P. R. Mallory & Co.

National Labor Relations Board - Board Decisions

Dec 11, 1964

149 N.L.R.B. 1649 (N.L.R.B. 1964)

MALLORY PLASTICS CO., DIV. OF P. R. MALLORY & CO. 1649
tives of its employees , or the Council as the agent of these local unions, or to
force or require these employees to designate or accept the local unions as their
collective -bargaining representatives , or the Council as their agent.
WE WILL NOT engage in or induce or encourage any individual employed by
J. H. Terry and Co., Warner Concrete Company, or Fizzano Bros. Concrete
Products , Inc., or any other neutral or secondary employer, to engage in a strike
or a refusal in the course of his employment to use, manufacture , process, trans-
port, or otherwise handle or work on any goods , articles, materials , or commodi-
ties , or to perform any services , or threaten , coerce , or restrain J. H. Terry and
Co., Warner Concrete Company, or Fizzano Bros. Concrete Products , Inc., or
any other neutral or secondary employer engaged in commerce or in an industry,
affecting commerce , where in either case, an object thereof is to force or require
Terry, Warner, or other neutral or secondary employer to cease doing business
with Fisher Construction Company, or to force or require Fizzano , or other,
neutral or secondary employer , to cease doing business with Felton Construction
Company, or to force or require Fisher to recognize or bargain with the local
unions of Laborers , Carpenters , and Operating Engineers affiliated with Council
as the representatives of Fisher 's employees , or to bargain with Council as the
agent of these local unions , unless they are certified as the representatives of
Fisher 's employees under Section 9 of the Act.
THE BUILDING & CONSTRUCTION TRADES COUNCIL OF
PHILADELPHIA AND VICINITY, AFL-CIO,
Labor Organization.
Dated------------------- By------------------------- I------------------
(Representative ) ( Title)
Dated------------------- By-------------------------------------------
(James O'Neill , President, The Building and Construc-
tion Trades Council of Philadelphia and Vicinity,
AFL-CIO)
Dated------------------- By-------------------------------------------
(James Loughlin , Business Manager , The Building and
Construction Trades Council of Philadelphia and
Vicinity, AFL-CIO)
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.
Interested persons may communicate directly with the Board 's Regional Office, 1700
Bankers Securities Building, Philadelphia , Pennsylvania , Telephone No. Pennypacker
5-2612, if they have any question concerning this notice or compliance with its
provisions.
Mallory Plastics Company, a • division of P. R. Mallory & Co.,
Inc.' and Textile Workers Union of America. • Cases Nos. 13-,
CA-6032 and 13-RC-9739. December 11, 1964
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION -
On September 2, 1964, Trial Examiner George A. Downing issued
his Decision in the above-entitled consolidated proceeding, finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices, and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Decision. He also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
'The Respondent 's name herein appears as amended at the hearing.
149 NLRB No. 138.
770-076-65-vol. 149-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plaint and recommended dismissal of the complaint as to them. In
addition, the Trial Examiner considered objections Nos. 5 and 6 filed
by the Union to the conduct of the Respondent in connection with the
December 12, 1963, election. He found no merit in objection No. 6,
but did find merit in objection No. 5, and recommended that the
results of the above-mentioned election be set aside, and a second
election held. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision, and a supporting brief, and the General
Counsel filed an answering brief in support of the Trial Examiner's
Decision.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and briefs, and the entire
record in these cases, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner to the extent consistent
herewith.2
We do not agree with the Trial Examiner's finding that Respond-
ent's no-distribution rule was invalid and violative of the Act .3 The
Trial Examiner found Respondent's rule herein to be invalid because
it was not limited to the working areas of the plant. We agree that
such a rule would be invalid if it were shown that the rule pro-
hibited employees, on their own time, from distributing literature in
nonworking areas on the Respondent's premises.4 However, if the
rule were meant only to prohibit employees while working ' from
distributing literature, this would be a valid rule. In the absence of
evidence showing that the invalid interpretation was intended, or
enforced, or communicated to the employees, we find that the General
Counsel has failed to prove that Respondent maintained an unlawful
no-distribution rule. Accordingly, we shall dismiss this allegation of
the complaint and shall make appropriate modifications in the Rec-
ommended Order and Notice.'
2 In the absence of exceptions , we adopt pro forma the Trial Examiner's findings with
regard to the alleged violation of Section 8(a)(3) of the Act.
B The rule, an oral one , as stated by Respondent 's president , Fred J. Krone, was:
"Literature was not to be distributed on the company premises during working hours by
any employee."
4 Member Fanning agrees that a rule which prohibits employees , during nonworking
time , from distributing literature in nonworking areas would be invalid . However, he
does not wish his agreement with this proposition to be construed as a departure from
his dissent in Stoddard-Quark Manufacturing Co , 138 NLRB 615 He adheres to the
position that an employer may not prohibit employees , during nonworking time, from
distributing literature in working areas, as well as nonworking areas.
5 The Trial Examiner's recommended notice is hereby amended by deleting therefrom
the third paragraph , which begins with the words "WE WILL NOT promulgate . . . "
MALLORY PLASTICS CO., DIV. OF P. -R; MALLORY & CO. 1651
ORDER
• Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor, Relations , Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders
that the Respondent, Mallory Plastics Company, a division of P. R.
Mallory & Co., Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order, with the following modification;
Delete paragraph 1(c) . Paragraph 1(d) is redesignated 1(c) .
IT IS HEREBY FURTHER ORDERED that the election held December 12,
1963, among the employees of Mallory Plastics Company, a division
of P. R. Mallory & Co., Inc., at its Chicago, Illinois, plant, in the
designated unit, be, and it hereby is, set aside.
[Text of Direction of Second Election omitted from publication.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding under Section 10(b) of the National Labor Relations Act, as
amended, was heard in Chicago, Illinois, on April 16 and 17, 1964, pursuant to due
notice. The complaint in Case No. 13-CA-6032 was issued on February 25, 1964, by
the General Counsel of the National Labor Relations Board on charges dated Novem-
ber 18 and December 10, 1963, and alleged in substance that Respondent engaged in -
unfair labor practices proscribed by Section 8 (a) (1) and (3) of the Act by engaging
in specified acts of interference, restraint, and coercion and by discriminatorily dis-
charging Charles W. Coleman on November 15. Consolidated for hearing with said
complaint were the Union's objections Nos. 5 and 6 to conduct affecting the results of
the election held on December 12, 1963, in Case No. 13-RC-9739, in which the
Union charged that the Company discriminated against union adherents_ and put
pressure on employees to remove their union buttons. Finding that the issues so
raised were substantially the same as those involved in the complaint case, the
Regional Director issued an order on February 25, consolidating said cases for pur-
poses of hearing and disposition.
Respondent answered denying the allegations of unfair labor practices.
Upon the entire record in the case and from my observation of the witnesses, I make
the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Mallory Plastics Company, a division of P. R. Mallory & Co. Inc., -a corporation
which has its office and principal place of business at Indianapolis, Indiana, operates
at Chicago, Illinois, the plant which is involved herein and at which it manufactures
plastic dishware and other items of plastic ware. In 1963 Respondent purchased and
shipped to said plant from points outside the State of Illinois goods valued in excess
of $50,000, and it sold and shipped from said plant to extrastate points products valued
in excess of $50,000. Respondent is therefore engaged in commerce within the mean-
ing of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Union is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
The conduct with which these proceedings are concerned occurred sometime prior'
to an election held on December 12, 1963, and for the most part shortly after the
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
signing of a stipulation for consent election on November 7. There were 50 votes cast
in the election for the Union , 81 were cast against it , and there were 15 challenged
ballots. The Union filed objections on six grounds, four of which were overruled by
the Regional Director. The issues raised by the other two and by the complaint
allegations are whether Respondent engaged in certain interrogations through its
supervisors and demanded the removal of union insignia; whether it promulgated and
disparately enforced a broad no-solicitation and no-distribution rule, and whether it
discharged Charles W. Coleman because of his union membership and activities or
because (as Respondent contends) of his theft of certain dinherware on November 15.
There was little factual dispute concerning the conduct which is claimed to constitute
interference, restraint, and coercion, the issue being whether the conduct was such as
to be proscribed by Section 8(a)(1). The evidence surrounding Coleman's discharge,
however, is in sharp conflict, with the ultimate findings being dependent upon the reso-
lution of credibility issues.
. B. Interference, restraint, and coercion
1. Interrogations and requests to remove union insignia
Respondent's supervisors made no denial of the following conduct as attributed to
them by the General Counsel' s witnesses:
Maintenance Foreman Leo Paszquiet interrogated Charles Coleman on three sepa-
rate occasions concerning his opinion of the Union and followed the interrogations
with antiunion remarks. On two of the occasions Paszquiet and Coleman laughed
together during the discussions. The final occasion was on the morning of Novem-
ber 7, following Coleman's reminder to Paszquiet that be was to be let off to attend a
joint conference at the Board's office (to set up arrangements for the election).
All remaining incidents occurred after that conference at the Board's office and
involved employees who were wearing their union insignia at the time. Edwin Clark,
assistant foreman of the molding department, questioned Frank Calvin, Jr., as to what
he thought of the Union and whether the Union would "make it."
John Zajac, supervisor of the molding department, questioned John Lunsford as to
what he thought of the Union, questioned John Harris as to why he was wearing a
union button, and questioned George Taylor concerning what he thought of the Union
and of the union button he was wearing. In each instance Zajac followed the inter-
rogations with antiunion comments, though he also told Harris and Taylor they should
vote the way they wanted to. Zajac also questioned William Patton when he began
wearing his union button as to what he was organizing and requested Patton to remove
the button. In Patton's presence Zajac also questioned Donald Wimms concerning
his knowledge of union activities and his reasons for wearing a union button and
requested Wimms to remove the button.
In talking with Lunsford, Zajac also requested him, "as a friend, not as a foreman,"
to remove his union button. When Lunsford declined to do so, explaining that he was
"one of the originals" who attended the conference at the Board, Zajac stated that he
had talked to "a few of the other fellows" and asked whether Lunford wished him to
set up an appointment with Respondent's president, Fred J. Krone, about the matter.
Lunsford also declined that offer, but agreed to talk with other employees and to "go
along" with a majority if they wished to remove their buttons. Lunsford thereafter
talked with some 10 employees in the locker room and reported back to Zajac that they
would not remove their buttons.
Concluding Findings
The foregoing evidence shows nine separate incidents of interrogation of seven
different employees by three of Respondent's supervisors, six of which incidents
occurred after the arrangements for the election had been made at the Board's office.
The latter six incidents occurred while the employees were proclaiming their union
sentiments by wearing union insignia , and the interrogations were followed by deroga-
tory remarks concerning the Union and in three cases by requests that the employees
remove their union insignia. In one such case the refusal to do so was followed by
the further suggestion that an appointment be made about the matter with Respond-
ent's president.
Although the Board no longer follows a per se approach which would hold any
employer inquiry of employees concerning union matters to be a violation of the Act
for that reason alone (Blue Flash Express, Inc., 109 NLRB 591; and see Ainsworth
Manufacturing Company, 131 NLRB 273, 274, footnote 3), the foregoing evidence
plainly meets the test which it prescribed in Blue Flash, i.e., "whether under all the
circumstances the interrogation reasonably tends to restrain or interfere with the
MALLORY PLASTICS CO., DIV. OF P. It. MALLORY & CO . '1653
employees in the exercise of rights guaranteed by the Act ." Here the interrogations
were intended to initiate conversations in which Respondent would ascertain the
strength of the union sentiments of the employees and in which actual appeals were
made that the employees in effect openly renounce their union allegiance by removing
their union buttons.
Those appeals involved matters of serious concern to the employees and were
seriously and soberly made and received . Indeed , the earnestness with which the
requests were advanced was emphasized by Zajac by pursuing the unwilling employee
with the suggestion that the matter be carried on to a conference with Respondent's
president . The seriousness in turn with which Lunsford received and considered that
appeal was demonstrated by his agreement to do what a majority of the employees
decided , by discussing the request with some 10 employees , and by reporting back to
his supervisor the decision which they reached.
The interrogations were thus not mere casual or isolated or inconsequential acts,
as Respondent argues. They were not accompanied by any explanation of their
purpose, nor did Respondent adduce any evidence to establish that the course of
interrogation in fact had a legitimate purpose or motive . Indeed , since seven of the
nine instances of interrogation occurred after the execution of the stipulation for
consent election , it is difficult to divine what showing could have been made to estab-
lish such a motive. Cf. Blue Flash , supra.
The "most revelant factor" in determining whether interrogation is coercive, the
court held in N.L.R.B. v. Firedoor Corporation of America , 291 F. 2d 328 (C.A. 2),
cert . denied 368 U.S. 921 , is "whether the questions seem to seek information which
the employer in good faith needs-as when individuals are asked whether they belong
to the Union so that the employer can check the Union 's claim to represent a major-
ity, or to the contrary seem to seek information most useful for discrimination...."
But Respondent had already stipulated for a Board election as the means for deciding
the Union 's majority claim , and the interrogations here, coupled with the contempo-
raneous request for disavowal of union adherence , were plainly calculated to affect
and to dissipate the strength of union sentiment among the employees.-
I conclude and find that the interrogation here was conducted under such circum-
stances as to disclose on its face that it was a kind which reasonably may be expected
to impede and coerce employees in the free exercise of their statutory rights. Accord-
ingly, the absence of independent unlawful conduct did not detract from its otherwise
unlawful character . Charlotte Union Bus Station , Inc., 135 NLRB 228, 229.
The requests to remove union insignia similarly restrained and coerced employees
in the exercise of their legitimate right to engage in union activities . As the Board
held in Mayrath Company, 132 NLRB 1628, 1629, citing Republic Aviation Corpo-
ration v. N.L.R.B, 324 U.S. 793, the wearing of union buttons by employees while
at work has long been recognized as an employee right and rules which interfere
with that right "are presumptively invalid in the absence of special circumstances
which make them necessary to maintain production or discipline ." But Respondent
here made no showing whatever to establish necessity.
See also N.L.R.B. v. W . T. Grant Company , 199 F . 2d 711, 712, (C.A. 9), enf.
94 NLRB 1133 , where the court upheld the Board's finding that the employer
violated Section 8(a) (1) by interrogating employees concerning the wearing of union
buttons and rejected contentions that the questions were put in a jocular vein and
therefore had no tendency to coerce.
I conclude and find that by interrogating employees under the circumstances herein
found concerning their union activities , sentiments , and desires , and by requesting
employees to remove and to discontinue wearing their union insignia signifying their
union sentiments , support, and membership , Respondent interfered with, restrained,
and coerced employees in the exercise of rights guaranteed by Section 7, thereby
violating Section 8 (a) (1) of the Act. I further conclude and find that by said con-
duct Respondent improperly interfered with and affected the outcome of the election.
As the Board held in Dal-Tex Optical Company Inc., 137 NLRB 1782, 1786, "Con-
duct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the
exercise of a free and untrammeled choice in an election ." See also Playskool Manu-
facturing Company, 140 NLRB 1417, 1419, and Coca Cola Bottling Company of
Louisville , 143 NLRB 50.
2. Promulgation and enforcement of no-solicitation no-distribution rule
Respondent has had in effect for many years an oral rule , enforced by supervisors
and foremen , which prohibits solicitation of employees and distribution of literature
during working hours anywhere on company premises , which Krone defined as any
place within the fence , including the parking lot. In addition to attacking that rule
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as presumptively invalid- because not limited to. working areas (though limited to
working time), the General Counsel relied on the following four incidents to estab-
lish his further contention that Respondent discriminatorily applied the rule by assist-
ing and permitting employees to distribute antiunion literature in violation of the rule:
1. On December 4, Kenneth Hutchens, business agent of the Union, together with
volunteer organizers (nonemployees), were distributing union leaflets on the sidewalk
at the car entrance to the plant. Krone came out and informed Hutchens that unless
he kept the organizers off the company property, Krone would have them "pinched."
Hutchens admitted that the organizers might occasionally have gone inside the gate
and onto the property in passing out the leaflets.
2. It was customary for Respondent's employees to clock in in the morning and
,to clock out at quitting time and to get permission from their foremen if they left
early. On November 15 Bobby Brown, who knew of that rule, changed clothes and
left the plant around 3:15 p.m. (his shift ended at 4 p.m.), without clocking out and
without speaking to his foreman. From then until about 4:30 p.m., while the second
shift was coming on and the first shift was leaving the plant, he passed out antiunion
leaflets over the name of Employees Committee for No Union to employees outside
the main gate. Brown testified that no supervisors passed by while he was so engaged
and that his pay was not docked for the time.
Krone testified that he issued instructions that, employees could be excused from
work for either union or nonunion activities, if they made proper requests to their
supervisors, but that they were to clock out. He denied that Respondent released
any employees specifically to distribute antiunion literature, but admitted that on
three or four occasions early in November some employees requested time off for
that purpose and that such distribution was made on the sidewalk in front of the
plant. Testifying that Respondent similarly allowed time off to employees who
engaged in union activities, Krone referred to those who were released to attend the
preelection conference at the Board office on November 7. Krone continued that
on November 15 leaflets were distributed both for the Union and for no union; that
employees other than Brown were also engaged in the distribution; and that the
others clocked out but Brown did not. Brown's timecard, marked out at 4 p.m.,
was initialed by Brown's foreman, and Krone testified that Brown was paid until that
time because his foreman thought he was there.
3. Frank Calvin, Jr., testified that on the day before the election Bob Kurowski
passed out some 10 or 15 antiunion leaflets in the plant during working hours in the
presence of Foremen Paszquiet, Clark, and Andrew Jakubczyk (commonly referred
to as Kupp in the record); that he followed Kurowski around at the time (because
his machine was broken down); and that the foreman did not speak either to him
or to Kurowski (to order them back to work). Calvin at first estimated the time
at 2 or 3 minutes during which Kurowski was engaged in such distribution, then
increased his estimate to 3 to 5 minutes, and finally testified that he followed Kurow-
ski around for some 10 minutes.
Paszquiet, Kupp, and Clark denied that they saw Kurowski passing out handbills
and denied also that they saw Calvin following Kurowski around the plant. Krone
testified that Calvin was paid for an entire shift on the day in question; that if Calvin's
machine were broken down, that fact would have been reflected under Respondent's
system of accounting; and that it was not so reflected.
4. Krone and Kupp admitted that they saw an antiunion handbill posted on the
wall inside the plant. Krone tore it down. Kupp saw several pieces of both prounion
and antiunion literature on the floor of the plant and on the ground outside. Krone
denied knowing anything about the distribution of election literature within the plant
on any occasion.
Concluding Findings
The General Counsel contends, as previously noted, that (1) Respondent's
no-distribution rule was invalid and violative of Section 8(a)(1) as applied to
employees because, though limited to working time, it was not limited to working
areas, and (2) Respondent discriminatorily applied its rule by assisting or permitting
employees to distribute antiunion literature in violation of the rule.
(1) In Stoddard-Quirk Manufacturing Co., 138 NLRB 615, 622, the Board noted
that the Supreme Court held in N.L.R.B. v. The Babcock & Wilcox Company, 351
U.S. 105, 112, that no-distribution rules, applicable to employees were different from
those applicable to nonemployees, and quoted the rule as enunciated by the Court
that "an employer may validly post his property against nonemployee distribution of
union literature if reasonable efforts, by the union through other available channels
of communication will enable it to reach the employees with its message. . . .
MALLORY PLASTICS CO., DIV. OF P. R. MALLORY & CO. 1655
[Emphasis supplied.] The Board found implicit in the distinctions which the Court
drew the corollary holding that employees as contrasted with nonemployees would
be entitled, subject to reasonable regulations, to engage in such distribution. It
found the no-distribution rule in that case presumptively invalid on its face as applied
to employees, because it was not limited to the working areas of the plant; and it
found further that the evidence offered by the company (here wholly absent) was
insufficient to overcome the presumption of invalidity of the rule and to establish
that the rule was necessary to maintain production or discipline.
On the authority of that case and on the evidence in the present record, I conclude
and find that Respondent's no-distribution rule was invalid and violative of Section
8(a) (1) as applied to employees in that it was not limited to the working areas of
the plant. I do not find the rule invalid, however, as applied to nonemployee distri-
bution because the General Counsel made no showing that the Union could not have
reached the employees through the usual and normal channels of communication.
Babcock & Wilcox, supra, at 112.1
(2) The General Counsel failed to establish by a preponderance of the evidence
that Respondent disparately or discriminatorily applied its rule to permit the distri-
bution of antiunion literature. Distribution outside the plant gate was permitted
on an evenhanded basis. Krone's warnings to nonemployees were justified under
Babcock & Wilcox, supra, and under Hutchens' admission that they had sometimes
gone through the gate onto the plant property. Brown's testimony did not establish
that Respondent knowingly released him to distribute antiunion literature or know-
ingly paid him for the time, for Brown did not seek permission from any supervisor,
and his foreman apparently assumed that he was on the job until the regular quitting
time.
Nor can I credit Calvin's testimony concerning Kurowski's alleged distribution of
antiunion literature within the plant in the presence of Respondent' s supervisors.
Calvin's testimony was itself shifting and inconsistent and was directly denied by
Respondent's witnesses . On the first point Calvin attempted to inflate an obviously
inconsequential 2 or 3 minutes up to an intermediate 5 minutes and then up to a
final 10 minutes. To explain his opportunities for observation, he came up with
the claim that he had followed Kurowski around, and then to account for his own
absence from his job, he claimed that his machine was broken down. Refuting
Calvin's testimony, all three of Respondent's supervisors denied having seen Kurow-
ski engaged in distributing literature and denied seeing Calvin following him around.
Krone in turn refuted Calvin's claim of a machine breakdown by testimony that
Respondent's record failed to reflect any such breakdown on the day in question.
For all the foregoing reasons, I do not credit Calvin's testimony
The remaining item of the temporary posting of an antiunion leaflet, which was
promptly torn down by Krone, is insignificant and inconsequential.
C. The discharge of Charles W. Coleman
Charles W. Coleman was employed as a janitor in the maintenance department
under Foreman Paszquiet in June 1962, after being warned that the Company would
not have "people with sticky fingers." Coleman was discharged on November 15
for alleged theft of dinnerware after being apprehended with the dishes at his car
on the parking lot.
Knowledge of Coleman's union activities and sentiments is not an issue, for he
attended (along with Calvin, Lunsford, and 0 B. Prater) the preelection conference
at the Board's offices on November 7, which was also attended by Respondent's
president and its attorney, and he wore there, and thenceforth at the plant, a union
button which identified him as a member of the organizing committee. Further-
more, union literature distributed outside the plant referred to the attendance of the
four employees (by name) at the joint conference and characterized them as "brave
men" who had "stuck their necks out" for the employees.
1 Though it is not clear that the complaint directly alleged that the no-distribution
rule was invalid on its face, it specifically charged that Respondent enforced the rule
against employee distribution in nonworking areas As the evidence concerning that
allegation is undisputed and as Respondent contends for a broad interpretation of its
rule, the findings herein, and the recommended remedial order, can appropriately extend
to the invalidity of the rule for "there is a reasonable relation between the illegal act
committed and the forbidden activity." Stoddard-Quirk, supra, quoting from N.L R B. v
Firedoor Corporation of America, 291 F. 2d 328, 331-332 (C.A. 2), cert. denied `368
U.S. 921.
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What is in issue is whether Coleman was discriminatorily discharged because of
his connection with the Union, as the General Counsel contends, or because of his
theft of dinnerware, as Respondent contends. Those issues turn largely on whether
there was an actual theft or whether Respondent seized on an incident involving
worthless scrap as a pretext to screen its real motive to rid itself of one of the leaders
in the Union's campaign. In the ultimate analysis, the latter issues are determinable
on the credibility of Coleman on the one hand as opposed on the other to that of
Foremen Paszquiet and Kupp and President Krone, who participated in the incidents
surrounding the discharge.
In brief, Coleman, who admitted the taking of certain scrap dishes, claimed that
he had removed them in Paszquiet's presence from a scrap barrel or drum outside
the plant door, that he and other employees had been knowingly permitted over a
long period to remove such worthless scrap from the barrels, that when he was
accosted by Paszquiet (and Kupp) at his car, he reminded Paszquiet that Paszquiet
had seen him take the dishes, and that Kupp commented after looking at them that
they were "no good." Coleman also testified that he repeated the latter claims dur-
ing the discharge interview which followed immediately in the personnel office.
Coleman's foregoing testimony was disputed and denied by Paszquiet, Kupp, and
Krone and, insofar as the events surrounding the discharge were concerned, was not
supported by corroborating testimony despite the availability of an employee witness
to his actual apprehension on the parking lot .2
Furthermore Coleman's testimony was not only itself implausible and inconsistent
in material respects, but the physical evidence offered by Respondent refuted his
claim that the dishes were scrap. On the first point, Coleman testified it was on
November 11 that he took the scrap dishes from the drum in Paszquiet's presence;
that he placed them in a paper bag and put them in the boilerroom, where he let
them remain for some 4 days, forgetting they were there; and that he finally took
them out to his car at the end of his workday on November 15. The alleged delay
of 4 days was itself suspect, but even were it assumed that Coleman's explanation was
bona fide, the long gap would render inconsistent his alleged remark to Paszquiet
when apprehended on the 15th that Paszquiet knew what they were because he had
seen Coleman take them from the trash barrel. By what means Paszquiet might
have been able to connect the dishes which Coleman had on the 15th with those
Coleman allegedly took from the drum 4 days earlier was not explained. Also sus-
pect was Coleman's testimony that he saw employees remove scrap dishes from the
barrels "Almost every day," for though repeatedly pressed, he was unable to supply
the name of a single employee.
On the second point, the eight dishes (bread and butter plates) as received in
evidence, together with the testimony of Krone, established that four of the dishes
were of first quality, of a value of approximately 30 cents each as sold to employees.
Though the record is somewhat confused as to which of the exhibits, by number,
Krone identified as scrap and which as of first quality, the Trial Examiner followed
along with Krone's testimony by examining each of the exhibits as Krone testified
to each and confirmed at the time Krone's description and appraisal of each. Since
the hearing was closed some of the exhibit numbers have become blurred and two
of the dishes have been broken. As those facts now render it difficult to correlate
2 Though Coleman's testimony contained no reference to the presence of one Julio
Delgado at Coleman's car, Paszquiet and Rupp testified that Delgado was present, and
the termination notice, of which Coleman acknowledged receipt, listed Delgado's name
among the witnesses to the theft. The General Counsel sought to excuse his failure to
call Delgado on the ground of alleged difficulties in interviewing employees at the plant
and on the ground that employee addresses were not always known to him. Those ex-
planations were plainly specious as regarded Delgado for he rode in a car pool with
Coleman to and from work. Under all the circumstances, including particularly Coleman's
failure to mention Delgado's presence at the car, the conclusion is warranted that
Coleman knew or had reason to believe that Delgado's testimony would not have sup-
ported his own version of the incident "All evidence," as Lord Mansfield said in
Blatch v. Archer (Cowper, 63, 65), "is to be weighed according to the proof which it was
in the power of one side to have produced and in the power of the other side to have
contradicted." See Kirby v. Tallmadge, 160 U S. 379, 383 Consequently, "The failure
under the circumstances to call as witnesses those . . . who were in a position ^ to
know . . . Is itself persuasive that their testimony, if given, would have been unfavor-
able . . . Interstate Circuit, Inc. v. U.S, 306 U.S. 208, 226; cf. N.L R B. v Ohio
Calcium Company , 133 F. 2d 721, 727 (C.A. 6).
MALLORY PLASTICS CO., DIV. OF P. R. MALLORY & CO. 1657
Krone's testimony with specific dishes, I make my finding on my physical examina-
tion of the dishes at the hearing which, as stated, confirmed the correctness of Krone's
testimony.
Though the General Counsel represented, in opposing receipt of the exhibits, that
Coleman would be recalled to deny that the dishes produced by Respondent were
those which he had taken, Coleman was not questioned about the matter on rebuttal.
I find from all the evidence that the dishes introduced into evidence were those with
which Coleman was apprehended.
For the foregoing reasons I credit the testimony of Respondent' s witnesses and
I find the facts concerning the discharge incident to be as follows:
Since March 1960, Respondent has posted on its bulletin board a notice which
stopped a former practice-of allowing employees to take home surplus or rejected
materials, including surplus or rejected dinnerware. In implementation of that rule
supervisors were directed to inspect any bundles taken from the plant by employees
and were instructed that "all violators will be subject to immediate dismissal with-
out recall." 3
Sometime during the day on November 15, Paszquiet noticed on the floor of the
boiler room a paper bag beneath two empty cans. Checking the bag, he found that
it contained some dishes and he surmised that some one had stored them there to
pick them up later. When Paszquiet checked again around 4 o'clock, he discovered
the bag was gone and began looking around to see if anyone was taking such a bag
out of the plant. He first saw Julio Delgado on the parking lot with a bag that
looked like the one he had seen. When he endeavored to inspect Delgado's pack-
age, however, Delgado refused to permit it, contending that Paszquiet (who was not
his foreman) had no business looking at it. Paszquiet then called to Foreman Kupp,
ahd on Kupp's request, Delgado opened his package and disclosed its contents to be
clothing. In the meantime Coleman came up to the car (he and Delgado rode to
and from work together), and Paszquiet, noticing a bundle in the back of Coleman's
car, asked what it was. Coleman opened the car door, took out the bag with the
dishes in it, and handed them to Paszquiet, who asked where he had gotten them and
why he had taken them. Coleman claimed they were nothing but scrap and that he
had taken them from the trash barrel. Paszquiet reminded Coleman that he had
specific orders to break all scrap dinnerware, that nothing was supposed to go out
of the plant, and told Coleman they would have to go to the "front office" about the
matter.
Paszquiet thereupon took Coleman to Personnel Officer J. P. Huard, informed
Huard that he had caught Coleman taking the package out of the building, that Cole-
man claimed to find the dishes in the trash barrel, and that Coleman had no right
to take them out of the barrel or out of the plant. Huard thereupon informed Cole-
man he was discharged and made out a termination notice reciting as the reason
"dinnerware theft" as witnessed, among others, by Delgado.
Krone came into the. office following the actual termination, but before Coleman
left, and inquired what was going on. Huard explained that Paszquiet had found
the dishes in Coleman's possession, that Coleman admitted taking them, and that
after discussion he had discharged Coleman. Coleman admitted to Krone that he
had taken the dishes. Krone asked why Coleman had stolen them and told him that
if he had asked for the dishes, they probably would have been given to him. Cole-
man replied he did not know why he took them. Huard expressed regret because
Coleman was a good janitor.
Respondent's evidence also established the, following: In 1958 a foreman's son
was discharged for stealing dishware. In 1962 Respondent discharged employee
Sam Booker for refusing to permit a supervisor to inspect a package he was taking
from the plant. Prior to Booker's discharge a group of employees were discharged
for stealing, and either prior to or after Booker's discharge a female employee was
discharged for stealing. Krone testified, however, that Respondent had never dis-
charged an employee for taking scrap as such and that Coleman was not discharged
for that reason.
As I find from the evidence that Coleman actually took first quality merchandise
and not worthless scrap as the General Counsel contends, another hotly contested
issue at the hearing becomes a collateral one whose determination is without direct
bearing on, and will not assist materially in, deciding the central question. Thus,
under the testimony of General Counsel's witnesses it was a common practice for
employees to take from the scrap barrel outside the plant, with the knowledge and
3 Further reflecting on Coleman's credibility was his denial that he had seen any such
bulletin on the bulletin board though his job included cleaning the board and though he
claimed that he carefully read all posted bulletins.
1'658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permission of their supervisors , any unbroken scrap dishes which they might find
therein. Respondent's witnesses denied that such was the practice and testified to
the contrary that Respondent 's consistent policy, and its instructions to its staff (and
specifically to Coleman), were that all scrap or rejected dishes were to be broken
before they were placed in the scrap barrel or at least before Coleman placed the
barrels outside the door to be picked up by a scavenger, who was paid by the Com-
pany for hauling the scrap away .4
I conclude and find from all the evidence that though there may have been a few
isolated instances when employees removed unbroken scrap dishes from the barrels,
the General Counsel's witnesses greatly exaggerated the frequency of such occasions.
Coleman, for example, ended by claiming that it was a common practice which
occurred almost every day. William Patton in turn finally inflated his testimony to
the point of claiming that he saw Coleman himself take dishes from the barrels
almost every morning (though Coleman testified that he took such dishes only on
two or three occasions throughout his employment). Respondent's posted rule above
referred to and the evidence concerning the enforcement of it by a number of dis-
charges afforded substantial corroboration of the testimony of Respondent's wit-
nesses that it made every reasonable effort to see that all scrap or rejected dinner-
ware was broken before it was placed outside for pickup by the scavenger.
Concluding Findings
The rejection of Coleman's testimony concerning the theft episode leaves without
substantial foundation the General Counsel's case for discrimination. Though because
of Coleman's connection with the Union's campaign, the timing of the discharge, and
the prior interrogations, a suspicion arises that Respondent may have acted for dis-
criminatory reasons, suspicion is not proof and cannot rise to the level of a prepon-
derance of the evidence which the General Counsel is required to submit. Here even
the normal suspicion which would attach to the quick discharge of an employee leader
in the Union's campaign was substantially weakened by the suspicious explanations
which Coleman made, by his denial of knowledge of Respondent's posted rule, and
by the physical evidence which refuted his claim that the dishes he took were scrap.
The timing, too, was a circumstance which Coleman contributed by his own conduct.
Furthermore, Respondent's affirmative showing otherwise dissipated any aura of
suspicion by its long posted rule and by its enforcement of the rule by a number of
prior discharges.
In sum, I conclude and find that the General Counsel did not establish by a pre-
ponderance of the evidence that Respondent engaged in discrimination as alleged in
the complaint and as charged in the objections to conduct affecting the results of the
election.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , I shall
recommend that it cease and desist therefrom and that it take certain affirmative action
of the type which is conventionally ordered in such cases as provided in,the Recom-
mended Order below , which I find necessary to remedy and to remove the effects of
the unfair labor practices and to effectuate the policies of the Act.
As I have found that Respondent's conduct improperly affected the results of the
election , I shall recommend that the election be set aside and that another election
be conducted.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor practices
proscribed by Section 8 (a) (1) of the Act.
2. By. engaging in said unfair labor practices, Respondent engaged in conduct which
improperly affected the results of the election.
3. The aforesaid unfair labor practices affect commerce within the meaning of'
Section 2(6) and (7) of the Act.
4 Imperfect dishes were frequently left in a porous condition in which they could pick
up bacteria which could not be washed out As such they constituted a food or health
hazard and therefore a source of possible damage actions which Respondent desired to
guard against.
MALLORY PLASTICS CO., DIV. OF P. R. MALLORY & CO. 1659
4. Respondent did not engage in unfair labor practices within the meaning of Sec-
tion 8 (a) (3) of the Act as alleged in the complaint and did not discriminate against
union adherents as charged in the objections to conduct affecting the results of the
election.
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
Mallory Plastic Company, a division of P. R. Mallory & Co., Inc., its officers,
agents, successors, and assigns shall:
1. Cease and desist from:
(a) Interrogating coercively its employees concerning their union activities, senti-
ments, and desires.
(b) Requesting its employees to remove and to discontinue wearing their union
insignia.
(c) Promulgating or enforcing a no-distribution rule prohibiting employees from
distributing literature in nonworking areas in the plant or on the plant premises.
(d) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act, except to
the extent that such right may be affected by an agreement requiring membership in a
labor organization as a condition of employment as authorized in Section 8(a) (3) of
the Act.
2. Take the following affirmative action:
(a) Post at its plant and offices at Chicago, Illinois, copies of the attached notice
marked "Appendix A." 5 Copies of said notice to be furnished by the Regional
Director for Region 13 shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof and maintained by it for 60
consecutive days thereafter in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 13 in writing within 20 days from the
date of the receipt of this Decision what steps Respondent has taken to comply
herewith.6
It is further recommended that the election which was conducted in a unit of
Respondent's employees on December 12, 1963, be set aside and that a new election
be directed at an appropriate time by the Regional Director for Region 13. It is
further recommended that the complaint be dismissed insofar as it alleges violations
of Section 8 (a) (3) of the Act and that the Union's objection No. 6 to conduct affecting
the results of the election in Case No. 13-RC-9739 be overruled.
5In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Deci-
sion and Order"
e In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT interrogate coercively our employees concerning their union
membership, sentiments, and desires.
WE WILL NOT request our employees to remove and to discontinue wearing
their union insignia.
WE WILL NOT promulgate or enforce a no-distribution rule which prohibits our
employees from distributing literature in nonworking areas in the plant or on the
plant premises.
1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization, to form, join, or
assist Textile Workers Union of America, AFL-CIO, or any other labor organi-
zation, to bargain collectively through representatives of their own choosing, or
to engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities except
to the extent that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as authorized in Sec-
tion 8(a) (3) of the Act.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above-named or any other labor organization except to the
extent that such right may be affected by an agreement authorized by Section 8(a) (3)
as aforesaid.
MALLORY PLASTIC COMPANY, A DIVISION
OF P. R. MALLORY & CO., INC.
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
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.
Employees may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
O