not credit their testimony that Alfred Henry, Vera Barnett,
Frank Flenoy, Larry, and Wanda and Marian Cole were
discharged for improper performance of their duties.
7. Herman Lloyd
Lloyd , according to Respondent's records , was hired on
Flenoy was absent, fell back on the incident when he was allegedly absent
because of his grandmother 's death But this had been clearly waived even
if it be regarded as on condition that it not recur, when Respondent permitted
Flenoy to continue at work after a 5-day suspension
August 10, and until his discharge on November 2, worked
as a truckdriver, transporting materials between
Respondent's two plants. Lloyd credibly testified that dur-
ing his employment he never received a warning or a repri-
mand, nor was his work ever criticized. On the contrary,
Lloyd testified that he was complimented on his work by
Company President Grieser, English Avenue Plant Manag-
er Herman, Personnel Director Durham, Assistant General
Manager Hensman, and Supervisor Hale. Even on the day
of the discharge Durham told Lloyd "you can get out and
find something different, you're not like the other peo-
ple." 20 Lloyd was one of the four employees that signed a
card at the Union's office during the afternoon of Novem-
ber 1, and during the morning of November 2, at the plant,
got employees Gary Mays, James Cannon, and Marian
Cole to sign cards. About noon on November 2, Lloyd was
summoned to Durham's office where he was handed his
check. Lloyd asked what the check was for. Durham replied
that Lloyd would have to go to someone higher in authority
than he for an answer to that question.
Before starting cross-examination of Lloyd, counsel stat-
ed on the record the reason for his discharge as follows:
Specifically that he had been driving a truck and taking
increasingly longer times back and forth between the
two plants, and was questioned in this regard and ab-
sences were not explained. He's been cautioned about
this and it has gotten steadily worse; and that there was
reason to believe that he had been involved in some
other activity unrelated to his work in the use of the
truck.
When asked what the other activities were , counsel replied,
we don't know; had we known specifically he would have
been fired before he was. The personnel action form on
Lloyd, prepared by Supervisor Hale, is checked in the block
"Work Unsatisfactory," and under the heading "Exact Rea-
son," shows:
Too much time on truck runs. Spends too much time
talking to production and personnel while in plant. Has
been told about this.
It may be noted that the first sentence of the foregoing
legend is in one handwriting and in one color ink, while the
remainder is another handwriting and another color ink,
matching that which appears on the forms with respect to
the first six employees discussed. For the reasons stated
above, the fact that all but the first sentence of the legend
match the other six documents particularly the word
20 Based on the credited testimony of Lloyd. Neither Hale nor Grieser
testified Accordingly, the statements attributed to them by Lloyd stand
undenied Although Hensman testified that he spoke to Lloyd about mid-
October concerning his trips between plants taking longer than he considered
necessary, he admitted that he did not then give Lloyd a verbal warning, nor
reprimand him in any way More important, he did not deny that on some
occasion he complimented Lloyd on his work performance. The only testi-
mony by Herman that related to Lloyd was that at Hensman's request he
reported to the latter the time Lloyd arrived at or departed from the English
Avenue plant. He did not deny the statements attributed to him by Lloyd.
The only testimony by Durham concerning Lloyd was that he had no person-
nel knowledge of the facts leading to his discharge He did not deny that he
had complimented Lloyd on his work
GRISMAC CORP.
"other," I find that the last portion of the legend was placed
on the form at some point in time after Hale executed it, and
that it was probably put there by Durham.
8. Ralph Barnett
Barnett came to work for Respondent sometime in May,
and was assigned to the maintenance department, where he
worked until about 2 weeks prior to his discharge on No-
vember 2. When initially employed by Respondent, Barnett,
a convicted felon, was under a work-release program,21 but
on or about October 13, he was released on parole necessi-
tating that he report promptly to the local police department
and his parole officer. To attend to these duties Barnett did
not report for work for 2 days. When he returned to work,
the foreman had prepared a termination notice discharging
Barnett for absenting himself from work without calling
111.22 The evidence shows, however, that at the insistence of
Company President Greiser, the discharge was coun-
termanded and Barnett was transferred to maintenance at
the English Avenue plant, where he worked until his dis-
charge. 3
During the early period of his employment Barnett ap-
pears to have been regarded as a satisfactory employee.
Although General Manager Hensman testified that he ob-
served Barnett at times when he appeared to be sleepy and
unresponsive, he did not deny that in August he promoted
Barnett to lead operator, and then told Barnett that he
(Hensman) was very pleased with his work, that he learned
fast, and was precise and attentative. In addition Barnett
testified to occasions when he was complimented on his
work by Supervisor Herman, President Greiser, and Person-
nel Director Durham, and his testimony in that regard is
contradicted only by Supervisor Herman, and the conflict
will hereafter be considered.24
As above indicated, Barnett signed a card at the union
hall on November 1, and later that day and early the next
solicited other employees to sign cards. About noon the
following day Herman, manager of the English Avenue
plant, called Barnett to his office and told the latter that he
had instructions to terminate him; that he did not know the
reason for the termination, and suggested that Barnett go to
the Delaware Street plant to find out the reason for the
termination, saying that if Barnett would get the matter
straightened out, he (Herman) would be glad to have him
back on the job. Barnett then went to the Delaware Street
plant where he asked Personnel Director Durham why he
(Barnett) had been terminated. Durham replied that he did
not know.25
2i Under this program the man is released each day solely for the purpose
of performing the duties of an outside job, and must return to his institution
promptly after work The State receives a report of his hours of work , as well
as the wages he earns , which are held by the State and paid to him upon his
release from custody
22 Barnett testified that he asked his wife, Vera, to advise Respondent of
the reason for his absence Vera Barnett gave no testimony on the question
I find it unnecessary to decide whether notice was in fact given or not
23 During this period of approximately 2 weeks, the only work at the
Ennlish Avenue plant was making the plant ready for production
Greiser did not testify Durham did not deny he made the statements
Barnett attributed to him.
25 Durham did not deny that he made this statement
1113
Robert Herman, plant manager at English Avenue, testi-
fied that from about mid-October, when Barnett came un-
der his supervision, the latter about 80 percent of his time
gave indication of being slow in responses and incapable of
performing his duties on a par with the remainder of the
five-man crew; that the work was hazardous, requiring the
moving of heavy machinery and equipment, and that be-
cause of Barnett's condition he regarded the risk of injury
to him and other employees as very great, and that this was
the reason for Barnett's discharge. Herman additionally tes-
tified that he made the decision to terminate Barnett on his
own, without consultation with any other company official,
and although he normally terminates personnel on Friday,
he did so in this case on Thursday, and the fact that
Barnett's termination was on the same day that seven other
employees were terminated, was just a coincidence 26 I am
unable to credit Herman's testimony with respect to
Barnett's condition on the job. It simply strains credulity
beyond the breaking point to believe that Herman would
have permitted a man who was on 4 of every 5 days he
worked in the condition that Herman described, and whom
he regarded as dangerous to himself and his fellow employ-
ees, to continue on the job for a period of 2 to 3 weeks,
without taking some very positive action against him. Ad-
mittedly, Herman took no such action. His excuse for not
doing so-that he had many duties to perform, and did not
have the time to do some things he should have done-I
discredit as a transparent pretext.
Union obtains additional authorization cards
Following their discharge on November 2, those employ-
ees, just referred to, went to the union hall to confer with
Union Agent Stone. Finding her unavailable for the day,
and after discussion with another union agent, some of the
employees returned to the area of the plant where, at the end
26 Herman also testified that he completed, without assistance from any-
one, the personnel action form, which states the reason for the discharge as
Sleepy, lethargic & inattentive on job Absent from work and failed to
call to
There is no evidence that Barnett was ever absent from work after the
incident in mid-October when he took time off to report to the Police Depart-
ment and his Parole Officer. The reference in the personnel action form to
unauthorized absences therefore, could only refer to that event, and evi-
dences an attempt to resurrect prior alleged misconduct which Respondent
had condoned by canceling Barnett's discharge, and transferring him to the
English Avenue plant The purpose to exaggerate and charge Barnett with
improper conduct without evidence to substantiate the charge , is also evident
by the statement on the record by counsel, that the reason for Barnett's
discharge on November 2, was
that he [Barnett] on more than one occasion had consumed narcot-
ics to the point that he was becoming a menace to himself, and that it
was dangerous for him to be around moving machinery, and the testimo-
ny will be that he was taken home repeatedly in this condition that he
was in repeatedly by other people
While counsel asked Barnett about such incidents, particularly about being
taken home because of his condition, the latter denied that such incidents
ever occurred No other evidence was introduced tending to establish that
Barnett was sent home or taken home because of his condition or his inability
to work for any reason The charge that Barnett was a narcotics user I find
utterly unsupported by the record
1114 DECISIONS OF NATIONAL LABOR RELAT'ONS BOARD
of the shift, an extensive effort was made to obtain employ-
ee signatures to union cards. By the end of the day of
November 2, the union had obtained a total of 43 signed
cards.27 The due execution of each card was proved by the
testimony of the card signed, or of the solicitor, and in some
instance by both. Although Respondent challenged a num-
ber of cards as valid designations of the Union, no purpose
would be served by considering each issue so raised. Suffice
it to say that on the basis of the credited evidence of the
solicitor and/or the card signed, I find each of the 43 cards
received in evidence to be valid designations of the Union.28
The alleged ULP strike
The complaint as amended at the trial, alleges that on
November 2, Rita Bess and Rufus Quinn, and on November
3, Jimmie Anderson, Carmen Jones, Marian and Patricia
Johnson, and Barbara and Ann Wilburn, concertedly
ceased work and went on strike in which they have since
engaged; that said strike was caused and prolonged by the
unfair labor practices pleaded in paragraphs 5 and 6 of the
complaint; 2 that on November 3, and again on January 22,
1973, the eight employees who allegedly struck, offered to
return to work, and that Respondent refused and continues
to refuse to reinstate them.
To establish the circumstances and the reasons these em-
ployees ceased to work, the General Counsel relies on the
testimony of Anna and Barbara Wilburn, Marian and Patri-
cia Johnson, and Carmen Jones, all of whom were involved
only in the incident of November 3. No testimony whatever
was introduced as to when, why, or under what circum-
stances Rita Bess and Rufus Quinn engaged in concerted
strike action on November 2, or any time thereafter.30 Re-
garding the incident of November 3, the evidence shows
that after the employees gathered for work that morning,
but before work started, a fight broke out between employee
Richardson and Supervisor Jackson. Management officials
stopped the fight, discharged Richardson, but took no ac-
tion against Jackson, and this fact was made known to the
employees by Richardson. Supervisor Patton then told the
employees to assemble at the front of the room, where he,
and Supervisors Jackson and Roberts addressed them. Ac-
cording to the employees, the supervisors stated in sub-
stance, that there was a lot of tension in the plant; that they
did not know what was causing it, but they wanted it to stop,
and that if the employees did not like what was going on,
they could turn in their timecards and get out.31 The em-
27 One of these cards is dated November 3 (Mary Johnson), and two others
(Stephanie Robertson and Yvonme Bullock) are dated November 4 The
uncontradicted testimony is that the dates were inserted on these cards in
error, and that they were in fact signed on November 2 I so find.
28 The issue of the Union's majority is hereafter considered
29 Paragraph 5 of the complaint alleges violations of Section 8(a)(1) by
interrogating and polling employees concerning their union activities and
desires, circulating an antiunion petition, and maintaining an illegal no-
distribution rule. Par 6 alleges that the discharge of the eight employees on
November 2, was discriminatorily motivated
30 Indeed the only evidence in the record which in any way relates to Bess
and Quinn is that dealing with the execution of the cards they signed
31 According to Roberts, he told the employees of the need for production,
that they could work if they wished to do so-that he hoped they would-but
if they did not want to work, they were free to leave According to Roberts,
ployees additionally testified that while the supervisors were
speaking, they talked among themselves, and decided that
"if we let them run over us now they would continue to do
so in the future," and that the six employees involved then
turned in their cards, handing them to Patton; that when
they did so, Patton asked what they were for, and Anna
Wilburn replied, "If we let you run over us now you'll
continue to do so in the future"; that these employees asked
for their checks, but were told they would not be ready until
4 p.m.; and that the employees then left the plant going to
the union hall, where they conferred with Union Agent
Stone.32 At 4 p.m. they returned to the plant and were given
their checks.
When asked about the specific reason or reasons for leav-
ing the plant on November 3, the employees gave various
reasons. Anna Wilburn testified that while they were aware
of the discharge of the 8 employees on November 2, and
they were "mad about it," they did not discuss that among
themselves on November 3, and that the matter uppermost
in their minds, and the principal subject of discussion
among themselves, was the fight, and the fact that Richard-
son, but not Jackson was discharged, which she thought was
unfair, and which bothered her and the others most, and
which they regarded as "unfair" treatment.
Carmen Jones testified additionally that among the rea-
sons she left the plant was that she heard someone had a
gun, and that it might not be a safe place to work; that the
restroom facilities were inadequate and cold; that Respon-
dent at times would require an employee to take a day off
during the week, and then when they worked on Saturday
that week, they did not get overtime; that in her view a
union was needed in the plant, and those fired the preceding
day were fired for trying to get a union in. According to
Jones, all this was discussed among the six employees while
they were being addressed by management.
Barbara Wilburn testified that the employees in this
group did not think it was fair that Richardson, but not
Jackson was terminated, and as they were told if they did
not like the way things were being run they could get out,
they decided to turn in their cards, and not let management
run over them; that in their discussion among themselves it
was mentioned that Respondent might do the same thing to
them it did to those who were discharged the preceding day.
Marian Johnson testified that after the speech by man-
agement she turned in her timecard to Patton, but that
before doing so she had no discussion with any other em-
ployee, but that she went to the Union with the other five.
Her reason for turning in her timecard, she testified, was
because she decided the treatment received by the eight
some employees then turned in their timecards, saying they were quitting
Patton testified that he told the employees that he was aware of the tension
in the plant, and wanted it stopped, that he wanted them to come to work
with a working attitude, and that if they brought their hostility into the plant
he was going to discharge them According to Patton, at that time neither he
nor any of the employees said anything about quitting, that after he finished
speaking each of the six employees involved in this branch of the case handed
him their timecards and stated that they were quitting. To the extent that the
testimony of Roberts and Patton conflicts with the testimony of the five
employees who testified on this subject, I credit the latter. Jackson , as herein-
after pointed out, did not testify
32 The employees gave no testimony as to what they told Stone. According
to Stone, the employees told her about the fight and the speeches, and that
they felt "threatened "
GRISMAC CORP.
discharged the preceding day was "unfair," because she
believed them to have been discharged because they had
signed cards for the union, and that the same thing might
happen to the others who signed cards. According to Man-
an Johnson she heard no other employee say why they were
leaving the plant that day.
Patricia Johnson also testified that after hearing the
speech by management she decided to turn in her card,
because she did not think it fair that the eight employees
had been discharged the preceding day. She testified howev-
er, that before turning in her card the subject was discussed
in a group with her sister Marian, Carmen Jones, Anna and
Barbara Wilburn, and Jimmie Anderson, while manage-
ment was speaking, and that a decision was reached to turn
in their timecards.
The recognition demand and the request for reinstate-
ment
During the morning of November 3, Union Agent Stone
met with the group of employees that had been discharged
on November 2, as well as those who left the plant earlier
during the morning of November 3. Following this meeting,
Stone went to the plant where she talked with Company
President Grieser, asking him to reinstate the eight people
discharged on November 2, as well as the six who left the
plant the morning of November 3.33 At the same time Stone
handed Grieser a letter stating that a majority of the
Company's employees had designated the Union as their
collective-bargaining representative, and requested bar-
gaining for a contract.3 Grieser declined, saying that he
would take no action that day.
The General Counsel bases his contention that the Union
had majority status on November 3, upon the following:
Separate payrolls for the two plants, for the workweek end-
ing November 5, are in evidence. The payroll for the English
Avenue plant contains a total of 16 names, and that for the
Delaware Street plant, a total of 90 employees, or a grand
total of 106.35 The parties stipulated that five names on the
payrolls (Howard Bain, Ike Jackson, Scottie May, William
Patton, and Robert Underwood), are supervisors and
should be excluded. The General Counsel also contends but
Respondent denies, the five others (Betty Johnson, Doris
Parker, Donzie McIntire, Billie Spears, and Frank Wilson),
are supervisors and must also be excluded. Additionally the
General Counsel would exclude six employees (Laura Holi-
clan, Virginia Kraty, Brenda Moore, Carolyn Quinlan, Hel-
en Smith, and Joan Van Volkenberg), on the ground that
they were hired on or after November 4, and five others
(Carolyn Harskey, Raymond Redman, Robert Redman,
Allen Roaches, and William Simons), on the ground that
they were terminated prior to November 3, the date of the
Union's demand.36 Applying these figures the General
33 She made no mention at this time of Bess or Quinn.
34 The letter also stated that if Respondent doubted the Union's majority,
it would be willing to submit the cards to a mutually agreeable party for
checking
35 These figures includes the eight employees discharged on November 2,
as well as the eight alleged in the complaint to have engaged in an unfair
labor practice strike on November 2 and 3
36 1 have grave doubt that the General Counsel is correct in his contention
1115
Counsel reaches the conclusion that there were 85 employ-
ees in the unit (106-5-5-6-5 + 85), on November 3, and
that the 43 cards, which the Union had at that time, gave
it majority status.
Events of November 6
On November 6, Personnel Manager Durham prepared
and circulated among the employees a petition reading:
This is to certify that we, the undersigned employee-
trainees of Gnsmac Corporation of Indianapolis do
not wish to be represented by the Service Employees
Union nor any other union.
There have been no threats, promises, inducements or
coercion of any kind made to or against us.
Those of us who heretofore have signed cards or list
signifying otherwise hereby repudiate such signed
cards or list
The foregoing document was signed by 61 employees, in-
cluding specifically employees Wallace Oglesby and Wil-
liam Edmonson, as well as by admitted Supervisors Scottie
Mays, William Patton, Howard Bain, and Ike Jackson.
Oglesby testified that on or about November 6, he went to
a table where Personnel Director Durham was talking to a
group of employees about the above-mentioned docu-
ments; that Durham said all employees should sign the
document because if the union got in the Company would
go broke, and that he then signed the document. Edmonson
testified that Durham approached him with the document,
and first asked if he (Edmonson) had signed a union card,
and when Edmonson replied in the affirmative, Durham
asked why he had done so. Edmonson replied that he
thought a union in the plant was necessary to stop some of
the things that were going on. Durham then asked Edmon-
son to sign the document dated November 6. Edmonson at
first refused, but when Durham continued to insist that he
do so, Edmonson signed it 37
Second request for reinstatement
After November 3, when the six employees left the plant
allegedly to protest Respondent's unfair labor practices,
and the Union made its demand reinstatement and for rec-
ognition and bargaining, there was no contact or communi-
cation between the employees or the Union, on the one
that Allen Roaches was not on the payroll on November 3, when the Union
made its demand The payroll shows that Roaches was hired on November
2, and terminated on November 3. There is no testimony to cast light on the
hours or days he actually worked. It would seem that if Roaches was in fact
in work status on November 3, he should , unless he was only a casual
employee, be regarded as on the payroll at the time of the demand Were I
to so conclude, and as Roaches was not a card signer, the effect would be
to destroy the majority, as the Union would then have 43 cards in a unit of
86 employees Although I find and conclude that the Union did not enjoy
majority status on November 3, I predicate that conclusion on other consid-
erations hereafter set forth
37 The findings on this incident are based on the uncontradicted and
credited testimony of Oglesby and Edmonson Durham, though testifying as
a witness , did not deny that he engaged in the aforementioned conduct
1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hand, and the Company on the other, until January 23,
1973. On that day Respondent received a letter from Union
Agent Stone, which states:
The purpose of this letter is to reiterate our conversa-
tion on November 3, 1972, concerning the following
named employees:
Jimmie Anderson
Carmen Jones
Marian Johnson
Barbara Wilburn
Patricia Johnson
Anna Wilburn
Alfred Henry
On behalf of these above-named employees, I hereby
unconditionally offer that they will immediately return
to their former or substantially equivalent positions of
employment at Grismac, Inc. Please advise.38
Admittedly, Respondent did not reply to the aforesaid let-
ter, and there has been no further communication between
the parties.
II CONTENTIONS AND CONCLUSIONS
Upon the foregoing credited evidence, I find and con-
clude that Respondent violated Section 8(a)(1) and (3), in
the following particulars:
1. The 8(a)(1) violations:
(a) by promulgating, publishing, and maintaining in ef-
fect the rule which prohibits employees from distributing
union literature on company premises, even during their
nonworking time and in nonwork areas. The Board has long
held that, except under unusual circumstances not present
here, an employer interferes with the Section 7 rights of his
employees, and thereby violates Section 8(a)(1) of the Act,
when he prohibits employees from distributing union litera-
ture in nonwork areas of his premises, during their nonwork
time , Stoddard-Quirk Manufacturing Co, 138 NLRB 615,
620-621; Goodyear Tire & Rubber Co., 195 NLRB 33.
(b) by Durham's interrogation of employees Edmonson
as to whether the latter had signed a union card, and why
he had done so. This interrogation was plainly not for the
purpose of ascertaining whether Respondent had a bargain-
ing obligation to the Union, but rather as the conversation
makes clear, was intended and had the effect of coercing
and restraining Edmonson in the exercise of his Section 7
rights. Moreover, Durham gave Edmonson no assurances
that his answers would not bring about reprisals from Re-
spondent. This was of particular pertinence in Edmonson's
mind because he knew that Respondent had discharged
eight employees less than a week prior to Durham's ques-
tions to him.
(c) by Durham's conduct in soliciting signatures to the
petition by which employees who had signed union cards
repudiated further support of the Union. This was clearly
interference with the Section 7 rights of the employees, and
as such a violation of Section 8(a)(1) of the Act. Holiday Inn
38 It will be noted that the letter makes no reference to Rita Bess or Rufus
Quinn, both of whom allegedly engaged in a strike on November 2 and
thereafter, to protest Respondent's unfair labor practices
of Henryetta, 198 NLRB No. 68; General Motors Acceptance
Corporation, 196 NLRB 137, enfd. 476 F.2d 850 (C.A. 1,
1973).
2. The 8(a)(3) violations:
I find and conclude that the discharge of Frank Flenoy,
Herman Lloyd, Alfred Henry, Ralph and Vera Barnett,
Charles and Wanda and Marian Cole on November 2, was
discriminatorily motivated and hence violative of Section
8(a)(3) and (1) of the Act. I reach this conclusion on the
totality of the following considerations:
(a) I have found that each of said employees was, prior
to November 2, regarded by Respondent as a satisfactory
employee. The alleged derelictions of duty and unsatisfacto-
ry performance, I have found, had no basis in fact, and were
siezed upon in an attempt to obscure the unlawful motive
for the discharges. Even Respondent's contention that re-
duced production caused the investigation which formed
the basis for the conclusion that the discharged employees
(except Ralph Barnett and Herman Lloyd) were responsible
for reduced production is suspect because no business re
cords were introduced to establish that there was in face
diminished production, by these employees compared to
others. The Board has consistently held that the failure to
introduce business records to support an economic defense
(and such records must have been available to Respondent),
makes the defense suspect. See Honda of Haslett, 201 NLRB
No. 128, and the cases there cited. Or as the Supreme Court
stated the principle in Interstate Circuit v. United States, 306
U.S. 208, 226 "The production of weak evidence when
strong is available can lead only to the conclusion that the
strong would have been adverse."
(b) the timing of the discharges-less than 24 hours after
Ralph Barnett , Flenoy, Lloyd, and Mitchell made their ini-
tial visit to the union hall, and about 15 employees had
signed union cards.
(c) That it is so highly improbable that Respondent could
have selected for termination only those who had signed
union cards, unless the presence of the Union was a factor
in the selection. As the Board said in Camco, Incorporated,
140 NLRB 361, 365, enfd. with modifications not here ma-
terial 340 F.2d 803 (C.A. 5, 1965), in language fully applica-
ble to the instant case:
As noted, the Respondent employs 95 employees in its
machine and tooling departments; 16 of these employ-
ees attended a union meeting; and of these, 11 employ-
ees all of whom attended the union meeting, were
terminated during February. The Respondent con-
tends in effect that it was by chance that all of the
terminated employees attended the February 10 meet-
ing. While it may be theoretically possible that the
Respondent should [sic] have fortuitously selected for
termination only those employees active in the Union,
common sense and the laws of mathematical probabili-
ty indicate that such fortuity was highly improbable.
[Emphasis in text].
Applying this principle to the facts of the instant case, the
evidence shows that Respondent had in its employ about 85
employees on November 2. The fact that all eight of the
employees discharged that day were union adherents is per-
suasive that such discharges had a discriminatory motive,
GRISMAC CORP.
and that it was not mere coincidence.39 It is true, of course.
that a finding of discriminatory motive may not be based
on probability alone, for the possibility exists, however re-
mote, that the employer was motivated solely by lawful
considerations, and that possibility can not be completely
ignored. But when there is added to the great mathematical
improbability, the elements present in the instant case, of
strong employer hostility to the Union, the discharges came
hard upon the inception of the union activity, that false and
shifting reasons for the discharges were given,40 the circum-
stances combine to provide a prima facia case of discrimina-
tory motivation, and it is then encumbant upon the
employer to come forward with a convincing explanation
that his action was based solely upon nondiscriminatory
considerations. Syracuse Tank & Manufacturing Company,
Inc., 133 NLRB 513, 525. This. as I have found, Respondent
wholly failed to do.
(d) What all this adds up to is eight previously satisfacto-
ry employees are suddenly discharged in mid-workweek,
without prior warning or notice, hard upon inception of the
effort by the employees to obtain union representation.
These are the classic of a discriminatorily motivated dis-
charge, appropriately giving rise to the inference that the
stated reason for the discharge is simply a pretext, and that
the true reason, and the one which Respondent desired to
conceal, was its desire to stamp out the moving spirit of the
organizational campaign. As the Court of Appeals for the
Ninth Circuit stated the principle in Shattuck Denn Mining
Company v. N.L.R.B., 362 F.2d 466 (1966):
If he [the trier of fact] finds that the stated motive for
the discharge is false, he can infer that there is another
motive. More than that, he can infer that the motive is
one the employer desires to conceal-an unlawful mo-
tive-at least where, as in this case, the surrounding
facts tend to reinforce that inference.
Respondent's argument that upon the facts of the instant
case no finding of discriminatory motivation can properly
be made because, to quote from Respondent's brief:
... there is not one word of testimony indicating that
Respondent knew of union activity at all when the
discharge took place on November 2, 1972; on the
39 On the basis of pure chance and eliminating all other factors, the possi-
bility that in a work force of 85 employees, 15 of whom had by the morning
of November 2, signed union cards , of selecting for discharge eight employ-
ees, all of whom would be union adherents , is comparable to a blindfolded
person selecting at random 8 marbles, all of which would be red, from a bowl
containing 15 red marbles and 70 blue marbles The mathematical probabili-
ty of such a selection , computed on the basis of the applicable formula, would
be less than I out of 7,000,000 See Uspansky, Introduction to Mathematical
Probability (McGraw-Hill), 1937, Chap I In betting parlance even a 50-to-I
shot is considered very remote. In taking the figure 85 as the compliment of
the unit, I have assumed that the General Counsel would prevail on the issue
of supervisory status of the 5 employees as he contended If he were to lose
on that issue, the total number of employees would be 90, and the chance
would be somewhat more remote
40 For example Respondent contended that a principal reason for Barnett's
discharge was the fact that he appeared to be under some kind of stupor that
made him a danger to himself and others, and that "repeatedly" it became
necessary that he be taken home by other people. Under cross-examination
Barnett denied that the foregoing was true Respondent offered no evidence
that Barnett was ever taken home, not even Plant Manager Herman, who
discharged him, claimed such to be a fact
1117
contrary all the evidence points to the unquestioned
fact that the respondent was totally unaware of any
such action on that morning.
It is of course settled that to establish a violation of Sec-
tion 8(a)(3) of the Act, the General Counsel must prove by
a preponderance of the evidence that when the employer
acted he was aware or acted in the belief that union activity
was in progress; otherwise any discrimination in which the
employer may have engaged could not have the proscribed
effect of encouraging or discouraging union membership.
But it is equally well settled "that knowledge of union activi-
ty may be established by circumstantial as well as by direct
evidence" (Long Island Airport Limousine Service Corpora-
tion , 191 NLRB 94) enfd. 468 F.2d 292 (C.A. 2, 1972). See
also Famet, Inc., 202 NLRB No. 52. The crucial inquiry in
such cases is not how, but whether-no matter how-the
employer knew of or suspected union activity when he act-
ed. Several factors in the instant case indicate that responsi-
ble officials of Respondent must have become aware that
union activity was in progress and acted on the basis of that
information; These are (a) the relatively small number of
employees in the plant; (b) the employees work under close
scrutiny of supervision; (c) that Supervisor Jackson was on
the bus when employees Patricia and Marian Johnson
signed cards at the behest of Ralph and Vera Barnett; (d)
that the discharges took place within 24 hours of the initial
contact of the employees with the Union; (e) that three of
the four employees who originally contacted the Union
(Flenoy, Lloyd, and Ralph Barnett) were selected for dis-
charge, and four of the remaining five discharges (Vera
Barnett, Charles, and Wanda and Marian Cole) were rela-
tives of Ralph Barnett whom Respondent appears to have
regarded as the moving spirit in the union movement; and
(f) the fact that assigned reasons for the discharges do not,
as I have found, withstand scrutiny.
The Alleged Unfair Labor Practice Strike
Treating first with that portion of this allegation which
deals with Bess and Quinn, I find the evidence insufficient
to support the allegations of the complaint in that regard.
Neither testified in this proceeding, and there is not one iota
of testimony to establish why or under what circumstances
their employment ceased on November 2. The only thing
the evidence shows with respect to them is that they signed
union cards during the evening of November 1, and that
they were terminated on November 2. Whether they quit or
were discharged for cause, the record does not disclose."' As
the burden rests with the General Counsel to establish that
Bess and Quinn became strikers on November 2, and as he
failed to carry that burden, I shall recommend that the
complaint be dismissed to the extent that it alleges that on
November 2, Bess and Quinn became strikers.
Turning now to the remaining six employees referred to
in paragraph 7(a) of the complaint, as amended at the hear-
ing, the central issue for decision is whether they left the
41 It may be noted that Union Agent Stone gave no testimony tending to
establish that she included Bess and Quinn among the employees for whom
she was requesting reinstatement when she met with Company President
Grieser on November 3. Indeed her letter received by the Company on
January 23, 1973, confirms that she did not mention them.
1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant on November 3, as strikers 42 as the General Counsel
contends, or whether they quit their jobs, as Respondent
contends, is answered by ascertaining the intent of the em-
ployees as evidenced by their conduct. Although the record
might well have been developed in greater detail, my consid-
eration of the record as a whole convinces me, and I find,
that the six employees left the plant on November 3, not as
persons who permanently abandoned their employment,
but as strikers. I reach this conclusion upon the following
considerations.
1. Although it is possible that a number of employees
may simultaneously agree to permanently terminate their
employment, it would be most unusual for them to do so.
Normally, a mass leaving of employment is because of some
condition of employment by reason of which, be it with or
without merit, they feel aggrieved. Whether their grievance
had merit or not is beside the point. N.L.R.B. v. Washington
Aluminum Company, Inc., 370 U.S. 9, 16 (1962); Bob Henry
Dodge, Inc., 203 NLRB No. 1, and the cases there cited.
2. Supervisor Patton admitted that when he spoke to the
assembled employees immediately following the fight in the
morning of November 3, he told them that there was "ten-
sion" in the plant; that he wanted it stopped; that he wanted
the employees to come to work with a "working attitude,"
and that if they did not, he was going to discharge them.
Although Patton's statement is not alleged to be a violation
of Section 8(a)(1) of the Act, and could be interpreted as no
more than a request that the employees devote their full
time and attention to their duties, it could also be interpret-
ed as meaning , in light of the discharge of eight employees
the preceding day, that the "tension" was the union, and
that the price the employees would have to pay for continu-
ing to work, was a cessation of union activity. That the
employees apparently took the latter meaning is indicated
by the fact that when they turned in their timecards, they
told Patton, in substance, if we let you get away with this,
you will just walk over us whenever you wish.
3. Immediately upon leaving the plant all six of the em-
ployees went immediately to the union hall to confer with
Union Agent Stone. This action is wholly inconsistent with
any idea that the employees intended to permanently termi-
nate their employment with Respondent. On the other hand
it is entirely consistent with the proposition that they left
their employment concertedly to protest conditions they
correctly or incorrectly thought affected terms and condi-
tions of their employment.
4. Although the employees gave no testimony regarding
what they told the union representative, the latter testified
that the complaint they made to her was that they had been
"threatened," and told if they did not like the conditions
prevailing in the plant, they could leave.
5. Immediately following this visit from the employees
Union Agent Stone went to the plant where she, as the agent
of the employees, requested not only recognition and bar-
gaining, but that all the employees involved be reinstated.
No conditions were attached to the request for reinstate-
ment, and the testimony is uncontradicted that Respondent
42 Sec 501 of the Act defines the term "strike ," as including "any strike
or other concerted stoppage of work by employees . and any concerted
slow-down or other concerted interruption of operations by employees "
refused the union's request in this regard.
Upon the totality of the foregoing considerations I find
and conclude that the employees left the plant on Novem-
ber 3, as strikers, and with the protection the Act gives such
a status. The General Counsel contends primarily that these
employees were unfair labor practice strikers, but alterna-
tively contends that even if they be found to be economic
strikers, they are entitled to reinstatement with backpay,
because the evidence shows that promptly after refusing
reinstatement on November 3, Respondent hired new em-
ployees in the classification of "Trainee" ( the same classifi-
cation as all six of the employees involved).43 There is a
complete absence of evidence to establish that the employ-
ees involved have obtained other regular and substantially
equivalent employment, or of any business justification for
denying them reinstatement as requested on November 3.
As I find this to be the fact, it becomes unnecessary to
decide whether these six employees were unfair labor prac-
tice strikers or economic strikers; in either event the remedy
would be the same ; namely, reinstatement with backpay
from November 3. Laidlaw Corporation, 171 NLRB 1366,
1368-69, and the cases there cited.
The refusal to bargain allegation
The General Counsel contends that Respondent's unfair
labor practices herein found are of such an extensive and
pervasive character that under the principal announced in
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969), a bar-
gaining order is necessary not only to remedy the 8(a)(5)
violation, but the independent violations of Section 8(a)(1)
and (3) as well. I find a bargaining order inappropriate,
indeed impermissible here because the evidence fails to es-
tablish that the Union ever acquired majority status. J.P.
Stevens and Co., Inc., 157 NLRB 86944
As heretofore stated, the General Counsel contends that
on November 3, the unit consisted of 85 employees,45 in-
cluding Bess and Quinn, both of whom had signed cards.
Having found that the General Counsel failed to prove that
Bess and Quinn were in employee status on November 3,
when the Union made its demand for recognition, these two
employees must be eliminated from the payroll and their
cards disregarded. When this is done, the unit consists of 83
employees, of whom 41 signed cards; plainly less than a
majority.46
43 The record shows that Respondent hired six new tramess between No-
vember 6 and 15 Ten more were hired between November 20 and 30. In
December, 6 were hired , in January 91, and thereafter until February 22, 9
more.
44 In J P Stevens, supra, the Board said (at 877)
Although there is a possibility that, but for Respondent's unfair labor
practices, the Union might ultimately have secured majority status, it
has not done so In view of the majority principle in Section 9(a) of the
Act, we do not believe that the policies of the Act require or even permit
the issuance of a bargaining order where majority status has never been
attained [ Emphasis supplied]
4 The computation by which the General Counsel reaches that conclusion
is set forth supra
46 Having reached this conclusion it becomes necessary to decide whether
Betty Johnson, Dons Parker , Donzie McIntyre, Billy Spears , and Frank
Wilson were supervisors to be excluded from the unit , as the General Counsel
contends If the General Counsel failed to prevail on this contention, each
of said persons would be included in the unit which would then stand at 88,
only 41 of whom signed cards
GRISMAC CORP.
Accordingly , it will be recommended that the 8 (a)(5) alle-
gations of the complaint be dismissed.
Upon the foregoing findings of fact and the entire record
in the case , I state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of Sec-
tion 2(2) of the Act, and is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interrogating employee Edmonson regarding his
assistance to and support of the Union, by circulating a
petition urging employees to withdraw their support of the
Union, and by publishing and maintaining a rule prohib-
iting employees from distributing literature in nonworking
areas of the plant during their nonworking time , Respon-
dent interfered with , restrained , and coerced its employees
in the exercise of rights guaranteed by Section 7 of the Act,
and thereby engaged in , and is engaging in, unfair labor
practices proscribed by Section 8(a)(1) of the Act.
4. By discharging Frank Flenoy, Charles L. Cole, Wanda
Cole, Herman Lloyd, Ralph Barnett , Vera Barnett , Marian
Cole, and Alfred Henry, on November 2, Respondent dis-
criminated against them in regard to their hire and tenure
of employment , and the terms and conditions thereof, to
discourage membership in the Union, and thereby engaged
in, and is engaging in, unfair labor practices proscribed by
Section 8(a)(3) and (1) of the Act.
5. By failing and refusing on November 3, to reinstate
Jimmie Anderson , Carmen Jones , Marian Johnson, Barb-
ara Wilburn , Patricia Johnson, and Anna Wilburn in accor-
dance with the unconditional application for reinstatement
on their behalf Respondent discriminated against them in
regard to their hire and tenure of employment, and the
terms and conditions thereof , to discourage membership in
the Union, and thereby engaged in and is engaging in unfair
labor practices proscribed by Section 8(a)(3) and ( 1) of the
Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. The General Counsel failed to establish by a prepon-
derance of the evidence that either Bess or Quinn engaged
in a strike against Respondent , or that their employment
terminated under conditions that would entitle them to rein-
statement , and that the portion of the complaint which so
alleges should be dismissed for failure of proof.
8. The General Counsel had failed to establish by a pre-
ponderance of the evidence that the Union was on Novem-
ber 3, or at any time thereafter , the duly designaged
majority representative of Respondent 's employees on No-
vember 3 , hence Respondent did not violate Section 8(a)(5)
and (1) of the Act when it refused to bargain with the Union,
and that the allegations of the complaint in that regard
should be dismissed.
THE REMEDY
Having found that Respondent has engaged in unfair
1119
labor practices proscribed by the Act, it will be recommend-
ed that it cease and desist therefrom and take certain affir-
mative action , set forth below, designed and found
necessary to effectuate the policies of the Act.
Having found that Respondent interfered with, re-
strained , and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act, discriminatorily dis-
charged eight employees and discriminatorily refused to
reinstate six others-violations which go to the very heart
of the Act, I conclude from the totality of the unlawful
conduct herein found that Respondent should be required
to cease and desist from in any manner interfering with,
restraining, or coercing its employees in the exercise of
rights guaranteed them by Section 7 of the Act. N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California Linge-
rie, Inc., 129 NLRB 912, 915.
Having found that Respondent discriminatorily dis-
charged and thereafter refused to reinstate Frank Flenoy,
Alfred Henry, Charles Cole, Herman Lloyd, Ralph Barnett,
Vera Barnett , Wanda Cole, and Marina Cole, it will be
recommended that Respondent be required to offer each of
them immediate , full, and unconditional reinstatement to
his or her former or substantially equivalent position, with-
out prejudice to their seniority or other rights , privileges, or
working conditions , and make each of them whole for any
loss of earnings they suffered by reason of the discrimina-
tion against them , by paying to each a sum of money equal
to the amount he or she would have earned as wages from
November 2, to the date Respondent offers them reinstate-
ment severally, as aforesaid , less any amount he or she may
have earned during said period , to be computed in accor-
dance with the formula prescribed by the Board in F.W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Having additionally found that on November 3, and at all
times thereafter , Respondent failed and refused to offer
reinstatement to Jimmie Anderson , Carmen Jones , Marian
Johnson, Barbara Wilburn, Patricia Johnson, and Anna
Wilburn , striking employees on whose behalf an uncondi-
tional offer to return to work had been made on November
3, when their jobs had not been filled, and to fill their jobs
new employees were thereafter hired , it will be recommend-
ed that upon application Respondent be required to offer
each of the aforementioned employees immediate, full, and
unconditional reinstatement to their former or substantially
equivalent jobs, without prejudice to their seniority or other
rights and privileges , dismissing persons hired by Respon-
dent after November 3, if necessary to make room for them.
The Laidlaw Corporation, 171 NLRB 1366, 1389. It will be
further recommended that Respondent be required to make
whole each of said employees for any loss of wages suffered,
or which they may suffer , by reason of Respondent 's refus-
al, if any, to reinstate them in the above -described manner,
by paying to each of them a sum of money equal to that
which each normally would have earned as wages from
November 3, to Respondent's offer of reinstatement, less his
or her net earnings during said period, with backpay and
interest computed in the manner described in the preceding
paragraph.
Additionally, it will be recommended that Respondent be
required to preserve and upon request make available to
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
authorized agents of the Board, all records necessary or
useful in determining compliance with the Board's Order
herein, or in computing the amount of backpay due.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in the case, and pursuant to Section
10(c) of the Act, I hereby issue the following recommended.
ORDER47
Respondent, Gnsmac Corporation, Indianapolis, Indi-
ana, its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Soliciting employees to sign a petition pursuant to
which the employees would withdraw their support from or
assistance to a union.
(b) Interrogating employees regarding their assistance to
or support of any union.
(c) Promulgating, maintaining in effect, enforcing, or ap-
plying any rule or regulation prohibiting its employees from
distributing literature on behalf of any labor organization,
in any nonworking area of its premises, during their non-
working time.
(d) Discouraging membership in or activities on behalf
of Service Employees International Union, Local 551,
AFL-CIO, or any other labor organization of its employees,
by discharging or otherwise discriminating in regard to the
hire or tenure of employment or any term or condition of
employment of its employees.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion, as guaranteed by Section 7 of the Act, or to refrain
from any and all such activities.
2. Take the following affirmative action designed and
found necessary to effectuate the policies of the Act:
(a) Forthwith rescind and cease giving effect to its rule
prohibiting its employees from distributing literature on be-
half of any labor organization in any nonworking area of its
premises , during their nonworking time.
(b) Offer Frank E. Flenoy, Charles L. Cole, Wanda Cole,
Herman Lloyd, Ralph Barnett, Vera Barnett, Marian Cole,
and Alfred Henry immediate, full and unconditional rein-
statement to their former jobs, or if such a job no longer
exists, to a substantially equivalent one, without prejudice
to their seniority or other rights and privileges and make
each of them whole for the wages they lost in the manner
set forth in the section hereof entitled "The Remedy."
(c) Upon application offer Jimmie Anderson, Carmen
Jones, Marian Johnson, Barbara Wilburn, Patricia John-
son, and Anna Wilburn immediate, full and unconditional
reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights
and privileges, dismissing all persons hired after November
3, 1972, if necessary to make room for them, and make each
of them whole for any loss of earnings suffered, or which
they may suffer by reason of Respondent' s refusal, if any,
to reinstate them, in the manner set forth in the section
hereof entitled "The Remedy."
(d) Preserve, and upon request, make available to the
Board or its authorized agents, for examination and copy-
ing, all payroll records, social security payment records,
timecards, personnel records and reports, and all other re-
cords necessary or useful in determining compliance with
this Order, or in computing the amount of backpay due as
therein provided.
(e) Post at both its English Avenue and Delaware Street
plants in Indianapolis, Indiana, copies of the attached no-
tice marked "Appendix." 48 Copies of said notice, on forms
provided by the Regional Director for Region 25 of the
National Labor Relations Board (Indianapolis, Indiana),
shall, after being signed by an authorized representative, be
posted as herein provided immediately upon receipt thereof,
and be so maintained for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not al-
tered, defaced, or covered by any other material.
(f) Notify the aforesaid Regional Director, in writing
within 20 days from the date of receipt of this Order, what
steps it has taken to comply herewith.
47 In the event no exceptions are filed as provided by Sec 102 46 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, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes
49 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
"Posted pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a full trial in which all sides had the opportunity to
present their evidence, the National Labor Relations Board
has found that we, Grismac, Incorporated, violated the Na-
tional Labor Relations Act, and ordered us to post this
notice. We will carry out the Order of the Board, the Judg-
ment of any court enforcing the same, and comply with the
following:
The Act gives all employees these rights:
To organize themselves.
To form, join, or help unions.
To act together for collective bargaining or other
mutual aid or protection.
To refuse to do any or all these things.
WE WILL NOT do anything to interfere with you in the
exercise of the aforementioned rights, and all our em-
ployees are free to become or remain a member of
Service Employees International Union, Local 551,
AFL-CIO, or not to become or remain a member of
GRISMAC CORP.
that or any other union.
WE WILL NOT coercively interrogate you regarding
your sympathy for or activities on behalf of any union.
WE WILL NOT by circulating a petition, or in any other
manner, solicit you to abandon or withdraw your sup-
port from Local 551, or any other union of our employ-
ees.
The rule we promulgated and maintained which pro-
hibits our employees from distributing literature of any
kind on company premises , is now revoked. All em-
ployees are free to distribute literature in our plant on
behalf of Local 551, or any other union, provided such
distribution is in nonworking areas, and during non-
working time.
As the National Labor Relations Board found that
we violated the law by discharging Frank E. Flenoy,
Charles L. Cole, Wanda Cole, Herman Lloyd, Ralph
Barnett, Vera Barnett, Marian Cole, and Alfred Henry,
WE WILL offer each of them his or her old job back, if
the same exists, and if not, a substantially equal job,
without any loss in seniority or other rights and privi-
leges, and make up to each of them the pay they lost
with 6-percent interest.
As the National Labor Relations Board also found
that we violated the law when on November 3, 1972, we
refused reinstatement to Jimmie Anderson, Carmen
1121
Jones, Marian Johnson, Barbara Wilburn, Patricia
Johnson, and Anne Wilburn, WE WILL upon application
on their behalf offer each of them their old job back if
the same exists, and if not, a substantially equal job,
without any loss in seniority or other rights and privi-
leges, dismissing all persons hired after November 3,
1972, if necessary, to make room for them, and make
up to each of said employees the pay they lost, or which
they may lose by reason of our failure to reinstate them,
together with 6-percent interest.
Dated By
GRISMAC, INCORPORATED
(Employer)
(Representative) (Title)
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, ISTA Center, 6th Floor, 150 W
Market Street, Indianapolis, Indiana 46204, Telephone
317-633-8921.