Automotive Controls Corp.

National Labor Relations Board - Board Decisions

Jun 16, 1967

165 N.L.R.B. 450 (N.L.R.B. 1967)

450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Automotive Controls Corp . and Local No.
128, International Union of Operating
Engineers , AFL-CIO. Cases 17-CA-2884 and
17-RC-4967
June 16,1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On November 15, 1966, Trial Examiner Morton D.
Friedman issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that Respondent
had not engaged in other unfair labor practices
alleged in the complaint and recommended
dismissal of those allegations. He further found
merit in certain of the objections by the Union to the
election conducted on March 25, 1966, and
recommended that the election be set aside.
Thereafter, the Respondent filed exceptions to the
Decision and supporting brief, and the General
Counsel filed cross-exceptions and supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, theAct, the National
Labor Relations Board has delegated its powers in
connection with this case to a three-member panel.
The Board has -reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner, with the following modification:
We are of the opinion, in agreement with the
General Counsel, that the policies of the Act will
best be effectuated if the notice which Respondent
is required to sign and post, and which informs the
employees of their rights, how those rights were
violated, and by what process they have been
upheld, is expressed in simple and readily
understandable language, as set forth in the
attached Appendix A.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Automotive
Controls Corp., Independence, Kansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
IT IS HEREBY FURTHER ORDERED that the election
conducted herein on March 25, 1966, be, and it
hereby is, set aside.
[Direction of Second Election-' omitted from
publication.]
' One of the violations of Section 8(a)(1) found by the Trial
Examiner was that Respondent created an impression of
surveillance by requesting an employee to raise a question at a
specified forthcoming union meeting Critical to this finding, in
our view, is a subsidiary finding that the specified meeting had not
been announced As the record does not adequately support this
subsidiary finding we do not adopt the Trial Examiner' s 8(a)(1)
finding as to that incident
In view of the presence of other 8(a)(1) findings, which warrant
the remedial order issued herein, Member Jenkins finds it
unnecessary to pass upon the question of whether President
Mancheski's speech violated Section 8(a)(1)
2 Bil yea Motor Corp , 161 NLRB 982
' An election eligibility list, containing the names and
addresses of all the eligible voters, must be filed by the Employer
with the Regional Director for Region 17 within 7 days after the
date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all
parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections
are filed Excelsior Underwear Inc , 156 NLRB 1236
APPENDIX A
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, as
amended, we hereby notify our employees that:
After a trial in which both sides had the
opportunity to present their evidence, The National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice and to
keep our word about what we say in this notice.
WE WILL NOT question you about your union
activities or your attitudes toward the Union.
WE WILL NOT make threats, including threats
to close the plant, in the event that the Union is
successful in organizing our employees or wins
any election held for the purpose of determining
the bargaining representative of our employees.
WE WILL NOT indicate in any way to you that
we are keeping ourselves informed concerning
your union activities.
WE WILL NOT discourage union activity or
membership in Local No. 128 , International
Union of Operating Engineers, AFL-CIO, or
any other labor organization, by discriminating
against you if you choose to engage in union
activity or join Local No. 128, International
Union of Operating Engineers, AFL-CIO, or
any other union.
WE WILL NOT discriminate against you for
engaging in union activity. Since the Board
165 NLRB No. 43
AUTOMOTIVE CONTROLS
found that we did so when we fired Nedra Rose,
WE WILL offer to Nedra Rose full reinstatement
to her old job, and WE WILL pay her for any loss
that she suffered because we fired her. Since
the Board also found that we did so when we
failed to give Raymond Ross a wage increase,
we will raise his pay and make him whole for
any loss that he suffered.
WE WILL respect the rights of our employees
to self-organization, to form, join, or assist any
labor organization, or to bargain collectively in
respect to terms or conditions of employment
through said Union, or any representative of
their own choosing, and WE WILL NOT interfere
with, restrain, or coerce our employees in the
exercise of these rights.
You and all our employees are free to become
members, or refrain from becoming members, of any
labor organization.
AUTOMOTIVE CONTROLS
CORP.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
No other material relative to this matter should be
posted during this period.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone FR4-7000.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
MORTON D. FRIEDMAN, Trial Examiner: Upon a charge
filed March 28, 1966, by Local No. 128, International
Union of Operating Engineers, AFL-CIO, herein referred
to as the Union, the Regional Director for Region 17 of the
National Labor Relations Board, herein called the Board,
issued a complaint on behalf of the General Counsel of the
Board on June 10, 1966, against Automotive Controls
Corp., Respondent herein, alleging violations of Section
8(a)(3) and (1) of the National Labor Relations Act, as
amended (29 U.S.C. Sec. 151, et seq.), herein called the
Act. In its duly filed answer, the Respondent, while
admitting certain allegations of the complaint, denied the
commission of any unfair labor practices.
Pursuant to an order dated June 15, 1966, issued by the
said Regional Director on behalf of the Board, the
proceeding referred to above was consolidated with Case
17-RC-4967 wherein a representation petition in behalf of
the Respondent's production and maintenance employees
was filed by the Union on January 20, 1966, and an election
held on March 25, 1966; said consolidation being for the
purpose of holding a hearing and taking evidence pursuant
to a Board order dated June 8, 1966, in connection with
451
objections filed by the Union to alleged conduct affecting
the results of the foresaid election.
Pursuant to notice, a hearing of the consolidated cases
was held before me at Independence, Kansas. All parties
were represented and were afforded full opportunity to be
heard, to introduce relevant evidence, to present oral
argument, and to file briefs. Briefs were filed by the
General Counsel and the Respondent. Upon consideration
of the entire record in this case, including the briefs of the
parties, and upon my observation of each of the witnesses,
I make the following-
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent , a Connecticut corporation , maintains
a plant at Independence , Kansas, where it is engaged in
the manufacture and distribution of automotive voltage
regulators . The Respondent annually receives supplies
and materials of a value in excess of $50 ,000 directly from
suppliers located outside the State of Kansas, and
annually sells and delivers products of a value in excess of
$50,000 directly to customers located outside the State of
Kansas.
It is admitted , and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
It is admitted, and 1 find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background and Issues
Sometime before January 20, 1966, the Union began an
organizing campaign among the Respondent's production
and maintenance employees. On January 20 it
simultaneously filed with the Board a petition for
representation election and made a written demand for
recognition and bargaining upon the Respondent. The
Respondent refused the demand and, as set forth
heretofore, an election was eventually conducted by the
Board in which the Union was defeated. Thereafter, on
March 28, 1966, the Union filed with the Board objections
to alleged conduct affecting the results of the election and
at the same time filed the charges which give rise to this
proceeding.
During the period from the beginning of its
organizational drive up to the election both the Union and
the Respondent waged vigorous and a;;gressive campaigns
marked by claims and counterclaims made in various
written communications to the Respondent's employees
and by speeches made by the Respondent's officials Also
there appeared from time to time antiunion
advertisements in the local newspaper which, the Union
claims, were sponsored by the Respondent together with
business and professional people of the to.m. The alleged
conduct of the Respondent's officials and supervisory
personnel during this campaign period constitutes, in the
main, the basis for the charges and the objections filed.
More specifically, the complaint herein alleges, in
substance, that the Respondent, through its officers
and/or supervisors, unlawfully interrogated employees
concerning their union activities, created the impression
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of surveillance of employees' union activities, threatened
reprisals and removal of the plant in the event of union
success, made promises of benefit to induce employees to
reject the Union, and distributed "Vote No" signs to the
employees.'
The complaint further alleges that the Respondent
discriminatorily discharged employee Nedra Rose
because of her union activity and refused to grant a wage
increase to employee Raymond Ross for like reason.2
The Respondent's answer admitted the jurisdictional
allegations of the complaint but denied each and every
allegation concerning the alleged violative conduct of the
Respondent.
Thus, broadly, the issues framed by the pleadings are:
1 Did the Respondent interfere with, coerce, or
threaten its employees in the manner set forth above in
violation of Section 8(a)(1) of the Act.
2. Did the Respondent discriminatorily discharge
employee Nedra Rose because of her union activities and
because she testified at a representation hearing on behalf
of the Union in violation of Section 8(a)(3), (4), and (1) of the
Act.
3. Did the Respondent refuse to grant a wage increase
to employee Raymond Ross because it believed he had
engaged in union activity and was an active union
organizer.
4. With the regard to the objections to conduct affecting
the elections filed by the Union did the foregoing conduct,
if found, constitute conduct which interferes with the
exercise of free choice by the employees participating in
the election so as to warrant setting aside the election.
B. Interference, Coercion, and Restraint
1. The incidents
Heretofore, I have alluded to the vigorous manner in
which the Union and the Respondent pressed their
respective campaigns. Much of the written material
circulated by each was purely factual, but an equal
quantity was accusatory and, at times, vituperative. Each
party accused the other of a lack of candidness and,
indeed, of outright misrepresentation. To say that feelings
ran high would be an understatement. Thus, in this
atmosphere, marked by the hurling of verbal brickbats,
the employees of the Respondent were made aware of the
Respondent's and the Union's strong antipathy for each
other. And it was in this atmosphere, permeated by mutual
antagonism, that the events, below described, occurred.
On January 18, 1966, 2 days before the filing of the
Union's petition for certification, the Respondent's
production superintendent, Wesley Lorenz, engaged
employee Jessie M. Castorena in a conversation at her
work station. Lorenz told Castorena that he was aware that
Castorena had been going to the union meetings , that he
At the outset of the hearing, the General Counsel, on motion
granted, amended the complaint to allege additional , similar
violative conduct
The allegation regarding Ross was made by way of
amendment to the complaint made at the hearing
From the credited testimony of Castorena Although Lorenz
denied that he told Castorena that he knew she was attending
union meetings or that the Respondent would move its plant if the
Union were to be successful in organizing the Respondent's
employees, his testimony in the main did not differ materially
from Castorena's From my observation of each of these witnesses
knew the Union was trying to get into the plant, and that he
wanted to tell Castorena the Company's side of the
picture. Lorenz then proceeded to tell Castorena that the
Union was making many promises they could not keep and
that the Respondent could not afford to raise wages or, at
present, better the working conditions the employees
already had. He pointed out that the Respondent had
erected a new air-conditioned building. Lorenz then told
Castorena that whichever way she decided, when it came
time to vote to think the matter over carefully because the
vote was like an investment in the employees' future and
he did not want them to be sorry over something they did.
He further stated that if the Union were successful and it
was impossible for the Company to make a profit, the
Respondent would move if it found it could not pay the
higher wages which would ensue. Lorenz also told
Castorena that there were no other plants belonging to the
Echlin Group (Echlin Corporation is the parent
corporation of the Respondent which is wholly owned by
Echlin) that were unionized at that time. Lorenz assured
Castorena that there was work at that time and many
orders to be filled; that there was no immediate plans for a
layoff.-'
It should be noted in connection with the foregoing
incident that Lorenz admitted in testifying that he was
instructed by higher company officials to speak to
individual employees about the Union. He estimated that
he spoke to 16 or 18 employees during the earlier part of
the campaign. He also admitted that he told the employees
" .. anything that might happen to make this company
less profitable might affect the future of the Company."
In the latter part of February, probably some time
around the 24th of the month, David Bredbury, toolroom
foreman, was going over the periodic review sheet of
Raymond Ross, an employee engaged as a tool-and-die
maker. (This periodic review was one which Respondent
gave each employee every 6 months of his employment.)
The interview took place at Bredbury's desk. Bredbury
handed Ross the review slip and said that he could not give
Ross a raise because Ross was receiving the top wage in
the shop but that Bredbury was trying to have all the
wages in the shop raised. Bredbury then said that, off the
record, he heard that Ross was a union organizer being
paid by the Union. He explained to Ross that he,
Bredbury, did not think the charges were true.4
On February 25, 1966, Frederick Mancheski, the
Respondent's president, made a speech to a group of the
employees of the Respondent's plant. Sometime either
before or after that address he walked about the factory
and engaged employee Melvin Karstetter in conversation.
During that conversation Mancheski asked Karstetter, in
substance, how the latter felt about the Union or what he
thought about the Union. Karstetter answered that he had
worked under union representation most of his life, that he
liked representation and listed the benefits which
I find and conclude that Castorena 's version of the conversation
was the more accurate
a From the credited testimony of Ross Although Bredbury
denied that during the interview he said anything to Ross about
someone charging Ross with being a union organizer , Bredbury's
version of the interview did not differ essentially from the Ross
version I credit Ross not only because of his demeanor on the
stand but also because, at a later date , Bredbury told Ross that he
could not have a raise because management thought Ross was a
union organizer Bredbury did not deny Ross' testimony regarding
this later incident
AUTOMOTIVE CONTROLS 453
Karstetter thought he had derived from union
representation. The conversation lasted about 5 minutes.'
On March 3, 1966, employee Mary Eardley complained
to Production Supervisor Abert Sack about the fact that
she had not received an assignment which would have
given her a wage increase. During that conversation, Sack
asked Eardley how the latter felt about the Union. Eardley
answered that she thought everybody in the plant was
aware of how she felt about the Union. Sack then asked
Eardley what she thought the Union could do for her and
she told him that she did not see how the Union could hurt
the employees because they were working for minimum
wages and working conditions and benefits of employment
with the Respondent left a lot to be desired. Sack thanked
Eardley for her frankness and told her that " given time,
she would see a lot of changes." He then told her to think
the matter over and really look at both sides before she
voted. In this conversation, also, Eardley asked Sack if she
had not gotten the assignment that she desired because of
her absenteeism or her union activity. Sack answered that
it might have been for her absenteeism but certainly not
for union activity.''
On March 23, the day before the representation
election, employee Suzie Hugo was engaged in
conversation with Art Tull, the supervisor of the
subassembly department, and Norman Chambers, the
quality control supervisor. Either Tull or Chambers (Hugo
could not determine which) asked what Hugo thought the
Union could do for her. Then, in the same conversation
one of them asked Hugo to ask several questions at the
union meeting to be held that night regarding what would
happen if the Respondent and the Union began negotiating
and the Company denied all of the Union's requests. Hugo
did not voluntarily tell them that there was going to be a
meeting that night.
Again, the following day, before the election, Hugo had a
further conversation with Tull and Chambers. One of them
again asked Hugo what the Union could do for her. Tull
said that he had known Hugo "for several hundred years"
and he thought that she had more sense than to support
the Union. Chambers remarked that he always thought
that Hugo was a pretty sensible girl. Then Chambers told
Hugo that he had been asked to estimate how the quality
control inspectors felt earlier during the campaign; that he
had made an unofficial list of them and Hugo was up at the
top of the list that would vote "No." Chambers added that
there were three or four employees he was not sure about,
but he did not state any names nor did he have the list with
him.7
On March 24, the same day that Mancheski gave several
speeches to various groups of employees, Tull circulated
among the employees of the plant and distributed "Vote
No" signs. Some of the employees took them and some did
not. One employee, Eva Tincknell, asked Tull for one but
was told that they were all asked for. Tull explained that a
few days before the balloting was to be held, the
management of the plant was approached by several of the
employees in the plant asking if they might be supplied
with "Vote No" signs and, as a result, management had
some printed up and made them available to the
employees. The distribution was made pursuant to the
instructions of Green, Respondent' s manager of
operations. Green instructed the supervisors to simply
make the signs available to employees but at the same
time cautioned the supervisors that they were simply to
spread the word to the group leaders that these signs were
available and that was all. They were to make no active
distribution of them but to simply have them in a place
where they could be picked up if an employee desired to
do so. Specifically, the supervisors were instructed not to
take active part in distribution of the signs. However, the
employees who testified at the hearing uniformally stated
that Tull actually participated in distributing the signs
around the plant, asking employees if they wanted them.
On this same day, Tull was seen in the presence of
employee Jim Horner at a time when Horner was carrying
a large cardboard sign which stated "Save Independence,
Vote No Union." The circulating of this sign was being
carried out during the working hours. Horner solicited
employees to endorse it by signing their names thereon.
Later in that day employee Eardley saw Horner and Tull in
the hall. Horner grabbed the sign and placed it behind him
saying "Boy, we don't want her on the sign, she is
definitely for the Union."
Tull said nothing. On the following day, the morning of
the election, the sign was posted in the plant. On it were
the names of employees who supposedly had signed.
Tincknell read her name on the sign and crossed it out.
Tincknell had not signed it. About this time Tull noticed
her doing this. Tincknell explained to Tull that some
"smart aleck" had put her name on it and she did not want
it there. Tull told her that he thought there was work to be
done.
Tull explained his part in the proceedings as noted
above. He stated he merely made the signs available to the
employees. He admitted that he did go from one operator
to the next and asked if he or she would like one. He
testified that he asked each employee if she would like to
have one of the signs to put on the bumper of her car and if
she said "No" he went on to the next employee. He did not
make any note or notation if the employees did not accept
the signs when offered.
With regard to Horner' s sign , Tull testified that he not
only refused to sign it but that he did not follow Horner
around when Horner was carrying it to the various
employees. As a matter of fact, Tull called Horner aside
and told him this had to be done on his own time and not
on company time.
On March 24, Al Sack, production supervisor, inquired
of employee Helen Reynolds what the latter thought of this
' From the credited testimony of Karstetter Respondent
contends that Karsteiier ' s answer to the General Counsel's
questions was that lie did nut remember just exactly what
Mancheski's first words were However, Karstetter testified to the
substance of Mancheski 's speech rather than relating or seeking
to relate Mancheski's exact words I conclude that this was
entirely consistent with Karstetter 's otherwise forthright
testimony and general demeanor Under these circumstances, I
do not credit Mancheski's general denial that lie asked any
employee how the employee felt about the Union
" From credited portions of the testimony of Sack and Eardley.
In his testimony Sack did not specifically deny Eardley's
testimony to the effect that he asked her how she felt about the
Union or that lie promised changes Sack denied that he told
Eardley anything except that he would check on the reasons that
she did not receive the transfer of assignment which Eardley had
requested I do not credit Sack's denial
r The foregoing is from the credited testimony of Suzie Hugo.
Chambers and Tull admitted to the conversations but denied that
they had asked Hugo about the meeting However, Chambers did
admit, in substance , that lie had kept a list such as Hugo
mentioned
299-352 0-70-30
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"union mess " and at the same time Sack told her that he
realized that there were problems in the plant and that he
felt that these problems could be ironed out.
Another incident occurred on March 24 involving
employee Melvin Karstetter and Toolroom Foreman Dave
Bredbury. As hereinafter more fully set forth, Mancheski
gave a speech to several groups of employees on that day.
Bredbury, as Karstetter's foreman, came over to
Karstetter's machine, turned off the machine, and told
Karstetter that he was to attend a speech to be delivered
by Mancheski. Karstetter refused to go, stating in
substance that he would not go to listen to the "damned
speech." Karstetter further told Bredbury that his word
was final that he would not go to listen to the speech and
that they could do what they wanted to him, fire him or lay
him off, but he was not going to listen to Mancheski.
Bredbury answered that it was just as well that Karstetter
go home and Karstetter asked "does this mean you are
firing me right now?" Bredbury answered "No, one day
suspension.
Karstetter went home but about an hour after he arrived
there Thornton, the Respondent's plant manager, called
Karstetter at his home and asked Karstetter to return to
work. Karstetter refused saying that he would be at work
the following morning. The next day Karstetter went to
work and found that his timecard had written thereon "full
days work." There were initials beside this notation but he
could not tell who had initialed it. When Thornton called
Karstetter on the telephone on the afternoon of the 24th,
Thornton stated that he thought that Bredbury had been a
little bit severe and he was changing the suspension to a
reprimand for insubordination Karstetter received his pay
for that day even though he did not work."
On March 25, employee Sharon Bryant was engaged in
a conversation with employee Charlie Farris. Farris was
wearing a sign which said "Vote No Union" and Bryant
was wearing a prounion sticker. The discussion concerned
the Union and attendance at union meetings . About that
time, Quality Control Supervisor Norman Chambers
walked up and said to Farris, in substance, that Farris
should not let Bryant change his mind. Farris answered to
the effect that Bryant was not changing his mind but he
was trying to change Bryant's mind so that the employees
could keep their jobs. Chambers answered "Well, she
better. ""
In addition to the foregoing incidents, as noted above,
officials of the Respondent, from time to time during the
preelection campaign, addressed groups of the employees
for the purpose of expressing and explaining the
Respondent's position in opposing the Union. To set forth
these speeches at length and all of the accompanying
antiunion literature distributed by the Respondent would
unduly lengthen this Decision. However, certain aspects
and highlights of various efforts are reviewed for the
purpose of explaining and understanding possible inuendo
and inference in the talks given to the employees by
President Fredrick Mancheski on March 23 and 24.
Thus, only 2 days before, Mr. Echlin, one of the
founders and a chief figure of the Echlin Manufacturing
" From the uneontroverted , credited testimony of Karstetter
" From the credited testimony of Sharon Bryant Chambers
stated in his testimony that he could not recall any such
conversation But I have heretofore not credited Chambers'
denials of other incidents and I was impressed with the manner in
which Bryant testified I find that she was the more reliable of the
two individuals
Co., of which the Respondent is a wholly owned
subsidiary, addressed groups of employees.10 In his
speech, Echlin emphasized that the money to begin the
plant and operate it did not come from Independence, but
from outside sources; namely banks and stockholders. He
stressed that there had been only one profitable month out
of the entire time the Company had been in Independence.
He also stated that the employees could not be loyal to the
Union and to the Company at the same time. Echlin said
that the Union could cause strikes and that this had
happened at another one of the Echlin Manufacturing Co.,
plants. He emphasized that the Company and not the
Union created the jobs that the employees enjoyed. And he
stated in conjunction therewith that the more money that
the Respondent had to pay for salaries was in direct
conflict with the employees job security. At the end of one
of these speech sessions, Echlin was asked by employee
Mary Eardley whether the plant would be moved if the
Union were to be successful in its campaign. Echlin
answered "Not as long as it continues to operate on a
profit margin."1t
On March 23, 2 days after Echlin's speech and the day
on which Mancheski started to make his talks to the
employees. The Respondent circulated a letter to the
employees along the identical lines employed by Echlin in
his talks. Three paragraphs from that letter are quoted as
follows:
Many very important issues have been raised during
this campaign. Such questions as: Who should be
allowed to vote, should that be a secret ballot election,
the threatening of at least one of our employees, who
has been telling the truth and who hasn't and many
others. However, we believe the most important issue
is this: Can this plant at this time in its life, afford the
added costs and turmoil the Union can cause and still
continue to survive? We have been open and honest
in telling you about the present financial position of
Automotive Controls. We have always been optimistic
that we could turn this operation around and make a
reasonable profit. Profits, we all realize, will insure
that this plant will stay in business and
Independence.
Higher base rates of pay at this time, however, are in
direct conflict with your job security. If you had lost a
total of over $500,000 in starting an operation which
still wasn't making a profit, what would you do if your
costs suddenly went higher, and as a result the losses
became higher too? Wouldn't you somewhere along
the line say it wasn't worth all the trouble and decide
that you would be ahead by having no operation at all?
Also please recognize this fact. When you cast your
ballot on Friday, you are not voting for or against
organized labor, you are voting on whether or not a
Union would work to Your advantage or disadvantage
at this time, in this town, in this plant.
If you vote against the Operating Engineers, they
won't die out of existence-but if you vote against the
This speech is not alleged as a violation
The foregoing regarding Echlin's address to the employees is
summarized from the testimony of Tmcknell and Eardley, whose
testimony in this respect was uneuntroverted in any manner by
the Respondent Accordingly, t accept it
AUTOMOTIVE CONTROLS
company, you may see ACC profit picture go from
bad to worse . We can ' t survive with continued losses
increased by wage demands that we can not afford to
meet at this time.
With this letter and Echlin's speech of only 2 days
before as background, Mancheski gave his talks to the
employees. Mancheski gave his speech to four separate
groups of employees on March 23 and 24 after writing the
same completely and practicing the delivery thereof
before others in the Respondent's managerial hierarchy.
Although several employees testified that Mancheski did
not deliver his talk from the written matter he carried and
Mancheski admitted that he did not deliver the talk word
for word, I find, nevertheless, that as he delivered it, his
speech was substantially as written and without material
variation as to content or import."' Cogent portions of this
speech, the full text of which is attached to this Decision
as Appendix B, follow.
Mancheski told the employees assembled that the
Respondent was a young business which was like a baby to
which any sickness could be fatal. A union would cause so
many problems that this infant business could be hurt. A
union must cause conflict to justify its existence. The
Respondent has lost money in all but 1 month of its
existence. If the Union caused problems and strikes
which, in turn, could cause present and prospective
customers to buy their voltage regulators elsewhere, it was
certain that the business would not be profitable.
Then Mancheski went on to tell the employees the
numerous ways in which, he claimed, the Union had been
dishonest with the employees in its campaign. He stated
that the Union lied when it said that Federal law prohibits
collection of fines by unions; when it said that assessments
could be levied only by members' votes and yet, at the
same time, the Union's constitution said otherwise. The
Union lied when it said that the Respondent may hide
profits when in truth Respondent had lost one-half million
dollars in the operation of the plant. Additionally,
Mancheski stated that the Union had lied in still another
instance when it told the employees that the Respondent
could not lay people off if the Union were voted in.
Mancheski said "We can and will, if necessary, union or
no union."
Mancheski further stated that the Union lied when its
representative said that Automotive Controls could not
move if there were a union in the plant. He stated "We can
move any plant at any time it proves to be an undesirable
plant location, whether there is a union present or not."
He added that these were the reasons why the
employees should vote against the Union because of the
Union's lies to the employees, and that the Union used
"Hitler-Goeble" tactics of telling lies often enough so
that people will begin to believe them. He emphasized that
the Union's primary weapon was to create unrest and
mistrust. Then he stated:
... a vote for a union is a vote that you want to work in
a plant where you don't know from one day to the next
what kind of artificial trouble the union officials will
generate to prove to you how well they are looking
after your interests. If you want to work in a plant
where you can be continuously upset, can make no
12 Although both Eardley and Tincknell took notes at the
separate sessions which they attended, I conclude that much of
this brief note taking constituted impressions rather than exact
455
plans because you don't know if you will lose a month
or two's income because some power happy union
official wants to throw his weight around, a plant in
which it is possible that physical violence and
coercion could take place on the part of the union
members, where they could call a strike, a plant
where you are constantly upset, if this is what you
want, then you should vote for a union.
Mancheski continued to the effect that the employees
and the Respondent working together without a union
could overcome the remaining problems which were
largely the result of the plant having grown too fast. He
remarked that the Respondent wanted to do anything it
could to help the employees but needed their
wholehearted cooperation without the help of the Union.
But Respondent first of all had to make a profit. Then he
asked the employees to help them achieve the goals that
he set forth because this was in their best personal interest
and asked them to take the first step in that direction by
voting "No Union."
2. Concluding findings regarding interference , coercion,
and restraint
Upon the facts as set forth above, I conclude and find as
follows:
a. By telling employee Jessie Castorena on January 18,
1966, that he was aware that Castorena had been attending
union meetings, Plant Superintendent Wesley Lorenz
created the impression of surveillance of Castorena's
union activity and the union activities of other employees.
By this statement Lorenz also was obliquely interrogating
Castorena regarding her union activities. Additionally, in
the same conversation, when Lorenz stated that he did not
want the employees to be sorry for something they did and
at the same time told Castorena that if the Union came in
and asked for wages higher than the Respondent could
afford the plant would be moved, Lorenz impliedly
threatened reprisals. All of this foregoing conduct of
Lorenz constituted violations of Section 8(a)(1) of the Act.
b. When on or about February 24, Tool and Die
Department Foreman David Bredbury told employee
Raymond Ross, during the discussion of Ross' periodic
review, that Bredbury had heard that Ross was a union
organizer, Bredbury unlawfully created the impression of
surveillance and also indirectly interrogated Ross
regarding the latter's union activity. All of this was in
violation of Section 8(a)(1) of the Act.
c. When, on February 25, Respondent's President
Mancheski asked employee Melvin Karstetter how the
latter felt about the Union, Mancheski unlawfully
interrogated Karstetter in violation of Section 8(a)(1).
d. When, on March 3, Production Supervisor Al Sack
asked employee Mary Eardley how the latter felt about the
Union, Sack unlawfully interrogated Eardley in violation of
Section 8(a)(1).
However, I find too ambiguous to have constituted a
threat of reprisal or a promise of benefit Sack's statement
to Eardley that "given time she would see a lot of
changes."
e. On March 24, Subassembly Supervisor Art Tull and
Control Supervisor Norman Chambers, in a conversation
reproduction of the contents of the speech as delivered
Accordingly. I credit Mancheski's testimony to the effect that lie
'"c the speech substantially as it was written
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with employee Suzie Hugo, told Hugo to ask a question
regarding the results of an impasse in negotiation at the
union meeting to be held that night. They thereby created
the impression of surveillance in violation of Section 8(a)(1)
since the meeting had not been announced. On the same
day, and on the following day, Tull and Chambers asked
Hugo what the latter thought the Union could do for her.
This constituted unlawful interrogation. Also, when
Chambers told Hugo he kept a list of those employees
whom he felt would vote "no" or "yes" in the election, he,
in effect, threatened Hugo and also created the impression
of surveillance in violation of Section 8(a)(1).
f. When, on March 24, Supervisor Tull distributed the
"Vote No" signs, he violated Section 8(a)(1) in that
employees were thereby impliedly threatened that if they
did not accept the signs they would possibly be visited
with reprisals. It also constituted a form of interrogation,
the purpose of which was to discover the employees'
prounion or antiunion sympathies.
However, regarding Tull's presence when employee Jim
Horner passed through the plant with the "Vote No" sign,
I find plausible and accept Tull's explanation that he did
so to stop Horner and order the latter to desist.
g. When, on March 24, Supervisor Sack asked
employee Reynolds what the latter thought of the "union
mess," Sack unlawfully interrogated Reynolds in violation
of Section 8(a)(1).
h. I do not find violative the incident involving Foreman
David Bredbury and employee Melvin Karstetter on
March 24 which resulted in Karstetter being sent home. I
find that Karstetter was not sent home for refusing to
attend Mancheski's speech, but rather for the
insubordinate manner in which the refusal was offered. In
coming to this conclusion I do not find it necessary to
decide whether Karstetter was obliged to attend the
speech which was made on company time. 13
i. I find that Supervisor Chambers' statement on
March 25 to the effect that employee Sharon Brant had
better change her mind (regarding her union sympathies)
to be a threat of reprisal, and therefore violative.
I come now to the preelection talk given to the several
groups of employees on March 23 and 24 by President
Mancheski. A reading of that talk, which is heretofore
paraphrased and quoted in part, leads me to conclude that,
standing alone, the talk would constitute very strong but,
nevertheless, protected employer propaganda within the
meaning of Section 8(c) of the Act. However, the
distinction between that which is a protected and
permissible antiunion utterance and that which
constitutes coercion proscribed by the Act does not always
present a glowingly bright line. And when this line
becomes very thin, as it does here, the subject matter in
question cannot be considered in a vacuum but must be
studied in the context of surrounding events.
Thus, I note Echlin's speech given 2 days before the
Mancheski talks in which Echlin noted that the money to
establish the plant came from sources outside
Independence, that employees could not be loyal to the
Company and the Union at the same time, that additional
moneys which the Respondent might be forced to pay for
wages would result in direct conflict with the employees'
job security. Then, in answer to employee Eardley's
I Nor do I find any violative conduct in the incident occurring
on March 24 involving Supervisor Sack and employees Bryant
and Baker, the facts of which I have not heretofore set forth. I find
question whether the plant would be moved if the Union
came in, Echlin stated, "Not as long as it continues to
operate on a profit-margin." [Emphasis supplied.]
I also consider the Respondent's letter to its employees
of March 24 which contained, among other things, the
question, "Can this plant at this time in its life afford the
added cost and turmoil the Union can cause and still
survive?"
This letter also emphasizes that only profits would
insure the plants staying in business and that higher rates
of pay were in direct conflict with job security.
This, then, was the background context in which
Mancheski's speech was delivered. In his talks,
Mancheski stated that unions always cause trouble
because they must do so to justify their existence, and that
a plant in its infancy could, like a baby, be stricken with a
fatal illness. Mancheski went on to say that profits were
made only in a single month of the plant's existence and
that if strikes occurred the plant could lose customers. At
the end of the speech Mancheski, in answer to an
employee's question, stated that other communities
contacted Respondent regularly asking the Respondent to
locate its plant in those communities and pay $1.25 an
hour.
Considering all of the foregoing, I adopt the contention
of the General Counsel that the Respondent's entire
antiunion campaign, especially Echlin's speech and the
Respondent's letter to the employees on March 24, was
sufficient to thrust Mancheski's speech over the narrow
line from protected free speech into the area of proscribed
conduct. As noted by the General Counsel, Mancheski's
speech became a syllogistic threat that the plant would
close if the Union came in. This is so because the main
force of Mancheski's speech, in the background in which it
was delivered, was that a plant that loses money must
move, unionization will cause the plant to lose money, and,
therefore, if the plant is unionized it will move.
Accordingly, I conclude and find that Mancheski's talks
constitute, at the least, a not very heavily veiled threat that
the Respondent would move its plant if the Union were to
be successful in its campaign. Such a threat clearly
interferes with employees' Section 7 rights and, therefore,
constitutes a violation of Section 8(a)(1) of the Act.
C. Discrimination
1. The failure to raise Ross' wages
I have heretofore described the incident involving
employee Ross and Supervisor Bredbury. As heretofore
found, during discussion of Ross' periodic review by
Bredbury on or about February 24, 1966, Bredbury
mentioned to Ross that he had heard that Ross was a union
organizer being paid by the Union. Ross denied this
categorically to Bredbury and stated that he had attended
only two union meetings and that he had never been
contacted personally by the union representative and that
he had never contacted any one on behalf of the Union.
During this interview, Bredbury handed Ross a periodic
review slip which read in part:
This is a six month review due 2-24-66, one and one-
half years completed, satisfactory performance
this incident it, be no more than an instruction by Sack to the
employees to attend a speech on company time
AUTOMOTIVE CONTROLS 457
during the last six months. Some difficulty in
controlling conversation around the factory.
During this review, Bredbury informed Ross that
Bredbury did not make an effort to get Ross a raise during
that particular review period because Ross was already
receiving the highest wage paid by the Respondent.
Bredbury added however that he was attempting to have
the entire departmental pay scale raised.
When Ross saw the remark concerning the alleged
difficulty in controlling conversation around the factory,
Ross discussed this with Bredbury who informed Ross
that several supervisors had also complained about Ross
talking too much. Ross thereupon explained to Bredbury
that a great proportion of Ross' work consisted of work out
on the production line in adjusting and fitting machines
and that most of the talking that he had done with other
employees was with regard to this work.
Ross testified that he had never received any
reprimands for talking prior to this period of February 24,
1966, and that in fact none of his work habits or his manner
of going about his job had changed since the last periodic
review of August 24, 1965, which commented that Ross
was a versatile cooperative diemaker who was willing to
learn different methods and in which Bredbury
recommended that Ross' pay scale be increased.
On June 2, about 3 weeks before the hearing herein,
Bredbury and Ross had a further conversation following
Bredbury's announcement to the men in the shop that the
top scale in the shop had been raised to $3.17 an hour from
the $2.90 an hour which Ross had been receiving as the top
tool-and-die maker in the department. Upon Ross' request,
Bredbury told Ross that he would see what he could do
about getting Ross a raise in wage rate. In Ross' presence,
Bredbury called the main office in Branford, Connecticut,
with regard to obtaining for Ross a wage increase. Ross
could not hear the conversation because of the noise in the
shop. A day or two later Ross asked Bredbury whether the
latter had had any success and Bredbury answered Ross
to the effect that he could not get him any more money
because he was talking too much in the plant. Then, later,
Bredbury told Ross that he could not get any more money
for Ross because word had gotten to Respondent's higher
officials that Ross was a union organizer and being paid by
the Union. Bredbury further told Ross, that as a matter of
fact, Bredbury was told to give Ross three white slips and
discharge him. According to Ross, white slips were
warning notices that an employee was not performing
properly. Thereafter all employees in the tool and die
department received raises but Ross did not. Bredbury did
not give Ross any white slips and at the time of the hearing
Ross was still in the Respondent's employ."
Even assuming that one of the reasons that Ross did not
receive a raise in wage rates was because Ross had been
talking too much in the plant, certainly, from Bredbury's
own declarations, one of the reasons why Ross did not
receive a wage-rate raise was that higher company officials
believed that Ross was a union organizer and was being
paid by the Union. Under these circumstances, and in the
light of the Respondent's expressed opposition to the
unionization of its employees, I conclude and find that
Ross was refused a wage raise because of the
Respondent 's belief that Ross was a union organizer and
active in the Union 's behalf during the Union 's campaign
to organize the Respondent 's employees . Accordingly, the
failure to give Ross a raise was, at least in part,
discriminatorily motivated . Such conduct , on the part of
the Respondent , is clearly violative of Section 8(a)(3) of the
Act. I so find.
2. The discharge of Nedra Rose
Nedra Rose was employed by the Respondent on
December 7, 1965. During her entire employment with the
Respondent she worked in the subassembly department
which fabricates the parts that are assembled in the final
assembly department to make the voltage regulators
which are the chief products of the Respondent. Rose was
supervised during her entire employment by Foreman Art
Tull and Group Leader Kenneth Whitson. Also, during this
time, until the date of the representation hearing on
February 8, 1966, at which Rose testified, she worked on a
number of different machines in the subassembly
department. Some of these jobs were on "standard" and
some were not. A job which is on "standard" is one for
which there is incentive pay after reaching 100-percent
production which is the minimum production expected
from employees on that machine. Noteworthy in Rose's
work experience is the fact that she was changed from
machine to machine and, according to Rose, was able to do
her work on all of these various machines some of which
she worked on for only a few hours at a time.
Rose was interested in the Union from the inception of
its campaign at the Respondent's plant. Thus, from the
initial date of the Union's organizational efforts she
attended all but one of the union meetings. Rose also
carried union authorization cards with her and although
she did not actively solicit, she gave cards to individuals
who asked for them.
On February 8, the date of the representation hearing,
Rose was told to proceed to the lunchroom by her foreman,
Art Tull. When Rose arrived at the lunchroom there were
several other employees already there. They were told that
the Union had sent for them and wanted them at the
hearing but that they would have to furnish their own
transportation. When they left, Supervisor Wesley Lorenz
told them that it would not be necessary for them to clock
out.
At the representation hearing Rose was called upon to
testify with regard to the supervisory status of certain of
the individuals who worked in the plant for the purpose of
determining their eligibility to vote in the forthcoming
election.
The day after she testified, Rose was working at her
work station when Foreman Art Tull approached her and
asked why she had put down on her timecard that she had
been to the hearing. Tull then brought the timecard to
Rose and told her that she would have to erase it. When
Rose refused to erase the remarks, Tull erased them in
front of her and clocked her out for the day before. He
refused to give her credit for the time that she was at the
hearing. Tull told Rose that she had not helped the
Company and that he did not feel that the Company should
pay her.
" From credited testimony of Raymond Ross Although
Bredbury denied the earlier incident on February 24, to which
Ross testified and in which Bredbury told Ross that he had heard
that Ross was a union organizer and being paid by the Union,
Bredbury , in testifying, did not deny any of the other matters
which Ross related and, accordingly , I credit Ross'
uncontroverted testimony.
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Some time before the representation hearing, Rose had
a conversation with Thornton , the plant manager. She
asked him where he received his answer to the question on
the bulletin board regarding whether employees could be
discharged for talking about the Union on company time.
She informed Thornton that the question had been her
question which she asked at a union meeting. Mrs. Rose
made it very clear that she was in favor of the Union and
told Thornton "I thought the Union could help the
Company and the employees."
Also, at the hearing Rose had a conversation with
manager of operations , Green, concerning working
conditions in the plant.
On the day after Rose testified at the hearing, in
addition to the incident regarding her timecard set forth
above, she was busy operating a screwdriver machine to
which she was assigned . The operation of this machine
involves two steps . The first step, known as crimping, is
performed before the screw, for which the screwdriver is
basically used, is inserted . If there is no one extra to help,
the individual running the screwdriver has to crimp her
own parts . Rose had done this for a while on the day in
question and had been crimping a box of parts when Betty
Wade, another employee, who operated the staking
machine located next to the screwdriver , came over to run
the screwdriver while Rose finished the crimping.
However, the counting device on the screwdriver was not
working properly and was not giving an accurate count of
parts. Since this machine was on standard , Rose wanted to
get an accurate count of her parts for payroll purposes.
She therefore took a box of parts to Kenneth Whitson, her
group leader, and asked the latter to weigh her parts for
the count . When Rose asked Whitson to weigh the parts
he immediately left and went directly to Foreman Tull's
desk. Before that Rose explained to Whitson that Wade
was running this screwdriver and that Rose needed the
parts weighed because the counter was not operating.
According to Rose, Whitson had given his permission
numerous times for Betty Wade to move back and forth
between the two machines because there was not someone
continuously working on the screwdriver . After Whitson
went to Tull's desk , Tull returned with Whitson and told
Wade and Rose that there were to be no more
unauthorized job changes , Tull explained that Whitson
had told him that Rose and Wade had been making
unauthorized job changes . Rose did not understand this
because with Whitson's permission she had had Wade run
the screwdriver while Rose crimped many times before.
Rose denied emphatically that she changed her job at all.
Wade supported Rose in this position . They both
contended that they were doing the jobs they had always
been assigned to. As a matter of fact , Rose denied
emphatically that she ever worked on the staking machine
nor did she know how to perform that operation.
After Tull told Rose not to make any unauthorized job
changes, he asked her to proceed to the lunchroom where
Tull reviewed Rose's percentage records. He did not have
her percentage figured for the last 2 weeks, however.
When Tull told Rose that she was doing too much talking
she denied this. Tull also informed Rose that she was
running below 100 percent , that she was being paid for 100
percent, and that the Respondent expected 100 - percent
production from her. Rose then asked Tull for her
percentage that she had reached for the 2 weeks prior to
the interview to show Tull that in that period her
production percentage had been much improved. She
explained this by reason of the fact that prior to that she
had injured her finger which considerably slowed down
the work of operating any machine to which she was
assigned. Tull then figured out Rose's percentage for the
last 2 weeks prior to the time he spoke to her and the
percentages came to about 101 or 102 percent.
Rose testified without contradiction that at one time
Tull told her that she was doing about average of what was
expected of a new employee . This was after he had figured
her percentage out for the last 2 weeks. Then, Tull told
Rose that she was spending too much time away from her
work station . Rose answered that the only time she left her
station was to go to the restroom and she offered to clock
in and out when she used the restroom . Tull answered that
Rose was talking in the aisles.
In addition to her union activity heretofore set forth,
Rose asked questions at several of the speeches given by
the Respondent 's officials . For instance , on February 17,
1966, Respondent ' s manager of operations , Robert M.
Green, gave a speech after which there was a question and
answer period . Rose asked questions about union fines
and assessments . Rose also asked how many plants the
Company owned and whether it had recently purchased a
wire plant . Rose testified that she did not ask the most
questions at that meeting.
As noted above, on February 26, President Mancheski
gave a speech at the end of which Rose asked a number of
questions , among them whether the Respondent would
move the plant if the Union were voted in. After Rose had
asked a number of questions, Mancheski told her to let
someone else ask questions . When no one else did, and
Rose raised her hand again , Mancheski turned backed to
her and in a laughing manner said "Well we are back to
you again."
While Rose asked more questions than anyone else did
at the Mancheski speech, it was further brought out that
both Tincknell and Eardley asked questions. Neither of
these employees was discharged.
On March 3, at approximately 3 p.m., Rose approached
Foreman Tull and informed him that one of the employees
was leaving and that this employee 's job would be open on
the following Monday. Rose asked if she could be put on
that job and left on it for 2 or 3 weeks so that she could be
given a chance to show what she could do at a job from
which she was not being moved constantly. This way,
explained Rose, she could make her incentive pay where
as she could not make "standard" on half of the jobs to
which she was assigned because she was never permitted
to be on one job long enough to get used to the machine
and to develop proficiency of operation. Tull answered
that the job for which Rose had put in a request had not
been spoken for and that Rose could have a try at it.
Rose then returned to her work and worked until about 5
minutes before quitting time when Tull approached her
and asked that she proceed with him to the lunchroom. In
the lunchroom Tull handed Rose her termination papers
and discharged her. When Rose asked for an explanation
Tull told her that she went from the screw machine to the
staking machine without permission . Rose again denied to
Tull that she had ever run the staking machine at any time.
When Rose finished explaining this Tull said that it did not
matter, and pointed out to Rose that on the termination
sheet it was noted that Rose spent too much time away
from her work station , that Rose talked too much , and that
her work was inadequate . Actually, the remarks on the
personnel transaction which Rose was given as a
discharge sheet stated as follows:
Released probationary employee. Below average
employee in performance , efficiency, and versatility.
AUTOMOTIVE CONTROLS 459
No potential to improve evidenced after personal talk
with employee. Spends excessive time away from her
work station Made unauthorize job change with
another employee. Verbal warnings of above rule
infractions produced no improvement. Still away from
work station excessively.
In connection with the foregoing quotation, Tull
admitted on cross-examination that Rose did, in fact, have
potential that would equal that of any other employee. Tull
further admitted that neither Betty Wade nor Mary
Hymer, the two other employees discharged at or about
the same time as Rose, had the potential possessed by
Mrs. Rose.
With regard to the job change, Betty Wade testified that
neither she nor Rose made any unauthorized job change
and that at the time Whitson complained to Tull of the
alleged job change, Wade was merely performing the
screwdriver operation while Rose was doing the crimping.
This was in accordance with instructions given her
previously by Whitson.
Robert M. Green, operations manager of the
Respondent, testified that a probationary employee is, in
essence, on trial to prove that he or she will become a
satisfactory employee for the Company to retain as a
permanent employee. This trial period lasts for the first 3
months of employment. These employees do not enjoy any
fringe benefits and they have no rights as far as layoff or
seniority or other normal employee rights with regard to
retention of position are concerned. The probationary
period is used for the purpose of deciding whether an
employee possesses the capability, the attitudes, the
skills, and application to the job to warrant retaining such
probationary employee as a permanent employee.
Therefore, probationary employees are closely watched to
judge whether they are satisfactory performers to be
retained as permanent employees. During the time that an
employee is on probation he may, for any number of
reasons, simply be released. This release is different from
discharging a permanent employee Nedra Rose never
became a permanent employee because she was released
from her probationary employment prior to the expiration
of the 3-month probationary period
Green further testified that Rose was released only after
Green had reviewed the reasons for her termination with
Rose's foreman, Art Tull. First they reviewed Tull's
records of Rose's production efficiency. Then they
discussed Tull's impression of Rose's application to her
work and whether Tull felt that Rose was really applying
herself or whether she was spending all of her work time or
much of her work time away from her work station.
Green further testified that he attended the
representation hearings and knew that Rose testified but
he also knew other employees who were excused to testify
for the Union on that day. Nevertheless none of the other
employees was terminated or discharged.
Green in testifying also discussed Tull's written
efficiency records concerning all employees for each day
worked. Pertaining to Rose, this written efficiency showed
a pattern of generally low efficiencies meaning that Rose
produced generally below standard or below 100 percent.
After examining these records and after discussing the
matter with Tull, as well as Rose's unauthorized job
change which Tull informed him about, Green supported
Tull's recommendation that Rose be released. Green
pointed out that two other hourly probationary employees
were released from the subassembly department in which
Rose worked about the same time that Rose was
discharged. These individuals were Betty Wade and Mary
Hymer. In their cases, as in Rose's case, Tull's
recommendation for discharge was discussed and
approved by Green. Green admitted that during his
conversation with Tull prior to Rose's discharge they
discussed the fact that Rose had injured her finger on a
machine and that her efficiency therefore might have been
affected by such injury. However, this was discounted as a
reason for her low efficiency.
Tull's testimony in the main supported the testimony of
Green. Tull further testified there are a number of criteria
that he uses in evaluating employees. Among them are
efficiency, general attitude , work habits, general health,
and appearance. He also testified how efficiency is
measured in supporting the testimony of Green.
Efficiencies are measured daily and Tull keeps a daily
record of the employees' efficiency in the subassembly
department. Although such record is not required of a
supervisor, Tull keeps one so that he will have an instant
record and an instant reference regarding each employee.
He uses these records for permanent employees as well as
temporary employees. He also takes into consideration
that in moving from job to job an employee may not work
up to the level of his ability at any particular job because of
the changes. However, by averaging out the efficiency
ratings he is given a very good idea of how each employee
is progressing.
With regard to Nedra Rose, with the exception of about
a week and a half, her efficiency was below 100 percent in
average and, furthermore, instead of a general increase as
weeks progressed, Rose's efficiency decreased and her
average declined. This, according to Tull, was the reason
he spoke to Nedra Rose about her efficiency on the day
after she testified at the representation hearing, which was
the same day that Rose allegedly made the unauthorized
job change. Tull admitted that he did not see the
unauthorized job change made but accepted Whitson's
report thereof. When Tull spoke to Rose about her records
in the lunchroom he pointed out to her, beside her
efficiency ratings, the fact that she was away from her
machine too much and that she was talking too much in
the plant. In fact, two other employees had complained to
Tull that Rose was talking too much to them while they
were working. He informed Rose that if she would spend
more time at her work station and concentrate more on the
work that she was doing and desist from some of the
talking she could bring her efficiency up 100 percent.
Nevertheless, despite this talk with Rose, her
conversations with other employees and her absences
from her work station increased rather than decreased
during the period after he spoke to Rose. As a matter of
fact, Rose's absences from her work station became so
noticeable that after the complaints of other employees,
Tull kept notes on how many times Rose had been away
from her work station. Tull further stated the reason he
talked to Rose on the day he did talk to her was because of
Whitson's report to him of the unauthorized job change.
By that time he thought it was necessary to discuss with
Rose her work attitude, her work habits, and her efficiency
in order to get her to do more efficient work.
Tull realized that Rose's probationary period would end
on March 7, 1966. He, therefore, observed Rose more
closely than he ever had before. During this last period of
time Rose was continually away from her work station.
The result of the records kept on this absence from work -
station showed that Rose was away from her work station
far to frequently. Thus, over a period of 3 days while he
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was observing Rose there were 15 times, aside from her
regular breaks and her lunch period, that Rose was away
from her work station . These days were February 28 and
March 1 and 2. The reason Tull recorded the number of
times Rose was absent from her work station during these
last 3 days before she was terminated was because Tull
wanted to verify what he already arrived at in his mind;
namely that Rose was not paying sufficient attention to her
work. However, he did not want to release her until he was
certain of her attitude. Also, with regard to the job change,
Tull stated there was an absolute standing rule on job
changes which is that no employee shall move without
authorization from a group leader or a foreman. This,
according to Whitson's report to Tull, was violated by
Rose.
With regard to the final date of discharge, Tull admitted
that just before Rose was released, Rose asked Tull about
a job that was coming up on a machine in the subassembly
department. Tull told her that at this particular point of
time no one had asked for that job but when it came time
to fill the vacancy he probably would give her a tryout at it.
However, in thinking it over he did not feel that she was
the type of person they wanted to make a permanent
employee because of her low efficiency and work habits.
When Tull released Rose -on March 3 he explained to
her why she was being released. He handed her a copy of
the termination sheet and gave Rose the same reasons
orally.
With regard to the number of moves made by each
employee from machine to machine, Tull testified that
Rose was not moved more than anyone else in the
department. This Tull demonstrated by identifying an
exhibit, which in the last column on the page, showed the
average number of jobs per day worked on by each of the
probationary employees in the department during the
period that Rose was employed. This record, if accepted,
shows that Rose's rate of moving was just about the same
as most of the other probationary employees. These
figures were compiled from Tull's record book and show
that the average figure of jobs worked on per day in the
department by probationary employees was 1 40, whereas
Nedra Rose's average was 1.34. Thus, if accepted, this
report will show that Rose actually fell slightly below the
average of the rest of the employees as to the number of
jobs she was transferred to each day.
It should be noted that also introduced by Respondent
was Tull' s compilation of Rose's efficiency ratings which
did not reach or exceed standard except on a very few
days. In fact, on most of the days that she worked, Rose's
efficiency standard was well below the 100-percent mark.
There were, however, 11 times from December 7 to and
including March 2 that Rose's efficiency was up to
standard or above standard. For the balance of the time
her efficiency record percentage was below standard.
However on cross-examination Tull admitted that there
were permanent employees whose efficiency ratings were
less than 100 percent . Tull sought to explain this by stating
that these conditions existed because of certain failures on
the part of the Company to reset the standards , inasmuch
as they were not correctly set to begin with.
Whitson testified that he had the opportunity to observe
Rose 's work performance , inasmuch as he worked in the
same department and was Rose 's group leader , and that
from his observation Rose spent a great deal of time
talking and that she was away from her work station
several times during the day. He also indicated that from
his observation she was away from her work station more
than other employees in the department. As a matter of
fact, Whitson remembered one day in particular when Tull
was away, and he noticed that about 12:10 p.m. Rose left
her work station and did not return until 12:35 p.m.
In addition to all of the foregoing, the record is devoid of
any evidence to indicate that any member of management
or supervision ever mentioned anything to Rose
concerning her union activities. Nor is there any evidence
in the record to indicate that she ever accused anyone in
the Company of discharging her because of her union
sympathies or activities. On the contrary, Rose admitted
on cross-examination that when she was released she told
Tull that she was going to fight the discharge because if
she did not it would prevent her from drawing
unemployment compensation for 5 weeks and that she
would go to any lengths to keep from being disqualified.
Counsel for the General Counsel maintains that the
reasons given by the Respondent for Rose's release are
mere pretext and that Rose was discharged because of her
union activity . The Respondent contends that Rose was
discharged solely for the reasons advanced in her
discharge notice which , in sum, were that Rose's
performance during her probationary period did not meet
the desired standards for making her a permanent
employee.
In seeking to establish that Rose did not meet the
necessary standards, the Respondent maintains, on the
basis of the testimony of Green, Tull, and Whitson, that
Rose was a temporary employee who, under the
Respondent's method of operation, may be merely
released as contrasted with discharge of a regular
employee. Yet, analysis of the testimony leads to the
conclusion that the only real difference between a
probationary employee and a permanent employee is that
the latter receives fringe benefits, for example, seniority
rights. Also, on cross -examination , Tull admitted that
some permanent employees who are retained maintain
efficiency averages of less than 100 percent. In contrast,
Rose was allegedly released for failing to maintain such
average. The explanation given by Tull for the reason that
the permanent employees were not discharged was that
the standards were not evaluated properly in the case of
the permanent employees. Tull gave no specific example
nor was any specific example proffered by any
Respondent witness. Accordingly, I can only conclude that
by its own testimony Respondent expects more efficiency
from the probationary employees who are relatively
inexperienced at their jobs than from permanent
employees who are experienced. I cannot accept this.
Respondent further maintains that Rose's efficiency
was consistently low as were her general performance and
her versatility. Yet, Tull, on cross-examination, admitted
that Rose had potential equal to that of any other
employee. What, then, caused Rose's low efficiency?
Certainly, changes from job to job, sometimes several
times a day, could decrease the efficiency of an
experienced hand, no less a new employee's learning the
work . But, in connection with its contention that Rose was
changed no more than other employees, Respondent
introduced , as noted , figures showing the average number
of jobs performed by Rose and other probationary
employees working during approximately the same period.
If accepted at face value these figures would establish that
Rose was changed no more than any other employees. Yet,
these statistics become somewhat suspect in view of the
fact that Betty Wade testified, and I credit her testimony,
that Wade spent most of her time on one machine.
AUTOMOTIVE CONTROLS 461
Moreover, Tull admitted on cross-examination that Mary
Hymer, another probationary employee who was
discharged, spent a substantial amount of time working at
a single operation. Additionally, Respondent did not offer
any efficiency ratings for the other employees whose
names appeared on the exhibit which demonstrated the
average jobs per day. Therefore I find the exhibit inclusive
as to the point for which it was introduced.
As noted above, the Respondent also introduced into
evidence an exhibit which purported to show the
percentage of efficiency for Rose from December 7
through March 2. This exhibit shows that for the most part
Rose's efficiency was less than 100 percent with the
exception of several days. However, even taken at face
value and disregarding counsel for the General Counsel's
argument that the figures contained on this exhibit are
erroneous, the exhibit does not in any manner show
comparisons between Rose's efficiency percentages and
those of other employees similarly situated. Nor is there
any testimony showing such comparison. Therefore,
standing alone, the figures have no meaning since there is
no measure of comparison to show that Rose was less
efficient than any other employee with her experience and
with the number of job changes Rose encountered.
I find, therefore, that Respondent's exhibits as to Rose
are inconclusive at best.
There remains the testimony, chiefly of Tull, that Rose
was not only inefficient, but talked to other employees
excessively on worktime and was too frequently absent
from her work station. Whitson's testimony supports that
of Tull. Rose, on the other hand, categorically denied this
and in her testimony stated that she was absent from her
work station no more than any other employee. Nor did
she talk any more than other employees. This, then,
resolves into an issue of credibility.
In disposing of the same, I note that Rose was not
reprimanded or even reminded of her alleged deficiencies
in comportment until the day immediately following
Rose's testifying at the representation hearing. Moreover,
Tull admitted that the two employees who complained
about Rose's talking, neither of whom were called to
testify, complained of Rose's talking about the Union.
I conclude, from the foregoing, that there is some truth
in both Rose's testimony and the testimony of the
Respondent's witnesses. I find that Rose's denials were
exaggerated and that in her enthusiasm for the union
cause she did, indeed, interfere to some extent with her
work and the work of others. However, this was not made
an issue until Rose made her union views known and until
she testified at the representation hearing. This testifying,
together with the Respondent's admitted knowledge of
Rose's union activities with regard to the questions she
asked after the speeches given by the Respondent's
various officials, and her conversations with Green and
Thornton, became the turning point at which the
Respondent for the first time decided to call these matters
to Rose's attention and thereby gave them significance.
I also find an absence in the record of any showing that
any of the Respondent's supervisors kept records of the
times that any employees, other than Rose, were away
from their respective work stations. Of course, I do not
ignore the testimony of Tull that he kept these records
only because he wanted to substantiate what he already
knew in his own mind; namely, that Rose was not giving
sufficient attention to her work. However, in view of all the
testimony and of all the facts surrounding Rose's
discharge, I do not find this explanation to be very
convincing.
Respondent further contends that another reason to
discharge Rose was because of the unauthorized job
change. Whether this job change actually occurred and
was a violation of the Respondent's shop work rules does
not seem to me to be particularly significant. If, indeed,
Tull received word from Whitson that Rose had changed
jobs with Wade and this was a violation of an enforced
work rule, then even if Rose did not actually change jobs
with Wade, Tull's action in making this cause for
discharging Rose could not be questioned. However, I note
that Betty Wade was also discharged at about the same
time as Rose. She was also a probationary employee.
However, I also note that the reason for her discharge, or
at least one of the reasons for her discharge , was not the
alleged unlawful job change. Accordingly, I hold and find
that the alleged job-change reason for Rose's discharge is,
like so many of the other matters heretofore discussed,
without any great significance.
The Respondent contends that as others who testified at
the representation hearing are still employed , Rose's
discharge could not have been discriminatorily motivated.
I, nevertheless, conclude that this is not persuasive in view
of all the other facts of the case. Rose was sufficiently well
known to the Respondent by reason of her conversation
with Green and Thornton, by reason of her questions at the
Green and Mancheski speeches, and by reason of her
testifying on behalf of the Union at the representation
hearing to have been considered by the management of the
Respondent as a union leader . It is not necessary in order
to find a discriminatorily motivated discharge that the
dischargee be the most important union leader or, indeed,
the only union leader. The fact that others were not
discharged who also were union leaders is also not
compelling in the light of the refusal by the Respondent to
raise the wage rate of employee Ross whom the
Respondent accused of being a union leader.
Thus, there is established, aside from any evidence
directly connected with Rose, that the Respondent did,
indeed , resent union adherence , union leadership, and
union organizing activities on behalf of its employees.
These factors, when considered further in the light of the
Respondent's commission of other unfair labor practices
as heretofore set forth, lead to the conclusion that Rose
was, indeed , discharged for her union activities.
Demonstrations by an employer of antiunionism are highly
significant factors for evaluation in determining motive for
a discharge.'' Accordingly, while good cause may have
existed as a basis for a discharge in Rose's case, I am,
nevertheless, convinced and I find that had Rose not been
active on behalf of the Union, and had her prounion
adherence and sympathies not come to the attention of
Respondent's officials, Rose would not have been
discharged.
Having so found I further find that because the
campaign against Rose stemmed from the date that she
testified on behalf of the Union at the representation
hearing, that her discharge was also motivated by
resentment for her testifying at such hearing.
Accordingly, I find and conclude that by discharging
Rose discriminatorily because of her union activity and
because she testified for the Union at the representation
1-1 N L R.B v Dan River Mil ls, Inc , 274 F 2d 381 ,385 (C A 5)
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hearing the Respondent violated Section 8(a)(3), (4), and (1)
of the Act.
IV. THE OBJECTIONS TO CONDUCT AFFECTING THE
RESULTS OF THE ELECTION
As noted above, on March 28, 1966, the Union filed
objections to the election in Case 17-RC-4967 These
objections were very broadly stated with little specificity
and are as follows: (1) promises of benefits and benefits to
destroy the Union's majority; (2) threatening individual
employees with reprisals if they voted for the Union; and
(3) third party intervention by sponsoring and/or
publishing newspaper advertisements, editorials, and
threats from business and professional individuals of the
community.
As to Objection 1, I find nothing in the record to support
the allegation that the Respondent made promises of
benefit of gave benefits to destroy the Union's majority. I
have hereto rejected under the section entitled
"Interference, Coercion, and Restraint" all allegations to
that effect.
With regard to Objection 2, I have heretofore found that
the Respondent had threatened individual employees with
reprisals if they voted for the Union and it is unnecessary
for me to here discuss them again because the Board has
held on a number of occasions that similar unfair labor
practices which are violative of Section 8(a)(1) of the Act,
are a fortiori conduct which interferes with the exercise of
a free and untrammeled choice in an election. tt'
Accordingly, upon these findings alone 1 would
recommend that the election be set aside.
With regard to Objection 3, as stated heretofore, there is
little specificity in the objection as to just what newspaper
article or articles or advertisements or publications of any
kind are claimed to have been objectionable. Nor did the
Charging Union, which filed the objections, point this out
at the hearing. Neither did it file a brief. Under the
circumstances I can but guess what portions of certain
newspaper publications the Union contends are subject to
objection. Since this is so, I have carefully inspected all of
the exhibits containing either newspaper editorials or
newspaper advertisements and find one advertisement
included in the Independent Kansas Reporter, of
Thursday, March 24, 1966, the day of the election, to have
contained wording which could possibly be construed as
coercive.
This advertisement which covers a full page in the
aforesaid newspaper begins with an address "To Our
Friends and Neighbors who work for industries in
Independence." It then goes on for three paragraphs to
state, in substance, that the community is very fortunate to
have several new plants located there and that with the
wages earned by these people who work for these new
industries they have been able to buy cars, furniture, and
homes. The second paragraph states, in substance, that
Independence has been successful in getting industry to
locate there because of favorable labor rates plus the fine
people who are willing to work in these plants. Then, it
says, the community offers nothing that these companies
cannot get in other parts of the country much closer to
their source of raw materials and much closer to their
"' Playskool Manufacturing Company, 140 NLRB 1417, 1419,
Industrial Steel Products Company, Inc , 143 NLRB 336, 347
" Claussen Baking Company, 134 NLRB 111, P D Lwaltney,
Jr, and Company, Inc , 74 NLRB 371
markets. The third paragraph talks in terms of the labor
organizers wanting to choke off the very thing that
Independence has to offer industry by threatening
demands that will increase operating expenses of these
companies beyond all proportion to profits This paragraph
ends with the message that the unions are not interested in
the Company or the employees but only in themselves.
Following this paragraph is a star printed in the middle of
the column under which the following wording appears:
Believe us when we tell you that any company in
Independence can leave here tomorrow. There is no
compelling reason, legal or otherwise, that says
anyone of them must remain if it is not making
progress
In view of the fact that the paragraph before the one
above quoted states that organizers threatened to choke
off the only thing they had to offer industry by threatening
demands that would increase operating expenses of these
companies beyond all proportion to profits, I find that the
quoted paragraph contains an indirect and veiled threat
that if the Union comes in the companies involved would
move or would probably move from Independence.
The advertisement listed signatories whose names are
quite meaningless to the reader without explanation. It can
only be assumed that these are townspeople of some
standing. But before this list there appears the following
"lets not go back to the times we all experienced after we
lost Fran and Rilco. Lets keep industry as a vital part of
the future, not as a memory of the past."
I believe and I find that the entire advertisement is, as
stated above, a threat that if the Union comes in the
industries would move from Independence. There is no
evidence that the Respondent was in anyway connected
with this advertisement other than the mere happenstance
that its plant is located in the city in which the
advertisement appears. However, the Board has held in
election cases such as this, where objections have been
filed, that all factors which would make an impartial
election impossible must be considered regardless of their
source."
Accordingly, and without further discussion as to the
other items which were introduced into evidence by the
objecting Union," I find and conclude that the foregoing
newspaper article was of sufficient impact upon the
employees to constitute such a threat to them that they
were prevented from exercising their free and
untrammeled choice in the election which was held on the
same day that the article appeared. This is especially true
because the city of Independence is an exceedingly small
community.
Accordingly, I shall recommend, that in view of all of the
foregoing, the election be set aside and a new election be
held at a proper time.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
Respondent's activities found to be unfair labor practice
in section III, above, occurring in connection with the
operations of Respondent described in section I, above,
have a close, intimate, and substantial relation to trade,
traffic, and commerce among the several States and tend
"' I make no rulings regarding the marked ballot, reward,
newspaper violence article, or check-deduction incidents
inasmuch as these were not specifically alleged in the filed
objection
AUTOMOTIVE CONTROLS 463
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
VI. THE REMEDY
Having found, as set forth above, that Respondent has
engaged in certain unfair labor practices, it will be
recommended that it cease and desist therefrom and take
certain affirmative action, set forth below, designed to
effectuate the policies of the Act. One of the more basic
rights conferred upon employees by Section 7 of the Act is
the right to freely, and without coercion or restraint from
their employer, express their choice in a Board-conducted
election designed to determine the wishes of the
employees with respect to a collective-bargaining
representative. Since it has been found that Respondent
interfered with this right, an order commensurate with the
violations found and designed to assure Respondent's
employees the opportunity to fully and expressly exercise
the rights guaranteed them by Section 7 of the Act is
appropriate. However, the General Counsel in his request
for relief and annexed to his brief has requested certain
remedies which are applicable to matters which were not
alleged in the complaint or in the objections to the election
herein. He thus refers to the Respondent's alleged
defacing of election notices and locking them in glass-
covered bulletin boards, the Respondent's posting of
objectional photographs, articles, and letters on its bulletin
board, none of which were alleged in the complaint or set
forth in the objections to the election. Accordingly, I shall
issue an order commensurate only with the findings
hereinabove found.
It having been found that the Respondent by threats,
interrogation, and creation of the impression of
surveillance, interfered with, restrained, and coerced
employees in violation of Section 8(a)(1) of the Act, I shall
recommend that the Respondent cease and desist
therefrom.
It having been found that the Respondent has
discriminatorily discharged employee Nedra Rose and
discriminatorily refused to raise the wages of employee
Raymond Ross, I shall recommend the Respondent offer
Rose immediate and full reinstatement to her formerly or
substantially equivalent position, without prejudice to her
seniority or other rights or privileges. I further recommend
that the Respondent restore to Ross the wage rate to which
he would have been entitled had not the Respondent
discriminated against him. In addition, I recommend that
the Respondent make both Ross and Rose whole for any
loss of earnings they may have suffered by reason of the
discrimination against them by payment to each of them a
sum of money equal to that which he or she normally
would have earned from the date of discharge, in the case
of Rose, and the refusal to raise wages in the case of Ross,
to the date of the beginning of the payment of the proper
wage rate to Ross, less net earnings during the said period.
Backpay shall be computed with interest on a quarterly
basis in a manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-294, and Isis
Plumbing & Heating Co., 138 NLRB 716.
In view of the nature of the unfair labor practices herein
found, including discrimination "which goes to the very
heart of the Act,"'" there exists the danger of commission
by the Respondent of other unfair labor practices
proscribed by the Act. Accordingly, I recommend that the
Respondent be directed to cease and desist from in any
other manner infringing upon the rights guaranteed
employees 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. The Respondent, Automotive Controls Corp., is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By coercively interrogating employees with regard to
their union activities and sympathies, by creating the
impression of surveillance of the employees' union
activities, and by threatening employees that the
Respondent would close its plant if the Union were to be
successful in its campaign to organize the Respondent's
employees, the Respondent has violated Section 8(a)(1) of
the Act.
4. By discriminatorily discharging employee Nedra
Rose and discriminatorily refusing to raise the wage rate of
employee Raymond Ross the Respondent has violated
Section 8(a)(3) and (1) of the Act.
5. By discharging employee Rose because Rose
testified at a representation hearing involving the
Respondent's employees, the Respondent has violated
Section 8(a)(4) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and upon the entire record in the case, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is ordered that Automotive Control Corp., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees concerning their union
activities and their attitude toward the Union, creating the
impression of surveillance of union activity, threatening
employees with reprisals including threats to close the
plant if the Union were selected by the employees to
become their bargaining representative.
(b) Telling employees that the Respondent is aware of
the identity of union adherents and is maintaining a list of
such names.
(c) Discouraging membership in Local No. 128,
International Union of Operating Engineers, AFL-CIO, or
any other labor organization, by discharging any employee
for engaging in protected union or concerted activity, by
discriminating against employees by refusing to raise their
wage rates for engaging in protected union or concerted
activities, or by discriminating against them in any other
manner in regard to their hire and tenure of employment
or any term or condition of employment.
(d) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to
form, join, assist , or be represented by Local No. 128,
International Union of Operating Engineers, AFL-CIO, or
any other labor organization, to bargain collectively
through a representative of their own choosing, or to
engage in other concerted activity for the purpose of
" N L.R B v Entwistle Mfg Co 120 F 2d 532,536 (C A 4) =11 NJ. R B. v Express Publishing Company, 312 U S 426,433
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining, or other mutual aid or protection, or
to refrain from any or all such activity.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer Nedra Rose immediate and full reinstatement
to her former or substantially equivalent position, without
prejudice to her seniority or other rights and privileges
previously enjoyed.
(b) Raise the wage rate of employee Raymond Ross to
that which he would have received had he not been
discriminated against.
(c) Make Nedra Rose and Raymond Ross whole for any
loss they may have suffered by reason of the
discrimination against them in the manner set forth in the
section of this Decision entitled "The Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records and reports, and
all other reports necessary to analyze the amount of
backpay due under this Order.
(e) Post at its plant in Independence, Kansas, copies of
the attached notice marked "Appendix A."21 [Board's
Appendix A substituted for Trial Examiner's.] Copies of
said notice, to be furnished by the Regional Director for
Region 17, after being duly signed by the Respondent's
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.22
IT IS FURTHER RECOMMENDED that the election of
March 24, 1966, be set aside.
21 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order."
21 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX B
TALK GIVEN TO THE EMPLOYEES OF
AUTOMOTIVE CONTROLS CORP ., INDEPENDENCE,
KANSAS
by
Frederick J. Mancheski , President
March 23-24. 1966
On Friday afternoon you will be making a very
important decision concerning your future and the
future of this plant. For your sake, I urge you to vote
"no" to having a union in this plant. Why do we urge
you to vote "no"? Because, first of all, this plant is in
its infancy. We are trying to build a business here that
is providing you with a job at pay rates that are
comparable to those in this area. As a young business,
we are like a baby and any sickness could easily be
fatal. We think that a union at this time could cause
us so many more problems that they can hurt this
business. We feel this because we know that a union,
by its nature, has to create conflict between the
Company and its employees just as they are doing in
this attempt to unionize this plant-so that the union
can justify its existence and collection of dues.
Since we began in the voltage regulator business
here in Independence, we have lost over a half a
million dollars. We made a small profit in October
1965 but since then we have lost money. As I
explained to you a few weeks ago, we have confidence
that with your complete help we can lick the problems
that are causing these losses. But if we have to be
constantly paying mote attention to a union who is
trying to create problems where there are none or
having a strike called which could cause some of our
present and prospective customers to buy their
regulators from our competitors, you can be sure that
we will not become profitable. With your help and
without a union, we feel strongly we can turn this
plant around to a profitable condition this year. We
know, and I hope we have been able to convince you
of our sincerity, that when we have a profitable plant
we fairly share with you in the benefits of a
prosperous plant.
We need your help to first of all prevent a union
from creating more problems and possibly causing us
to lose customers; secondly, to reduce our scrap and
rejects on parts, sub assemblies and finished voltage
regulators; third, to reduce the lost operator time that
we are experiencing; fourth, to reduce waste time and
materials in any form; fifth, to keep the union out so
that we can concentrate on solving the problems.
We urge that you vote "no" for many reasons. The
second important reason is that the union has lied to
you. They say that federal law prohibits collections of
fines by unions. Yet, their constitution-which we
obtained from the U.S. Department of Labor-states
in Article 23, Payment of Fines, sub division 7, section
f. "All fines legally levied or imposed shall be charged
by the financial secretary against the member from
whom due and must be paid by the member involved
to the financial secretary within 30 days." The union
said on March 2 that federal law prohibits collection
of fines. How come their constitution says they can
and will collect fines. They further state in their
constitution, "Members six months in arrears shall be
expelled from membership." Does this union keep a
constitution that is in direct violation of federal law?
Why not ask the organizers to explain this one? If any
of you care to see the constitution, we have a copy
available right here for you to look at and verify this.
Now, who is lying?
Here are some digests of decisions of the National
Labor Relations Board with case citations and dates
which clearly show that the union has deliberately
told you an untruth. In this case, U.A.W. and the
Wisconsin Motor Corp. were involved. The N.L.R.B.
upheld a union's right to fine a member $100 for
exceeding production ceilings established by the
union for piece work. In the next case between the
Steelworkers Union-Pittsburg-Des Moines Steel
Company, the N.L.R.B. held that a union was
justified in suspending an employee from union
membership because the employees had filed a
petition seeking an election to decertify (vote out) the
AUTOMOTIVE CONTROLS 465
union. The union had originally suspended the
employee from membership for 5 years in a plant
where employees had to be members of the union to
keep their job. Also the union had fined the employee
$500 plus the cost of the union 's hearing . The local
union finally dropped the fine when the international
union dictated such action to them upon appeal by the
individual fined but the suspension was enforced ! In
effect, the individual was denied his right to work by
the union in a plant where he had no apparent quarrel
with the company. The N.L.R.B. said the action of the
union was legal !
We urge you to vote "no" for another reason
because again the union has lied to you. They say only
you can vote an assessment . Yet, their constitution
says in Article 11 under Other Fees, Taxes and
Assessments, Section 7-"Subject to applicable law
other fees, taxes, assessments and other charges for
obtaining income for the International Union for any
purpose may be increased, decreased, changed or
added from time to time by the General Convention or
the General Executive Board. Again, we quote from
the union handout of March 2. "Only you by secret
majority vote can cause an assessment ." Have these
union people been telling you the truth?
We urge you to vote "no" because the union has
lied to you in another case. They say that we are
making high profits in this plant. The facts are that to
date we have lost over a half a million dollars. We did
make a small profit in October.
The union has lied to you in another case. They say
that we cannot lay people off if you vote in a union.
We can and will, if necessary, union or no union.
They say that Automotive Controls cannot move if
you have a union . We can move any time it proves to
be an undesirable plant location, whether there is a
union present or not.
All these specific illustrations of where the union
has lied to you should help to convince you that they
are not to be trusted with your welfare, with your job
and with your future. Automotive Controls, on the
other hand, has everything to lose if we lied to you.
We made an investment of over $2,000,000 in this
plant, in its products and in training you. We are
trying to build something for our future prosperity, as
well as yours. By contrast, the union on the other
hand has invested the time of a few men for a few
months. Their whole campaign has cost them very
little but they stand to rake in about $20,000 a year,
every year, from your pay unless they raise your dues
and get even more. It's this combination of union lies,
money grabbing, misuse of union funds, abuse of
union members and the mental and physical anguish
that power made union leaders inflict on their
members individually or en masse as they do by
calling senseless strikes, it is this combination of
union tactics that's caused the unions to decline in
their growth rate, to cause thinking people such as
you to reject unions by a margin of 3 to 1 throughout
our country. That, coupled with 40 years of
experience in treating people right, has caused the
employees of this company not to be members of a
union by a margin of 9 to 1.
If we aren't telling you the truth, we know that you
would vote for a union at the next opportunity and,
frankly, I wouldn't blame you for doing so if we lied to
you. However, the union works on the old Hitler.
Goebbels tactics of telling you lies often enough and
soon people begin to believe it. If they tell you that
you should be unhappy often enough, you will soon
believe you have justification for being so. The
union's primary weapons are to create unrest and
mistrust. If you vote in a union, you can expect more
of this. A vote for a union is a vote that you want to
work in a plant where you don't know from one day to
the next what kind of artificial trouble the union
officials will generate to prove to you how well they
are looking after your interests. If you want to work in
a plant where you can be continuously upset, can
make no plans because you don't know if you will lose
a month or two's income because some power happy
union official wants to throw his weight around, a
plant where it is possible that physical violence and
coercion could take place on the part of the union
members, where they could call a strike, a plant
where you are constantly upset, if this is what you
want, then you should vote for a union.
Frankly, we have more faith in your good judgment
than to expect that that is the kind of working
environment you want. That faith is what led us to
decide to build the plant here.
If you have people calling on you in the next couple
of days saying they are fellow employees and want to
convince you that they and everybody else is for a
union , I hope you will remember that the union
organizers are not above lying to you. We have reason
to believe they are running scared.
Working together and without a union , we can lick
the remaining problems which are largely the result of
having grown too fast in this plant, of having to train
too many people at one time, having to develop new
products, new processes, new methods, new
equipment, tools and dies-all at the same time. With
your help we can make this the best place to work in
this area, much as we have done at our other plants.
We have already provided you with a place to work
that you can be proud of. We have provided working
conditions that are equal to or better than any in the
area. We have provided you with a job that didn't
exist prior to the opening of this plant. We provided
you with a good job security by getting more
customers to buy the products that you make. We
have provided you with an opportunity to earn more
money, based largely on your skills and desire to do
so.
We want to do more and we will, given the time and
your wholehearted cooperation and without the so-
called "help" of the union but we cannot at this time.
What would you do if you had a plant that was losing
money? We want to make this plant a place that is
profitable and where we can all share in the benefits
of a profitable plant by means of improved base rate
wages and fringe benefits. But, first of all, we need to
be able to make a profit. We want to make this plant a
place where your individual needs are carefully
considered rather than a place where a rigid contract
must be applied uniformly without regard for personal
considerations. We ask that you help us to achieve
these goals because they are in your best personal
interests. I ask you to take the first step by voting "no
union." Before you vote I also urge you to take a good
look at the people in this plant who are trying hardest
to persuade you to vote for a union and try to figure
out what these agitators' motives are for wanting a
union . Also, take a good hard look at the union
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizers who have come into this area. What kind of
people are they? What are their morals? Do they lie?
What is their reputation? Do you want these people to
be your personal representative?
It isn't unusual for a union to plant some agitators
from outside the community in a plant that they are
trying to organize or to promise a sizable part of your
dues to some existing employee if they are successful
in getting you to vote in a union.
Take a good look at the hard core union agitators in
this plant and ask yourself what are they trying to get?
Take a good look at them. Generally, don't you find
that they are the extremists in the organization?
Aren't they likely to be either loud, noisy. perpetually
unhappy people who are unhappy with almost
everybody and everything? Aren't they likely to be
highly critical, even of their closest friends? Aren't
they the kind of people who are rarely satisfied, either
at work or at home, and even when they are out trying
to have a good time? Aren't they generally officious,
trying to get their own way and looking down on
everyone else when they can't? Aren't they generally
ruthless in their efforts to get their way, by name
calling. trying to freeze you out of conversation with
others, parties and other kinds of affairs? Aren't they
likely to be bitter in their attitude and talk, biting in
their comments? In short. aren't they chronically and
virtually perpetually unhappy with themselves and
everyone and everything else?
Unfortunately, these same hard core agitators are
usually the ones who wind up representing you if you
vote in a union. They see an opportunity to make
themselves more important in their eyes. to obtain
super seniority over you regardless of the date they
were hired. These same power happy malcontents
may ask you to give them moral support during
negotiations, tf you vote in a union, by having a strike
vote agreed on so that they can better negotiate. Once
you do that. the decision of whether you go out on
strike is up to them because you have already given
your approval. Take a look at the strike history of the
operating engineers on this chart. Or, you may find
that these same agitators due to their attitude of being
highly critical and unhappy even under the best
conditions may decide to call a wildcat strike or a
walkout whether you like it or not. Many good
employees under this situation will go along, just
because they don't want to make any more trouble for
themselves
The turmoil and conflict that these union organizers
and agitators have created in the past couple of
months is only a sample of what you can be subjected
to if you vote a union into this plant. The strained
relations it has caused in this plant , even between
friends, can get even worse with a union Remember
the union and its agitators thrive on conflict. We don't
think this is the way you want this plant. We urge you
to vote "no union."
Ask yourself if you want the union agitators
representing you and to have power over you-power
over how much you can earn on incentive-power to
fine you if you are not in their favor-power to make
your presence in this plant miserable if you don't keep
their friendships-power to force you to strike since
they are the only legal representatives the company
can deal with if you vote in a union-power to bypass
you if you are out of favor with them-power to
withhold any help you may want unless you agree with
them-power to create a good deal of mental and
physical anguish if you don't follow the union line.
There really isn't any need to subject yourself to the
use of such power. 75% of the U.S. working force have
decided they don't want this kind of power used on
them and consequently they don't belong to a union.
90% of our employees know that they don't need a
union nor do they want one because we are fair with
them We know how to work together. We ask you to
help us in order to help yourself.
Please vote "no union" by marking the "no" box on
the ballot.