Industrial Products, Inc.

National Labor Relations Board - Board Decisions

Jan 13, 1975

216 N.L.R.B. 133 (N.L.R.B. 1975)

INDUSTRIAL PRODUCTS, INC.
Industrial Products, Inc. and Phyllis S. Donaghy,
Martha A . West, and Joan M . Meek. Case
25-CA-6061-1, -2, and -3
January 13, 1975
DECISION AND ORDER
BY ACTING CHAIRMAN FANNING AND
MEMBERS JENKINS AND KENNEDY
On August 26, 1974, Administrative Law Judge
Thomas A. Ricci issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and Respondent
filed a brief in opposition to exceptions filed by the
General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Industrial Prod-
ucts, Inc., Greenfield, Indiana , its officers , agents,
successors, and assigns , shall take the action set forth
in the said recommended Order.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci , Administrative Law Judge: A hearing
in this proceeding was held on June 19, July 8 , 9, and 10,
1974, at Greenfield , Indiana , on complaint of the General
Counsel against Industrial Products , Inc., herein called the
Respondent or the Company . Separate charges were filed
by Phillis Donaghy on January 23, 1974, by Martha A.
West on the same day , and by Joan Meek on March 14,
1974, and the complaint issued on March 27, 1974. The
complaint was variously amended thereafter, and the
ultimate issues of the case are whether a number of
employees were discharged by the Respondent in violation
of Section 8(a)(3) of the Act . Briefs were filed by the
General Counsel and the Respondent after the close of the
hearing.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
133
Industrial Products , Inc., is engaged in the manufacture,
sale, and distribution of electronic components and related
products, with its principal office and place of business at
Greenfield, Indiana . During the past year, a representative
period , it manufactured , sold, and distributed products
valued in excess of $50 ,000 which were shipped from that
location directly to States other than the State of Indiana. I
find that the Respondent is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, herein
referred to as the UAW, and American Federation of
Labor and Congress of Industrial Organizations, herein
referred to as the AFL-CIO, are labor organizations within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. A Picture of.the Case
The sole issue of substance in this case is whether the
evidence proves the complaint allegation that the Respon-
dent violated Section 8(a)(3) of the statute in the discharge
of each of nine employees it dismissed during October
1973. Denying any illegal motivation in its action, the
Respondent asserts all these discharges were dictated by
economic considerations . A brief statement of chronology
will make clearer the respective theories of both prosecu-
tion and defense.
The pivotal date in the story is October 12, a Friday,
because on that day the Company discharged 8 of its then
production and maintenance complement of 59 workers.
Two or three girls testified first talk of going union was
heard about 2 weeks before October 12. Four women went
to a meeting at the home of a Mr. Ellis , UAW organizer,
on October 4; these employees were Marge Poynter, Joan
Meeks , Sue Donaghy , and Martha West. They signed
UAW cards. The idea got around that the UAW was the
wrong union, so some of the women held a second
meeting, where they all signed AFL-CIO cards and
obtained a further supply for soliciting more signatures.
This meeting was held on Tuesday evening , October 9, at
the home of one of the employees-Poynter; present were
three other employees-Barbara Harding, Meeks, and a
woman called Becky . There was some talk among the
employees the next 2 days-Wednesday and Thursday
'-and a certain , amount of solicitation for more signa-
tures . On Friday afternoon, October 12, towards the end of
the workday, eight women were told there was no longer
any work for them ; none had been given advance notice.
Eleven days later, on October 23, the Company discharged
three more women, again with no advance notice. As
formal notice of discharge , each of these 11 women was
given a written statement explaining the action was made
necessary because "due to the lack of component parts it
has become necessary for us to reduce our work force." As
216 NLRB No. 24
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will appear below, some of the 11 employees so discharged
were involved, in varying degree , with the union move-
ment ; some others had nothing to do with it at all.
As originally issued on March 27, 1974, the complaint
picked 5 of these 1 I discharged employees and alleged they
were dismissed "because said employees formed, joined
and assisted . . . the Union ...." [Emphasis supplied.] It
is to be noted that the very precise theory of complaint at
that point was that the five persons named were released
because of the union activities they personally engaged in;
this carries with it, of necessity , as always in such cases, the
correlative assertion that the Employer knew of their
individual union activities and resented it as a pinpointed
dislike of these special employees . On June 11, the
Regional Director amended the complaint by adding the
name of Carolyn Anderson, as a sixth employee illegally
discharged in the same fashion and for the same reason
applicable to the other five.
At the start of the substantive hearing , on July 8, 1974,
the General Counsel amended the complaint by adding the
names of 3 more of the I 1 persons discharged in October;
these are Sue Gobbard, Janet Goforth, and Janet Griffith.
As to these three, the complaint now alleged a different
kind of unfair labor practice; it says the Company got rid
of them "because certain of Respondent's employees were
engaged in the act [union activities ] . . . and . . . to
discourage its employees from engaging in such acts...."
What this language says-certainly what it means-is that
it is immaterial whether any of these three persons did or
did not engage in any union activities , and it is equally
immaterial whether the employer knew about their
participation or nonparticipation; its purpose in their
discharge was to stop union activities anywhere in the
Company by anybody.
Another, and more significant amendment was added to
the complaint on July 8. It now alleges that the six other
dischargees named were themselves also discharged "be-
cause certain of Respondent 's employees were engaged
...: ' This second theory of illegality, now also attached
to the six, is in the complaint as an addition to the first,
which still remains , that they were the pinpointed targets of
illegal discrimination because the Company knew of their
specific and individual union conduct.
From this late change of theory by the prosecution, and
from the seeming inconsistency in the two theories
suggested as to the six people , a certain confusion arises.
The General Counsel was asked to state his ultimate
arguments more precisely as the hearing progressed. As I
understood his final contentions , they are as follows: (1)
There was no need to discharge anybody at all in October
1973, and therefore all nine persons named in the
complaint were discharged to stop the organizational
campaign. (2) If there were business reasons to reduce the
work complement , the nine listed in the complaint were
deliberately selected because of their activities and to weed
out the offenders . (3) If an economic reduction in force
were justified at the time , and if it cannot be found that all
nine persons in the complaint were picked with personal
malice, it must be found that the original six were still
selected because the Company knew of "their" personal
union activities.
After all the complaint amendments , the Respondent
held firm in its defense-that all the employees dismissed
in October were released for economic reasons and for no
other . The company agents even testified they knew
nothing whatever about any union activities before the
discharges . With this the defense , the persuasiveness of the
evidence offered in affirmative defense-was there eco-
nomic reasons for the discharges-becomes of first
importance . And this is true whether it be evaluated
against all of the discharges , or with respect to only some,
or even one alone . As a matter of fact , it is not possible in
this case to consider the merits of the complaint with
respect to any one employee in isolation from all the rest.
The defense of economic necessity must be weighed in its
total picture as to every single employee discharged. There
is neither evidence nor claim here that any single worker
was told by the Company she was being fired because of
union activities . Every one of the discharge issues-collec-
tively or singly-involves the suggested inference of illegal
motivation. But inference demands consideration of all
relevant factors.
For example, X, an outstanding unioneer , is timely
discharged , and the employer says there was no more work
for him , and only for him. The employer either proves, or
does not prove , it no longer needed that man, and the
inference inquiry continues from there. If the employer
were to say it no longer needed 12 people , had to let 12 go,
and included X in the mass discharge , what happened to
the other 11 who also went home must be considered in
weighing the complaint allegation that X was the pinpoint-
ed target of union animus . Further, what happened to the
50 who remained , what kind of people were those selected
for retention-unioneers , nonunioneers?-is also a rele-
vant factor, again regardless of how many of the 13 the
General Counsel chooses to put in the complaint. Maybe
the ambiguity created by the multiple theories of illegality
now appearing in the complaint will emerge more clearly
by a question or two . If the Respondent were determined
to stop the union movement-economic need for layoff or
no economic need-why did it not fire in the mass layoff
of October 12, Joan Meeks , the person shown on this
record to have been the most outspoken protagonist of the
Union? The critical union meeting , said to have triggered
the mass discharges 3 days later , took place at the home of
Marge Poynter . The only three other persons there were
Harding and Becky , both of whom signed cards and
distributed them, and Meeks. When 3 days later the violent
reaction came , according to the theory of prosecution, not
one of these four was "selected" for punishment . Indeed,
while Meeks was released with two others on the 23d, the
other three-Poynter, Harding , and Becky-were never
released at all. Why?
B. Evidence of Economic Stress
Edward Fellure, president of the Company, carried the
burden of proving that a shortage of parts , growing
progressively more disturbing from July through Septem-
ber, reached a point in October that compelled the
reduction in force. It appears that from 85 to 90 percent of
the work at this time was putting parts together, or making
assemblies later used in office machines , on contract for
INDUSTRIAL PRODUCTS, INC. 135
IBM in Lexington, Kentucky. Most of the parts came
directly from Lexington, or from companies elsewhere who
made -them on IBM orders and shipped directly to the
Respondent in Greenfield , Indiana . Some assemblies made
by this company need only two parts to make a shipable
product; some need "between 100 and 150" separate parts,
all of which must be received, in sufficient quantity, to
keep the work going and the girls occupied. Fellure said
that with the situation becoming desperate, he conferred
with the IBM officials on Thursday afternoon and again
on Friday morning, October 12, was told the situation of
parts shortages was surely going to become worse and
remain so for an unforeseeable period, and hastened back
to Greenfield where he decided to reduce the 62-person
complement by 8 that very afternoon. Richard Syphers, at
the time vice president of the Company and plant
manager , corroborated Fellure's story.
Fellure's testimony may be called self-serving, as can be
said of many self-exculpation statements at hearings of this
kind. There was no corroboration by IBM representatives,
as there might have been. And yet it remains a fact that his
testimony is uncontradicted. There are, however, other
objective, agreed-upon, and very relevant facts that
directly support the Respondent's affirmative defense of
discharge for cause. There were 59 hourly paid employees
at work the week ending October 12. Eight were discharged
on October 12 (only seven of these unnamed in the
complaint), and three on October 23 (two named in the
complaint). The total was down to 51 by October 23. By
the end of November or early December it was further
reduced to 45. By the time of this hearing in July 1974 the
total of employees stood at 26. The number never rose
during the period October through July. This is essentially
an unskilled group of employees used in this business;
employees are all taught when hired, they are not highly
paid, and the turnover is about 500 percent a year. The
Company formally executed 300 W-2 forms for the
calendar year 1973. The Company simply did not replace
the people who left, at least not to the extent of again
raising the total number. In effect this was the equivalent
of an employer whose staff is lessened by actually
discharging people.
With this the picture of employment, it is not possible
rationally to hold the Company did not have economic
reasons to shrink its force drastically, even in October.
When a Company's primary business declines at this pace
and so permanently, there must be very persuasive reason
for discrediting any employer who says it was forced upon
him by economic pressures. Did this Respondent deliber-
ately throw its business away, reject orders, so as to dismiss
employees and thereby avoid bargaining with any union?
There is neither such claim, nor the slightest evidence to
that effect. Is this Employer now getting twice the work
output from the 26 remaining employees, so that they are
producing the same amount of work, from the same old
amount of parts, as before the union movement? Again,
there is not the slightest indication of such an explanation
for what happened.
To offset the virtually compelled finding of economic
stress sufficient to explain the drastic reduction of staff, the
General Counsel put into evidence each and every shipping
record of all parts received from IBM at the Greenfield
plant from June 1973 through April 1974. Each sheet sets
out the identifying number for each different kind of part,
the quantity shipped of each, and every separate part, and
in many instances further identifying numbers relating to
purchase order number, assembly number, and vendor's
code. Apparently the argument is that inasmuch as the
great variety of kinds of part did not substantially diminish
over the period, it follows there was no shortage at all. Or
the argument can be that since the total number of parts,
regardless of what kind they may have been, changed very
little, there must have been enough to keep all 62 women,
or almost as many, fruitfully occupied at least until the
flurry of union activity was over. On this record the
argument is not convincing. Conceivably, it may be that
the Respondent has been sending the parts back unused, or
perhaps storing them away. If the shortage of parts of
which Fellure spoke was a fiction, these would have to be
the explanations for continued receipt of all parts, for there
was no one to work on them except the ever shrinking
force. Even if these shipping invoices could be proof that
Fellure, and Syphers, lied, both about the conferences with
IBM officials and the amount of components received for
assemblying, the fact that work in the plant was not done
cannot be talked away.
But there is another reality that reduces the voluminous
invoices to very little value. There is no way of knowing, on
the record as it stands, whether whatever parts were
received through the last 3 months of 1973 could have kept
more than the dwindling number of women busy. How
many parts were needed for the assemblies that were
made? There is nothing to show what assemblies were put
together, how many parts they needed, or how much work-
time can be associated with any given number of parts.
This is a case in which two critical elements are lost in a
fog, so to speak. Fellure just generalized. He said the
number of component elements for this job or that varied
greatly-from 2 to maybe 150. There is therefore no way of
knowing how many or what parts equaled any measurable
quantum of work-either in hours or number of personnel.
Fellure also said he picked women for discharge after a
relative appraisal of all 59, with separate consideration of
the value of each in five or six respects-attendance,
quantity production, quality production, attitude, seniority,
and complexity of training. Very little was mechanical,
very little was based on detached and recorded figures.
What all this adds up to is that it was very difficult,
perhaps impossible, to prove Fellure did not judge the
relative merits in the manner he described, or to prove that
whatever parts were in fact received were truly of a
quantity and nature to have kept all 59 employees on the
payroll. There are difficult cases; but the fact that they are
difficult does not lessen the affirmative burden of positive
proof of wrongdoing resting upon the General Counsel, or
justify any presumption of falsity in a Respondent absent
adequate evidence.
I find there was economic justification in this case for the
extensive discharges of October 12, and of the three which
followed on October 23.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Violations of Section 8(a)(1)
As already stated there is no direct evidence of union
animus directed to this or that employee individually. The
complaint does allege that several supervisory persons
made coercive statements violative of Section 8(axl) of the
Act. Primarily, the coercive conduct is charged to the line
leaders, whose alleged supervisory status the Respondent
disputes . Normally there are three line leaders , each over
one of the three production departments into which the
employees are grouped . At the time of the events,
therefore , there were 3 line leaders over 59 persons. On the
record as a whole I find the line leaders were supervisors
within the meaning of the Act.
According to the Respondent , the only supervisors were
Fellure , the president , his wife Myra , who worked in the
office , and Syphers , vice president and plant manager.
Fellure admitted he spends no more than 10 percent of his
time in the production area ; his wife is in charge of the,
books; and Syphers spends only part of his time in contact
with the production workers . The line leaders are hourly
paid and punch the timeclock; they received about 25
cents or more per hour over and above the amount paid to
the rank and file . Their duties are to see that parts are
readily available to the girls when needed , and that
finished assembled parts are moved away from their
positions when proper . They are also responsible, however,
to see to it that the women keep working all the time, that
they not pass their time chatting, that they make no
mistakes , and that they regularly produce a satisfactory
amount of work. The collective testimony of a number of
witnesses establishes that the line leaders assign work to
them , move them to another job when necessary , criticize
the quality of their work , have them do it over again when
wrong, compliment them when they perform satisfactorily,
approve their request to leave early, and even have a voice
in selecting who shall do overtime work. According to
employee West , when Myra Fellure hired her she "intro-
duced me to her [the line leader] and told me she will show
you what to do ." Anderson recalled that when Mrs. Fellure
hired her she introduced her to the line leader and said "if I
had complaints that I was to go to her .... "Asked what
did the line leaders do, employee Seats said "just walk
around and see that everybody did their job." Sometimes
line leaders perform some production work, but not often.
These employees described the situation correctly, for
two line leaders-Lowe and Harding-as witnesses corro-
borated them. Thus Lowe: "Q. Have you ever had
occasion to tell girls that they were being verbally warned,
you would verbally warn them perhaps about their conduct
in the plant , like talking too much? A. Yes, I have had to
do that.... My duties were to get production out and see
that the office had a shipping list in time for the truck to be
loaded, and keep the girls in parts and to make sure that
everything runs smooth.... I would usually go and tell
the girls to quiet down and go back to work . . . . With
that many women it went on quite frequently ... .
Several times a week."
There is evidence on whether Fellure consulted line
leaders when deciding whom to discharge on October 12.
At one point Fellure said "I might have asked the line
leaders , if there was any problems ." His affidavit contains
the following words ". . . we . . . myself and Rick Syphers
discussed our situation and we talked to our line leaders as
to how many employees we could keep working and which
employees work record warranted them being fired."
Lowe , at the time over the largest group of workers , said at
the hearing she was not consulted on the matter. Her
affidavit, however, reads: "I have no authority to hire, fire
or discipline employees . However, according to my
understanding I do have the authority to recommend
discharge or discipline of employees ." Line leader Harding
also said Fellure discussed the layoff situation with her.
But perhaps the most revealing bit of evidence is that given
by Lowe . Shown her earlier affidavit , she was asked to
explain that statement in the light of the fact the Company
is now disputing her authority . She answered "I figure if a
girl is putting out bad work I would have to go to Rick and
ask him to do something...." "Q. What made you think
you had this authority? Who gave you to understand? The
Witness : I think Rick told me."
Finally, the practice is that when a girl is given a raise
she first learns of it when told by the line leader . Fellure
said his system is to hire women for as little as legally
permissable , in order to give them frequent small raises
and thereby stimulate them to better and more work. If the
line leaders are there to get more and better work out of
them , to compliment or criticize them , to push them or Co
tell them not to idle , how can the employees look upon
them except as supervisors , when they also must look to
them for first knowledge of raises? And besides all this, if
the line leaders are not supervisors it means all 59 unskilled
workers were left on their own under only the part-time
supervision of one man, Syphers.
I do not think the evidence suffices to prove Andrews
was a supervisor . He is the quality control man, does
maintenance and repair on the machine equipment, and is
in charge of the shipping and receiving. From the employee
witnesses : "Most of the time he was back in the stockroom.
Then he would walk around and bring parts that people
needed, and fix things that needed fixed [sic] like machines
and stuff." "I saw him fix a couple of machines one day
and just in the stockroom . That is all I ever saw him do."
"He gets our boxes ready to ship , he puts them on the
dollies and takes them back to the truck, just things like
that. You know for shipping and different things like that."
I do not think the fact Andrews was salaried and not
hourly paid is sufficient to mark him as a supervisor on this
record.
1. A few days after the mass discharge of October 12,
some few women met in a union hall across the street on
Main Street in the evening . Andrews' car was parked and
locked across the street . This is the downtown store section
of the town . No one saw him. Even assuming Andrews was
a management representative , the fact his car was there
that night could not prove an unfair labor practice. About
noon on October 12 a number of women were gathered at
the lunch table in the breakroom; there were union cards
scattered about and Meek and Donaghy were soliciting
signatures. While this was going on Andrews took a flash
photo of the group. As best, all this could prove, even
assuming Andrews was a company stooge , is that the
Company learned once again who was interested in the
INDUSTRIAL PRODUCTS, INC. 137
Union . What is important in this case is that the picture of
the whole group falls far short of indicating personal
animus against any single person who chanced to be within
camera range.
2. There were other incidents involving Andrews, who
did not testify. Of course I believe the witnesses. Snyder
said she returned to the plant on Saturday , the day after
she was discharged , to ask him had she been released
because the girls had tried to bring the union in, and he
said ". . . no that we were just laid off because they were
having trouble getting parts in." He then asked did she
know what the girls desired that had motivated them so,
and added it would be a good idea if she found out, that
Fellure and his wife would like to know , but that it was up
to her whether she wished to inquire about it, because "it
didn't really matter that much."
The other incident involves Andrews by hearsay, but it is
very significant because of its relevance to the major issue
of the case discussed below. Employee Anderson testified
that line leader Lowe told her, on the morning of October
12, before the discharges , that Andrews had "jumped" on
Barbara Harding , and accused Harding of having started
the union movement , even warned her she would be fired
for it . Lowe also said , still according to Anderson, that
Fellure and his wife believed she, Anderson, had started it,
and that the Company would close the plant if the union
talk did not stop . Anderson continued to testify that that
same morning Harding herself told her Andrews had said
she, Harding, would be discharged if she persisted in her
union activity. Anderson ended with saying Harding then
asked her had she, Anderson , been the original instigator,
and that she honestly answered "no."
There is a confusion in all this . I think Anderson was
doing her best to recall what she said . I credit her ; Harding
did not refer to this incident , and Lowe was a less credible
witness . I find she did say the plant would close, and that
this was a threat, in violation of Section 8(a)(l), voiced by a
supervisor . But Harding , too, was a line leader, and,
according to the General Counsel , her questioning of
Anderson was illegal interrogation . The trouble is, Harding
is one of the activists herself. She not only was at Poynter's
house a few days earlier, but she also distributed cards in
the plant the next day. As she was never discharged, her
statement that while she took a supply of cards she did not
distribute them is suspect . I do believe West who said ".. .
Barbara Harding gave us a lot of blank cards to pass out to
get names of people who were interested ." I also believe
Wisda , who testified Harding invited her to the union
meeting and said "she thought I should go because she
thought we really needed a union and they needed all the
support they could get ." Why would Harding , herself in
the front line , ask Anderson whether she was the
instigator? And how could Fellure suspect Anderson when
in fact Anderson did no more than sign a card, as did
many others? And how does one reconcile Anderson's
report that Harding would be fired for her union activities
with the fact that while she in fact was an activist, she was
not among the people released? If the Respondent were
really determined to extirpate the union movement now
that it had the cover-up opportunity of economic layoff, it
would more quickly have gotten rid of a traiter in the inner
council.
3. Again during the morning of October 12, employee
West and a girl named Linda got into quite a hassle about
the Union . West related how Linda came at her "ranting
and raving," said "she would make me eat the yellow
pamphlets with the rules of the union," and that "they were
going to close the whole plant and we will all be out of a
job ...." Line leader Lowe heard the fight and said, to
Linda, according to West: ". . . better go sit down that
that was being taken care of right now." There is other
evidence, not entirely discredited, about West's attitude;
i.e., her relations with others was not the best . She revealed
a rather antagonistic attitude even as a witness at the
hearing. Was Lowe of necessity announcing a mass
discriminatory discharge that moment? I think such an
unfair labor practice must be proved by much more
probative and convincing evidence.
4. Several witnesses spoke of another incident involving
Lowe . One day four or five women were eating lunch while
sitting in a car on the parking lot. Among them was Meeks,
talking up the Union as usual . Anderson, one of those in
the car, said Lowe approached and asked "what we was
doing," and that Meek said "we was trying to get a union
in." Griffith, too, was eating her lunch; she said "Judie
come up and asked what we was doing and Joan Meek told
her that she was trying to get a union in ." Both these
women said Lowe asked how much it would cost, and
without waiting for an answer walked away. Meeks'
version is different . According to her : "I just hollered out
the window to her [Lowe] and wanted to know if she
wanted to see a union get in there . She answered me and
wanted to know how much it would cost her and then she
turned around and walked back in the door." I do not
think the line leader, seeing five women having lunch in a
car, in a parking lot where they always ate their lunch,
during the lunch period, would ask what they were doing
there. I think it was Meeks who started the conversation,
and from afar-for she had to "holler" to be heard by
Lowe. I make no finding of illegal conduct by anyone as to
this incident.
5. Employee Baker testified that on October 12, line
leader Lowe asked her whether she had signed a union
card. Griffith said she heard Lowe say in the breakroom on
October 12 the plant would be closed if the union talk did
not stop . There was also a line leader named Rocky. I
credit the uncontradicted testimony of Debbie Seats that
Rocky once said to a group of girls "my girls better not
sign." Further, employee Wisda testified that early in the
week after the Friday discharge , line leader Harding told
her not to go to a union meeting "because they were
supposed to have spotters there and she heard that
anybody that was seen there would be fired."
I find that by Lowe's statement that the plant would be
closed if the women persisted in their union resolve, by
Lowe's interrogation of Baker as to whether she had signed
a union card, by Rocky's statement to the women that they
had better not sign union cards , and by Harding's
statement that the Company had spotters at the union
meeting and that those who attended would be discharged,
the Respondent violated Section 8(a)(1) of the Act.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discriminatory Selection
With the discharge of 11 persons justified for business
reasons , the question now becomes-did the Respondent
select the 9 listed in the complaint for the purposes of
putting a stop to the union activity that was going on
during the 10 days or so before October 12? Antiunion
motivation can be proved in two ways: ( 1) By evidence
sufficient to prove animosity towards an individual, or
towards several individual employees , or (2) by an
inference arising from the related numerical factors ; i.e., by
application of the mathematical law of probabilities.
Considering the first approach-and this is the separate
complaint allegation made with respect to six women, five
dismissed on October 12, and one on October 23-I find
the evidence insufficient to sustain a finding of violation of
Section 8(a)(3) of the Act as to any one of them . On that
theory, an essential element of proof against the employer
must be that it at least knew of the employee's union
activities . Debbie Seats said she signed a union card one
day and once heard a line leader say ". . . my girls better
not sign ." This is the totality of her union activity, and
there is nothing to suggest the Respondent knew about her
card signing . The only evidence touching upon Yvonne
Fugate is her statement she signed a union card on the
11th, the day before the discharge ; on whether the
Company knew this , there is nothing . Carolyn Anderson
signed a union card at the request of Meeks during a break
period on October 10. Like Seats and Fugate , Anderson,
too, went to no meetings , she did nothing about the Union.
"Q. What if any activity did you take with respect to
getting other employees to sign up union authorization
cards? A. I didn' t participate in that but I was with Joan
[Meeks] a couple of times in the break area when she was
talking ." When to this limited evidence of union activity by
Seats , Fugate , and Anderson is added the fact the
Respondent did have to dismiss people for economic
reasons , the pinpointed allegation of evil intent directed
straight away against them must be dismissed . Unless, of
course, it is argued that any time an employer releases a
person with solid economic reason, the discharge becomes
an unfair labor practice if it is later proved the employees
had signed a union card-and never mind whether the
employer knew about it or not. I did not hear this
argument advanced in this case.
The other three persons said to have been dismissed
because of their own union activities did participate in the
open talking and solicitation of cards in the plant and
elsewhere . Meeks was the ringleader and seems to have
started the whole thing . She invited employees to come,
and was herself present at both meetings-first at organizer
Ellis' house and then at the home of employee Poynter. She
passed cards around inside the plant . Donaghy was at Ellis'
house but did not go to the second meeting. She signed an
AFL-CIO card and said she collected signed cards from
others in the breakroom and in the parking lot . West also
went to the first meeting but not to Poynter's house. She
was given cards to distribute , signed one in the plant later,
and generally did speak about the Union to others.
Since these three women did openly engage in union
activity, the complaint allegation as to them now divides
into two parts , and if the reasoning begins to sound a little
bit Talmudic , it is because the total complaint in its final
form is rather refined . Did the Respondent know about
their union activity , and if it did, did it fire them because of
it? Maybe Fellure , through the line leaders , did know,
although as to one or two the finding would be thin. Meeks
was very outspoken and involved in it all . Donaghy agreed
at the hearing no supervisor , or anyone she thought might
be a supervisor, saw her passing out cards in the parking
lot, or during the breaks inside the plant . West was one of
several women who circulated a petition during the break
periods, a petition which maybe 20 employees signed. The
General Counsel witnesses made much of this overt
activity inside the plant , but it aids the purported inference
of company knowledge not at all, because all the
employees were told it was to obtain a mailing list for a
Halloween Party invitation . The fact that 2 or 3 days after
October 5 West told some of the girls her real purpose was
to send out union literature can hardly convert the flagrant
partying into brazen unionizing . Nor does the evidence of
knowledge become more weighty because the girls were
told to predate their cards in order to be able to contend
later that the Company had more time to learn about what
they were doing ! But most important of all, the fact the last
three women were fired serves not one whit to prove the
Company knew of their union activity , for that would be
purely inverse reasoning.
All things considered , I find the evidence insufficient to
prove the Respondent discharged these six ladies because
of their union activities. Absent proof positive of animus
directed against the employees named in the complaint,
any inference of illegal motivation in the dismissal must
always first weigh in the balance the affirmative defense. In
this case it is true the Company had to dismiss a substantial
number of people , almost twice as many as these six during
the very period the alleged unfair labor practices occurred.
To say, in such a situation , that mere knowledge of the
employees ' union penchant suffices to prove a violation of
Section 8 (aX3) is tantamount to a contention that the
known unioneer is insulated against discharge in the event
of an economic layoff . This is not the law ; indeed it is not
so argued here.
D. A Random Hand Mathematics
With all of this , we come to the all-embracing theory of
prosecution which I believe is the heart question of this
case. Did the Employer , faced with economic necessity for
reducing the total complement, utilize the fortuitous
opportunity to sweep out the troublemaking union-minded
group in the crowd? Here the argument is, as it must be,
that if you look at how many out of the original total were
unioneers, and compare that percentage to what percent-
age of unioneers were caught in the mass layoff, the
conclusion would logically be compelled that it was union
animus that dictated the selection . For example , if 10 and
only 10, of the 60 were unioneers, and if the total must be
reduced to 50 for economic reasons , it would be almost
impossible to avoid a finding of illegal motive in the case
where all 10 of the unioneers are found in the group of 10
persons discharged . Conceivably , even in that case, the
employer could prove , by irrefutable , objective, and
substantially relevant business facts, that the particular 10
INDUSTRIAL PRODUCTS, INC. 139
would have been selected by any rational businessman.
This is not such a case, for what Fellure offered as proof of
objective basis for selection was really no more than
opinion , mental evaluation . He spoke of records that had
been compared, but he produced none . But neither is this
the case of 10 out of 10; quite the contrary.
In this numbers game theory of illegality, as it were,
there is another element in the formula of no less
importance . How many umoneers were not discharged?
Assume, again, that from among the original total of 60, 15
or 20 (in the case at bar , as usual , this figure is a little
nebulous, but 15 or 20 is as close as it can be stated)
favored the Union, went to union meetings, maybe signed
cards , but out of I I that had to be discharged, only 3, or 4,
maybe 5 were unioneers . Here the hand of chance falls
evenly-a third of the total was prounion, a third of the
dischargees were prounion, and nothing can be inferred
from the mathematical probabilities.
And finally, this case also illustrates another relevant
element that cuts both ways. If the three, or four unioneers
caught in the layoff, were the most active and publicized of
the activists , that fact would add strength to the adverse
inference of illegality. By like reasoning, if among the
employees who remained at work are found the stronger
protagonists of the Union, to that extent the complaint is
weakened.
Numbers here begin with the fact II employees were
discharged , 8 on October 12 and 3 on October 23. Of these
the record is completely silent as to three who did not
appear at the hearing-Gabbard and Goforth, who were
released on the 12th and who are named in the complaint,
and Craft, let go on the 23d. On this record these three
must be deemed as having had nothing to do with the
Union. Snyder was also discharged on the 12th; she was
called by the General Counsel as a witness and; ".. .
Didn't you have anything to do with the Union business?
Witness : No, I did not." As to four others , Anderson,
Seats , Fugate, and Griffith (nee Schuler)-all four named
in the complaint-the record shows only that each signed a
union card . Griffith, too, said she did nothing to help the
Union. There is nothing to distinguish these last four from
a much larger group, for, while the record does not detail
who else did anything about the Union, there is testimony
about quite a few others , who did sign cards . Donaghy said
she obtained about 15 signatures . West said she successful-
ly solicited five or six names to cards . Donaghy testified
that Becky , who had been at Poynter's house on October 9,
also solicited nine signatures . And Meeks obtained six
signatures herself.
Reverting once again to the number of employees
discharged, we do have it that three-Meeks , West, and
Donaghy-were among those who were both active and
more outspoken about their activities . With this, a fair
summary is that of the 11 selected for discharge, 4 were
plain bystanders, 4 were boarderline persons-both in
terms of their very limited participation in the union
movement and the probabilities that management knew
about their interest-and 3 were presumably known
activists . In percentages , then about one-third known were
unioneers , about one-third borderline cases, and about
one-third neutrals. As to what percentages of the total
compliment of 59 fell in these three categories, the record is
not as clear as might be desired . It does show that six
persons were openly active: Meeks, the apparent ringlead-
er; West , Donaghy, and Becky , all three of whom obtained
signatures in numbers ; Poynter, who attended both
meetings and at whose home the last one was held; and
Harding , who was at the second and distributed cards.
This therefore indicates six open activists . How many were
borderline ; i.e., signed cards and nothing more? The
signing of the Halloween party list means nothing. Indirect
references by various witnesses to the number of cards
obtained by the activists total well over 25, maybe 30. But
if 30 percent had signed the Union might have filed an
election petition . It did not . A fair approximation would
therefore be that perhaps about 20 signed-again, one-
third of the total . Recapping : one-third of the total
participated generally, and one-third of the number
discharged fell in that category ; six of the over all total
were out-and-out active, and half of that number
-three-were fired . There is a detail of some significance
that must be considered as to this last group . The mass
layoff came on Friday , the 12th , when flurry of card
signing following the Poynter house meeting took place.
The timing between layoffs and the union activity centers
on that date . But Meeks was not selected for discrimina-
tion then . There is indication that very little , if any, card
signing or solicitation occurred the following week. Meeks
was dismissed 11 days later . The fact that Respondent did
not select her on the 12th tends to weaken the overall
inference of a 'pervasive intent to destroy the union
movement altogether. If Meeks be removed from the
picture , at least for the moment , it would have to be said
that only one-third of the true six activists were selected.
It would unduly belabor the matter to comment further
on still other relevant details . The Respondent 's failure to
dismiss its own supervisor , Harding, has already been
mentioned ; that fact speaks volumes . The ultimate fact
that it never touched three of the four who took the lead in
bringing the AFL-CIO , the right union , into the plant,
virtually makes any overall inference of illegality impossi-
ble.
I find the total record evidence does not support the
complaint allegations with respect to illegal discharges as
to any of the employees there named.
CONCLUSIONS OF LAW
1. By its supervisor's statements to individual employ-
ees that the owners would close the plant in retaliation for
union activities, that the employees must not attend union
meetings because the Respondent had spotters watching,
that the women had better not sign union cards , and that
they should reveal their union position upon interrogation,
the Respondent has engaged in unfair labor practices
within the meaning of Section 8(aXl) of the Act.
2. The aforesaid unfair labor practices are unfair labor
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices within the meaning of Section 2(6) and (7) of the
Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER'
The Respondent, Industrial Products, Inc., Greenfield,
Indiana , its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Telling its employees that the Company would close
the plant in retaliation for their union activities , telling its
employees not to attend union meetings because the
Company has spotters watching, telling the employees they
had better not sign union cards, and interrogating them
concerning their union activities in a coercive manner.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of the
right to self-organization , to form, join, or assist a labor
organization , to bargain collectively through representa-
tives 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 and all
such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its place of business in Greenfield , Indiana,
copies of the attached notice marked "Appendix." 2 Copies
of said notice, on forms provided by the Regional Director
for Region 25, after being duly signed by the Respondent's
representatives, shall be posted by the Respondent,
immediately upon receipt thereof , and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted . Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this decision,
what steps the Respondent has taken to comply herewith.
1 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.
2 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 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
The National Labor Relations Board having found after a
trial, that we violated the federal law by coercing and
restraining our employees in their union activities:
WE WILL NOT interrogate our employees about their
union activities.
WE WILL NOT threaten to close our plant in
retaliation because our employees engaged in the union
or concerted activities.
WE WILL NOT tell our employees not to attend union
meetings because we have spotters watching them.
WE WILL NOT tell our employees that they had better
not sign union cards in order to intimidate them.
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
any labor organization , to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
INDUSTRIAL PRODUCTS, INC.