Premier Panels, Inc.

National Labor Relations Board - Board Decisions

Jan 26, 1960

126 N.L.R.B. 305 (N.L.R.B. 1960)

PREMIER PANELS, INC 305
and the Union not having been certified as such representative under the provisions
of Section 9 of the Act, it must be, and is, concluded that those activities were also
violative of Section 8(b) (4) (B ) of the Act
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent Union, set forth in section III, above, occurring in
connection with the operations of Mach described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce
V THE REMEDY
Having found that Respondent Union has engaged in violations of Section
8(b) (4) (A) and (B) of the Act, it will be recommended that it cease and desist
therefrom and take certain affirmative action which I find to be necessary to ef-
fectuate the policies of the Act
Upon the basis of the foregoing findings of fact, and upon the entire record on
the case, I make the following
CONCLUSIONS OF LAW
1 Mach Lumber Company is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act
2 Local Union 522, Lumber Drivers, Warehousemen & Handlers, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, is a
labor organization within the meaning of Section 2(5) of the Act
3 Respondent Union has not been certified, at any material time herein, as the
collective-bargaining representative of employees of Mach Lumber Company pursu-
ant to Section 9 of the Act
4 Since on or about March 20, 1959, Respondent Union has induced and en-
couraged employees of employers doing business with Mach Lumber Company in
Port Newark, New Jersey, and Brooklyn, New York, to engage in strikes or con-
certed refusals an the course of their employment to perform services for their em-
ployers, with an object of (a) forcing or requiring the said employers to cease doing
business with Mach Lumber Company, and (b) forcing or requiring Mach Lumber
Company to recognize or bargain with Respondent Union as the collectivebargai ing
representative of employees of the said Mach Lumber Company
5 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication I
Premier Panels , Inc. and Local 2022, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO. Case No
14-CA-°2035 January 26, 1960
DECISION AND ORDER
On August 27, 1959, Trial Examiner Earl S Bellman issued his
Intermediate Report in the above-entitled 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 copy of the Inter-
mediate Report attached hereto Thereafter the Respondent filed
exceptions and brief to the Intermediate Report
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning]
126 NLRB No 45
554461-60-vol 126-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed.' The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the following additions?
We agree with the Trial Examiner that the Respondent violated
Section 8(a) (3) of the Act by discharging employee Sadler, and
refusing to reinstate him, because Sadler engaged in organizational
activity on behalf of the Union.
Sadler was employed by the Respondent when it commenced opera-
tions at a new plant in McBride, Missouri, in March 1958, and was
first assigned to the laminating machine. In August 1958 when the
operator of the glue machine was transferred elsewhere Sadler was
assigned to that machine. While there was no increase in pay accom-
panying this change, we agree with the Trial Examiner that the
operation of the glue machine was a more responsible job. In Sep-
tember 1958 the Respondent directed a request to the local draft board
for a deferment for Sadler from military service.
From the opening of the plant until November 1958 there were
continual discussions and conversations about the advantages of
a union. At several of these discussions among employees the Re-
spondent's Plant Manager Ewing was present and made the remark
that, "It just wasn't time for the Union." On November 24, 1958, an
organizational campaign was started in which employee Sadler took
a very active part. Ewing heard from another employee on the eve-
ning of November 24 that authorization cards were being circulated
at the plant. Later that evening Ewing went to the plant and dis-
cussed the matter with the night supervisor in an effort to find out
about the union activities. On November 25 Ewing noticed Sadler
away from his machine at times and walking about the plant. Under
the plant rules Sadler-was required to stand by his machine only when
it was in operation. Nevertheless, without any investigation or any
evidence that Sadler had violated the plant rules, on the following
morning Ewing called Sadler into his office and discharged him for
"unsatisfactory work." The Respondent's contention that Sadler's
work had become progressively worse since a short time after his
employment is contradicted by the Respondent's action in promoting
IIn agreement with the Trial Examiner , we find no merit in the Respondent 's argu-
ment as to the alleged failure of the proper charging party to show compliance with
Section 9 ( f), (g), and ( h) of the Act. The charges herein were brought in the name of
Local 2022, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. The
Local is therefore the charging party for the purpose of these proceedings we are
administratively advised that the Local was in compliance at all pertinent times.
2 As no exceptions were filed to Trial Examiner ' s findings that Respondent did not
violate Section 8 ( a) (1) of the Act by interrogation , nor Section 8(a) (3) of the Act by
discharging employee Hoehn, we adopt them hereby pro forma
PREMIER PANELS, INC. 307
Sadler to a more responsible position, and requesting a draft defer-
ment for him in September.
Viewing these actions against the background of Ewing's repeated
antiunion remarks along with Ewing's admission that he suspected
that Sadler was passing out union cards on November 24 and 25, we
find that Sadler was discharged for his union activities.
ORDER
Upon the entire record in the case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Premier Panels,
Inc., McBride, Missouri, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in Local 2022, United Brotherhood
of Carpenters and Joiners of America, AFL-CIO, or in any other
labor organization, by discharging or in any other manner discrimi-
nating against any employee in regard to his hire or tenure of em-
ployment, or any other term or condition of employment, except as
authorized by Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist the aforesaid union, or any other labor organization,
to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargain-
ing 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 membership in a labor organization as a con-
dition of employment, as authorized in Section 8(a) (3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Robert Sadler immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority and other rights and privileges previously enjoyed, and
make him whole for any loss of pay he may have suffered as a result of
the discrimination against him, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(b) Post at its McBride, Missouri, plant copies of the notice at-
tached hereto marked "Appendix." 3 Copies of said notice, to be
'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
furnished by the Regional Director for the Fourteenth Region, shall,
after being duly signed by an authorized representative of the Re-
spondent, be posted by the Respondent immediately upon the receipt
thereof, and maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(c) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent violated Section
8(a) (1) of the Act by threatening its employees with discharge or
other reprisals if they attended a meeting sponsored by the Union, and
Section 8(a) (3) of the Act by discharging employee Hoehn.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Local 2022, United
Brotherhood of Carpenters and Joiners of America, AFL-CIO,
or in any other labor organization, by discharging or in any other
manner discriminating against any employee in regard to his hire
or tenure of employment, or any other term or condition of em-
ployment, except as authorized by Section 8(a) (3) of the Na-
tional Labor Relations Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL NOT in any other maner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organi-
zation, to form, join , or assist the aforesaid Union, or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for
the puropse of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities, 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 by Section 8 (a) (3) of the National Labor Relations
Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
PREMIER PANELS, INC. 309
WE WILL offer Robert Sadler immediate and full reinstatement
to his former or substantially equivalent position, without prej-
udice to his seniority and other rights and privileges.
WE wiLL make Robert Sadler whole for any loss of pay he may
have suffered as a result of the discrimination against him.
All our employees are free to become or to remain, or to refrain
from becoming or remaining, members of Local 2022, United Brother-
hood of Carpenters and Joiners of America, AFL-CIO, or any other
labor organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8(a) (3) of the National
Labor Relations Act, as modified by the Labor-Management Report-
ing and Disclosure Act of 1959.
PREMIER PANELS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On the basis of a handwritten charge, dated December 18, 1958,' which sets out
the full name of party filing charge as "Local 2022 , United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO," herein called the Union , the General
Counsel of the National Labor Relations Board, herein called, respectively, the
General Counsel and the Board , by the Regional Director for the Fourteenth Region
(St. Louis, Missouri), issued the complaint herein, dated March 19, 1959 , against
Premier Panels, Inc., herein called the Respondent , alleging violations of Section
8(a)(1) and ( 3) of the National Labor Relations Act, 61 Stat . 136, herein called
the Act. Copies of the complaint and notice of hearing were duly served on the
Respondent and the Union.
With respect to the unfair labor practices , the complaint alleged, in substance
that: ( 1) The Respondent , about November 26, 1958,2 "did lay off or discharge
Robert Sadler and Donald Hoehn ," and has since refused "to reinstate said em-
ployees to their former or substantially equivalent positions ," because said employees
engaged in organizational activities on behalf of the Union; and (2) the Respondent,
about December 17, "threatened its employees with discharge or other reprisals if
they attended a meeting sponsored by the Union." 3
Respecting the aforesaid allegations, the Respondent 's answer admits only that
it "discharged" Sadler and Hoehn about November 26, and specifically denies the
commission of any unfair labor practices.
Pursuant to notice , a hearing was held on May 12, 13, and 14, 1959 , at Perryville,
Missouri, before me, the duly designated Trial Examiner . The General Counsel
and the Respondent were represented by counsel and participated throughout the
hearing. At the outset , the Respondent moved twice to dismiss the complaint, first
essentially on grounds that the Board lacks jurisdiction because ambiguities in the
charge affected determination as to compliance status, and thereafter because the
3 Said charge , upon which the Respondent predicates contentions later noted , is stamped
as received at the Fourteenth Regional Office on December 19, 1958 The handwriting is
apparently that of Melvin E Shasserre, who signed the charge as secretary-treasurer of
the Missouri State Council of Carpenters. As evidenced by a return receipt for registered
mail, the Respondent received a copy of this charge on December 20
2 Throughout this report, when the year is omitted in giving dates , it will be under-
stood to be 1958.
3It should be noted that the above alleged threat is the only independent 8(a)(1)
violation alleged in the complaint
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handwritten charge, referred to above in footnote 1, fails on its face to comply with
the Board's requirement that four copies of a charge be filed. After comments by
the parties on said motions, during which the General Counsel asserted that Local
2022 had been treated as the charging party, I denied the foregoing two motions
of the Respondent to dismiss, stating that the possibly novel compliance questions
raised should be presented to the Board in a separate administrative proceeding, and
that failure to file four copies of the charge had not been shown to have prejudiced
the Respondent. Thereafter, growing out of discussion (adverted to later herein)
of an eventually withdrawn motion by the Respondent to quash a subpoena daces
tecum, the parties, at my request, discussed their respective contentions and posi-
tions.4
Upon completing the first day of the hearing, all counsel and the Trial Examiner
spent almost an hour inspecting the premises, seeing all of the machinery involved,
and the entire physical layout of the McBride plant. During the course of the hearing,
various statements given prior thereto by witnesses called by the General Counsel
were made available for examination by counsel for the Respondent, except that I
denied a request by counsel for the Respondent for what the General Counsel
characterized as "another piece of writing" which was never seen, read, signed, or
adopted by witness Donald Hoehn, but "does record information taken" by an
attorney with the Fourteenth Regional Office. At the close of the hearing, the Gen-
eral Counsel argued orally on the record.
Pursuant to an extension of time for filing to June 8, 1959, the Respondent filed a
brief which has been carefully considered. Said brief asserts at the outset that the
Respondent is not "dropping or waiving" its objections to the Trial Examiner over-
ruling at the hearing its "contentions with respect to the compliance status of the
charging party" and its further "contention with respect to the General Counsel's
obligation to produce a prior statement taken" from witness Hoehn. In view
of the foregoing, I have painstakingly examined the record herein and decisional
precedent respecting these procedural matters. As a result of this reappraisal, I am
convinced that the rulings at the hearing in said respects were correct, and they
are hereby reaffirmed.6
On June 3, 1959, I received a four-page "Stipulation to Correct the Record,"
signed by counsel for the Respondent and the General Counsel. All of said correc-
tions have been duly considered and, being found appropriate, the transcript is
hereby corrected in accordance therewith and said stipulation is made a part of
the record herein. Furthermore, it having become evident from my study of the
record that certain additional corrections in the transcript should be made, the tran-
script herein is hereby further corrected.
Upon the basis of the entire record in this case, as above corrected; my observa-
tion of the demeanor of the witnesses at the hearing; the view of the premises taken;
and my consideration of all of the positions and contentions of the parties, I make
the following -
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, Premier Panels, Inc., is a Missouri corporation engaged in the
manufacture, sale, and distribution of insulated panels. Its principal office and place
'It should be noted that the Respondent's answer gave no explanation as to why It
"discharged" Sadler and Hoehn, and also that during this discussion on the record, after
the Respondent claimed surprise at mention by the General Counsel of interrogation, the
General Counsel specifically stated that such evidence in that respect as he proposed to
adduce would go only "to establish motive and knowledge " See footnote 3, above
6 In addition to the Respondent's attorneys listed above in the appearances, Mr. Carroll
3 Donohue, of St. Louis, Missouri, also signs the brief
9 Respecting the compliance contentions, see Langlade Veneer Products Corporation,
118 NLRB 985, 986, and Standard Cigar Company/, 117 NLRB 852, 853-854 Concern-
ing my reaffirmation of the ruling that the Genei al Counsel is not required to produce a
piece of writing which concededly has not been "read, signed or sworn to" by witness
Hoehn, and which my scrutiny of the record in the instant matter convinces me has not
been shown to be a substantially verbatim recital, reflecting fully and Without distortion
what Hoehn said, I rely not only on Section 102 95 of the Board's Regulations, but also
upon the recent Supreme Court decision of June 22, 1959, in Palermo v United States,
which I have examined with great care, assuming, in so doing, that the definition of
what constitutes "a statement" In Section 102 95 of the Board's Rules and Regulations
is related to the requirements of the so-called Jencks Act, 18 U S.C. § 3500, upheld by
the Supreme Court in the aforesaid decision
PREMIER PANELS, INC. 311
of business is located in St. Louis, Missouri; it has a plant in McBride, Missouri,
which is involved in the instant matter. The Respondent's answer admits that, prior
to November 30, 1958, its McBride plant had been in operation for 7 months, and
that during said period the Respondent had received, at its McBride plant, directly
from points outside the State of Missouri, materials valued in excess of $50,000. I
find that it will effectuate the policies of the Act for the Board to assert jurisdiction.
11. THE LABOR ORGANIZATION INVOLVED
The Union, Local 2022, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO, is a labor organization within the meaning of the Act. It admits to
membership employees of the Respondent 's McBride plant.
III. THE UNFAIR LABOR PRACTICES
A. The issues and problems involved
Aside from the procedural issues already considered, the issues herein concern the
admitted separation, by Manager William Ewing, Jr., from the Respondent's payroll
of Robert Sadler and Donald Hoehn on November 26, 1958, and an alleged threat
on December 17 by Ewing to employee William Winkler, to discharge any employee
who attended a meeting of the Union scheduled for that evening. Also involved are
contentions as to whether substantially equivalent employment has ever been offered
to Sadler, who was not working for the Respondent at the time of the hearing, and
as to whether the reinstatement given Hoehn on December 8, 1958, was actually
substantially equivalent employment.?
While simple enough to state, these issues actually are enmeshed in a total situa-
tion involving unusual elements, and are posed through testimony which in numerous
ways is inconsistent, conflicting, or flatly contradictory. Further, a good deal of the
aforesaid testimony bears on the sharply conflicting contentions of the parties as
to the behavior or performance of Sadler and Hoehn on their respective jobs in the
plant, and this in turn involves some rather complicated industrial processes and
machinery sand a general plant layout, a diagram of which is in evidence. Moreover,
my understanding of the foregoing is grounded to a considerable extent on actual
observations, made during the above-mentioned inspection trip through the plant.
In addition, it is worth noting at this point that, with respect to the alleged threat
of December 17, the credibility problems are so highly involved and the testimony
pertaining thereto so flatly contradictory that the Respondent's brief states that on
"this there can be no question that one of these two men was lying."
Determining motivation with respect to alleged discriminatory discharges in a case
such as the one at bar is, as has been well put in a decision cited in the Respondent's
brief, "a grave responsibility because of the elusive intangibles involved." 8 Hence,
in seeking to discharge faithfully this responsibility in the instant matter, all of the
numerous bits of evidence, and all of the various contentions of the parties, have
been carefully weighed and interrelated, with the purpose of discovering the pattern
underlying events and the factors actually operative in motivation. And while this
time-consuming process of analysis, which it would too greatly protract this report
to recapitulate in full, has resulted in answers which will not satisfy either the
Respondent or the General Counsel, it may well be that the future of labor relations,
in a most interesting plant, can best be served by taking care not to brand any witness
a liar unnecessarily. At any rate, we begin our difficult task with a chronology of
events.
B. Chronology of events9
1. The establishment of the plant and early developments
The Respondent's McBride plant, which manufactures insulated panels "classified
as plastic sandwich polystyrene," is located about 8 miles from Perryville, the county
seat of Perry County, Missouri. The plant building, which was furnished by the
Perry County Development Corporation, was erected during the beginning of 1958
7 See footnote 32, below.
8 See Transport Company of Texas and Transport Company, Inc, 115 NLRB 681, 691,
one of the several cases, including all of the other cases cited by the parties, which have
been duly considered
'Except where specific evidence bottoming findings is identified, findings in this chro-
nology are based largely on my synthesis of essentially uneontradicted testimony, by
various witnesses, or upon such a preponderance as to make analysis of minor variations
unnecessary.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the Respondent 's specifications , being constructed by union labor. Just before
the first machinery was moved into the plant about the middle of March, the con-
struction contractor came to Manager William Ewing 10 and pointed out two em-
ployees, Russell Brown and Robert Sadler, indicating that he "thought they would
be two good workers" for Ewing . Ewing hired both, knowing that Brown was a
union steward and that Sadler was a union member.ii Among others hired were
Bernard Welker and William Winkler , two other union men whose testimony as
witnesses will be discussed later.
By sometime during April of 1958 , construction and installation of machinery
was sufficiently completed so that it was possible to begin production. Because the
Perry County Development Corporation is furnishing the building , it has been the
Respondent's policy to try to confine its "hiring to the Perry County area." And
since Ewing has never lived in that area, in hiring employees , most of whom are
from Perryville , he has "leaned towards" local merchants, and Sheriff Zahner and
Prosecuting Attorney Toohey, who is "president of the Development Corporation
that owns the building ," for recommendations . Further, "if any of the employees
have trouble," Ewing consults individuals who he feels "know the men better than
[he does] because they live around here." In this connection , Ewing at one point
testified , "I always talk to Mr. Toohey."
Since the Respondent 's products are relatively new and certain processes and
machinery fairly novel, and since a number of its employees are from a relatively
rural area and have had little or no factory experience , the Respondent naturally
has expected that it would take a period of time before its employees could become
experienced and its production would be running smoothly and efficiently . In fact,
it seems evident that this also was assumed by some of the employees . For instance,
the above-mentioned Bernard Welker, who was called as a witness by the General
Counsel, testified credibly, on cross-examination by the Respondent , that the first
time he had heard about "getting a union in this plant" was at a meeting of the
Union in the spring of 1958, soon after the plant started operating; that he got the
idea at that time that "the boys were not going to bring the union in for some six
months" ; and that several, including himself , believed and had "expressed the thought
that it was a good idea to wait until this new plant got situated ." Welker also testified
credibly, on cross-examination by the Respondent , that during the summer of 1958,
what month he could not remember , he and Ewing were "just talking one evening
after the day shift had gone home "; that he told Ewing that the Union would
"probably get in"; and that Ewing thereupon said:
They probably will, but this is not the right time , that the plant is new, every-
body is making mistakes and the company has been operating in the red and
that this isn't the right time.
Welker, who Ewing knew was a member of the Union when he hired him , became
the supervisor of the second shift in September , shortly after that shift was started
in August.ia
It may be well at this point to describe briefly the two shifts at the plant. The
first, or day shift, which starts at 7 a.m . and, with a half-hour lunch period, runs
until 3:30 p.m., normally vanes from about 15 to 19 in number of employees. The
second shift has about four or five employees , including its supervisor . It com-
mences at 3:30 in the afternoon , and runs until midnight , also with a half-hour
lunch period . There is thus no lapse of time between the two shifts , but each shift
has two break period of 10 minutes each, one coming before the half-hour lunch
period and the other after it.
It will also be helpful at this point to have before us a picture of supervisory
responsibility at the plant. Production on the first shift is primarily supervised
10 Manager Ewing, who has the overall responsibility for the McBride plant, was first
called as a witness by the General Counsel under rule 43 B, and later as the Respondent's
principal witness All of the quotations in the above paragraph and in the one which
follows it are from Ewing's testimony . Ewing has no superior at the McBride plant and
reports directly to the Respondent 's St Louis office Next to Ewing in authority at
McBride is Raymond Miller , the plant superintendent, who reports directly to Miller, and
spends most of his time in the plant supervising production Miller was not called as
a witness
u Sadler was a member of "Local 916 , a labor local "
11 Welker's testimony clearly shows that this second shift , also referred to as the
evening shift or the night shift, started in August , with Marlin Sandler , whom Sadler
then succeeded on the glue spreader , first serving as the supervisor thereon for some
3 or 4 weeks before Welker took over as second -shift supervisor in September
PREMIER PANELS, INC. 313
by Superintendent Miller, whose responsibility to Manager Ewing has been explained
in footnote 10, above. Miller, who spends 80 to 90 percent of his time in the work-
ing area of the plant, has a leadman on the day shift to assist him. This leadman
receives 10 cents an hour more than the rest of the employees.13 The supervisor
on the evening shift, who also receives 10 cents an hour more than the other
employees on that shift, all of whom get a 5-cent per hour night-shift differential,
has direct responsibility for the work on the night shift, getting only general instruc-
tions, with intermittent visits from Ewing and Miller, who share the overall responsi-
bility for the second shift. There is extensive and not very consistent testimony as
to the supervisory status of the second-shift supervisor, who is also referred to as
the leadman. It should be noted that apparently it is only the second-shift supervisor
whom the Respondent considers a supervisor, and that apparently the General
Counsel, at least during most of the hearing, considered neither the leadman nor
the supervisor to be a supervisor, within the meaning of the Act.14 In any event,
while doing so is perhaps not indispensable to determining the issues herein, since
interrogation definitely cannot be considered an issue, I believe it will be better to
determine which, if either, of these positions is supervisory, withm the meaning of
the Act. On all of the evidence, I am convinced and find that the leadman on
the day shift, while closer to management than other employees on that shift, is
essentially only Miller's assistant , and is not a supervisor within the meaning of the
Act. On the other hand, the second-shift supervisor, at all times material Welker,
exercises responsibility for the second shift, and most of the times he does so
without any superior being present in the plant. Welker carries a key to the plant,
and is responsible for directing the work of the second-shift employees. I am
also confident that he is expected to report to Ewing and Miller on what takes
place during this second shift, and that any recommendation of his would be care-
fully considered. Hence, I believe that Welker actually has been exercising super-
visory responsibility, within the meaning of the Act, even though he has never spe-
cifically been told that he is a supervisor, and despite the fact that I believe that
Welker honestly did not think of himself as a supervisor when testifying as a witness
for the General Counsel.
We turn now to certain testimony about rumors as to union activity and conversa-
tions concerning such matters. Ewing testified that "ever since he] had been
there," he had been hearing rumors from merchants and other townspeople of the
possibility of a union trying to get in the plant. It is scarcely surprising that there
would be such rumors in a relatively small community in which a number of citizens
obviously are interested in this newly established plant. Ewing also testified as to
a number of conversations concerning the Union and rumors about it which he had
had from time to time with the above-mentioned William Winkler, a 48-year-old
employee with a seventh grade education, who Ewing had known was a member of
the Union when he hired him. I believe, for reasons indicated in the footnote, that
it is unnecessary to relate most of this testimony.15 Further, without trying to decide
whether or not the extent and nature of these various conversations beween Ewing
and Winkler would warrant the characterization in the Respondent's brief of Winkler
as the one "who constantly ran to the boss to report every rumor about union organi-
zation," I think there can be no doubt, from the record as a whole, that Winkler and
Ewing had, by the time of the events in issue in this case, become accustomed to
conversing rather freely about the Union, about rumors concerning the Union, and
about why Winkler was interested in continuing his membership therein, as Ewing
knew that Winkler, who has been a member of the Union for some 11 years, actually
was continuing to do.16
13 At the time of the hearing, Edwin Coffey, a witness whose testimony is later dis-
cussed , was the leadman on the day shift, having become so in December 1958, when he
replaced Marlin Sandler, who had been day-shift leadman since the fall of 1958 Sandler
was not called as a witness
14 However, the General Counsel took the position during oral argument that "whether
Welker is a supervisor or a leadman," it is "safe to sav he was a representative of
management in some respect within the meaning of" Harrison Sheet Steel Co , 94
NLRB 81, 82
151n fact, the Respondent did not offer some of this testimony by Ewing to establish
the truth or falsity of the content of what Ewing testified that Winkler had told him, but
rather to show wi'at was in Ewing's mind when lie did the things in issue in the instant
matter
1a Although there is testimony by Winkler to the contrary, it is my opinion that
Winkler's explanations to Ewing for continuing his union membership probably included
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It would also appear from the testimony of Winkler, who explained that he talked
with Ewing about the Union "once in a while," but only when Ewing brought up
the subject, that in one of their earliest conversations, just after Winkler first started
working for the Respondent, Ewing told Winkler that as far as the Union coming
into the plant was concerned, "it was up to the men." In any event, as Ewing testi-
fied, "in the early part of November" Winkler volunteered to Ewing, one day at
his work bench, that he had heard "rumors that cards were being distributed." 17
While Ewing did not testify what, if anything, he thereupon said to Winkler on that
occasion, it is clear, as we shall presently see, that Winkler, who sometime during
the early part of November received union cards to distribute, did not choose
to distribute them.
2. Organizational activity and other developments prior to the separation of Sadler
and Hoehn
For about a month before Sadler and Hoehn were terminated on November 26,
a group of employees "on occasions" discussed organizing.18 Late in October or
early in November,19 a group of "four or five guys" met Delmar Pohlman, a business
agent of the Union, "along the roadside at McBride" and discussed with him how
to go about organizing. Pohlman told the group that the way they "would have
to do it would be first to sign cards," and that he would see that "they got the cards."
Some time having elapsed without having received the promised union cards, Hoehn,
who was with Sadler at the time, telephoned Pohlman "to ask him where the cards
were." Pohlman told them that "Winkler had the cards " Shortly thereafter, on
Monday afternoon, November 24, Sadler, Hoehn, and employee Anton Ruch went
to Winkler's home to get the cards from Winkler, who had had them for some time.20
In giving the cards to Sadler, Winkler told him that "he would sign a card if the
other men did."
When Sadler received the cards from Winkler, Hoehn and Ruch each took a card
and then Sadler "took the rest and went down to the plant." 21 It is undisputed
that Sadler distributed four cards at the plant that day to the four employees then
working on the second shift. Supervisor Welker, who testified that Sadler was at
the plant that afternoon "about 4 or 4:30," admittedly signed an application card
which he received from Sadler that "same evening."
Around dinnertime on the evening of November 24, employee Anton Ruch went
to Manager Ewing's home and had a conversation with Ewing, concerning which
the testimony of Ruch and Ewing is significantly in conflict. Ruch's version on
direct examination is essentially that: He went to Ewing's home "around 7 or 7:30"
because the employees had had "a lot of discussion at that time about a raise,"
and he was "trying to figure out some way" they could get together with Ewing
and "talk it over"; Ewing "talked about getting a few of the men" into the office
certain death benefits provided for members, and a feeling on Winkler's part that such
membership would be necessary if he ever should need to go "back to carpenter work."
11 Having carefully considered the conflicting and contradictory testimony of Ewing
and Winkler, which will be more fully discussed later, I accept the convincingly given
testimony of Ewing as to the above conversation, rather than Winkler's testimony that he
did not "recall talking about a union" with Winkler around the first of November. On the
whole, I believe that Ewing discussed the Union with Winkler more frequently and more
fully than Winkler's testimony would tend to indicate.
is The quotations in the above paragraph are all taken from the Respondent's cross-
examination of Sadler, a witness called by the General Counsel, who impressed me, on
the whole, as careful and forthright throughout his testimony For reasons which appear
presently, I am satisfied that the wage rate then being paid by the Respondent was a
substantial factor In this discussion about organizing.
11 Sadler estimated the date as approximately "three or four weeks" before he got
union cards from Winkler on November 24
20 Winkler testified consistently on direct and cross-examination that he had received
the cards from Pohlman , that he had declined to pass them out himself ; and that he
had "kept those cards at home on [his] refrigerator quite a while"
21 The above quotation is from testimony of Hoehn. There is no essential inconsistency
In the testimony of Hoehn, Sadler, Ruch, and Winkler as to the way In which Sadler
got the union cards from Winkler It will be recalled that the first shift ended at
3 :30 p in , and I ,am satisfied that the above developments at Winkler's home took place
not long after the end of the first shift on November 24
PREMIER PANELS, INC. 315
to talk it over; 22 they talked about the Union; and Ewing said, as well as he could
remember, that "he wasn't against the union, but it just wasn't the time, the Com-
pany wasn't ready for it or something like that." On cross-examination, Ruch
unhesitatingly admitted that, during the course of their conversation, he also asked
Ewing if it would "jeopardize" his job if he were to join the Union, and that Ewing
had told him that it would not. Ruch was not questioned as to whether he told
Ewing anything about having been asked to sign a union card.
As to what transpired on this occasion, Manager Ewing testified, on direct examina-
tion, that on the evening of November 24-
Anton Ruch came to my home and asked me, he told me he wanted to talk to
me and he told me he had been asked to sign a card and he asked me what
bearing it would have on his position at the plant, and I said absolutely none,
he would have to make his own decision as to that, and he asked me not to
ask him who had asked him to sign this card. . . . I did not.
On cross-examination, Ewing again gave essentially the foregoing explanation of
the gist of the conversation, pointing out that the conversation had taken place
just as he and his wife were ready to eat their evening meal, "a barbecue in the
garage." Ewing stated that his wife "was present during all our conversation"; 23
and testified that there was "no mention of raises in that conversation" that he
recalled.
All factors analyzed, I believe and find that the conversation of November 24
between Ewing and Ruch took place essentially as testified to on direct and cross-
examination by Ruch, but with one thing additional, noted below, and that Ewing
was mistaken in not remembering that raises were discussed during this conversa-
tion. In the first place, I am convinced by Ruch's testimony as a whole and his
demeanor as a witness, that Ruch, in a conflict situation which left him highly em-
barrassed, was doing his best to answer truthfully questions put to him with as little
damage as possible to anyone, and that, having had his work criticized some months
earlier by Ewing,24 Ruch was reluctant to give testimony adverse to the Respondent.
Further, I have no doubt that wages did concern employees at that time. Not only
was Ruch's testimony on this point convincing, but Ewing admitted that on one
occasion at the plant, as he was walking past Sadler and Ruch, they "mumbled
something about getting a raise." Moreover, Supervisor Welker, whose testimony
about the decision at a union meeting that spring to wait about 6 months before
trying to organize has been cited, also testified, during cross-examination by the
Respondent, that he had heard "from the other boys" that Sadler had "decided to
pass out the cards" because he did not "get a raise in pay."
In short, everything considered, I believe that Ruch, patently one of the employees
then engaged in organizational activity because of dissatisfaction about wages, went
to Ewing to sound him out on the question of a wage increase for the employees; that
Ruch then became concerned at Ewing's emphasis on that not being the time for a
union because "the company wasn't ready for" one; and that Ruch thereupon asked
Ewing if joining the Union would jeopardize his job. And while the testimony is
consistent that Ewing verbally assured Ruch that joining the Union would not jeop-
ardize his job, there can be no doubt, in my opinion, that the total impact of the
conversation was to convince Ruch that the Respondent was opposed to having its
employees organize at that time. Further, I believe that during the latter part
of their conversation, Ruch also told Ewing that he had been asked to sign a union
card.
As soon as Ewing finished his dinner on the evening of November 24, he drove
out to the plant. There he had a conversation with Supervisor Welker, concerning
which there are discrepancies in the testimony. According to Welker, Ewing came
to the plant that evening between 6 and 8 o'clock and asked Welker to come into the
office. As to what then transpired, Welker testified, on direct examination, as
follows:
I did and he told me that he had heard somebody was going around passing
cards and asked me whether I had been confronted by anybody. I told him I
was and I had signed a card.
21 Ruch also referred to "the whole bunch of us" in this connection, and later explained
that he was not talking about a raise merely for himself but was "wanting us to get
together so he could explain it to us," that is to say, about "raises and things like that "
23 Mrs Ewing was not called as a witness
ii Ewing testified that Ruch was one of two employees whom he had called into his
office "several months" earlier, at which time he had "more or less criticized them for
work they had done on the machine."
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
When then asked what else had been said , Welker replied, "That was about all."
Upon being questioned as to whether Ewing had asked who was passing out the
cards, Welker further testified:
If I can remember correctly, Bill had asked me who was giving out the cards
and I told him that I would rather not say . . . . Bill lust said, "O.K."
On cross-examination, Welker acknowledged that Ewing would come on routine
visits to the plant to check on its operation, and would consult him, as the one
in charge of the night shift, to see whether everything was going all right. Welker
also acknowledged that he had been told that there was a rule that he was supposed
to enforce that no one not working on his shift was to be in the plant during that
shift 25
The version originally given by Ewing, when called by the General Counsel under
rule 43 B, of his conversation with Welker was that when he and Welker went to
his office, he did not mention "union cards"; that he said to Welker that "there was
something strange going on"; 26 and that Welker immediately said, "I will have to
tell you that I have signed a card." Ewing also testified that Welker said, "Don't
ask me who asked me to sign this card"; that he did not do so; and that he had gone
to the plant that evening to make a routine check and not because he had heard
that union cards were being passed around. When later called as a witness by the
Respondent , Ewing's version of this incident was essentially like the above, except
for these added details: Before going into the office, he had asked Welker "how things
were going"; after stating in the office that there was something going on , he asked
Welker if he "knew anything about it"; thereupon Welker "got shook up a little bit";
and on the way out of the office they talked "about production problems."
It is my opinion that, while Supervisor Welker was called as a witness by the
General Counsel and was a member of the Union, Welker was testifying truthfully
and to the best of his recollection. Further, I believe that while his loyalties were
divided, as frequently happens with minor supervisors, especially when their super-
visory authority has not been made clear to them, Welker was not biased against
the interests of the Respondent. Everything considered, I believe that Ewing went
to the plant the evening of November 24 primarily to find out what he could about
union activities, which he believed were in progress; that the conversation there took
place essentially as Welker's testimony reveals; and that Welker, who was under-
standably "shook up" by Ewing' s questions , did not tell Ewing that Sadler was the
one who had given him the union card. It is my opinion, however, that the incident
as a whole unmistakably establishes that Ewing was then seeking to determine who
was responsible for organizational activity among the Respondent's employees at a
time which he considered to be premature.
On the following day, Tuesday, November 25, organizational activities continued.
Sadler, who I am confident was doing the major part of the soliciting, and who then
worked on the glue spreader, also referred to as the glue machine, testified unhesi-
tatingly that he distributed some application cards on November 25 "on the parking
lot before work and some during working hours and at noon," estimating that he dis-
tributed "around five" cards during working hours that day. Hoehn, who had signed
his own card the evening before, also was active as a solicitor. Hoehn, a member
of a crew of three operating the laminating machine , also referred to sometimes as
the glass machine, testified that as well as he could remember, he "may have asked
two, three, four, five, maybe" employees, and that he was "pretty sure that Bob
Moll and Wayne Bauwens," the other members of the laminating machine crew,
signed cards which he gave them while they "were setting up the machine to get
ready to run." 27
"There is no evidence that such a rule has ever been posted, and whether or not
Sadler had ever been informed of any such rule, it would appear that Supervisor Welker
signed one of the cards given him by Sadler. rather than telling Sadler that he should
not be in the plant In any event I do not understand that the Respondent advances
violation of any such role as having been one of the factors entering into its separation
of Sadler.
20 Ewing explained, on the stand, that lie made the above remark because "some of the
men in the plant" had been "leaving their machines more" than they previously had done
27 It usually takes about the first quarter of the first shift, or the period before the
morning break, to set up this laminating machine, which is housed in a relatively
smaller room of its own Once it is ready to run, the laminating machine operates
continuously thereafter that day It is clear that the laminating machine's operation is
essentially different from that of all of the other machines in the plant, none of the rest
PREMIER PANELS, INC. 317
Extensive and conflicting evidence as to how much of the time on November 24
and 25 Hoehn and Sadler may have been away from their usual places of work,
may have neglected their work , and may have been seen by other employees and by
Ewing himself „ along with the bearing of plant rules on such matters, will be con-
sidered in a subsequent section of this report , dealing with the alleged discrimina-
tions. At this point I believe it would be well to note that, as is indicated by the
immediately preceding footnote , the work of Sadler was of a type significantly differ-
ent from that of Hoehn, and that Sadler , who was the more active of the two in
solicitation , was also the more precise and convincing in his testimony bearing on
various phases of matters pertaining to his discharge . It should also be noted now
that Manager Ewing, who admittedly suspected that both Sadler and Hoehn were
engaging in union activity on company time, and who , in my considered opinion,
undoubtedly had noticed that both men were at times on November 25 away from
their work stations , testified credibly that he first decided , on the way home on the
evening of November 25, to discharge Hoehn , and that it was later that evening that
he decided to take action also with respect to Sadler.
3. The separation of Sadler and Hoehn and developments thereafter
On the morning of November 26, Ewing took action during two separate inter-
views in his office , the first with Sadler and the second with Hoehn , which the Gen-
eral Counsel conceded , during oral argument , was tantamount to discharging them,
when considered as a total transaction , even though the General Counsel contended
that what Ewing told them was ambiguous . Reserving for later consideration the
testimony , in several respects inconsistent , as to these two separation interviews, I
think it will make matters clearer to note now that I believe that Ewing told Sadler
that he was being laid off, but that he told Hoehn that he was discharged. In any
event, it is undisputed that an hour after Hoehn had left the office , Hoehn called
Ewing on the telephone and asked Ewing if he "would reconsider this discharge to
be a lay-off so that he would be able to collect unemployment compensation," and
that Ewing told Hoehn that he "absolutely could not" change it to a layoff after
he "had already discharged him." 28
Two days later , on the morning of Friday , November 28, the day after Thanks-
giving, Winkler went up to Ewing, when Ewing was checking a shipment in the
plant, and said , "What's wrong with those two guys?" Ewing replied , "I don't
know." Winkler then told Ewing that he "was asked to pass out those cards" but
would not do so , and that Hoehn and Sadler came to his home, where he had the
cards, and he "gave them to him."
One evening shortly after their separation ,29 Sadler and Hoehn went to Ewing's
home to ask about getting their jobs back . Ewing told them that "as far as he
was concerned" they did not have any jobs . There was also some discussion about
the plant in general and about the Union . Ewing, who some 20 years ago was the
president of a local of the United Mine Workers, explained that he was not against
the Union ; that "at one time he was president " of a union ; but that "this was not the
time for the union down at the plant." 30
On December 3, 1958, the Union filed a petition in a representation case, which
was docketed as Case No. 14-RC-3522 . A copy of this petition , which described
the unit sought as "All production and maintenance employees , but excluding office
clericals, guards , watchmen , professionals , and supervisors" at the McBride plant,
was received by Manager Ewing on December 4. He immediately forwarded it
to the St. Louis office of the Respondent , where it was received on Friday, Decem-
ber 5.
In the meantime , one evening early in December, when Ewing and his wife were
in Perryville at a restaurant which is operated by Edgar Sauer, who has known
Hoehn for about 5 years and who had recommended Hoehn for employment when
the plant had opened , Ewing asked Sauer if he knew that Hoehn had been "released."
Sauer said that he had not heard anything about it. Ewing then told Sauer that
he had released Hoehn because his work was not "satisfactory after the union activity
of which is so complicated , or requires such setup time , or is continuous in its operation.
The rest of the machines are spread out over a large plant area, which Is not partitioned
off, and throughout which various materials and products are stored.
28 The above quotations and those in the paragraph which follows are from credited
testimony of Ewing
20 The date Is uncertain , but it was obviously prior to December 5
20 The findings in the above paragraph are made on my analysis of credited testimony
of Sadler and Hoehn , with which I find no testimony of Ewing's in essential conflict.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
got started." There was also some mention by Ewing that Sadler, whom Sauer
did not know, had been released "at the same time." That same evening, following
his conversation with Ewing, Sauer telephoned Hoehn and told him that if he
wanted his job back, he "might be able" to get it.31
Obviously prompted by the above telephone call from Sauer, Hoehn went to
Ewing's home, this time by himself, and asked about getting his job back. Ewing
told Hoehn that he "thought it was possible," if Hoehn would "stay" at his work
and do his job the way Ewing knew that Hoehn "could do it." They "discussed
things down at the plant, discussed the Union." Ewing stated that he "wasn't against
the Union, just wasn't the time for it at the plant." As to the conditions upon which
it was decided that Hoehn was to return to work, Ewing told Hoehn that he was to
do his best to do "a good job," and that he was to start "as a new man on a new
job" on the night shift at $1.55 an hour. Hoehn thereafter returned to work on
Monday, December 8, on the foregoing basis, and was employed on that basis at the
time of the hearing.32
On December 8, the same day that Hoehn returned to work, Ewing agreed , during
a long distance telephone conversation with an attorney in the Fourteenth Regional
Office, to the details of a consent-election agreement for the unit sought in the
above-noted petition. Said consent agreement, put into written form and signed
by Ewing for the Respondent, and by Shasserre for the Union,33 was approved by
the Regional Director on December 15. The election scheduled therein to be
held on December 22, with Local 2022, the Union herein, to appear on the ballot,
has been postponed indefinitely, the filing of the charge in the instant matter having
intervened.
Early on the morning of December 17, Welker telephoned Winkler, informing
him that Business Agent Pohlman wanted Winkler "to get the word" around about
a meeting to be held that night, because Welker was on the night shift and could
not do it. Later that morning, when Ewing was out in the plant, Winkler went
to Ewing and volunteered the information that there was "supposed to be a meeting
held that night at the Intersection Cafe." On this much of the incident the testimony
of Winkler, from which the foregoing two quotations are taken, is consistent with
that of Ewing. But as to other aspects of the conversation, their testimony is flatly
contradictory, particularly as to whether Ewing told Winkler, as Winkler testified,
that "anybody that goes will get fired," or made only the statement, "Well, so they
are," and walked away, as Ewing testified. Since this conflict is a crucial one which
goes to the heart of the alleged independent 8(a) (1) violation , and involves numer-
ous credibility factors and extensively briefed and argued credibility contentions,
the problem of what else was said during this conversation will be reserved for the
next section of this report
In any event, whatever else Ewing actually told Winkler during the above conver-
sation on the morning of December 17, it is undisputed that during that day Winkler
told several employees that Ewing had told him that if they attended the meeting
of the Union that night, they would be fired.34
On the evening of November 17, only Sadler turned up at the scheduled
meeting of the Union at which a Mr. Said, "an international representative of the
Carpenters Union," was scheduled to tell the employees what the Union could
and could not do for them. Hence no meeting was held, but Sadler gave Said a
statement, consisting of three pages dated December 17, 1958, which was produced
by the General Counsel at the bearing for examination by the Respondent. Also
that same evening, Winkler had a telephone conversation with Pohlman during
which Winkler told Pohlman that Ewing had told him that morning that men
would be fired if they went to the union meeting. It is not clear whether Winkler or
ai The findings in the above paragraph are made on credited and uncontradicted testi-
mony of Sauer
as Quotations in the above paragraph are from undisputed testimony of Hoehn Hoehn
had received $1 60 an hour on the day shift prior to his separation It will be recalled
that the night shift differential is 5 cents per hour The General Counsel contends that
Hoehn's present employment is not substantially equivalent because the rate of pay is
10 cents less per hour and because Hoehn, who was hired shortly after the plant began
operating, has lost his seniority. The Respondent contends that Hoehn's present em-
ployment is substantially equivalent but that, in any event, whether it is or not is im-
material because Hoehn was discharged for cause.
33 See footnote 1, above.
34 Winkler's testimony is consistent that he so told employees, and Ruch gave corrobora-
tive testimony.
PREMIER PANELS, INC. 319
Pohlman initiated the call, but it may well be that Pohlman called Winkler to find
out why none of the men then working turned up for the meeting. In any event,
the following day, December 18, the date of the charge in the instant matter, Winkler
told Ewing that Pohlman had asked him why he had not passed around word about
the meeting, and that he had told Pohlman that he did not want the same thing to
happen to him that had "happened to those other two guys."
Around "the latter part of December," Sadler, who has not resumed employment
with the Respondent, had a further discussion about returning to work. During
this discussion, which took place in Ewing's office, Ewing told Sadler, among other
things subsequently to be considered, that "there was a potential opening for him"
on the third shift 35
C. The alleged threat to discharge employees
We return to the threat which Manager Ewing is alleged to have made to em-
ployee Winkler, that employees who attended the December 17 meeting of the Union
would be discharged. This is the matter about which the Respondent's brief asserts
that "one of these two men was lying." It should be noted that this incident not only
constitutes the alleged independent 8(a)(1) violation in this case, but that the
General Counsel stresses this as a "very important" element in establishing "a con-
tinuing anti-union animus on the part of" the Respondent, which, in turn, constitutes
a major factor in the General Counsel's position as to the alleged discriminatory
treatment of Sadler and Hoehn.
What transpired during their conversation on the morning of December 17, up
to the point where the version of Winkler and Ewing sharply diverge, has been
presented above in its chronological setting, and this total picture must be kept in
mind. But before we can adequately analyze this pivotal problem, it will be
necessary to have a clearer and more detailed picture of the conflicting evidence in-
volved and the contentions pertaining thereto. We begin with a resume of Ewing's
testimony.
When questioned on direct examination by counsel for the Respondent concerning
his having heard "about a union meeting that was to be held at the Intersection
Cafe," Ewing gave the following explanation of when and what he had heard from
"Bill Winkler":
Oh, about 8 o'clock that morning of the day that this meeting was supposed to
be held I was out there in the plant and he came and told me that Bernard
Welker had called him early in the morning and told him Pohlman had called
Welker to tell the men at the plant this meeting was to be in effect. However,
Welker said that he was on the second shift and he couldn't very well do it, so
he told Winkler to do it and Winkler says he wasn't going to do it about the
meeting. . . . However, later that day Winkler did tell me some of the men
knew about it on the conversation on the way to work, is the way he put it
tome. [Emphasis added.]
Ewing further testified that the "only answer" which he made to Winkler's state-
ment about the meeting was "Well, so they are"; that he "absolutely" did not make
"any such statement" to Winkler as that anybody who went to the meeting would
be discharged; that he was aware that such a statement would have been illegal; and
that he had "absolutely not" ever made any statement threatening employees with
respect to joining the Union.
We turn now to Winkler's testimony. Asked on direct examination by the General
Counsel what he and Ewing had said during the conversation in issue, which Winkler
erroneously thought took place on "either the 25th or 26th" of December, Winkler
answered: 1
Well, I told him there was suppose to be a meeting held that night at the Inter-
section Cafe and he told me, the way I understood it, anybody that goes will
,get fired.
Winkler's direct examination ended with the foregoing answer. Throughout
Winkler's subsequent examination, which was rather extensive and detailed,36
Winkler did not retract or substantially vary from the foregoing testimony. There
was some elaboration, however. For instance, Winkler explained how Pohlman
had called Welker and how Welker had called him about getting the word around,
The above quotations are from Ewing's testimony.
4 Winkler's cross-examination, redirect examination, and recross-examination, taken
together, are about seven times as extensive as his direct examination
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he admitted that he had , of his own volition , told Ewing that he had been asked
to pass around word about the union meeting 37 However, Winkler flatly denied
that he had told Ewing that he was not going to do so.
Without attempting to exhaust all relevant remaining aspects of Winkler's testi-
mony, the following matters also are noted . Winkler's admissions leave no doubt
that he told several employees that same day that Ewing had told him that whoever
attended the meeting would be discharged . In addition , Winkler undoubtedly be-
lieved at that time that Sadler and Hoehn had "been discharged for union activity." 38
Further, Winkler admitted that he knew that if he told Pohlman that Ewing had
threatened to fire anyone who went to the union meeting, Pohlman would not blame
him for any lack of attendance at that meeting.39 Moreover , there are certain
discrepancies in three pretrial statements which had been given by Winkler, and
about which he was extensively examined at the hearing, which must be considered,
and to which we now turn.
The first of Winkler's three signed statements is a one-page document , recorded
by one Board attorney early in January 1959, and eventually "signed before" another
on April 28 , 1959. There is no mention whatsoever therein of any discussion be-
tween Winkler and Ewing about the meeting scheduled for less than a month before
this statement was made.
The second signed statement is a three -page, unsworn document dated March 3,
1959, taken in Ewing's office by Attorney Coday, counsel for the Respondent, when
only Coday and Winkler were present . Above Winkler's signature on the third
page appears this sentence , "I have read the above three pages and they are true and
correct to the best of my knowledge ." Among various things in this statement, the
following excerpts appear to have the most direct bearing on the matter now under
consideration:
Neither Ewing nor Miller or any boss here ever told me that I would be fired or
anything like that if I was for the union or went to union meetings.
No one ever told me to tell anyone else that anything would be done against
them for belonging to a union or going to a union meeting.
About the meeting at the Intersection Cafe . . . I told Ewing about it and I
told him that I wasn't going to do much about it. Ewing never said nothing
one way or the other about it. That 's the only conversation I ever had with
Ewing or Miller about any union meeting.
Winkler's third statement, "signed and subscribed to before " NLRB Attorney
Brown on May 5, 1959, contains only one paragraph, which reads as follows:
On the morning of the day that the Carpenter 's Union representative was to
meet with us, Ewing told me that any one of the employees who attended the
meeting would be fired. I told this to several other employees that same
morning.
The above three statements were received in evidence during Winkler's cross-
examination . Thereafter , on redirect , in response to a question by the General
Counsel as to whether Winkler had told Attorney Coday "any falsehoods," when
making the second of the foregoing statements , Winkler replied , "Not intentionally,
but I did," and further testified that Ewing actually had said that employees at-
tending the union meeting would be fired.
Eventually , when the parties had completed their examination of Winkler , I asked
the witness whether there had been any threat or promise of any kind made in con-
nection with the taking of any of the three statements , and was convincingly told
that there had not been . In response to further questions on my part , Winkler in
371 do not find anything in \Vinkler ' s testimony precisely on the point of whether or
not Winkler explained to Ewing the Pohlman - to-Welker-to-Winkler sequence by which the
request had got to him However, I believe that this background actually was explained
to Ewing by Winkler , as indicated by Ev ing' s above-quoted testimony , for I am satisfied
that such explanation on Winkler ' s part is consistent with the behavior shown in the
preceding section of this report
ii The admission by Winkler , on cross-examination by the Respondent , that he "did
believe it at that time" was convincing
°° For what Winkler did tell Pohlman on the night of December 17, and Ewing on the
following day, see the second half of the next to the last paragraph in the preceding
section of this report. The findings there are based on credited testimony given by
Winkler during the Respondent ' s cross-examination of him.
PREMIER PANELS, INC. 321
essence testified that he was not fearful of any reprisals, on the part of either the
Respondent or the Union, because of any of his testimony at the hearing. I then
gave Winkler "a full minute" in which to reflect upon the question of whether there
was anything in his testimony which he wanted "to clear up or change" so his testi-
mony would conform "to the full truth," which he had "under oath promised to tell."
After Winkler had sat thinking for one minute, my question was then reasked.
Winkler at that point testified that he "wanted that changed in that statement," ex-
plaining that it was true that Ewing said "if we go to that meeting, we are going to be
fired." The parties were then afforded opportunity further to examine Winkler, but
neither the General Counsel nor the Resopndent chose to do so.
I will not attempt to summarize all of the numerous contentions bearing on the
relative credibility of Winkler and Ewing, which have been so ably and so strongly
advanced by the General Counsel and the Respondent, respectively. There are, how-
ever, several contentions which it would be well at this point to note.
The General Counsel, without in any way suggesting "anything improper on the
part of Mr. Coday," contends that to call an older employee with limited education
into "the boss's office," without giving him a "choice of talking or not talking," is
certain to create "an atmosphere that would tend to frighten anyone in Mr. Winkler's
position." The General Counsel, noting that Winkler "did admit on the witness
stand that he had lied to Mr. Coday," urges that it "takes a certain amount of courage
to admit one has lied under any circumstances." The General Counsel further
points out that "to spread this threat" by telling other employees, Winkler was "act-
ing contrary to the interests" of the Union, unless Ewing "actually had made the
threat, and then [Winkler] would only spread the threat in order to protect the jobs
of his fellow employees." The General Counsel believes that Ewing's own union
affiliation of some 20 years ago must be discounted because Ewing's "utmost con-
cern" now, as the manager of a new plant, is to make the business grow, and that
Ewing's having repeatedly told employees that "now is not the time to organize"
would tend to corroborate Winkler's testimony that he went further and said that
employees "would be fired if they did in effect persist in their union activity."
In sharp contrast, the Respondent contends that Ewing "was a credible witness"
and that there is "nothing in his entire background" or in his conduct as plant
manager which "is consistent with the making of such a statement" as is here in
issue. The Respondent also urges essentially that, under circumstances established
by the evidence, even assuming that Ewing actually "expressed the opinion that the
time was not yet ripe for a union to come into the plant," any such statement would
constitute "an innocuous expression of opinion" which could not be considered
evidence of an unfair labor practice or serve to demonstrate "any animosity toward
unions." Stressing in its brief such factors as Winkler having told Ewing early in
November that he had heard rumors about union cards being passed out when
Winkler actually had the union cards at home on his refrigerator; 40 Winkler's con-
stantly running "to the boss to report every rumor about union organization";
Winkler's alleged retention of union membership only "as insurance against the pos-
sible need to go back into construction work at a later date"; and various factors
related to the above-summarized statements which Winkler had given prior to the
hearing,41 the Respondent contends that Winkler "obviously concocted this story
and told it to other employees," and gives the following explanation in its brief for
Winkler's having done so:
The most reasonable explanation is that it was simply an expression of his own
desire to keep the Union out of the plant. As will be shown more fully here-
after, he had demonstrated during his entire employment that he did not want
the Union. When this occasion arose, he decided to take matters into his own
hands, to discourage the Union organization and at the same time to blame the
Respondent for the action so that he himself could not be held responsible.
Unlike an employee who had never been a union member, Winkler felt the need
to conceal from his fellow employees who were pro-union and from the Union
itself his opposition to the Union.
"For the facts as I have found them on this point, see the latter part of the above
paragraph which contains footnote 17
41 Tho brief's discussion thereof concludes as follows
Not until May 5, 1959, almost seven weeps after the Complaint was issued in this
case, did Winkler suddenly remember an incident which had allegedly occurred over
four and one-half months before, an incident which he did not remember less than a
month after it allegedly occurred, an incident the existence of which he had previ-
ously specifically denied. [Emphasis in original.]
554461-60-vol. 126-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I think it only fair to state that, considered in its total context, what is here
presented is one of the most closely litigated and puzzling credibility problems with
which I have been confronted Certainly there is no easy answer, based on my ob-
servation of Ewing and Winkler as witnesses, because neither impressed me as in-
herently truthful or as a chronic liar. Each seemed to share some normal human
frailties.
It is true that on the whole Ewing was a more poised and consistent witness than
was Winkler. But I am satisfied that, with respect to certain matters noted else-
where in this report, Ewing was less than candid and gave versions more favorable
to the Respondent than warranted. On the other hand, I am satisfied that Winkler,
an obviously embarrassed and sometimes reluctant witness, was less than candid
about the extent of his discussion of the Union with Ewing. Yet I got the distinct
impression, particularly at the conclusion of his appearance as a witness, that
Winkler honestly believed that Ewing actually had told him that anyone who went
to the union meeting in question would be discharged. Nevertheless, this does not
necessarily mean that I am convinced that Ewing, in so many words, actually did
make such a statement, because I am well aware how subtly Memory can be in-
fluenced under circumstances such as were obviously operative in the case at bar.
Everything carefully considered and repeatedly weighed and appraised, I am of
the opinion that, broadly speaking, the General Counsel's contentions and explana-
tions are more plausible that those of the Respondent. However, having said this, I
must hasten to add that I think that, in addition to the very real possibility that
Ewing actually said that employees going to the union meeting would be fired, there
is a second possibility which is at least equally plausible and consistent with estab-
lished facts. I refer to the possibility that Ewing, without voicing a specific threat in
so many words, may have exhibited such displeasure, irritation, resentment, or dis-
gust, whether by glance, gesture, tone of voice, actual words, or some combination
thereof, that Winkler, by then undoubtedly aware that Ewing was opposed to the
employees organizing at that time and unquestionably convinced that Sadler and
Hoehn had been discharged because of their union activity, honestly and under-
standably inferred and feared that whoever went to the meeting was putting his job in
jeopardy.42 Winkler's beliefs and feelings being what they then were, such fear on
Winkler's part might have been aroused by Ewing's using an exclamation point of
vocal sarcasm with such seemingly innocuous words as "so they are."
In any event, while I am convinced that Winkler honestly interpreted whatever it
was that Ewing actually said and did on that occasion as constituting a threat to
the job security of any employees who might go to the union meeting, and while I
believe that on that occasion Winkler also told Ewing that he was not going to pass
around word about the meeting, I am not satisfied that the weight of evidence as
a whole, all of the subtleties of the situation considered, warrants my finding that
Ewing actually made the threat in question. In short, while the matter is not free
from doubt, I find that the General Counsel has not sustained the burden of proof
as to the allegation that the Respondent threatened its employees with discharge or
other reprisals if they attended a meeting sponsored by the Union. Accordingly, it
will be recommended below that said allegation of the complaint be dismissed.
D. The allegations as to discriminatory treatment of Sadler and Hoehn 42
1. The issues and the broad contentions
We come now to the issues concerning discrimination, which have been briefly
epitomized above in the first paragraph of section III, A. Because of the complexity
of the issues remaining for determination, it will be helpful to present, by way of
orientation before proceeding further, some of the broader contentions of the parties
on these matters, reserving detailed contentions for later consideration.44
d I have not overlooked the possibility that Winkler may have been so fearful at this
time, and so eager to curry favor with the Respondent and thereby to fortify himself
from reprisal because of his own long membership in the Union, that he interpreted
whatever Ewing actually did say as an invitation to him to tell other employees to keep
away from the union meeting. In this connection, it is interesting to note that one of
the things which Winkler denied, in the statement which he gave to Attorney Coday,
was that he had ever been told to tell anyone else, etc. See the second of the above
quotations from said statement.
4S
What has been said above, in footnote 9, applies equally to findings throughout this
section of the report also
44 Some minor contentions, all of which have been weighed, will not be spelled out
hereinafter.
PREMIER PANELS, INC. 323
As I understand his basic positions, the General Counsel contends essentially
that: "a continuing anti-union animus" on the Respondent's part has been shown by
the evidence; 45 Manager Ewing was opposed to the employees organizing at that
time and was actively seeking to fix responsibility for organizational activity which
he knew was going on; it is reasonable to infer that Ewing was correctly able to fix
that responsibility on Sadler and Hoehn; the element of timing is a significant factor
to be considered; Sadler and Hoehn, despite some elements in their "work background
that indicates some discipline might well have been taken," were essentially satis-
factory employees; 46 the respective work histories of Sadler and Hoehn were not
such that their being away from their work stations on November 24 and 25 actually
could have constituted "the last straw" in the Respondent's motivation; and the
Respondent's inflicting of such extreme penalties on Sadler and Hoehn can be ex-
plained only by inferring that the Respondent's opposition to its employees organiz-
ing at that time played a substantial role in motivating its action.
I think we can best get our initial picture of the Respondent's basic position con-
cerning its treatment of Sadler and Hoehn by summarizing the opening statement,
referred to hereinabove,47 made at the hearing by counsel for the Respondent, and
by then presenting the overall explanation testified to by Ewing. In so doing, we
reserve for later consideration other details of Ewing's testimony and certain specific
contentions in the Respondent's brief.
The Respondent's position in its opening statement was that: Hoehn worked on
the laminating machine, which operates continuously and "requires constant atten-
tion"; Hoehn was discharged because he "left his work station and wandered about
that plant" on November 24 and 25 to a "greater degree than he had ever done
before"; he had done this, in spite of a "posted notice to the effect that he should not
do so" and in spite of his "having been warned about the matter"; and Hoehn
would have been discharged for such conduct "regardless of his purpose in running
around the plant."
With respect to Sadler, the Respondent's position in its opening statement was
that Sadler, whose "work record," except during his earliest days of his employment,
"had not been good in terms of attention to his work," had been discharged for
"this same culmination of offenses," when he had been seen numerous times on
November 24 and 25 "wandering about the plant away from his work station."
Upon my asking about the relative roles of "a previous background of unsatis-
factory work" in the respective cases, counsel for the Respondent explained that there
was "a degree of this same offense prior to the last two days" with the respect to
Hoehn, although "not nearly as much"; in short, that while Hoehn's behavior on
November 24 and 25 "was the last straw, also," prior to those last 2 days, Hoehn's
"offenses" had not been as "frequent" as those of Sadler. It should also be noted
that, shortly before making the above statement, counsel for the Respondent, in
arguing an earlier-mentioned motion to quash a subpena, stated that there was not
and never had been any "contention that Mr. Sadler was terminated because of any
lack or slow-down in production."
We now note the basis explanations given at the hearing by Manager Ewing for
these terminations. After detailed testimony, on direct examination by counsel for
the Respondent, as to the various times and circumstances under which he had seen
Sadler and Hoehn away from their respective jobs on November 24 and 25, Ewing
explained that: He did not "do anything as to warning them"; he "just thought it over
in [his] mind"; it seemed to him that Sadler and Hoehn were not "interested in their
jobs" and that they were "definitely jeopardizing the safety of their fellow employee
[sic] and also the quality of the product"; on November 25, before leaving the plant,
he made up his mind that he was "going to do something about Hoehn's action in
the plant"; "on the way home" that evening he made up his mind to discharge
Hoehn; while he was eating dinner, he "got to thinking Sadler was doing the same
identical thing as Hoehn" and was no better than Hoehn "as far as his job" was
concerned; and he then made up his mind to discharge both employees.
Ewing also testified, on direct examination, that at the time he discharged Sadler
and Hoehn on November 26, he "absolutely" had not known that they were "passing
41 While this contention of the General Counsel is weakened by my failure, in the
foregoing section of this report, to find a threat of discharge, I do not understand that
the General Counsel's basic positions are changed thereby
46 As to what elements in the backgrounds of either might have warranted what types
of discipline, the General Counsel was quite ambiguous, and seems to modify this position,
in turn, by a broader contention that other employees have violated plant rules without
being disciplined for so doing.
47 See footnote 4 and the text at that point.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out" cards, although because of what he had heard from Ruch and Welker, "there
was a slight suspicion that could be what they were doing." Ewing also testified, on
direct examination, that there was "no excuse for their actions" on those last 2 days;
that his suspicion that they may have been passing out union cards had absolutely
nothing to do with his decision to discharge them; and that it would have made "no
difference whatsoever" if Sadler and Hoehn had been "selling tickets for a church
social."
On cross-examination, in response to a specific question by the General Counsel
as to just why he had discharged Hoehn, Ewing replied "for unsatisfactory work,"
and explained that by that he meant that Hoehn had "neglected his machine" and
that in doing so Hoehn had "jeopardized the safety of his fellow employee and the
quality of the product both." In answer to a similar specific question as to Sadler,
Ewing explained that it was "for practically the same reason except there was no
jeopardization on employees' safety," explaining that it was more the fact that
Sadler was "negligent in his work and the fact he did not stay at his position at his
machine" that had led him to "classify" Sadler's work as being "unsatisfactory."
Because my intensive study of the record in this case has persuaded me, for
reasons which presently will more fully appear, that the cases of Sadler and Hoehn
are not actually nearly so Siamese-twin like as many of the contentions of the
General Counsel and the Respondent seem to assume, I believe that it would be
well at this point to quote one sentence from the concluding section of the Respond-
ent's brief, which illustrates this relative lack of dichotomy in the total view taken
by respective counsel. Thus the Respondent's brief, after asserting that it was im-
material to the Respondent what Sadler and Hoehn "were doing while away from
their work stations," makes this statement:
What was material was that they flagrantly flouted the rule against leaving their
work stations, even though they had both been previously warned about this
very offense.
2. Certain general considerations
Before taking up the respective cases of Sadler and Hoehn separately, certain
general considerations, some of which have been touched upon earlier in this report,
should be discussed.
It will be recalled that it was not until the afternoon of Monday, November 24,
that Sadler received the union cards from Winkler and took them to the plant during
the second shift.48 Hence, since Sadler and Hoehn both worked on the first shift, if
Manager Ewing actually saw them away from their work stations on November 24,
as he testified that he did, Sadler and Hoehn obviously were not distributing union
cards at that time, although they may have been discussing the desirability of
organizing. In any event, Ewing learned that union solicitation was underway from
his conversations with Ruch and Welker on the evening of November 24, and I
have no doubt that he was thereafter seeking to identify the leaders in such activity.
Moreover, Ewing's testimony about his observations on Monday was not so con-
vincing as his testimony about what he saw Sadler and Hoehn doing on Tuesday,
when I am satisfied that Ewing noticed that both men were at times away from
their places of work. Further, it should be noted in this connection that the knowl-
edge as to the behavior of Sadler and Hoehn during those "last two days," on the
basis of which Ewing testified that he acted, came, so far as the record shows, from
Ewing's own personal observation, rather than from any reports of other employees
or supervisors, such as Superintendent Miller, who normally spends 80 to 90
percent of his time in the plant.49
Among factors already touched upon, which should be kept in mind, are sig-
nificant differences in the types of work then being performed by Sadler and Hoehn;
the relatively greater amount of union activity engaged in on the part of Sadler;
and the fact that Sadler, generally speaking, impressed me as being a more precise
and convincing witness on matters now material than Hoehn.50 Moreover, generally
speaking, Ewing's testimony about matters pertaining to Hoehn's discharge was, in
my opinion, more persuasively given than was his testimony respecting Sadler's
48 See footnote 21, above.
49 As noted earlier, Miller was not called as a witness Moreover, testimony of em-
ployees Ruch and Coffey to the effect that Sadler and Hoehn were away from their places
of work more than usual on November 24 and 25, which tends generally to corroborate
Ewing's testimony, was testimony as to what Ruch and Coffey had observed, and not as
to anything which they had reported to Ewing. Coffey had not by that time become the
day-shrft leadman, as indicated in footnote 13, above.
50 See footnote 27, the paragraph to which it is attached, and the paragraph following it,
PREMIER PANELS, INC. 325
separation , which testimony , on the whole , had about it an overtone of afterthought.
Hence, in what follows during the discussion of the respective separations, where
there are conflicts in the testimony , Ewing's version in Hoehn's case is usually cred-
ited in preference to the version of Hoehn, while in Sadler's case, Sadler 's version
generally prevails as more convincing than that of Ewing.
An additional consideration remains to be stated . During the week of October
26, the Respondent posted, on its bulletin board by the timeclock , a one-page
document , typed in red and captioned "SAFETY RULES." 51 This document
contains six separately stated and numbered rules. These six rules are followed
by the statement, "ANYONE NOT COMPLYING WITH ABOVE RULES WILL
BE SUBJECT TO DISCIPLINARY ACTION OR DISMISSAL." This posted
notice is signed "The Management ." It is my carefully considered opinion that
only the last two of these rules are material to the issues in this case . 52 These ma-
terial rules , numbered 5 and 6, are herewith set forth:
5. Do not leave any machine unattended , while it is in operation.
6. Do not leave laminating machine, while it is in operation , for "break"
or lunch period until you are relieved by another person
3. The discharge of Donald Hoehn
Donald Hoehn, a 23-year-old married man with two children, who was recom-
mended for employment by a local businessman, Edgar Sauer, started working for
the Respondent in March 1958.53 After helping set up machinery for some 3 or 4
weeks, Hoehn's first production job was on the laminating machine, also called the
glass machine; he continued to be one of the members of the crew of three on that
machine until he was discharged on November 26, 1958. The laminating machine,
which is, as noted earlier, housed in a separate room in the plant, is the most
complex machine in the plant, and the only one which operates continuously after
it has been set up. This setup procedure takes approximately the first quarter of
the first shift, so that the laminating machine usually starts its run shortly after
the morning break period. It operates thereafter continuously, right through subse-
quent lunch and break periods, until the material prepared for its day's run has
been exhausted This usually occurs around the end of the first shift, but sometimes
not until an hour or so after the second shift has come to work, in which case the
second-shift employees finish out the day's run on this continuously operating
machine.
This laminating machine actually fabricates, in various colors and thicknesses,54
the polyester fiberglass face and back cloth used in the assembly of the "insulated
laminated sandwich panels" which the plant produces. Other materials, such as
cement-asbestos board and styrofoam core, are purchased by the Respondent, and
stored in various sizes and thicknesses in stacks around the plant area outside the
laminating-machine room. The description which follows of this machine, which
plays such a unique role in contributing to the Respondent's relatively new and novel
product and which was observed in operation during the trip through the plant, is
given partly in the words of Manager Ewing, whose obvious pride in this machine
is quite understandable
The first step, which takes place at what is called the front end of the laminating
machine, consists of impregnating with -a "catalyzed polyester resin," which is in
51 While these rules were posted about the time discussion of organizing got underway,
the General Counsel makes no contention based on this fact
52 In making the above finding , I am not unmindful of certain testimony about failure
of employees to wear safety goggles when operating certain machinery , as is required by
the second of these safety rules, and of the contention of the General Counsel that
employees have violated that rule without being disciplined . However, having duly
considered that phase of the case , I find myself In agreement with the following observa-
tions in the Respondent's brief :
In the first place , such evidence was extremely sketchy. Of more importance, how-
ever, the General Counsel failed to show that the Respondent had knowledge of these
alleged violations . One exception to this was the instance where the General
Counsel's witness Coffey admitted that he had been disciplined for failing to obey
the rule about wearing goggles at all times while his machine was in operation.
ra Hoehn testified that he was the sixth employee hired at the McBride plant, but as
one man had quit , he was "No . 5 on the list "
63 A number of samples of this fabricated material are In evidence Two thicknesses
frequently indicated in a bulletin of the Respondent are 0 018 inch and 0 063 inch
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
liquid form, such raw materials as "glass cloth, glass mats, absorbent papers" or
some combination of them.55 This impregnated material is then "carried through
,the machine by use of paper and cellophane or a combination of both," which form
a protective film above and below at the point where the liquid resin is merged
with the cloth. The thus protected combination of cloth in resin passes "around
a large metal drum which is approximately 21 feet in diameter," and which is
heated to a temperature "varying from 180 degrees to 212 or 215 degrees." As this
resin, which starts around this heated drum in a liquid state, progresses around this
steel drum, the resin is partially cured to "a jell state." This partially cured product,
still being carried between its protective sheets,56 then "passes through a steam
tunnel, so to speak, at a temperature from 260 to 275 degrees where it is post-cured."
As the polyester fiberglass comes out of what is called the back end of the laminat-
ing machine, it is "inspected for flaws, pin holes, and the waste is trimmed off to
size and it is cut to a rough length and a rough width."
Two of the crew of three on the machine, which has an overall length of some 64
feet, work at the front end; the third crew member works at the back end. At all
times material, Donald Hoehn and Robert Moll have been the two members of the
crew on the front end; Sadler was the third member of the crew working at the
back end of the laminating machine until he was transferred to the glue machine
during August 1958.57 The speed with which materials traveled through the lami-
nating machine varies with the type of material involved, the range being from a
minimum of 4 feet per minute to a maximum of 11 feet per minute, with "normal
operating speed" being from 8 to 10 feet per minute. The major controls of the
machine are on the east side of the front end where Moll is stationed. They include
"a stop, start, and reverse switch, light switch, heater switch for the heater bars,
and . . . a switch for the splicing bar," used to splice material. On Hoehn's side
of the machine, the west side opposite Moll's position, there is "an emergency stop"
switch. Ewing's convincingly given explanation of the reason for this "safety
factor" on Hoehn's side of the machine follows:
That is there for the purpose of, if the material, if the cellophane breaks or the
paper breaks or anything happens to the machine while it is in operation and
the man on the east side could not reach his control and the man on the west
side could reach his control to stop the machine or in the event the man on
the east side got his fingers caught in the squeeze roll or under the belt under
the drum the man on the west side of the machine could stop the machine
immediately.
In my, opinion, the foregoing description of the laminating machine and its opera-
tion renders superfluous any comment as to the applicability of the above-quoted
rules, which were posted in October. Further, the evidence as a whole convinces
me that well before those rules were posted, Ewing had explained to the members
of the laminating-machine crew the necessity for staying at that machine while it
was in operation, a necessity which my observation of the machine in operation and
my study of the record as a whole convinces me was genuine. For instance, Ewing
testified that it was important for men working on this machine not to leave their
work stations for more than a few seconds while the machine was in operation
because to do so would "jeopardize" both fellow employees and "the quality of the
material" being produced. He pointed out that men on the machines should leave
only for such personal reasons as "getting a drink of water or going to the bathroom,"
and that they should secure replacements if they were going to be gone for such
purposes for any length of time. Moreover, Hoehn admitted that the cellophane
or paper would tear and that when this happened it was necessary to stop the machine
immediately
dt is undisputed that at one time while Sadler was still a member of the crew,
Ewing had a discussion with Hoehn, Moll, and Sadler, when he found them talking
together "at the approach to the post-cure tunnel" of the machine, away from their
actual work stations. On that occasion, Ewing told the three crew members that
their jobs were at their respective stations and that they were supposed to stay there
65 The material being used during my observation, woven from fiberglass, was placed in
the front end of the machine in a large i nil, not unlike a roll of newsprint in a printing
press
se During the run which I observed, paper was being used on the bottom side and
cellophane on the upper side
e7 while it is not possible to tell from the testimony of Sadler or Ewing when Sadler
left the laminating machine, it is possible to fix the date as during August, from other
testimony explained above in footnote 12
PREMIER PANELS, INC. 327
at all times while the machine "was in operation unless we had a relief," as Hoehn
phrased it. Moreover, in explaining what Ewing said to the group, on that occasion,
which must have been at least as early as the summer of 1958, Hoehn testified that
it was to the effect that "we would be seeing new faces back there if we didn't
shape up."
In addition to the above group warning, I credit Ewing's convincingly given testi-
mony that during the 2 months preceding Hoehn's discharge, Ewing, after having
found that Hoehn had been away from the laminating machine, told Hoehn that
"he was not suppose to leave that machine," and that he had "been instructed
before" to that effect 58
In view of all of the foregoing and certain matters to be developed presently, I
believe it would serve no useful purpose to attempt the difficult, if not impossible,
task of determining from the testimony of Hoehn and Ewing, and certain testimony
of Ruch and Coffey tending to corroborate that Ewing, just how often and under
what circumstances Ewing actually saw Hoehn away from work on November 24
and 25. This is partly true because, however exaggerated some of the Respondent's
contentions in this respect may be,5° I am satisfied, after carefully studying the
evidence as a whole, in the light of the diagram in evidence and my observation of
the plant layout, that Ewing saw Hoehn away from his machine on several occasions,
under circumstances which would have raised questions in his mind, and that there
was at least one incident on November 25 which was particularly flagrant and
provocative. I refer to the following incident, described in uncontradicted testi-
mony credibly given by Ewing. On the day before he discharged Hoehn, after
Ewing had seen Hoehn making one of the several trips which Hoehn made that day
past the office,60 Ewing "made a trip back" to the laminating machine and found
that "Hoehn was nowhere in sight." Ewing then asked Moll, "Where is your
buddie?" Moll only "looked up and grinned and shook his head." 61
It has been earlier indicated that I credit Ewing's testimony that it was on his way
home from the plant on the evening of November 25 that he decided to discharge
Hoehn. As to what took place when only ,the two were present in Ewing's office the
next morning, the findings which follow are made on my analysis of the respective
versions of Ewing and Hoehn, which are, except as noted in the footnote, more sup-
plementary than contradictory. At the outset, Ewing informed Hoehn that he had
some rather unhappy news for him; that he could not tolerate his running around
the plant; and that he was going to have to discharge him for unsatisfactory work.
Hoehn asked Ewing what he meant by saying that his work was unsatisfactory.
"As to this second occasion, Ewing also testified that Moll "was on the other side of
the machine" and that he was "almost certain Moll could have heard " Moll, one of the
two fellow crew members signed up by Hoehn for the Union on November 25, was not
called as a witness. Under all of the circumstances, Hoehn's testimony that he had
"never been warned individually" is not credited It should further be noted that I be-
lieve that Hoehn was mistaken in his testimony that Ewing had said some "eight or ten
months ago" that he would "warn any man three times before he fired him " Ewing
convincingly testified that he believed that Hoehn "was confused about the time," and
that what Hoehn had reference to was actually a warning system recommended in
January 1959 by counsel, under which the Respondent would use printed warning forms,
with places for first, second, and third offenses, and that it was the Respondent's "plan
to use these slips on minor offenses only." According to Ewing, previously there had
been "no set rules as to how many times they,had to be warned."
69 For instance, the contention that, when all of the incidents are added together, it is
"clear that Hoehn was away from his work station as much as he was there during those
last two days " I simply am unable to believe that Ewing would have permitted so
protracted a jeopardization of employee safety and product quality, without any comment
whatsoever, as such absences on Hoehn's part would have entailed.
00 Ewing's office is on the opposite side of the plant, over 160 feet from the laminating-
machine room, and any employee going from that room to other parts of the plant, in-
cluding the men's room and the adjoining smoking area, can be observed through windows
in his office.
01 According to Ewing, he was at the laminating machine at least five or six times
when Hoehn "had been gone. and his machine was in operation while he was away." It
will be remembered that Moll was not called as a witness. Hoehn admitted leaving the
laminating machine on November 25 while it was in operation but did not "recall" leaving
it for any reason other than to go to the, bathroom or to get a drink of water. Hoehn
also testified that he did not think that lie had left his machine that day more than
usual , estimating the number of times as "maybe two, three, while it was in actual
operation."
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ewing replied that Hoehn had left his machine several times the day before. Hoehn
explained that he had had to go to the restroom and Ewing said that if his kidneys
were that bad, he should not be down there anyway . Hoehn asked whether he was
being dischaged or laid off Ewing informed him that it was a discharge ,62 but that
Hoehn could think things over for 30 days , and if Hoehn then had made up his
mind to do his work to the best of his ability , he could come back to see Ewing, who
indicated that he would be willing to consider rehiring Hoehn. During their conver-
sation, Hoehn kept bringing up the question of whether the Union had something to
do with Ewing 's decision , and Ewing repeatedly insisted that it definitely did not.63
The circumstances surrounding Hoehn 's reemployment have already been set
forth in section III, B , 3 In my opinion , in view of the intercession of a local busi-
nessman on bzhalf of his married young friend who has two children , I do not
consider that the Respondent 's willingness to reemploy Hoehn prior to the end
of the 30-day period , which Ewing had given Hoehn in which to think things over,
demonstrates lack of real cause for discharging Hoehn. Significant in this connec-
tion are the terms upon which Hoehn was reemployed , including Ewing's insistence
that Hoehn was to stay at his work and do a good job, and that, as a new employee,
Hoehn would lose his seniority and receive less pay.
Thus the total transaction of Hoehn 's reemployment amounts to reducing the
drastic penalty of discharge to a layoff of less than 2 weeks, with reduction in pay
and loss of seniority . Hence, while I agree with the General Counsel that Hoehn
did not receive the substantially equivalent employment to which he would be en-
titled if the Respondent discharged him in violation of the Act , I cannot help wonder-
ing whether , in the General Counsel 's opinion , this substantial modification of the
"extreme penalty" constitutes the type of discipline which the General Counsel
apparently concedes "might well have been taken" in the light of Hoehn's record.
In any event , the essential issue is whether Hoehn 's discharge was discriminatorily
motivated , for if it was not, the terms of his reemployment are, as the Respondent
correctly contends , not material , unless, of course , the very terms of this reemploy-
ment are such as to stigmatize the entire transaction . However, I do not believe that
this can be said to be true, under all of the circumstances of this case , even though,
as the General Counsel stresses , Ewing reiterated in the reemployment interview
itself that he was not against the Union , but that it was not "the time for it at the
plant " 64 On this point , I believe it is particularly significant that Hoehn had re-
peatedly asked Ewing , during their discussion on November 26 at the time of the
discharge , whether the Union had something to do with it.
While patient and protracted study of all of the facets of this case , including those
discussed in the following section of this report , has not dissipated all doubt with
respect to the Respondent 's real reason for discharging Hoehn, I am of the opinion
that the Respondent 's essentially consistent position throughout with respect to
Hoehn must prevail . Clearly Hoehn was on a continuously operating machine
which required constant attention . Further, while Hoehn had been clearly and
repeatedly told that he was to stay at his work station , he was noticeably absent
therefrom on November 25.65 Moreover , while I feel certain that Ewing suspected
that Hoehn was involved in the organizational activity which Ewing knew was then
in progress , there is no evidence that Ewing necessarily believed , when he discharged
Hoehn, that Hoehn was primarily responsible for said activity . And finally, I am
persuaded , everything considered , that the circumstances under which Ewing found
that Hoehn was absent from the laminating machine, while it was in operation on
November 25 without having secured 'a replacement were such as to arouse Ewing's
indignation to the point where it is believable that Ewing could have decided to
discharge Hoehn , regardless of his reason for said absences.
Accordingly , although I am not sure that Ewing's clearly established conviction
that organization of the plant at that time was premature was not a factor entering
63 As to whether Hoehn was discharged or laid off, I accept Ewing 's testimony that he
discharged Hoehn, rather than Hoehn ' s that he was laid off
e, Hoehn ', testimony th-t "the union was mentioned " but that he did not "recall what
was said" was not convincing , and the above finding is made on Ewing ' s testimony
Gi It will be recalled that , shortly bet ore, when Hoehn and Sadler had gone together to
see Ewing about getting their jobs back , Ewing had taken virtually the same position
az; I have not gone into the troublesome question, concerning which the evidence is
ambiguous , as to just how brief an absence from the laminating machine may have been
permissible without a replacement for "personal reasons," a matter about which the actual
plant practice may have been less than uniform, because I believe that the absences of
Hoehn from his work station on November 25 tall partly, in any event , outside of the
normal range permitted by such practice
PREMIER PANELS, INC. 329
into his consideration in discharging Hoehn, the weight of the evidence as a whole,
in my opinion, does not warrant finding that Hoehn's discharge was for any reason
other than good cause.66 This being so, the fact that Hoehn, in view of all of the
circumstances herein prevailing, has not received substantially equivalent employ-
ment is mimaterial Therefore, in the light of all of the foregoing, it will herein-
after be recommended that the allegations of the complaint as to Hoehn be dismissed.
4. The termination of Robert Sadler and his continued separation from the
Respondent's employ
Robert Sadler, admittedly "one of the first employees to be hired," 67 was em-
ployed by Ewing, as earlier noted, upon the recommendation of the building con-
tractor; Ewing knew that Sadler, then a member of "a labor local," was a union
member. After first assisting in the installation of machinery for about a month,
Sadler's initial production job was on the back end of the laminating machine.
Sadler was part of the crew on the machine when Ewing had the above-discussed
talk with them as a group about not leaving their stations on that machine. I am
satisfied, upon weighing the testimony noted in the footnote, that this group repri-
mand was the only reprimand which Sadler ever received while he was working on
the laminating machine.68
As previously noted, it was during August 1958, at the time that Marlin Sandler
was taken off the glue spreader, that Sadler was transferred from the laminating
machine to the glue spreader. According to Sadler's credited testimony, he was
not given "any specific reason" for this transfer. He apparently understood that
said transfer was made simply to fill the place vacated by Sandler.
Essentially the Respondent's explanation, given in Ewing's testimony and in its
brief, for the foregoing transfer is that Sadler's work on the laminating machine
began "to deteriorate" so much, due to Sadler's "playing around," that Miller
recommended to Ewing that Sadler be taken off the "highly responsible" work on
the discharge end of the laminating machine and given another chance, so to speak,
at less responsible work on the glue spreader. I have carefully considered all of
the testimony of Ewing and the arguments in the Respondent's brief bearing on
Sadler's transfer. I have also considered the General Counsel's contentions with
respect to this matter. Without detailing the foregoing, I will explain my conclusions
with respect thereto.
To me it is particularly significant that Superintendent Miller, the one most likely
to be in possession of the facts, was not called as a witness to supply convincing
details about Sadler's "playing around" and the alleged deterioration of his work.
Further, my appraisal of the conflicting evidence, 69 in the light of my observations,
convinces me that if it can be said that one of these two positions was essenitally
more exacting or responsible than the other, it was the work to which Sadler was
transferred. This is true because there is an additional man in the glass storage
area who inspects glass after it leaves the laminating machine and before it enters
into the finished product. Moreover, as we shall presently see more fully, the posi-
tion to which Sadler was transferred on the glue spreader constitutes a crucial step
in the final process of combined various materials, including the glass which the
Respondent laminates in its own plant, into its final product, insulated laminated
00 Compare the case of Frank Kerr in Geo Byers Sons, Inc, 111 NLRB 304, 315.
Also note, in Augioell Curtain Company, Inc, 94 NLRB at 677, the failure of a "highly
suspect" incident to establish discriminatory motivation
sa Sadler who is 22 years old, has been married 2 years, and has no children, testified
that he was "the first one" hired
"Sadler convincingly testified that his only reprimand about lea, ing hic post on the
laminating machine was the gioup one already discussed Ewing less convincingly testi-
fied that one other time, shortly before Sadler went off the laminating machine, he met
Sadler "out back where the glass was stored" and had to warn him about leaving the
machine Whatever may actually have happened, it is clear that "glass" which comes
off the laminating machine is taken back to the storage area, and Ewing did not testify
that the laminating machine was in operation at the time of this alleged second warning.
Moreover, it is noteworthy that Ewing testified that there is, in addition to the laminat-
ing machine crew of three, "another man inspecting glass out of the laminating machine
room" in the area where glass is stored, and it would appear that this additional man
sometimes serves as a relief man on the laminating machine
6D Among other things, Ewing testified that the back end of the laminating machine
involved more responsible work than the work to which Sadler was transferred on the
glue spreader Sadler gave contrary testimony
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sandwich panels, which are essentially made up of layers of various kinds of ma-
terial glued together.
In addition, if Sadler's transfer actually had been made for the reasons which
the Respondent now assigns, Sadler surely would have been told why his work had
been considered unsatisfactory, and that he was being tried out on another job.
But no such explanation was given to Sadler. Finally, the fact that on September
17, 1958, shortly after Sadler's transfer, Ewing admittedly wrote a letter to "the local
draft board," requesting deferral for Sadler for from 6 months to a year, makes
it particularly hard to credit the Respondent's contention that Sadler had an unsatis-
factory work record prior to its requesting his deferral 'i
Everything considered, I am convinced and find that prior to mid-September 1958,
at which time Sadler was already working on the glue spreader, Sadler had been
an essentially satisfactory employee, and that his work record had no "offenses"
in it which can realistically be said to have any bearing on the termination of his
employment over 2 months later, especially since the group warning which Sadler
had earlier received, about the importance of not leaving his post at the laminating
machine, was not applicable to the glue spreader , a machine whose operation is
not comparable , as we shall now see.
As noted earlier by way of general orientation, the glue spreader is one of several
machines located, along with stacks of various materials, in the unpartitioned area
of the plant, which is housed in a square building, measuring approximately 160 feet
on each side. Except for the laminating-machine room , and a few smaller in-
closures, such as those housing the laboratory, the men's room, and the office, the
remainder of the building, constituting probably some 90 percent of its total area,
is devoted largely to material storage and to housing such machines as the glue
spreader, the sander, the Porter saw, and the Porter shaper, all four of which are
located toward the central part of the open area, are some 20 to 30 feet from
each other, and have relatively few obstructions between them. There is also a
,large press, about 34 feet in diameter and some 24 feet from the glue spreader, to
which the freshly glued panels go from the glue spreader. Some of the areas next
to the respective walls are devoted to such things as a partially enclosed spray
booth, a crating department , a sample department , a glass storage area, and a
smoking area. This smoking area is located next to the men's room, and along the
walls thereof are located facilities for keeping production records.
Such crews as are required to operate the above machines are all small. For
instance, the Porter saw, from which the glue spreader can be readily observed, was
operated at all times material by a crew of two composed of employees Ruch and
Coffey, both of whom have been repeatedly referred to hereinabove. The crew on
the glue spreader usually consisted of only three employees. Sadler worked on the
intake, or front side of this machine, which looks something like a very large wringer,
the principal moving parts being large rollers, so arranged that glue may be spread
on either one side, or on both sides simultaneously , of material being run through it.
An example of such material might be, for instance , a piece of styrofoam core or a
piece of cement-asbestos board, let us say some 4 feet wide and 8 feet long, which
will, upon leaving the glue machine, as it is also sometimes called, be stacked, by the
two men on the back side , with other pieces of material of similar size in such a
way as to form a panel some 4 feet by 8 feet in size.li When a sufficient number
70 Ewing testified that lie talked with Prosecuting Attorney Toohey first about Sadler's
deferral and that Toohey told him to write the letter. It will be recalled that Toohey is
the president of the Development Corporation which owns the building housing the Re-
spondent's McBride plant, and that Ewing customarily talks with Toohey if any of the
employees are having trouble Surely if Ewing had been having anything like the kind
of trouble with Sadler which the Respondent now contends it was then having, it is
hard to believe that Toohey, after discussing the question of Sadler's deferment with
Ewing, would have suggested writing such it letter. Ewing explained that one of the
things he stated in this deferral request was that when you have to "train men" to work
on new machinery, it is expensive because of "the number of mistakes they make " I do
not credit Ewing's additional testimony that he wrote the letter because lie "felt more
sorry for Sadler's family" than because of Sadler s "work in the plant," his wife having
talked with Sadler's wife at "a family picnic " It will be recalled that Sadler, while
married , has no children.
71 The sample piece from such a panel, which is in evidence, measures approximately
11/4 inches in thickness It is composed, looking at it in cross section, of a very thin
layer of polyester fiberglass cloth, which is beige in color, glued to a piece of cement-
asbestos board one-eighth inch in thickness, which is in turn glued to one side of a
Styrofoam core, a porous material of high insulating value which is about an inch thick,
PREMIER PANELS, INC. 331
of such freshly glued panels have been completed, they are placed in the press,
where they are kept under pressure until the glue has set.
Sadler's responsibilities on the glue spreader included receiving from Miller "the
slip showing just what" materials would be needed for any given run of panels;
getting these materials together, either by himself or with the help of other crew
members; 72 mixing the glue used in the spreader; seeing that the glue reservoirs on
the spreader are kept sufficiently filled with glue so that sediment particles do not
damage fiberglass facing, which is often quite thin and can be defaced; feeding
panel materials into the front side of the glue spreader; seeing that materials so fed
are clean enough to avoid marring fiberglass; seeing that the tension on the machine's
rollers is such that it does not mash soft material, such as styrofoam; and keeping the
daily records of everything run through the glue spreader. I think there can be
no doubt that Sadler's work on the glue machine was the most exacting and respon-
sible of that of any member of the crew, and that he was actually the leader on
this crew.73
As I understand the issues, the only specific incident prior to the events of
November 24 and 25, which the Respondent relies upon to show that Sadler, after
his transfer to the glue spreader, "continued to be careless in his work," was one
occurring some 3 or 4 weeks before Sadler's separation, which resulted in "defective
panelling which had to be rejected." 74 According to the Respondent's brief, Ewing
and Miller "cautioned the entire crew about their work" on this occasion, and
Sadler "admitted at that time that he had let the spreader run out of glue and in
doing so it had picked up chips which had gotten into the panelling."
Since the foregoing incident occurred not too long before Sadler's separation, and
may constitute an element in the "work background" for which the General Counsel
ambiguously conceded in oral argument that Sadler might well have been dis-
ciplined ,75 the evidence thereon will be reviewed.
Questioned by counsel for the Respondent on cross-examination about an incident
involving a reprimand of the crew by Ewing because of "a lot of bad defective
panels," Sadler answered:
I remember it this way, the night crew laid up a bunch of panels and they
came out with pimples on them and when the day shift came in [Ewing] told
the day shift about it, but he got on the day shift for night shift's work. It
wasn't just me individually, no.
In this connection, Sadler also testified that he had tried to explain to Ewing that
the defective work had been done by the night shift; that Ewing never cautioned him
about letting the glue run out, except in connection with the above group incident;
and that Miller had never warned him about letting the glue run low.
which is in turn glued to another one-eighth-inch slab of cement-asbestos board, to which
is glued a blue polyester fiberglass cloth Such a panel as the one from which this sample
was taken could form part of a wall, with a beige inside finish and a blue outside finish,
or vice versa.
72 Occasionally a fourth man would be assigned to the ci ew for a short time. The
record shows that the materials used in this major assembly operation, which takes place
in connection with the glue spreader, may be stacked almost anywhere in the plant, de-
pending on the different sizes and thicknesses needed Also needed at times would be
rags and paper cups, which are kept in the laboratory, and occasionally tools, such as a
hammer, which might be picked up almost anywhere one could be found
73 This is another reason why it seems to me unbelievable that Sadler's work before his
transfer was unsatisfactory, for if it had been, he surely would have been assigned to
less responsible work on the back side of the glue spreader, and one of the other members
of the crew would have been shifted to the front side of that machine
74 The quotations in the above paragraph are taken from the Respondent's brief. It
would appear that any specific issue of "horseplay" on the glue machine, in terms of
Sadler putting glue on the handle of a trowel which the members of the crew used to
spread glue on spots missed by the mechanical operation of the spreader, has been
abandoned In any event, the Respondent introduced no affirmative evidence on this
point Sadler admitted, during his cross-examination, that some individuals are so
sensitive to the glue used that getting it on their skin can cause a rash. However,
Sadler insistently and quite convincingly denied that he had ever put any glue on the
handle of this trowel, and it is obvious that such glue as may have got on said handle
could have got there from glue on the hands of the crew members, who handle glue-
covered material as it comes from the glue machine
75 This ambiguous concession was made about Hoehn and Sadler jointly, and illustrates
the lack of dichotomy mentioned earlier herein.
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In explaining , on direct examination as a witness for the Respondent , the quality
of Sadler 's work on the glue machine , Ewing testified about observing panels being
taken out of the presses some 3 or 4 weeks before he had discharged Sadler, ex.
plaining that one load of panels in particular , work done by the day-shift crew on
the preceding day, had such an excessive "amount of dirt" that the panels had to
be rejected . Ewing also testified that there were "some but not nearly as many
from the second shift." As to what he thereupon did, Ewing testified:
I talked to [Sadler] and the whole crew at the same time, and I called Ray
Miller over and we cautioned them about it and told them exactly what hap-
pened and they didn 't deny it , and [Sadler ] said he let the glue spreader run
out of glue and in doing so it picked up those chips and got to the glass.
Considered in the light of all credibility factors and the record as a whole, the
testimony about this incident does not convince me that Sadler was particularly
at fault. Again we have a situation where Superintendent Miller was clearly the
individual best in a position to corroborate Ewing, but Miller did not testify . Sadler,
far from admitting that he had let the glue run out, obviously felt that the second
shift was to blame. And even on Ewing's version , the excessive amount of dirt
showed up in panels made by both shifts, thus raising a serious question as to
whether the cause really was a low glue supply, which would entail neglect by
two different individuals on separate shifts. Moreover , the record does not show
the relative number of panels being made at that time on the two shifts . 76 Hence,
the "not nearly as many" defective panels from the second shift may have been
proportionately even greater. In any event , whatever disciplinary action may have
been justified at that time , what the Respondent 's two top supervisors actually did
was to caution "the whole crew at the same time."
We come now to the Respondent 's contentions about Sadler 's behavior on No-
vember 24 and 25. It will be remembered that Sadler admittedly distributed around
five application cards in the plant during working hours on November 25. What
has already been said about corroborative testimony of Ruch and Coffey, whose
work on the Porter saw obviously put them in a position to observe Sadler, and
who evidently observed that Sadler was away from his usual place of work some-
what more , on the Monday and Tuesday involved, than he usually was , should be
kept in mind . 77 Perhaps the simplest and fairest way to present the Respondent's
contentions as to what Ewing observed with respect to Sadler, on the 2 days in
question , is to quote the following two paragraphs in the Respondent 's brief:
On November 24, Ewing , on several of the occasions when he went back to
the laminating machine, saw Sadler coming out of the laminating room where
he had no business . On a couple of other occasions Ewing saw Sadler come
out of the lab where he had no reason to be. On still another occasion he
saw Sadler over in the smoking area also where he had no right to be at the
time.
The next day , November 25, Ewing saw Sadler in the lab four times talking
to Moll (who was engaged in work there ) and Hoehn . In addition, he saw
Sadler wandering around in the back of the plant and talking to some of the
men and constantly running around the plant. On another occasion, Ewing
observed the glue spreader running and the rest of the crew laying out the
panels, but Sadler was nowhere to be seen. Then Ewing saw him coming
back, empty-handed , from the laminating machine room. Sadler appeared
to be disconcerted with Ewing 's presence.
Aside from stating that I am of the opinion that Ewing exaggerated the extent to
which he had observed Sadler away from work on the 2 days preceding Sadler's
separation ,78 I will not undertake the apparently impossible task of trying to de-
76 It will be remembered that the first shift , on which Sadler worked, was some four or
five times larger than the second shift , and that on the laminating machine , the second-
shift crew merely completed unfinished runs started by the first shift
77 See footnote 49, above It is also worthy of note that Coffey , who had not signed a
union card , testified that Sadler had asked him to sign one before they "went into the
building to go to work" ; he did not know "who in particular" Sadler had talked with on
November 25 he had seen employees other than Sadler and Hoehn talking together on
November 25 ; and there was "a lot of moving around " among employees in the plant,
so that one could not "keep track of them all of the time when you have a job to do "
79 Among other findings already made , compare footnote 59, above Further , concerning
contentions in the first of the above-quoted paragraphs , it will be remembered that Sadler
got rags and paper cups from the laboratory , and that facilities for keeping production
records adjoin the smoking area.
PREMIER PANELS, INC. 333
termine just how much Sadler was away from his machine on the Monday and Tues-
day in question, since I am convinced that, in any event, the evidence as a whole
does not support the contention that Sadler, during those 2 days, engaged in any
"flagrant flouting" of the rules of the Respondent about which he "had already been
repeatedly warned."
In the first place, except for the laminating machine, the record does not show
that the Respondent had any rule against any employee merely being away from his
work station. In fact, the machines in the open area of the plant, including the glue
spreader, are the type which are not continuous in their operations, and from which
employees go, from time to time, for personal reasons and to assemble various ma-
terials to be processed. The only applicable rule here is not to leave such a machine
unattended while it is "in operation." I am convinced, from all of the testimony
thereon, that "in operation" means while materials are being processed, rather than
merely while a motor may be left running. With respect to the glue machine, "in
operation" would mean, let us say by way of illustration, while a 4-foot by 8-foot
slab of cement-asbestos board was actually being fed through its rollers. Thus this
glue spreader could be "running," in the sense that its mechanism was still going
after a slab of material had been fed through it, and the member of the crew on the
back side could be laying out the panels, and Sadler could be absent for personal
reasons or to get more materials-all this without this machine being left unattended
while it was in operation, within the meaning of safety rule number 5. And the
foregoing is, at most, all that I believe Ewing claims to have seen.
Sadler testified convincingly that he had "never left that machine while we were
actually in the process of running stuff through," and I credit his repeated and con-
sistent testimony to that effect. Hence, since Sadler's group warning, given several
months earlier and before the plant rules had been posted, pertained to remaining
at his station on the laminating machine, an entirely different type of operation, and
since I find that Sadler did not violate the plant rule applicable to the glue spreader
by leaving that machine unattended while it was in operation, I further find that
the Respondent's contention that Sadler flagrantly flouted the Respondent's rules on
November 24 and 25, thereby engaging in the very dereliction for which he had been
repeatedly warned, is without merit.
In addition, it is noteworthy that there is no evidence that the Respondent has
any rule against any kind of solicitation in its plant. Further, it is evident that
employees in this large area of the plant go about gathering materials for their re-
spective runs and taking care of personal needs, without production-line regimenta-
tion, without the necessity for obtaining previous permission to leave their particular
machines, and without a requirement that a relief operator first be secured. More-
over, in such operations, intervals of idleness between runs are not infrequent
occurrences.
It also appears that November 25 was a day of less than maximum operation for
the glue spreader. Sadler testified that November 25 "was a slow day," one of those
days when they did not have "too much work to do," and that there are such times
when they do not "have the work to run through." This testimony was convincingly
given and I find nothing in the Respondent's evidence which I feel can be said to
contradict it. In fact, as earlier noted, counsel for the Respondent stated at the
opening of the hearing that there was no contention that Sadler was "terminated
because of any lack or slow-down in production." In addition, Coffey testified
that the glue machine "operates almost every day"; that it "varies"; and that he
wouldn't know" whether or not it operated all day on November 25.
In view of the foregoing, I am satisfied that, however much Sadler may have been
absent from his machine the 2 days before Ewing called him into the office on
November 26, there is no evidence to show that the quality or the quantity of Sadler's
work had been affected in any way thereby. Nor did the Respondent introduce any
evidence to show any such effect on the work of any other employee.
It will be remembered that Ewing's testimony on direct examination equates the
conduct of Sadler with that of Hoehn as to its jeopardizing the safety of employees
and the quality of the product. However, on cross-examination, Ewing admitted
there was no jeopardization by Sadler of the safety of other employees. I am now
satisfied that there likewise was no jeopardization by Sadler of either the quantity or
the quality of the Resopndent's products, and no violation of any plant rule.
In fact, the only way in which the behavior of Sadler and Hoehn can be said to be
reasonably similar on November 25 was that both engaged in union activities in the
plant on company time. But unlike Hoehn's case, I am unable to conclude that
Sadler's activity, on either November 24 or 25, afforded the Respondent good cause
for disciplining Sadler, under all the circumstances prevailing. In short, as far as
good cause is concerned in Sadler's case, I find neither a sufficiently tangible series
334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of previous offenses, nor a last straw of any genuine substance, which can serve
reasonably to explain Ewing's decision as to Sadler, a decision admittedly not
reached until after Ewing had decided to discharge Hoehn.
We turn now to what transpired between Ewing and Sadler on November 26, at
the time of Sadler's separation, and again about a month later, when Sadler went
back to the plant to seek reinstatement.
Ewing had Sadler brought to his office before work on th8 morning of November
26, prior to the above-discussed interview during which Hoehn was discharged. This
is Ewing's version of what occurred between him and Sadler, after Sadler had been
seated:
I told him we were not satisfied with his work. His work was very unsatis-
factory and we were going to have to discharge him. He didn't say anything.
He just sat there. I said, "Maybe after thirty days you get a chance to think it
over and you feel you want to come back and do your work to the best of your
ability then I might reconsider hiring you." He still didn't say nothing. He
just sat there, so I made an attempt to explain why his work was unsatisfactory.
He got up and took off . . . out the door, never said a word.
On direct examination, Sadler, having explained that Miller left the office before
he was seated, gave this answer, when asked what had been said:
Well, he told me he was going to lay me off for 30 days, my work was unsatis-
factory and that was the first time I had ever been told my work was
unsatisfactory.
When asked, on cross-examination, if it was not true that he had "got up and walked
out" before Ewing could tell him "the details of your unsatisfactory work," Sadler
unequivocally answered, "No, that is not true " In addition, in a subsequent part of
his cross-examination, when the word "discharged" was used in a question on another
matter, Sadler insisted, quite convincingly, "Well, he told me it was a layoff, that is
the way he told it to me."
All factors considered, I believe and find that Ewing laid off Sadler for 30 days,
stating only that his work was unsatisfactory. I also credit Sadler's testimony that
this was the first time that he had ever been told that his work was unsatisfactory,
and that he did not leave the office without affording Ewing a chance to explain any
reasons Ewing might have had for his action. In fact, I am convinced that Ewing,
who knew at that time that Sadler was, under all of the circumstances prevailing at
this relatively new plant, an essentially satisfactory employee, and whose decision to
take some action about Sadler was obviously an afterthought, did not at that time
have any specific explanation to give Sadler, such as Ewing did give shortly there-
after in discharging Hoehn. Further, I am convinced that the real thrust behind
Ewing's decision to include Sadler along with Hoehn stemmed from the fact that he
at least strongly suspected organizational activity on Sadler's part, if he had not
actually been able by that time to establish Sadler's role as the primary leader thereof.
And it is quite understandable that, lacking real cause for disciplining Sadler, such
as he did have with respect to Hoehn, Ewing would have resorted to a 30-day layoff
rather than to a discharge.7°
Whatever uncertainty there may have been in Ewing's mind, when he laid off
Sadler the day before Thanksgiving, was obviously dispelled the day after Thanks-
giving by the discussion during which Winkler told Ewing that he had given the
union cards to Sadler. And it will be remembered that during another discussion at
Ewing's home shortly thereafter, when Sadler and Hoehn went together to see
Ewing about getting their jobs back, Ewing told them that, as far as he was con-
cerned they did not have any jobs. Moreover, when Hoehn, whose activity on
behalf of the Union was clearly overshadowed by that of Sadler, was reemployed
on December 8, the Respondent made no effort, so far as the record shows, to get
in touch with Sadler to give him an opportunity also to consider reemployment. It
was not until about the last of December, approximately 30 days after Sadler had
been laid off on November 26, that Ewing and Sadler again discussed the question
of reemployment, during a talk in Ewing's office which we now consider.
Before this discussion got underway, Superintendent Miller and Marlin Sandler,
the first-shift leadman during the last several months of Sadler's employment, left
79 I think it possible, incidentally, that one factor in Hoehn's telephoning Ewing an hour
subsequent to Hoehn's discharge to ask if Ewing could change the discharge to a layoff
may have been that Hoehn had learned, in the interim, that Sadler had been laid off
rather than discharged.
PREMIER PANELS, INC. 335
the office and went into the plant, leaving only Sadler and Ewing. Sadler then
asked Ewing if he could have his job back. Ewing told Sadler that he would just
as soon have him as anybody else, because he was experienced; that "there was
a potential opening for him"; that they were "anticipating doing some work on the
presses"; and that Sadler "could work with Robert Sandler on the third shift in
rejuvenating these presses." Sadler asked what his rate of pay would be. Ewing told
him that he would have to start as a new man and lose his seniority, as Hoehn had
done. About that time, Miller came to the office and asked Ewing if he was ready
to go to dinner. Ewing told Miller that he was, and asked Sadler to come back the
following week. Sadler did not thereafter return to discuss the matter further.80
Considering the total pattern of events depicted in this report, I think there can
be no doubt that by the time of the above discussion, the last one between Ewing
and Sadler, Ewing was well aware that Sadler, at a time when there had been
employee dissatisfaction with wage rates, had spearheaded the organizational activity
on behalf of the Union. Further, it is clear that by the time of this interview, which
Ewing at one point in his examination placed as "several weeks after [Sadler's ]
discharge" and at another as "the latter part of December," the consent election
which had been set for December 22 had been indefinitely postponed, the filing of
the charge having intervened. Moreover, it is significant that there was no mention
by Ewing during the above discussion, as there had been on December 5 during
the reemployment discussion between Ewing and Hoehn, of any conditioning of
Sadler's possibly returning to work on Sadler's staying at his work and doing a
good job 8i Further, I believe that the General Counsel correctly contends that
the "potential opening" which Ewing mentioned to Sadler-repair work on the third
shift, which clearly was not a regular shift at the plant 82-would be only "a tem-
porary thing, and certainly not equal in terms and conditions" to Sadler's previous,
work on the day shift. When the foregoing is combined with the elements of reduc-
tion in pay and loss of seniority, it becomes obvious that what Ewing suggested to,
Sadler, at approximately the end of his original 30-day layoff, was far short of a
firm offer of reinstatement to substantially equivalent employment. In fact, I believe
that the total transaction, seen in perspective, must be treated as tantamount to the
Respondent's discharging Sadler and thereafter refusing him reinstatement.
As to why the Respondent treated Sadler as it did, I think a careful appraisal of
the total pattern of events leaves only one plausible explanation. Despite his office
in a union some 2 decades ago and his professions that he was not against the
Union, Ewing patently was convinced that the Respondent's employees should not
organize at that time, evidently because Ewing believed that the Respondent's rela-
tively new operation, of which he was in charge, was not financially ready to meet
wage demands, among other things. So when it turned out that Sadler had been
the prime mover in activity which Ewing obviously felt was adverse to the interest
then uppermost in his mind, Ewing, having separated Sadler from the Respondent's,
payroll, has since kept him off it by refusing to offer Sadler substantially equivalent
employment.
Everything considered, I am convinced and find that the Respondent's ascribed
reasons for discharging Sadler are pretexts; that the Respondent, by its total transac-
tion with respect to him, has discharged Sadler, and has failed and refused to
reinstate him, because Sadler engaged in organizational activity on behalf of the
Union; and that by so doing, the Respondent has violated Section 8(a)(3) and (1).
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
10 The findings in the above paragraph are made on the essentially supplementary testi-
mony of Sadler and Ewing, whose testimony as to this incident is not in conflict. The
quotations in the above paragraph are all from Ewing's testimony.
m In fact, the two individuals who would have been best in a position to explain in,
what way Sadler's work had been unsatisfactory, if it actually had been, left Ewing's
office as Sadler came in
e' Ewing testified that the plant had only two shifts, and that while they had a mainte-
nance man "working third shift," it would not be "classified as a third shift."
336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain unfair
labor practices affecting commerce , I shall recommend that it cease and desist
therefrom , and take certain affirmative action designed to effectuate the policies of
the Act.
It has been found that the Respondent , by discharging and failing to reinstate
Robert Sadler , has dicriminated against him in respect to his hire and tenure of
employment , and has thereby violated Section 8 ( a)(3) and ( 1) of the Act. I
shall therefore recommend that the Respondent cease and desist from such dis-
crimination . I shall also recommend that the Respondent offer Sadler immediate
and full reinstatement to his former or substantially equivalent position , without
prejudice to his seniority or other rights and privileges . 83 I shall further recommend
that the Respondent make Sadler whole for any loss of pay he may have suffered by
reason of the aforesaid discriminatory treatment , by payment to him of a sum
of money equal to that which he normally would have earned , less his net earnings,
from November 26, 1958, the date of the beginning of the discrimination against
him, to the date of a proper offer of reinstatement to substantially equivalent em-
ployment , computation of the amount of backpay due to be made in the customary
manner.84 I shall further recommend that the Respondent preserve and, upon re-
quest , make available to the Board, payroll and other records to facilitate the check-
ing of the amount of backpay due.
As the unfair labor practices committed herein by the Respondent are of the
type which strike at the roots of employee rights safeguarded by the Act, it will
also be recommended that the Respondent cease and desist from interfering in any
manner with the exercise by its employees of rights guaranteed in Section 7 of
the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case , I make the following.
CONCLUSIONS OF LAW
1. Local 2022 , United Brotherhood of Carpenters and Joiners of America, AFL-
CIO, is a labor organization , within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Robert
Sadler, the Respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 ( a)(3) of the Act, and has also thereby interfered
with, restrained , and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act , thus engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2(6) and ( 7) of the Act.
[Recommendations omitted from publication.]
13 The Chase National Bank of the City of New York, San Juan , Puerto Rico, Branch,
65 NLRB 827.
8s Crossett Lumber Company , 8 NLRB 440; Republic Steel Corporation v N L.R B.,
311 U . S. 7; and F . W. Woolworth Company , 90 NLRB 289 , 291-294.
Tailored Trend , Inc. and Oscar Swerdlik . Case No. 4-CA-1846.
January 26, 1960
DECISION AND ORDER
On September 24, 1959, Trial Examiner Leo F. Lightner issued his
Intermediate Report in the above-entitled proceeding finding that
the Respondent had not engaged in certain unfair labor practices
alleged in the complaint and recommending dismissal of the complaint
in its entirety. Thereafter, the Charging Party filed exceptions and
126 NLRB No. 43.