American Molded Products Co.

National Labor Relations Board - Board Decisions

Dec 20, 1961

134 N.L.R.B. 1446 (N.L.R.B. 1961)

1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge . Now, instead of unloading part of the trailer to get the weight distributed
right , we have to completely, unload the trailer and send it to the shop.
Your work with this company is entirely unsatisfactory , and since you have been
warned by letter before , you are hereby discharged.
Yours very truly,
cc: Mr . E. E. Hollyfield
Birmingham, Alabama
Mr. Edward Peyton
Gadsden, Alabama
Mr. W. G . Butler, Union Steward
Atlanta, Georgia
Mr. Dwight C. Rice , Personnel Director
Gadsden, Alabama
T. L. McNATT,
Assistant Terminal Manager
APPENDIX Q
ROUTE 2, NEWNAN, GEORGIA,
Mr. T. L. McNATT, Asst. Terminal Manager,
Bowman Transportation, Inc.,
2161 Moreland, Ave, S.E.,
Atlanta, Georgia.
% Foy HAYES,
June 30, 1960.
DEAR SIR: This is .to inform you that I am protesting my discharge of May 30, 1960
on the grounds that all the charges you mentioned as a basis of discharge are false
and insufficient.
I am thereby making formal request for a full investigation of the facts and cir-
cumstances of my discharge , and if I be found to have been unjustly discharged, I
am making further demand for reinstatement in my employment at full seniority
and full back pay for all time lost.
Very truly Yours,
c/c Mr. Edward Peyton,
EMMETT GARRETT, Jr.
East Gadsden , Alabama
Me. E. E . Hollyfield,
Birmingham , Alabama
American Molded Products Co. and Plastic Workers' Union
Local No . 18, AFL-CIO. Cases No.s. 13-CA-4077 and 13-RC-
7549. December 20, 1961
DECISION, ORDER, AND CERTIFICATION OF
RESULTS, OF .ELECTION
On August 21, 1961, Trial Examiner William J. Brown issued his
Intermediate Report in the above-entitled consolidated proceeding,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the Intermediate Report attached hereto. He further found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint, and recommended dismissal of such allega-
tions. In addition, the Trial Examiner sustained an objection, •in
134 NLRB No. 140.
AMERICAN MOLDED PRODUCTS CO. 1447
Case No. 13-RC-7549, to the election held at the Respondent's plant
on February 2 and 3, 1961, and recommended that the election be set
aside. He recommended that the remaining objections be dismissed.
Thereafter, both the Respondent and the General Counsel filed excep-
tions to portions of the Intermediate Report, together with supporting
briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings made by 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 the briefs, and the entire record in the
cases, and finds merit in certain exceptions filed to the Intermediate
Report. Accordingly, the Board adopts the findings, conclusions, and
recommendations of the Trial Examiner with the modifications and
additions noted below.
1. The Trial Examiner found that Respondent discharged Frances
Brown for cause on March 3, 1961, and therefore did not violate Sec-
tion 8(a) (3) by the discharge. For the reasons given in the Inter-
mediate Report, we adopt this disposition of the Trial Examiner.
However, the circumstances attending Brown's discharge disclose a
violation of Section 8(a) (1) by the Respondent. Thus, upon calling
Brown into his office to discharge her, and being asked by Brown
whether he wanted to see her, Foreman Sego replied, "Just a minute;
there is another union girl coming," and added, "This will stop some
of the trouble." When the other employee arrived, she was told by
Sego that her work was unsatisfactory, after which both employees
were given their final paychecks. Sego did not offer Brown any ex-
planation for her discharge.
The Trial Examiner viewed Sego's statements as reflecting satis-
faction that a union sympathizer was being released, rather than
establishing a motive for the termination. As indicated, we agree
with this view of the Trial Examiner. However, it is clear that Sego's
prefatory reference to Brown's union sympathies, coupled with his
failure to inform her of the reasons for her discharge, was calculated
to interfere with, restrain, and coerce Brown in the exercise of rights
guaranteed in Section 7 of the Act by making it appear that her dis-
charge was for union reasons. The Respondent thereby violated Sec-
tion 8 (a) (1) of the Act.
2. The. Trial Examiner found that statements made by Foreman
Cannata and Floorlady Strope prior to the election held on February
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 and 3, 1961, interfered with the free choice of the employees in the
election. We do not agree.'
General Counsel's witness, employee Lorene Forsythe, testified that
Floorlady Strope told her prior to the election that it was possible that
IBM would cancel its contract with Respondent if the Union won the
election? When questioned as to the date this conversation occurred,
Forsythe testified she could not remember, but later recalled that it
was "somewhere around two weeks [before the election] I guess." The
election on February 2 and 3 was held pursuant to a stipulation for
certification upon consent election signed on January 19, 1961.
The Board does not consider election objections based on conduct
which does not occur in the period between the execution of a stipu-
lation for certification upon consent election and the holding of the
,election .3 Forsythe's vague reference to the date of her conversation
with Strope does not establish that it took place during this critical
period of time. Accordingly, we shall overrule the objections insofar
.as they are based on Strope's statement to Forsythe. In the circum-
stances, we need not pass upon the validity of the Trial Examiner's
-finding that Strope was a "link" between management and the em-
ployees for whose utterances Respondent was responsible.
Regarding Foreman Cannata's statement, the record discloses a con-
versation between employees in the washroom on or about January 31,
.a few days before the election. In the course thereof, employee
Panek said that if there were any shutdown the big customers, such as
IBM, would probably pull out, and, turning to Cannata, who had just
entered, asked for verification of his statement. Cannata remarked
that "IBM, Minnesota Mining, RCA and several other big jobs were
the reasons why employment had been continuous for a number of
years."
The Trial Examiner found that Cannata "in effect" stated that or-
ganization could lead to shutdowns and shutdowns could mean can-
cellation of the big orders that made for steady employment, and
concluded that such statement was sufficient to require setting the
-election aside.
We find the Trial Examiner's interpolation of Cannata's remarks
unwarranted. Cannata was not obligated to disavow Panek's state-
_ment.4 He apparently purposely avoided affirmance thereof by stat-
ing the truism that big customers are good for business. As we
cannot read into this statement an affirmance of Panek's remarks, we
1 Member Brown disagrees with his colleagues ' reversal of the Trial Examiner here. He
'believes that the Trial Examiner has made a realistic appraisal of the facts and agrees
-with him that the evidence calls for setting aside the election.
Y In so testifying , Forsythe repudiated her pretrial statement that Strope' said that
IBM "will pull the work" if the Union gets in because "they are non-union."
F W. Woolworth Company, 109 NLRB 1446, 1449.
* Morganton Full Fashioned Hosiery Company , et at, 107 NLRB 1534, 1536.
AMERICAN MOLDED PRODUCTS CO. 1449
shall also overrule the Unions' objection which is addressed to Can-
nata's statement on this occasion.'
As we have overruled the objections to the election, and as the tally
of ballots shows that the Union lost the election, we shall - issue a
certification of results of election to this effect.
ORDER
Upon the entire record in these cases, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, American
Molded Products Co., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Threatening employees with discharge or other reprisals for
engaging in union activities.
(b) Making statements which create the impression among em-
ployees that they were being discharged because of their union
adherence.
(c) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their right to self- organization,
to form, join, or assist Plastic Workers' Union Local No. 18, AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and 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 Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Chicago, Illinois, copies of the notice at-
tached hereto marked "Appendix." 8 Copies of said notice, to be
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by Respondent, be posted immediately upon
receipt thereof, and be maintained by it for 60 consecutive days there-
after, in conspicuous places , including all places where notices to its
employees are customarily posted. Reasonable steps shall be taken
G In footnote 11 of his Intermediate Report, the Trial Examiner finds on the basis of
testimony by employee Haga that Cannata made another statement a day or two before
the election which contained a threat. However , in section C, 1, of the report, the Trial
Examiner appears to deal with the same incident and, discrediting Haga but crediting
Cannata who was corroborated "by the credited testimony of Panek and Seiler," he finds
that Cannata did not make any threat on this occasion we accept this evaluation of
the incident by the Trial Examiner , who has generally credited Cannata whose testimony
in this particular instance was corroborated by two other credited witnesses.
Gin 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."
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(b) Notify the Regional Director for the Thirteenth Region, in
writing, within ,10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
[The Board certified that a majority of the valid ballots was not
cast for Plastic Workers' Union Local No. 18, AFL-CIO, and that
said labor organization is not the exclusive representative of the em-
ployees in the appropriate unit.]
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 Labor Manage-
ment Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT threaten employees with discharge or other re-
prisals for engaging in union activities.
WE WILL NOT make statements which create the impression
among our employees that they were being discharged because
of their union adherence.
WE WILL, NOT in any like or related manner interfere with, re-
strain, or, coerce our employees in the exercise of their right to
self-organization, to form, join, or assist Plastic Workers' Union
Local No. 18, AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
- any and 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 Act.
- All our employees are free to become, remain, or refrain from be-
coming or remaining members of Plastic Workers' Union Local No.
18, AFL-CIO, or any other labor organization.
AMERICAN MOLDED PRODUCTS CO.,
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.
AMERICAN MOLDED PRODUCTS CO.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
1451
STATEMENT OF THE CASES
The complaint herein alleges unfair labor practices in violation of Section 8(a) (1)
of the National Labor Relations Act, as amended, hereinafter sometimes called the
"Act," by threats of economic reprisals through supervisory employees John Cannata,
Marie Strope, and Norman Sego, and by the grant of a wage increase as an induce-
ment for a vote against union representation in a Board-conducted election. It also
alleges,unfair labor practices in violation of Section 8(a) (3) of the Act by Respond-
ent's discharge of employee Frances H. Brown. The answer denies the supervisory
status of employees Cannata, Strope, and Sego and denies the commission of any of
the unfair labor practices alleged in the complaint. It affirmatively alleges that all
supervisors were directed to refrain from threatening employees for union activity,
that any wage increases were paid pursuant to lawful business policies, and that the
discharge of employee Frances Brown was for legitimate business purposes and
without knowledge of any union activity on her part.
Following the issuance on April 11, 1961, of the Regional Director's report on
objections, the Board on May 31, 1961, issued a Decision and Order in Case No.
13--RC-7549 (not published in NLRB volumes) directing a hearing on three specific
objections of the above-indicated Union to the conduct of the election in that case.
The two cases were consolidated for hearing before me. Petitioner's objection No. 1
alleges that employees Cannata, Ketchum, Strope, and Henson (assertedly either
supervisors or in such strategic positions as to bind the Employer by their utterances)
made preelection statements to the effect that IBM, a major customer, would cancel
its orders if the Union won the election. Petitioner's second and third objections
before me are based upon a preelection increase in the rate for Sunday work, and
alleged preelection statements of Sego that if the Union won female operators would
no longer receive a full day's work in the event of a machine breakdown or lack of
work.
The hearing herein was held before the duly designated Trial Examiner at Chicago,
Illinois, on June 27, 28, and 29 with all parties participating and accorded full oppor-
tunity to present evidence and argument on the issues herein.' Briefs have been
received from the General Counsel and the Employer and have been fully con-
sidered by me. Upon the entire record herein, and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT '
1. THE BUSINESS OF THE EMPLOYER
The pleadings establish that the Employer, an Illinois corporation with its-principal
office and place of business at Chicago and engaged in the manufacture and sale of
electrical and mechanical products, during the calendar year 1960, a representative
period, sold and shipped goods valued in excess of $100,000 from its Chicago plant
directly to States other than Illinois. I find that the Employer is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act and that assertion of
jurisdiction is warranted.
IT. THE LABOR ORGANIZATION INVOLVED
In accordance with a stipulation entered into at the hearing, I find that the Union
is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO THE ELECTIONS
A. Introduction to the issues herein -
The Employer is engaged in the manufacture and sale of plastic molded products.
It operates around the clock on a three-shift basis. In its molding department, under
the supervision of Andy McKeltey, superintendent of molding, there are'36 or 37
molding machines. Female employees operate these machines which turn out prod-
ucts for such major customers as IBM, RCA, and Minnesota Mining and Manufac-
turing and presumably others. The machines are preset to function according to an
I Respondent's motions to dismiss on which rulings were reserved are disposed of
hereinafter.
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established time cycle, e.g., 35 or 40 seconds, and disruption of the cycle can cause
operating difficulties, including "flashing the mold," a situation in which disruption
of the cycle causes excessive heating of the injected plastic material and its consequent
overflow resulting in the necessity of cleaning the mold. This cleaning job is done by
setup men and can be a lengthy process requiring several hours. Flashing the mold
can be caused by an operator's leaving the machine unattended. Although the record
does not reveal any rule promulgated in writing on the subject, it does clearly indicate
that the Employer expects and all operators understand that they are not to leave
their machines unattended.
In addition to the machine operators and the setup men referred to above, Respond-
ent employs in its molding department hopper boys and box boys, the latter supplying
boxes for each machine in operation to receive the finished product and attending to
the removal of the boxes when filled with finished work.
On December 7, 1960, the Union filed a petition for an election and on January 19,
1961, the parties signed a stipulation for certification upon consent election. The
election was held February 2 and 3 , 1961, resulting in rejection of the Union.
Objections were filed to conduct affecting the results thereof and subsequent
proceedings ensued as summarized above.
B. The status of alleged supervisors and other employees
1. The unfair labor practice case
Issue is drawn as to the supervisory status of Sego, Cannata, and Strope. Sego is
second-shift foreman in the molding department . Under his direction are the opera-
tors, floorboys, hopper boys, setup men, maintenance men, a junior foreman, and a
floorlady. He had had 20 years' experience with the operation of injection molding
presses and the record establishes his thorough familiarity with the manufacturing
process. Witnesses Fuller, Forsythe, and Haga testified without contradiction that
they took orders from Sego. In addition; Fuller and Haga testified that they received
increases in compensation after asking Sego to secure such increases for them.
Fletcher testified without contradiction that Sego has an office in the production area
unlike, so far as the record shows, other employees. Sego himself testified that he
issues warnings to employees for derelictions in duty and instructs Floorlady Strope
as to the assignment of machines to operators He also authorizes the release of
employees for illness or other reasons. The record indicates that Sego effectively
recommends discharge and in fact effectively recommended the discharge of Frances
Brown. The fair preponderance of the evidence indicates that Norman Sego is a
supervisor within the purview of Section 2(11) of the Act.
John Cannata is the day-shift foreman. It appears from the uncontradicted testi-
mony of former employee Wolford that he was given his initial assignment by
Cannata and subsequently he received instructions as to the performance of his work
from Cannata. Later he received time off after requesting it from Cannata. John
Panek, a dyesetter on the first shift and called as a witness by the Employer, referred
to Cannata as his foreman and referred to a conversation in the washroom in which
Cannata in effect ordered him to get to work. Cannata himself confirmed this testi-
mony of Panek explaining that he went into the washroom on the day in question to
get Panek started on his job. The Respondent asserts that there has been insufficient
evidence of the supervisory authority of Cannata. I find however, that the evidence
indicates that Cannata issued instructions to employees and authorized release of
employees for time off. Absent evidence that Cannata, who appears to be the day-
shift counterpart of Sego, was merely a conduit of instructions from above, I•find the
record to indicate by preponderance of the evidence that he was a supervisory
employee within the meaning of Section 2(11) of the Act.
Marie Strope is also alleged to have been a supervisor at all material times. While
General Counsel's brief presents argument with respect to the status of Sego and
Cannata, it is silent as to the status of Strope or as to any threats allegedly uttered
by her on behalf of Respondent.
It appears from testimony adduced by the General Counsel and the Union that
Strope, whose job title is floorlady, works on the second shift and posts at the start
of the shift the names of the operators alongside the number of the machine each is to
operate. During the shift she circulates among the operators seeing that their
machines are supplied with spray and that the boxes are supplied and removed as
necessary. The evidence, indicates that the box boys are summoned to remove com-
pleted boxes either by the operator of the machine or by Strope. Some employees
testified that they asked Strope for permission to take time off but they conceded that
they were uninformed as to any necessity of Strope's consulting her superiors concern-
ing the request . One;employee witness, .'Forsythe , testified that on the only, occasions
AMERICAN MOLDED PRODUCTS CO. 1453
she had to take time off she called directly into the personnel office for permission,
thus bypassing Strope. -
Strope did appear to have some sort of link to management as is evidenced by the
fact that she was the agency through which the Respondent inquired as to whether
employees wanted to work Sundays. Sego, foreman on the second shift, testified that
Strope operates a machine and receives 10 cents an hour more than other operators,
presumably in recognition of some of the administrative functions she performs.
Sego testified that he alone makes the decisions as to what operators are to be
assigned to particular machines when he finds out from those in charge of production
what machines are going to run on his shift. Sego further testified that it is a matter
of routine that a girl be allowed time off for illness but it is also routine that Strope
clear the matter with him. It is not shown that Strope is a supervisor.
2. The representation case
As indicated above the Board has directed an inquiry into the question of
whether or not employees Strope, Ketchum, and Henson were closely identified with
management and whether they and/or Cannata stated to employees that IBM would
cancel its orders in the event the Union won the election. I find Cannata to be a
supervisor as indicated above. With respect to Floorlady Strope, although I find her
not to be a supervisor within the purview of Section 2(11) of the Act, the record,
summarized above, does indisputably indicate that she has a connection with manage-
ment of such a nature that her utterances to other employees would almost in-
evitably be considered either as pronouncements of management or reflective of
management wishes. The fact is that she stands between the rank-and-file and
supervision. Although Strope presented herself to vote, her status was challenged
and she cast a challenged ballot. In view of Strope's status.as a link between .man-
agement and employees, I find that employees would reasonably believe her utter-
ances to be those of management.
Sophie Henson is assistant floorlady on the second shift. She is available to re-
place Strope in the event of the latter's absence but the record indicates that only
once in the last 10 years has Strope taken a day off. On that occasion Sego gave
her detailed instructions as to the duties of Strope's work. Henson works in place
of Strope on ,the infrequent occasions when work is done on Sundays Her rate of
pay is 5 cents above that of the other operators, apparently in recognition of her
duty of training new girls. The function of training new girls is however one that
other operators can and do perform as^ necessary. Henson does not appear to be so
closely linked to management as to make the Employer responsible for her
utterances.
Paul Ketchum, a brother-in-law of Foreman Sego and instrumental in Sego's
hiring by the Respondent Employer, was second-shift foreman until September 1960.
At that time he became a troubleshooter working throughout the shop and fixing
disabled machines. In view of the fact that Ketchum relinquished supervisory status
in September 1960 and in the absence of evidence indicative of any close link with
management since that time, I conclude that he was not, closely identified with
management within the scope of the Board's order?
C. The alleged violations of Section 8(a)(1)
1. Threats of economic reprisals
The complaint alleges violations of Section 8(a)(1) by threats on the part of
Sego, Cannata, and Strope and by a wage increase on January 15 and 22, 1961, as
an inducement for a vote against the Union. In view of my finding above that
Strope was not a supervisor, I shall recommend dismissal of the allegations of the
complaint insofar as they relate to alleged threats by her.3
John Cannata, whom I have found above to be a supervisory employee, is
alleged in the complaint to have threatened employees with reduction in the
amount of work or other economic reprisals if the Union became the collective-
bargaining agent. The evidence indicates that a few days before the election, on or
about January 30, 1961 , Cannata participated in a discussion in the washroom
Fuller asserted that on that occasion Cannata said that if the Union got in IBM
2In any event, the evidence indicates that if Ketchum made any coercive statement it
was made between 12:30 and 1 a in on February 3-after the closing of the polls
9 The testimony of Forsythe to the effect that about 2 weeks before the election Strope
said IBM would possibly pull their work, would in any event not suffice to warrant a
finding of violation of Section 8(a) (1).
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would cancel their orders because they did not want to do business with a union
shop in view of the possibility of strikes and layoffs. On cross-examination Fuller
conceded that there was a general discussion of the Union underway at the time of
Cannata's statement. Haga testified that on this occasion Cannata said that if the
Union got in American Molded could move the molds to one of their plants in
Wisconsin or Minnesota. Fletcher testified that Cannata said that if the Union got
in, IBM and RCA would pull their orders because of the possibility of strikes.
For the Respondent, employee Panek testified that he was present at the dis-
cussion referred to by the General Counsel's witnesses, and that a group of 10 or 15
people were engaged in a general discussion of the union pamphlet distributed
earlier that day when Cannata entered.4 Panek testified that he entered the dis-
cussion and stated that if there were any shutdown, the big customers such as
IBM would probably pull out their jobs and he turned to Cannata for verification
on this. Cannata then stated according to Panek nothing more than that the big
companies such as IBM were those that made for steady employment at American
Molded. Seiler, a setup man, confirmed Panek's account. Cannata testified that it
was in response to Panek's question about IBM and other companies keeping
American Molded steadily employed that he said that IBM, Minnesota Mining,
RCA, and several other big jobs were the reasons why employment had been con-
tinuous for a number of years. He asserted that he said nothing further on that
occasion. He denied that at any time he said to employees that the Company had
a list of equipment to be moved if the Union got in. I credit Cannata's account,
corroborated as it is by the credited testimony of Panek and Seiler, and find that the
evidence fails to establish a violation of Section 8(a) (1).
Violation of Section 8(a)(1) is alleged by a threat through Sego of a reduction in
hours or other reprisals if the Union became the bargaining agent. Haga testified
that shortly before the election , Sego said that if the Union got in the women em-
ployees would not necessarily be given their full 8 hours' work because the Company
would not have to continue its existing practice. On cross-examination Haga con-
ceded that his recollection was indistinct as to whether or not Sego's statement was
in response to a question by another employee. It is clear that at most Sego said
that the Company would not have to give the women employees a full day's work
in the event of a breakdown. Both on his direct and cross-examination Haga re-
ferred to a 4-hour pay requirement which might be a consequence after organiza-
tion. Sego testified that it was in response to a question from Haga that he said
that he had worked in a union place where the practice to let extra girls go after 4
hours if they did not have work. Even accepting Haga's account, there would be
no violation of the Act in the statements attributed to Sego. Universal Producing
Company, 123 NLRB 548.
2. Threat of discharge for organizing
The complaint alleges a violation of Section 9(a)(1) of the Act in a threat of
Norman Sego that employees would suffer discharge or other reprisals if they talked
about'the Union or gave support to it. The basic issue here, as both General Coun-
sel and Respondent assert in their briefs, is one of credibility. For the General
Counsel Fuller, Wolford, Haga, and Fletcher testified in support of these allegations
of the complaint; Sego testified in' support of Respondent's denial. Fuller testified
that a day or so after the election he was engaged in a discussion 5 in the washroom
shortly after 3 o'clock, together with fellow employees Wolford, Haga, and Fletcher,
when Sego came into the room and said that the Union had caused a lot of grief
during the last 2 months and thereafter anyone bringing in union leaflets or talking
union talk would have to punch out. According to Fuller neither he nor his fellow
employees said anything to Sego at that time. Fuller's testimony in this regard was
not weakened by cross-examination. Haga, Wolford, and Fletcher corroborated
Fuller.
For the Respondent, Sego denied that at any time he ever said to any employee
that anyone talking union or bringing in union leaflets would be let go or anything
of that character. The issue is, as the parties agree, one of credibility. None of the
witnesses is totally disinterested in the outcome of the litigation, nor did any one
of the four witnesses for the General Counsel impress me as naturally a more
credible person than Sego. The cumulative effect of their detailed testimony on
4 Panek and Seiler, who impressed me as generally more credible than the other wit-
nesses to this event, were the only witnesses present before, throughout, and after
Cannata's statements.
5 The evidence reveals that the discussion concerned the outcome of the election
AMERICAN MOLDED PRODUCTS CO. 1455
this particular issue, however, outweighs his general flat denial I find the preponder-
ance of the evidence to indicate that' Sego in fact made the statement attributed to
him and that Respondent thereby engaged in a violation of Section &(a) (1) of
the Act.
3. The Sunday overtime increase
The complaint alleges that on January 15 and 22, 1961, Respondent effected wage
increases and other benefits 6 as an inducement to vote against the Union in the
scheduled election and refrain from assisting it. Respondent asserts that the wages
paid on the days in question were, paid, pursuant to properly predetermined com-,
pany policy. The evidence indicates that in September 1960 female employees of
the molding department were paid time and a half for Sunday work. On January 15
and 22 female employees of the molding department were paid double time for
work on those Sundays. It is the General Counsel's position that the timing of
upward adjustment in the Sunday rate, absent reasonable explanation or justifi-
cation, constitutes a violation of Section 8(a)(1). He relies on Medo Photo Corp.,
321 U.S. 678, F. W. Woolworth Company, 90 NLRB 289, and International Shoe
Company, 123 NLRB 682.
It is undoubtedly true as a general proposition that a wage increase given during
the pendency of an organizational campaign for the purpose of inducing employees
to refrain from union support is an unfair labor practice within the scope of Sec-
tion 8(a)(1) of the Act. In Medo Photo the Supreme Court approved the Board's
finding of interference but specifically adverted to the Board's subsidiary findings of
fact that the employer decision to grant the increase was occasioned solely by the
agreement of employees to withdraw from the established majority union. And
in Woolworth the increase was in the form of-the announcement of a 10-percent dis-
count on merchandise proclaimed in a series of meetings to combat the Union follow-
ing the filing of the representation petition?
In the case at bar General Counsel has established that in September female em-
ployees who worked Sundays were paid time and a half. ' The number of employees
or the number of Sundays worked in, September is not shown. In January 1961
females who worked the Sundays of the 15th and 22d were paid at the double time
rate. The number of employees who worked those two Sundays is not shown. The
witness Forsythe, who never worked a Sunday, testified that'sometirrie in Decem-
ber, presumably 1960, she was asked if she wanted to work on a Sunday and was
told that double time would be paid. Forsythe did not accept the offer to work.
Such a record does not establish by a preponderance of the evidence that Respond-
ent increased the Sunday rate of pay for the purpose of interfering with employee
organization or that the circumstances of double time pay on the two Sundays in
January 1961 had that necessary and 'inherent effect. This count- of the com-
plaint should be dismissed. ' -
D.- The discharge of Frances Brown
-Frances Brown was hired May 23, 1960, as•an operator on the second shift in the
molding department. She signed a union card and freely discussed the Union and
her advocacy of it in the restroom. She inquired about a raise on February 28 and
was told by Sego that he would have,to check with Superintendent McKeltey. On
March 3 she was told -shortly before quitting time that Sego wanted to see her in
the office. She testified that, on reporting to his office and inquiring as to whether
he wanted to see her, Sego said, "Just a minute; there is another'union girl coming,"
and added, "This will stop some of the trouble." The other employee, Sophie
Stoczynski, then arrived and the two were given their final paychecks. There were
about 10 operators hired in the molding department on the second shift after Brown,
but unlike her they could not operate all the machines.
Evidence adduced by Respondent'and credited by me indicates that Brown was
not awarded merit increases although reviewed every 3 months and that her ter-
minal rate'of $1.45 reflected only an increase in the beginning rate plus an automatic
5-cent initial adjustment thereafter. She had been warned for leaving her machine
and in fact her frequent inattention to her machine was common knowledge among
6 There is no evidence of benefits other than an increase in ,the premium rate for
Sunday work
7International Shoe, a representation case, expressly repudiates a per se theory and
supports a transfer of the onus demonstrandi where a general announcement to employees
immediately preceded the election. On the- evidence before me all that can be said is
that the Sunday rate change was probably effected sometime in December 1960 and com-
municated to one or a few potential Sunday workers
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
her fellow employees. The setup man, Cooper, complained of having to clean her
machine after she had by inattention to it caused the flashing of the mold. Her
termination, together with that of Sophie Stoczynski on March 3, came in connec-
tion with a reduction in force necessitated by an imbalance of operators with a
surplus on the second shift compared to the first and third shifts.8 Vice President
Caestecker and Second-Shift Foreman Sego testified to the process of gradual reduc-
tion of the undesirable operators on the second shift. Pursuant to this program of
selective reduction employees Sowicki and Cravens were discharged sometime about
the middle of February and Stoczynski and Brown were discharged some 2 weeks
later. Sego denied that anywhere in the course of his conversation with Frances
Brown or Sophie Stoczynski did he mention the word "union." Sophie Stoczynski
called a as rebuttal witness 8 by the General Counsel testified that Sego said not one
word to Frances Brown in the layoff discussion and mentioned poor production only
to her. Sego asserted his reference to low production was addressed to both girls.
I credit Frances Brown's testimony that Sego referred to "another union girl"
while the two were awaiting the arrival of Stoczynski on the occasion of the dis-
charge. This, together with Brown's credited testimony that she openly discussed
her advocacy of the Union in the plant, impels me to reject Respondent's assertion
that it did not know of her union membership. I also credit Brown's account that
Sego said, "This will stop some of the trouble," and further her testimony that Sego
did not assign poor production as the reason for her termination at the time of dis-
charge. The issue is as to whether Sego's cryptic remarks and failure to give Brown
a reason for discharge, coupled with the retention of junior operators, establishes
that her selection was improperly induced in whole or in part by antiunion
considerations.10
The record establishes, clearly to my mind, that proper management of the mold-
ing department justified the selection of Brown for discharge. I think that Sego's
statements on the discharge occasion reflect a satisfaction that a union leader was
being released, but I cannot believe they establish that the motive, even in part, for her
discharge was antiunion. The record establishes that she was unsatisfactory in pro-
duction and the chief offender in "flashing the mold." 'Respondent could not be
compelled to retain her merely because it knew that she was a union leader.
The evidence before me does not preponderate in favor of finding a violation of
Section 8(a) (3) in the discharge.
E. The objections to the conduct of the election
The Union 's first objection alleged that agents of the Employer informed employees
that IBM would cancel its contract if the Union won the election . The agents in
question are Cannata, Strope, Ketchum, and Henson. As pointed out above I find
that only Cannata and Strope can be considered agents of the Employer within the
scope of these allegations . The evidence before me indicates that on or about
January 30 there was a discussion among employees concerning the union campaign
when Cannata entered the washroom . I found witnesses Panek and Seiler credible
as to this event. Their testimony, unattenuated by cross-examination, is to the effect
that Panek participated in the discussion of organization and said that if there was
any shutdown, IBM and other big companies would probably pull their jobs. He
then turned and asked Cannata, who had just entered, for corroboration on this
and Cannata said it was IBM and the other big companies . that. made full employ-
ment. The credible testimony before me thus indicates that it was in response to
a question put to him in the course of the general discussion of organization among
the employees that Cannata stated in effect that organization could lead to shut-
downs and shutdowns could mean cancellation of the big orders that made for
steady employment.
The question then is whether an election should be set aside because of such an
observation on the part of a supervisor. I think that the necessary effect of Can-
nata's statement would be to interfere with the free choice of employees. The question
before me is not one of attributing guilt to the Employer but rather whether em-
ployees would reasonably understand that Cannata 's statements were statements of
9 Although General Counsel points to this imbalance as one of questionably sudden
discovery, General Counsel' s witness Fuller revealed that the second shift suddenly de-
veloped a surplus of operators in comparison to what it had when he was first hired.
9I reserved ruling on Respondent' s motion to strike the rebuttal testimony. The
motion is hereby denied
10 The fact that Sego shortly before the discharge replied to Brown's inquiry as to a
raise by saying he would have to consult the superintendent does not seem significant
to me.
AMERICAN MOLDED PRODUCTS CO. 1457
management. On balance I feel that Petitioner's first objection should be sustained
and the election set aside and a new one held."
Strope is alleged to have told an employee a few days before the election that
Superintendent McKeltey informed her that if the Union succeeded IBM would
cancel its contract. Only one witness was called to testify concerning this aspect
of the objections, Lorene Forsythe. She impressed me as belligerently evasive and
the record suggests that she vacillated in allegiance between the contending parties
in the present litigation. She did unequivocally assert on her direct examination
that about 2 weeks before the election she had a talk with Strope in which Strope
said that it was possible that if the Union got in the IBM's would be pulled out.
Forsythe's pretrial statement in evidence as Charging Party's Exhibit No. 1 refers
to a conversation with Strope while they were both riding to work on the bus in
which Strope allegedly said, "Andy told me yesterday that if the Union gets in IBM
will pull their work because they are nonunion." At the hearing Forsythe repudiated
the pretrial statement as one given under coercion but pointed specifically to the
only inaccuracy as one to the effect that whereas the statement refers to Strope
saying that IBM will pull their work in fact she said that Marie Strope told her
that they might pull their work. Strope did not specifically deny the particular
statements attributed to her by Forsythe.
Absent a clear denial by Strope, I find that she made the statement either that
IBM would pull its contract or that McKeltey told her that IBM would pull its con-
tract. This was sufficient to interfere with the free choice of employees in the election
and was attributable to management in view of Strope's status. I therefore recom-
mend on this score that the election be set aside.
Union objection (a) is based upon the increase in the premium rate of pay for
Sunday work. As pointed out above, the record indicates that in September 1960
the premium rate for Sunday work for female employees of the molding department
was time and a half. For work done by female employees of the molding depart-
ment on Sundays, January 15 and 22, 1961, double time was paid. Forsythe testi-
fied that Strope informed her sometime in December that double time would be
paid for work on Sunday. The only inference to be made from the evidence of
record is that the Employer's decision was arrived at and communicated to employees
well in advance of the execution of the stipulation for consent election. I shall
recommend that this objection be held insufficient.
Union objection (c) is based upon alleged statements of Sego to the effect that
if the Union got in the Company would not have to continue its practice of furnishing
female employees a full day's work in the event of breakdown or unavailability
of work.
There is no doubt but what a conversation occurred between Haga and Sego
concerning the relationship between the Union's representation and the practice of
allowing a full day's pay in the event of breakdown or unavailability of work.
Sego was considerably indefinite as to the timing of this conversation in relation to
Haga who put it very close to the election, a day or 2 or 4 or 5 preceding the
election. I credit Haga's account as to when the conversation occurred. Both on
his direct and his cross-examination Haga was consistent in attributing to Sego the
remark that if the Union got in the Company would not have to furnish a full 8.
hours' work in the event of breakdown or unavailability of work but, could not recall
whether Sego's statement was in response to a question from himself or from another
employee. Sego on the other hand was definite in asserting that it was in response to
a question from Haga that he stated that he had worked in a union place, mentioning
it as Superior Plastics, where it was the practice to discharge extra girls after 4
hours in the event of unavailability of work. I credit Sego's account as to the content
of this conversation and recommend that this objection be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Employer set forth in section III, above, occurring in connec-
tion with its operations set forth in section 1, 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.
"The investigation of objections developed information tending to indicate that Cannata
also made a statement a day or two before the election to the effect that the Company
would move its molds if the Union got in . I credit Haga's testimony attributing this
statement to Cannata as against Cannata's generalized denial
630849-62-vol 134-93
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
In view of my finding that the Employer has interfered with, restrained, and
coerced employees in the exercise of their rights under the Act, I shall recommend
that it cease and desist therefrom and post an appropriate notice. I shall recommend
dismissal of the charges of violation of Section 8(a)(3) of the Act in the discharge
of Frances Brown . In view of my findings that agents of the Employer interfered
with the free choice of employees in the election herein, I shall recommend that
the election results be set aside and a new one held at such time as the Regional
Director finds appropriate.
CONCLUSIONS OF LAW
1. The Employer is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and assertion of the Board 's jurisdiction is warranted.
2. By threatening employees with discharge for activities in connection with
union organization , the Employer has engaged in interference , restraint , and coercion
of employees ' rights under the Act and thereby committed an unfair labor practice
within the purview of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
4. Respondent Employer did not engage in any unfair labor practice within the
scope of Section 8(a) (3) of the Act by its discharge of Frances H. Brown nor did it
engage in conduct in violation of Section 8(a)(1) of the Act by its payment of
double time to female employees of its molding department for work on Sunday,
January 15, and Sunday , January 22, 1961, nor by threats of loss of work in the
event of union organization.
5. Agents of the Employer have engaged in conduct interfering with employees'
right to a free election , thus affecting the results of the February 2, 1961, election.
[Recommendations omitted from publication.]
American Broadcasting Company, a Division of American
Broadcasting-Paramount Theatres , Inc. and Musicians Guild
of America, Charging Party and American Federation of
Musicians, AFL-CIO, Columbia Broadcasting System, Inc.,
and National Broadcasting Company, Inc. Case No. 21-CA-
4037. December 21, 1961
DECISION AND ORDER
On February 9, 1961, Trial Examiner James R. Hemingway 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 Intermediate
Report attached hereto. Thereafter the Respondent and the Inter-
venors filed exceptions and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the ex-
ceptioins and briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner only to the extent consistent herewith.
134 NLRB No. 148.