Brake Parts Co.

National Labor Relations Board - Board Decisions

Aug 28, 1969

178 N.L.R.B. 247 (N.L.R.B. 1969)

BRAKE PARTS CO.
Brake Parts Company and United Automobile,
Aerospace and Agricultural Implement Workers of
America . Cases 38-CA-506, 38-RC-516, and
38-R M-41
August 28, 1969
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On April 18, 1969, Trial Examiner Herbert
Silberman issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found that Respondent had not engaged in
certain other unfair labor practices as alleged in the
complaint and recommended that those allegations
be dismissed. Additionally, the Trial Examiner
recommended that objections to the election held on
June 21, 1968, be overruled, and that the results
thereof be certified.' Thereafter, General Counsel,
Respondent, and the Petitioner-Charging Party filed
exceptions to the Trial Examiner's Decision and
supporting briefs. General Counsel and the
Respondent also filed briefs in support of certain
portions of the Trial Examiner's Decision.
Subsequently, Respondent filed a brief in reply to
the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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 these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner to the extent consistent herewith.
For reasons set forth in the Trial Examiner's
Decision, we agree with the Trial Examiner that
Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees about their union
sympathies, threatening employees, and creating the
impression that employee union activities were
under surveillance. We also agree with the Trial
Examiner's finding that Respondent's refusal to
consider an employee for reemployment because an
unfair labor practice charge was being processed in
'None of the violations found by the Trial Examiner occurred during the
critical period preceding the election
247
her behalf constituted a violation of Section 8(a)(1),
(3), and (4) of the Act. For reasons set forth below,
however, we find merit in the General Counsel's and
Charging Party's exceptions to the failure of the
Trial Examiner to find that Respondent discharged
employee Butcher in violation of Section 8(a)(1) and
(3) of the Act.
The facts show that Butcher began working for
Respondent in June 1967.1 At that time Respondent
had a procedure requiring the quarterly review and
evaluation of the work performance of first year
employees. At about the time Butcher completed his
first 3 months with the Company, he was granted a
wage increase despite the opinion of his superiors
that Butcher's performance was not satisfactory.
During the following 3 months Butcher was not able
to learn to operate the number of machines expected
of him and this was stated to him as the reason for
his exclusion from the normal wage increase at the
end of his first 6 months with the Company.
Nevertheless, Respondent gave Butcher another
opportunity to try to learn to operate more
machines. By the time Butcher's 9-month review
approached, Butcher was able to operate the "4
Kingsberry" machine, although he had not mastered
certain other equipment.
Meanwhile, after receiving inquiries from other
employees concerning possibilities of unionization,
Butcher, around the first of March, contacted the
Union and obtained 50 authorization cards which he
promptly distributed at the plant. Shortly thereafter
he passed out a substantial number of additional
cards.
On or about March 13 Personnel Manager Caruk
approached employee Carol Erickson and asked if
she was passing out the Union cards. Erickson
denied engaging in any such activity, whereupon
Caruk then asked if she knew who was passing out
the cards. She replied it was Willis Butcher.
On March 14, 1 day before the end of the
workweek and shortly before Butcher was due for
his third quarterly review and evaluation, he was
discharged.' Respondent contends that at about this
point, it had concluded Butcher was not going to
develop into a satisfactory employee and should be
terminated.
In our opinion, Respondent's explanation that
Butcher was discharged because of incompetence is
not reflective of the true motivation underlying
Butcher's discharge. The background evidence
clearly establishes that Respondent early learned of
the organizational attempts of its employees and
immediately displayed hostility toward unionization.
Thus, as the Trial Examiner found, Respondent,
'All dates, unless indicated otherwise , are 1968
'Respondent has in some instances transferred employees to less
demanding jobs when they have appeared incapable of mastering more
demanding ones . Respondent contends it nevertheless declined to offer
Butcher an opportunity to transfer in light of the fact that throughout his
employment , Butcher' s conduct toward female employees had been subject
of numerous complaints Additionally , Respondent contends any transfer
would have involved a substantial reduction in pay for Butcher
178 NLRB No 43
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
during the period considered, unlawfully
interrogated employees concerning their union
activities and the identity of union adherents,
created the impression that employee organizational
activities were under surveillance, and threatened to
discover who was working for the Union. By its
unlawful interrogation of employee Erickson,
Respondent, on the day prior to his discharge,
discovered that Butcher was spearheading the union
drive. And, after Butcher's discharge, group leader
Wardell told an employee that Butcher was
discharged because authorization cards had been
found in his toolbox.
While Respondent contends Butcher was fired
because of substandard work performance in
general , it nevertheless terminated Butcher
precipitously before the expiration of the workweek
and shortly before Butcher was due his third
quarterly review and evaluation. As the record
reveals Butcher had engaged in no specific
indiscretions which might reasonably have justified
his discharge prior to the expiration of the
workweek and without the hiring of a replacement,
and as the only intervening event prior to the
discharge was Respondent's discovery of Butcher's
union activities, we are convinced that Respondent
seized upon Butcher's poor work record as an
opportunity to rid itself of an active prounion
employee. Accordingly, we find that Butcher's union
activities were a substantial motivating factor for his
discharge, and that by so discharging Butcher,
Respondent violated Section 8(a)(3) and (1) of the
Act.'
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and take certain
affirmative action designed to effectuate the policies
of the Act.
As we have found that Respondent engaged in an
additional unfair labor practice by discharging
Willis Butcher, we shall order that Respondent offer
to Butcher immediate reinstatement to his same or
substantially equivalent position, with full
restoration of seniority and/or other benefits he
would have enjoyed had he not been discriminated
against .' Accordingly, we shall also order that
Respondent make Butcher and Hosch whole for any
wages lost because of the discrimination with
backpay computed in the manner set forth in F. W.
Woolworth Company, 90 NLRB 289, plus interest
at 6 percent per annum as prescribed in Isis
Plumbing & Heating Co., 138 NLRB 716.
'Member Zagoria agrees with the Trial Examiner that the General
Counsel has not established Respondent' s discriminatory motivation in
discharging employee Butcher Member Zagoria would , therefore, affirm
the Trial Examiner ' s dismissal of the 8(a)(3) allegation regarding Butcher
'As we adopted the Trial Examiner ' s finding that Respondent refused to
consider Sharon Hosch for reemployment in violation of Sec 8(aXi), (3),
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Brake Parts Company, McHenry, Illinois, its
officers, agents, successors, and assigns, shall take
the following action:
1 Cease and desist from:
(a) Discriminating against any employees or
applicants for employment because such employees
or applicants have filed charges or have given
testimony under the National Labor Relations Act,
as amended, or because charges were filed on behalf
of such persons.
(b) Discouraging membership in United
Automobile, Aerospace and Agricultural Implement
Workers of America, or any other labor
organization of its employees, by discriminating
against applicants for employment or against its
employees in regard to their hire, tenure of
employment, or other terms or conditions of
employment or discharging employees because of
their union activities.
(c) Threatening to, or conveying the impression
that it will, spy upon or otherwise engage in the
surveillance of the union activities of its employees.
(d) Coercively interrogating its employees
regarding their, or other employees', union
membership or activities and implying that
employees involved with the Union will be fired.
(e) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed to them by Section 7 of the
Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Offer Sharon Hosch immediate employment
without prejudice to any seniority or other rights or
privileges she might have acquired, and make her
whole for any loss of earnings she may have suffered
by reason of the unlawful discrimination against her,
subject to the limitations set by the Trial Examiner
and in the manner set forth in the section of this
Decision entitled "The Remedy."
(b) Offer to Willis Butcher immediate and full
reinstatement to his former or substantially
equivalent position without prejudice to his seniority
and/or other privileges and make him whole for any
loss of earnings he may have suffered as a result of
the discrimination against him in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
and (4 ) of the Act, we accordingly adopt the Trial Examiner's
recommendation that she be offered employment and be made whole in
accordance with the recommendations of the Trial Examiner
BRAKE PARTS CO.
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and
copying, all payroll records, social security payment
records, time cards, personnel records and reports,
and all records relevant to a determination of the
amount of backpay due to Sharon Hosch and Willis
Butcher.
(e) Post at its plant in McHenry, Illinois, copies
of the attached notice marked "Appendix."6 Copies
of said notice, on forms provided by the Regional
Director for Subregion 38, after being duly signed
by its authorized representative, shall be posted by
the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director for Subregion 38,
in writing, within 10 days from the receipt of this
Decision, what steps the Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint in Case
38-CA-506, be dismissed insofar as it alleges that
Brake Parts Company has engaged in any unfair
labor practices other than the conduct specifically
found to have constituted violations of Section
8(a)(1), (3), and (4) of the Act.
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for United Automobile,
Aerospace and Agricultural Implement Workers of
America in Cases 38-RC-516 and 38-RM-41, and
that said organization is not the exclusive
representative of the employees in the unit herein
involved, within the meaning of Section 9(a) of the
National Labor Relations Act, as amended.
`In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the worsts "a Decision and
Order" the words "a decree of the United States Court of Appeals
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
THIS NOTICE IS POSTED BY ORDER OF THE NATIONAL
LABOR RELATIONS BOARD
After a trial at which all sides had the chance to give
evidence, the National Labor Relations Board found that
we, Brake Parts Company, violated the National Labor
Relations Act, as amended, and ordered us to post this
notice and to keep our word about what we say in this
notice
The law gives you the right.
To form, join or help unions
249
To choose a union to represent you in bargaining
with us
To act together for your common interest or
protection
To refuse to participate in any or all of these
things
The Board has ordered us to promise you that:
WE WILL NOT interfere with your rights.
WE WILL NOT discourage membership in United
Automobile, Aerospace and Agricultural Implement
Workers of America, or any other labor organization,
by refusing to hire applicants for employment or by
discharging or otherwise discriminating against any of
our employees in regard to their hire, tenure of
employment, or any term or condition of their
employment because of their union activities.
WE WILL NOT discriminate against any employee or
applicant for employment because such employee or
applicant has filed charges or has given testimony under
the National Labor Relations Act, as amended, or
because charges were filed on behalf of such person.
WE WILL NOT threaten to, or convey the impression
that we will, spy upon or otherwise engage in the
surveillance of the union activities of our employees.
WE WILL NOT question any of our employees about
their union membership, sympathies, attitudes, or
activities or about the union sympathies, attitudes, or
activities of other employees, or convey the impression
that employees will be fired for union activities.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization, to form labor
organizations, to join or assist the above-named Union
or any other labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
WE WILL offer Sharon Hosch employment in our
machine shop, without prejudice to her seniority and
other rights and privileges, and we will make her whole
for any loss of earnings she may have suffered by
reason of our unlawful discrimination against her.
WE WILL offer Willis Butcher full and immediate
reinstatement to his former or substantially equivalent
position without prejudice to seniority and other rights
he previously enjoyed and we will also make him whole
for any loss of earnings he may have suffered as a
result of our unlawful discrimination against him.
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
Dated By
BRAKE PARTS COMPANY
(Employer)
(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
Any questions concerning this notice may be directed to
the Board's Subregional Office, Fourth Floor, Citizens
Building, 225 Main Street, Peoria, Illinois 61602,
Telephone 309-673-9282
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION AND
REPORT AND RECOMMENDATIONS AS TO
OBJECTIONS TO AN ELECTION
STATEMENT OF THE CASE
HERBERT SILBERMAN, Trial Examiner These consolidated
proceedings were heard at Waukegan, Illinois, on various
days between September 18 and December 11, 1968 All
parties were represented at the hearing by counsel, who
thereafter filed briefs, which have been carefully
considered
The Pleadings
The complaint, in Case 38-CA-506, dated July 31,
1968, is based upon a charge filed on June 20, 1968, by
United Automobile, Aerospace and Agricultural
Implement Workers of America, herein called the Union
As amended, the complaint alleges that Brake Parts
Company, herein sometimes called the Company or the
Respondent, has engaged in and is engaging in unfair
labor practices within the meaning of Sections 8(a)(l), (3),
and (4) and 2(6) and (7) of the National Labor Relations
Act, as amended. In substance, the averments of the
amended complaint are that (a) On March 14, 1968, the
Company discriminatorily discharged Willis Butcher
because he joined or assisted the Union, (b) for the same
reason, on April 26, 1968, the Company constructively
discharged Sharon Hosch by refusing her request for
transfer to an available job after the third shift, to which
she had been assigned, was eliminated; (c) the Company
further discriminated against Sharon Hosch on and since
September 16, 1968, by refusing to reinstate her in her
former or in a substantially equivalent position because
the Union filed a charge on her behalf in the instant case
and because she gave testimony in support thereof; and (d)
by reason of the foregoing and other conduct therein set
forth, the Company has interfered with, restrained, and
coerced employees in the exercise of the rights guaranteed
to them by Section 7 of the Act. Respondent's answer
generally denies the allegations of the complaint
With respect to the representation proceedings, Cases
38-RC-5 16 and 38-RM-41 Petitions having been filed on
May 8 and 10, 1968, and a stipulation for certification
upon consent election having been approved by the
Regional Director on May 24, 1968, an election was
conducted under the supervision of the Board on June 21,
1968, in the following unit
All production and maintenance employees at the
Employer's McHenry Illinois Plant, excluding office
clerical employees, professional employees, guards, and
supervisors as defined in the Act.
The tally of ballots shows that, of approximately 189
eligible voters, 60 votes were cast for the Union, 100 votes
were cast against the Union, and 10 ballots were
challenged
On June 26, 1968, the Union filed timely objections to
conduct affecting the results of the election After an
investigation of the objections the Regional Director, on
August 7, 1968, issued his report thereon. The report
shows that there are substantial and material credibility
issues raised by the objections and that the objections
include allegations which are encompassed by the charges
filed in Case 38-CA-506. The Regional Director,
therefore, issued an order directing a hearing with respect
to the objections, authorizing consolidation of said hearing
with the hearing in Case 38-CA-506, and directing the
Trial Examiner designated to hear said cases to prepare
and to cause to be served on the parties a report
containing resolutions of the credibility of witnesses,
findings of fact, and recommendations to the Board as to
the disposition of the issues in the representation
proceedings, and further directing that Cases 38-RC-516
and 38-R M-41 be transferred to and continued before the
Board An order consolidating said cases was issued on
August 8, 1968
Upon the entire record in the cases and from my
observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
1 THE BUSINESS OF THE COMPANY
Brake Parts Company, an Illinois corporation,
manufactures automotive replacement parts at its plant
located in McHenry, Illinois During the 12 months
preceding the issuance of the complaint, which period is
representative of the Company's business activities, the
Company sold and shipped from said plant finished
products valued in excess of $50,000 to points outside the
State of Illinois and purchased and caused to be
transferred to its said plant goods and materials valued in
excess of $50,000 from States other than the State of
Illinois Respondent admits, and I find, that it is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTIONABLE CONDUCT
A. Introduction
These cases have their roots in an organizational effort
which began March 1968, and which the Company
vigorously opposed An early leader in the campaign was
Willis Butcher, who was discharged on March 14, 1968
The complaint alleges that he was fired because of his
union activities. On April 27, 1968, the employment of
Sharon Hosch was terminated. She also had been in the
forefront of the organizational drive and the complaint
alleges that she was constructively discharged because of
her union activities The defenses to the discharges are
that Butcher was terminated because he was an
unsatisfactory employee and that Hosch, who worked on
the third shift, rejected a transfer to another shift when
the third shift was discontinued and, therefore, quit her
employment The complaint also alleges that since
September 16, 1968, the Company has further
discriminated against Mrs Hosch because the Union had
filed unfair labor practice charges on her behalf.
Representation petitions were filed on May 8 and 10,
1968, by the Union and the Company, respectively
Thereafter, the parties entered into a Stipulation for
Certification Upon Consent Election, pursuant to which
an election was held on June 21, 1968 The Union lost the
election by a decisive margin It then filed objections to
BRAKE PARTS CO.
conduct affecting the results of the election and the
Regional Director , following an investigation and the
issuance of a report , directed that the issues raised by the
objections be tried at the instant hearing . In accordance
with established policy only conduct on the part of the
Company occurring between May 8, when the first
petition was filed, and June 21, when the election was
held, may be considered as a basis for sustaining the
objections ' As none of the conduct which I find was
objectionable took place during this period, I shall
recommend that the objections to the election be
overruled.
During the times material hereto the Company
operated three shifts. On April 27, 1968, the third shift
was virtually eliminated and the employees then working
on that shift were offered jobs on the first and second
shifts. The elimination of the third shift is not alleged to
have been discriminatory although in connection therewith
the complaint alleges that Sharon Hosch was unlawfully
terminated.
Respondent is a subsidiary of Echlin Manufacturing
Company The following persons, who appeared as
witnesses or are referred to in the record, are supervisors
within the meaning of the Act and agents of the
Respondent-
Frederick Mancheski -- President , Echlin Manufacturing
Company
Donald P.Miller--Vice President, Echlin Manufacturing
Company, in charge of personnel and industrial
relations
William Knoth -- Plant Manager at McHenry plant
which is the only facility involved in this case
Kenneth Heinbuck-Production Manager
Frank Caruk--- Division Person nel'Manager at McHenry
plant
Martin Olliges -- Assistant Personnel Manager
Milton McHale- Machinery Supervisor
Wayne Moore Second Shift General Foreman
Samuel Neely -- Foreman
Joseph W. Adelt--Division Manager at McHenry plant
Donald Eugene Henderlong -- Superintendent of rubber
area.
There is an issue as to whether Harold Wardell is a
supervisor within the meaning of the Act and whether
conduct on his part, alleged to have been unlawful, may
be attributed to the Respondent.
During the times material hereto Harold Wardell was
the group leader and setup man on the first shift in the
rubber trim department, which is composed of 20 women
and Wardell This department and the rubber mold
department are supervised by Donald Eugene Henderlong,
superintendent of the rubber departments. Approximately
100 employees work under Henderlong's direction
Henderlong testified that no supervisor is assigned to the
rubber trim department other than himself, but two
foremen, Ed Murphy and George Loesser, are supervisors
in the rubber mold department These foremen, who are
paid on a salary basis, supervise the first and second
shifts, respectively, and divide between themselves the
supervision of the third shift
Unlike Foremen Murphy and Loesser, Harold Wardell
is paid on an hourly basis, punches a timeclock, and wears
dungarees and a work shirt at work. According to
'Goodyear Tire and Rubber Co . 138 NLRB 453, Green Bay Aviation,
Inc. 165 NLRB No 137
251
Henderlong, Wardell spends 75 percent of his time either
setting up machines or operating machines , and does not
attend supervisors' meetings
On the other hand, the character of Wardell's work
differs from that of the women in the rubber trim
department. Although Wardell does manual work, he also
uses a desk which is located in the department.
Admittedly, Wardell superintends the women in the
department. But the question is whether his authority is
merely of a routine nature or is sufficiently responsible to
meet the statutory definition of "supervisor." Wardell
regularly assigns the women to machines other than the
particular ones which they normally operate He usually
makes such assignments when employees ' machines are
broken or when the production schedule does not call for
the use of the particular machines. Wardell also directs
employees regarding the parts they are to fabricate in
order to meet production schedules.' In addition, Wardell
excuses employees from work. Thus, Dorothy Hanson
testified that on one occasion when she felt ill Wardell
gave her permission to leave. Jeanne Hocin testified that
she considers Wardell her immediate supervisor, and on a
very hot day she and two other employees were given
permission by Wardell to leave work at midday.'
Wardell is also responsible for preparing various
reports. He fills out production reports by transcribing
production information from the job cards which are filled
out by the machine operators to other forms which are
turned in to the production control department
Henderlong testified that Wardell may also keep
attendance records with respect to the employees in the
rubber trim department although there is no specific
requirement that he do so. More importantly, Wardell
grades aspects of the employees' performance, which
grades are used in establishing the employees' production
bonus In doing this, Wardell fills out forms containing a
number of questions. With respect to each question,
Wardell indicates whether the employee's performance is
normal, above normal, or below normal. Jeanne Hocin
testified that on two separate occasions Wardell called her
to his desk and showed her the scores which he gave her
on the performance questionnaires. Dorothy Hanson
testified that on one occasion Wardell told her not to look
for a raise because she would not get one. After Wardell
completes each performance grading sheet he turns it over
to Henderlong. The latter testified that he then evaluates
each employee himself. However, Henderlong did not
testify as to how frequently he changes Wardell's ratings
and was unable to remember when he last made any such
change.
Respondent contends that Wardell is not a supervisor.
It argues that those supervisory tasks which Wardell
performs are merely routine, clerical, perfunctory, or are
sporadically exercised and do not require the use of
independent judgment. This characterization cannot apply
to the employees' performance ratings which Wardell
prepares. His evaluations are usually adopted by
Henderlong and Wardell is sufficiently confident that they
will be accepted that, from time to time, he discusses with
'Sharon Hosch testified that Harold Wardell, on two different occasions,
informed her that her requests for overtime work had been turned down
As it is not clear from her testimony that the decisions had been made by
Wardell, I find that Hosch 's testimony does not establish that Wardell has
authority to "assign" overtime work or to make effective recommendations
in regard thereto
'Hocm gave testimony purporting to show that Wardell exercises
authority to hire and to discharge employees I find that her testimony
does not demonstrate that Wardell has such authority
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees the ratings he has given them. Thus, despite
Henderlong's testimony that the latter personally
evaluates each employee, I find that Wardell has authority
to make effective recommendations with regard to the
employees' performance ratings. As such ratings have a
direct influence upon the production bonuses which the
employees earn, I further find that Wardell has authority
effectively to recommend the reward of other employees,
as such term is used in Section 2(1 1) of the Act.
Furthermore, Wardell's authority to transfer employees
from machine to machine, to direct them to do specific
work, and to release them from their work, while not
requiring managerial skill of an high order, in the
circumstances here, is not a routine function The
direction of the rubber trim department is only one of
several facets of Henderlong's responsibilities
Significantly, Henderlong did not testify as to how
accessible he is to the employees in the department. If
Wardell is not a supervisor then Henderlong is indeed a
very busy man. In addition to the overall supervision and
direction of both the rubber mold and the rubber trim
departments on all shifts, Henderlong then also exercises
detailed supervision over the first shift of the rubber trim
department. It is improbable that he has the time to do
that. Similarly improbable is that a department of 20
employees would be permitted to function without
effective day-to-day supervision As there is no
intermediate supervisor between Henderlong and Wardell
the responsibility for the direction of the daily work
activities of the employees in the rubber trim department
must be lodged with Wardell. Although Harold Wardell
voted without challenge in the June 21, 1968, election, I,
nevertheless, find that he is a supervisor within the
meaning of the Act.
B. Interference, Restraint , and Coercion
I By Harold Wardell
In mid-March, within a week after the discharge of
Willis Butcher, Dorothy Hanson, an operator of a femco
machine in the rubber trim department, was approached
by Wardell who said that he would like to find out who
was going to be the union steward or stewardess.' Hanson
responded that there was no union . Wardell then said,
"[D]idn't you know that Butcher was fired because .. .
they found these union cards in his tool box?"
Hanson further testified that on another occasion in
mid-April, Wardell "told me that if he finds out who was
involved with the union , or has anything to do with the
union, he said they would get nothing but scrap, and
they would be fired "'
'Respondent argues that "the statement by Wardell does not assume the
form of a question and, therefore, cannot constitute unlawful interrogation
Wardell has merely stated that he would like to find out who the steward
would be He has not asked what employees are for the Union or what
employees are helping to organize the Union " I find no merit to this
argument However phrased , Wardell's remark to Hanson sought to elicit
from her the name of the union steward See King Chrysler-Plymouth.
Inc, 174 NLRB No 80
'On cross-examination , Hanson acknowledged that in the pretrial
affidavit she gave to a representative of the National Labor Relations
Board she did not use the word "scrap" but the word "boots " A boot is a
part that is cut on the femco machine . I find that Hanson was not a
completely reliable witness Nevertheless , particularly in the absence of any
contradiction , I credit her testimony concerning her conversations with
Wardell
Edward Schultz, who does machine maintenance work,
testified without contradiction that about March 14, while
he was checking a femco machine, Wardell came to him
and "just asked me do I know anybody who belongs to
the union who has been giving [out] cards " Schultz
answered, "Don't ask me."
Also, in mid-March, Wardell, who had joined a group
of female employees at a table in the cafeteria during a
break period, "said that he had heard the union was
trying to get in, and that he was going to have to try and
find out who was working for it, because he wanted to get
on the good side of whoever it was so he wouldn't get into
any trouble with the union steward."
Wardell's threat directed to Hanson that anyone
involved with the Union would be fired and his statement
to Hanson that Butcher had been fired because union
cards had been found in his toolbox were coercive. Also,
the interrogation of employees by Wardell was unlawfully
coercive. Questioning Hanson as to who was going to be
the union steward in the context of a conversation in
which she is advised that another employee had been fired
because union cards had been discovered in his toolbox
would tend to cause her to apprehend that the Company
was seeking to identify the employees who support the
Union in order to discharge them or otherwise subject
them to its resentful reprisals. Furthermore, the speech by
Donald Miller, the Company's labor relations director,
made to the employees on May 2, hereinafter discussed,
reveals the Company's implacable opposition towards the
Union. Although the speech was made after the
interrogation of Hanson the implications which attach to
Wardell's conduct become significantly more sinister when
the Company's hostility to the Union is later dramatized
to the employees by an important management
representative. Also, in the circumstances described, the
inquiry made of Schultz and the threat of surveillance
made to the group of female employees in the cafeteria
were coercive. "The fact that such interrogation [and
threat may have been] made in a casual manner during a
friendly conversation does not lessen its unlawful effect."
Abex Corporation - Engineered Products Division, 162
NLRB 328, 329.
I find that the above-described threats made by Wardell
to Hanson and Wardell's questioning Hanson and Schultz
as to the identity of the union steward, who was working
for the Union and who had been giving out union cards,
and his threat to a group of employees that he was going
to find out who was working for the Union, constituted
interference with, restraint, and coercion of employees in
violation of Section 8(a)(1) of the Act
2. By Frank Caruk
Employee Carol Erickson testified that on March 13 or
14 Personnel Manager Frank Caruk came to her and
inquired whether she was passing out union cards. She
denied that she was engaged in such activity and Caruk
asked her whether she knew who was passing out the
cards. She replied that it was Willis Butcher. This
conversation occurred the day before Butcher was
discharged." I find that this incident constituted a violation
'I credit the above testimony by Carol Erickson despite Caruk 's denial
Barbara Erickson testified that the day before Willis Butcher was fired she
received a union authorization card from him She further testified that
Jerry Doyle, whom she identified as an industrial engineer for the
Company, observed her in possession of the card and told her he would not
tell Caruk As there is no proof that Doyle was a supervisor, or had
transmitted his knowledge about Erickson ' s possession of the union card to
BRAKE PARTS CO.
of Section 8(a)(1) Such interrogation by the personnel
manager who is charged with implementing the
Company's employee relations policies, which
subsequently were advertised as hostile to the Union,
would tend to intimidate employees and to place them in
fear that Caruk's purpose was to identify the union
supporters in order to limit by discharge or other means
their organizational opportunities The fact that the
interrogation may have preceded the Company's
pronouncements of opposition to the Union does not
attenuate the unlawful effect of the interrogation At
most, it merely delayed the time when the impact of the
interrogation made itself fully felt
3 By Donald P Miller
Considerable testimony was adduced regarding a speech
which Donald P Miller, vice president of Echlin
Manufacturing Company, the parent corporation of the
Respondent, in charge of personnel and industrial
relations, made to the employees' Miller testified that he
delivered the speech on May 2 from a written text which
he had prepared in advance and that he did not deviate
from the text of the speech A copy of the text of the
speech is attached hereto as Appendix A. Miller's
testimony that he read the speech to the employees exactly
as written was corroborated by several witnesses called by
Respondent On the other hand, witnesses for the General
Counsel testified that during the speech Miller made
statements which do not appear in the prepared text and
some of General Counsel's witnesses testified that the
speech took place later than May 2 1 credit Miller and
find that the text of the speech which was introduced in
evidence by Respondent was delivered by him verbatim to
groups of Respondent's employees on May 2, 1968
The speech is a clear undisguised expression of
opposition to the Union More than that it reflects
Respondent's unmistakable hostility to the Union. For
instance, in the opening paragraph Miller says.
"Unfortunately, this visit is not for a pleasant purpose .
[Y]ou will remember us discussing this ugly subject
before . I have come up here to talk to you about a
very serious matter -the future well being of this plant and
your jobs " The balance of the speech continues the same
theme of emphasizing Respondent's indignation because of
the Union's organizing campaign and of prognosticating
the dire consequences which would likely follow the
Union's success As an example, for following appears in
his speech, "our shareholders will send us a big padlock
and we're out of business " As Miller testified, the speech
was carefully prepared and rehearsed The text reflects an
obvious intention to discourage and frighten the employees
from supporting the Union. Miller and those who may
have assisted him, if any, in preparing the speech were
seeking to skirt the line of legality without overstepping
the bounds of permissible campaign propaganda It is not
surprising that employees may have misinterpreted
precisely what Miller said and understood him to have
made the direct threat that the Company would go out of
business if the Union were to be successful in its
organizing campaign However, absent latent or patent
ambiguities the lawfulness or unlawfulness of the speech
must be judged not upon the interpretation placed upon it
by the audience who heard it but upon the language that
any member of management , t find no significance in the foregoing
testimony of Barbara Erickson
'Miller delivered the speech to three different groups of employees on
the same day
253
was used. I am of the opinion that the speech does not
violate Section 8(a)(1) of the Act'
General Counsel in his brief does not contend that the
written speech Miller claims to have delivered was
unlawful but argues that statements attributed to him by
General Counsel's witnesses and denied by Miller were
unlawful I have resolved this conflict in favor of Miller
Charging Party argues that two portions of the speech
as Miller claims to have delivered it were unlawful. First,
Charging Party refers to the following
Another way they may have lied to you about those
[authorization] cards is by saying no one will ever know
if you signed one Many times employees have to get
on the witness stand in open court and swear under
oath that you signed a card.
According to Charging Party, "[t]he statement is offensive
because it is a threat. The secrecy of an employee
signature which is basic to the purposes of the Act is
being undermined The Company is threatening the
employees and telling them that their secrecy will be
invaded The Company is saying, ` if you sign this card we
may find out about it ' This is intimidation and a
big-brother-is-watching-you attitude which is inimical to
the purposes of the Act " I do not agree with this
argument While the quoted statement may cause
employees to become apprehensive about signing an
authorization card, Miller did no more than describe what
in fact has happened in other situations'
Second, Charging Party refers to the following
Furthermore, if you did sign one [union
authorization card] without knowing all the facts, you
have a legal right to get it back by asking for it We
intend to protect your legal right, so if you ask for your
card and it is not immediately returned to you, we want
to know If they refuse to give back a card, we can
have it invalidated legally for you [Emphasis supplied ]
Charging Party argues that "[t]he Company is thus
volunteering legal services for its employees The
Company is also interjecting itself into the
employee-union dialogue Having informed the employees
earlier that their signature on the union card might be
disclosed to the Company, the Company now says, `We
want to know ' This goes beyond making arguments in an
election campaign. The Company is seeking information
about who is against (and who is for) the Union And the
Company is offering aid to those who support its position.
The Company is saying that it can get the card back, and
is offering to assist the employee in doing so Suppose the
shoe was on the other foot and the Company were
assisting the Union in signing the cards Surely this would
be illegal. By the same token, this offer to undermine the
Union's accumulated strength, particularly when coupled
with the other practices of the Company, was a violation
of the Act. Furthermore, it is a particularly reprehensive
form of interrogation."
While I am not unsympathetic with the Charging
Party's argument and believe that this portion of Miller's
speech, as well as other portions, is dust a hairline away
from infringing upon employees' protected rights,
nevertheless, I find that the quoted three sentences do not
violate the Act. Essentially Charging Party's contention is
As the speech was delivered before the representation petitions were
filed, it is unnecessary to consider whether it contains sufficient distortions
of law and of facts to have influenced unfairly the results of the election,
or whether it was cleverly phrased to mislead inattentive listeners
'Cf R J Reynolds Foods. Inc . 168 NLRB No 47 , Forenta , Inc, 165
NLRB No 74, Safeway Cabs, Inc, 146 NLRB 1334
254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the quoted language is a subtle form of unlawful
interrogation and in addition is an unlawful attempt to
involve itself in employee-union dealings
As the speech was made to relatively large groups of
employees, no individual employee was under any
compulsion to respond either then or later and there is no
evidence that any employee did respond or that the
Company at any later date sought to obtain information
from any employee about requests for the return of
authorization cards Even if the phrase, "we want to
know," is interpreted not as a rhetorical expression, but as
a request to the employees, the Company was not asking
for information which would identify the union adherents
(only those-which necessarily would not be many-who (I)
voluntarily tell the Company that, (2) they had asked for
the return of their authorization cards, and (3) had been
refused would be identified) so there was no sound basis
for employees to believe that the Company was seeking
the requested information in order that it might engage in
reprisals against those who were supporting the Union.'°
Charging Party cites no case in support of its argument
that by the quoted language the Company was unlawfully
interjecting itself into the "employee-union dialogue "
Perhaps an employer who takes action to compel a union
to return an employee's authorization card, even if the
employer takes the action at the employee's request,
violates Section 8(a)(1) of the Act because by so doing the
employer infringes upon the right of the employee to join
or assist a labor organization or to refrain from joining or
assisting a labor organization without interference, well
meaning or otherwise, from his employer " However, in
this case, there is no evidence that the Company took any
such action Miller merely advised the employee that the
Company was ready to act for them if asked Not having
been asked the Company did not act and therefore did not
engage in the potentially unlawful conduct."
4 By Frederick Mancheski
On the day before the election Frederick Mancheski,
president of Respondent's parent corporation, who earlier
had made a speech to the employees, greeted Dorothy
Hanson as he walked by her machine She took advantage
of the opportunity to engage him in a conversation about
the employees' production bonus According to Hanson,
"And I wanted to find out whether or not if they were
going to change back to the weekly bonus, and wanted to
find out if it could be done, and I spoke to him, and I
asked him, I said, 'Mr Mancheski, is there anything you
could do about it') Did you know that is why the people
are against the company and more for the union, was
because on account of it took their weekly bonus away
and gave the three months ""' According to Hanson's
further testimony, "He said, yes, there was something he
could do about it, and I asked him what could be done
He said he could change it at any time he wanted to, and
I said, any time, and he said yes And I says, 'Even before
the election)' He said, 'Yes, it could be changed right
now, if it would . please the people and bring them, the
people, for the company instead of the union "'
"I do not believe that the clause in the speech , " if you ask for your card
and it is not immediately returned to you, we want to know," can be
interpreted as a device for indirectly polling the employees as to whether or
not they support the Union
"But see Leeds and Northrup Company. 155 NLRB 1292
"1 credit Miller's denial of testimony by Patricia Strong that in April , in
the presence of other employees , Miller interrogated her about the Union
and who was supporting the Union
Hanson had raised the same subject with Donald P
Miller on two earlier occasions 1d The first time she spoke
with Miller was on May 2, after his speech to the
employees, and the second time was on the same day or
the day before she spoke with Mancheski On both
occasions Miller refused to talk to her about the subject
explaining that his remarks might be construed to be an
unfair labor practice " According to Hanson's further
testimony, there has been no change in bonus either before
or after the election 16
This incident is relied upon to support the allegation
that the Respondent promised its employees economic
benefits to induce them to reject the Union. Respondent,
however, argues that even accepting Hanson's version of
the event, Mancheski did not make any promise of
benefit According to Respondent, "When asked by
Hanson if he could do anything about the bonus system,
he responded, in effect, that he, being president of the
corporation, could, if he desired to, change the bonus
system. He did not make any statements which indicated
in any way that he had any desire or plans to change the
bonus system."" Respondent argues further, "Mancheski,
being president of the corporation, could obviously change
the bonus system if he wanted to, and it would have been
inaccurate and unconvincing for him to tell Hanson that
he could do nothing about it."
A second argument advanced by Respondent is that
Hanson's further question to Mancheski, namely, whether
the bonus could be changed prior to the election, "clearly
indicates that Hanson's purpose in asking the question
was to attempt to entrap Mancheski into committing an
unfair labor practice." Hanson had twice been advised by
Miller, the last time only shortly before her conversation
with Mancheski, that he could not discuss the bonus
question with her because his remarks might be construed
to be an unfair labor practice Nevertheless, Hanson
addressed the same questions to Mancheski While these
facts may not spell out a conscious purpose to entrap the
Company into committing an unfair labor practice, they
reflect the fact that, despite earlier failures, Hanson
persisted in her attempt to elicit a favorable promise from
some responsible representative of the Company. If as a
result an official finally makes an unguarded remark, it
would be exaggerating the effect of such remark to
characterize it, as General Counsel and Charging Party
seek to do, as unlawful interference with employees'
protected rights Mancheski did not promise that he would
change the frequency of the bonus payments In the
circumstances described, there is no warrant to stretch the
remark attributed to Mancheski by Hanson as a veiled
promise that the change in bonus payments would be
"Her reference is to a change in the frequency of payment of the
production bonus from a weekly basis to a quarterly basis
"Neither General Counsel nor Charging Party in their briefs contend
that the Act was violated by reason of anything Miller said to Hanson in
these two conversations
"To the extent that the testimony of Hanson and Miller conflict , I credit
Miller ' s version
"Mancheski was not a witness at the hearing Therefore, Hanson's
testimony concerning her conversation with Mancheski is uncontradicted
Hanson also testified that Edward Schultz was present during her
conversation with Mancheski Although Schultz was a witness at the
hearing, he did not corroborate Hanson with respect to her conversation
with Mancheski
"General Counsel argues "While one may quibble over Mancheski's use
of the word could, set in context Mancheski promised to change the bonus
system if the employees refrained from voting for the union and only the
filing of charges and objections to the conduct of the election stopped him
from instituting those changes after the election "
BRAKE PARTS CO. 255
made if the Union should lose the election 18 Accordingly,
I find that Hanson's testimony concerning her
conversation with Mancheski proves neither a violation of
Section 8(a)(I) nor establishes grounds for upsetting the
results of the June 21 election "°
5 By other alleged conduct
General Counsel and Charging Party point to a
vituperative letter which the Company sent to the
employees on June 7, 1968, a copy of which is attached
hereto as Appendix B, as being unlawfully coercive
Although the letter disparages the Union, states that the
Union's purpose is to get "their hands into [the
employees'] pocketbooks," stresses the possibility of
strikes arising from union representation, and emphasizes
"the miseries and hardships that come from a UAW
strike to try to force acceptance of their demands," only
the following paragraph of the letter is alleged to be
unlawful
4 The Company has the right to permanently replace
strikers the minute they walk out of the door! This
means that when the strike is over the replaced strikers
have no jobs'
The contention is made that the quoted statement is false
and misleading. The argument is that the quoted
paragraph does not distinguish between an economic
strike and an unfair labor practice strike and does not
describe the employees' rights to reinstatement In the
case of an economic strike the paragraph is claimed to be
misleading because strikers, even if permanently replaced,
remain employees and, if they unconditionally apply for
reinstatement, they are entitled to reinstatement upon the
departure of the replacements 2° It is further argued that
the false and misleading nature of the statement is
aggravated in the case of an unfair labor practice strike
because then the employees are entitled to their jobs back
upon making an unconditional request for reinstatement
even if it requires dismissal of the replacements
Insofar as it goes the Company's statement is correct
It is true, as General Counsel properly points out, that the
paragraph does not contain a complete delineation of all
the possibilities that might occur However, the letter in
question was circulated 2 weeks before the election. In the
normal course of events, undoubtedly, the Union obtained
a copy of the letter and had ample opportunity, if it chose
to exercise such opportunity, to respond to the statement
in question and to discuss the rights striking employees
have to reinstatement As the Respondent was careful in
its letter to disclaim any intention of provoking a strike,
and as the letter contains no unlawful threat, I find that
the paragraph quoted above neither violates Section
8(a)(I) of the Act nor constitutes a ground for setting
aside the election herein 2i
General Counsel relies on a pretrial affidavit of
Leonard Lawton to support certain allegations of the
complaint Lawton was a reluctant witness who appeared
at the hearing only after the General Counsel sought and
obtained enforcement of a subpena by a District Court of
the United States At the hearing Lawton repudiated his
pretrial statement He testified that he was intoxicated at
the time he gave the statement to a Board agent Lawton
did not impress me as being a truthful witness Apart
from other technical considerations, I neither accept as
truthful and reliable Lawton's testimony at the hearing
nor the statements made in his pretrial aff idavit.
Accordingly, as the alleged incriminatory matters found in
Lawton's affidavit were substantially repudiated by
witnesses called by Respondent, I find that no unfair labor
practices may be based thereon
C. The Discharge of Willis Butcher
Willis Butcher was hired by the Company on June 1,
1967, as a setup man In his employment interview
Butcher represented that he was qualified and experienced
to do setup work At the time he was hired and during the
period he worked for Respondent, the Company was
having difficulty securing qualified setup men for
employment Butcher was discharged approximately 9
months later on March 14, 1968 During the 2 weeks
preceding his termination he actively distributed and
solicited signatures to union authorization cards General
Counsel contends that he was terminated because of the
fear, "that Butcher's protected activity would bear fruit"
Respondent's defense is that Butcher was discharged for
cause According to Respondent, Butcher's work was
substandard and, in addition, he behaved offensively
towards the female employees in the plant
Respondent follows a policy whereunder the
performance of all employees is reviewed and evaluated at
the end of their 3d, 6th, 9th, and 12th months of
employment during their first year with the Company and
semiannually thereafter during the next 4 years of their
employment
Before Butcher had completed his first 3 months with
the Company, Plant Manager William Knoth informed
Butcher that his work was not satisfactory Nevertheless,
Butcher's wage rate was advanced to the base or "quota"
rate for the setup man classification.32 At this time Knoth
and Foreman Samuel Neely, who was Butcher's
immediate supervisor, decided to restrict Butcher's work
activities primarily to the No. 4 Kingsberry and the
porthole machines Prior thereto Butcher had been
"floating the line," that is, attempting to set up a variety
of machines, as do the other setup men in the department?l
Upon the completion of 6 months of employment,
Plant Manager Knoth informed Butcher that he would not
"There is no evidence in the record that anyone other than Hanson was
dissatisfied with the bonus arrangement There is no evidence that Hanson
was a spokeswoman for the employees or that Mancheski thought she was
It is improbable that Mancheski , on the basis of the single conversation
with Hanson , intended to promise that he would change Respondent's
method of paying production bonuses
"Colecraft Manufacturing Co v N L R B, 385 F 2d 998, 1003 (C A
2)
"Laidlaw Corporation . 171 NLRB No 175
"The Board will not lightly set aside an election "[A]bsolute precision
of statement and complete honesty are not always attainable in an election
campaign nor are they expected by the employees We believe that an
election should be set aside only where there has been a misrepresentation
or other similar campaign trickery , which involves a substantial departure
from the truth, at a time which prevents the other party or parties from
making an effective reply, so that the misrepresentation , whether deliberate
or not, may reasonably be expected to have a significant impact on the
election " Hollywood Ceramics Company , 140 NLRB 221, 223-224 See
also Texas Boot Manufacturing Company , Inc. 143 NLRB 264
"The Company' s personnel transaction form contains the following
remarks "Completion of 90 day probationary period Quota rate effective
9-5-67 " As of said date Butcher received an increase of 18 cents
representing an advance from the starting rate to the quota rate for his job
and an additional 8 cents representing a general across -the-board increase
given to all employees
"The other setup men in the department normally setup and repair
about 12 different machines
256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be recommended for the normal increase in wage rate
because he could not set up a sufficient variety of
machines However, Butcher again was assigned to "float
the line" in order to give him an opportunity to learn how
to set up the other machines in the department
During the period of his employment, many complaints
were made by female employees that Butcher was putting
his hands on them, pinching them, and using offensive
language in their presence On more than one occasion
Plant Manager Knoth warned Butcher about such
conduct
When the time approached for Butcher's 9-month
review, Neely recommended his termination According to
Neely, Butcher could do an adequate job in setting up the
4 Kingsberry, but never mastered how to set up the other
machines " Based upon Neely's recommendation and his
own observations, Knoth decided to terminate Butcher
Knoth testified that he decided against transferring
Butcher to another job because any transfer would involve
a substantial cut in pay and also because of the
complaints that had been received regarding Butcher's
behavior Knoth notified Butcher of his termination on
Thursday, March 14, just before the end of his shift "
Butcher was the leader of the organizational effort at
Respondent's plant Butcher testified that, after he had
received several inquiries from employees concerning the
possibilities of unionization, he contacted the Union on
March 2, 1968 He obtained 50 authorization cards which
he began distributing the next day On March 10 he
received a substantial number of additional cards and
distributed them to employees on March 11, 12, 13, and
14 According to Butcher's further testimony, he did not
try to conceal the fact that he was passing out union
authorization cards and he passed out cards in the
cafeteria, in work areas, and in the washrooms, and
collected about 48 signed cards t"
Respondent denies that it had knowledge of Butcher's
union activities at the time that he was discharged
However, I have found that on March 13, Carol Erickson
informed Personnel Manager Caruk, in response to the
latter's unlawful interrogation, that Butcher had been
distributing authorization cards
In spite of Respondent's knowledge of Butcher's union
activities and its strong opposition to the organization of
its employees, it committed no violation of the Act by
discharging Butcher unless Butcher's union activities was a
motivating factor in the decision to terminate him The
record establishes the existence of adequate cause for
Butcher's discharge His performance as a setup man was
unsatisfactory and he was informed of such fact at the end
of each of his two review periods In addition, he was
warned on several occasions about his offensive behavior
towards the female employees in the plant Respondent's
witnesses testified that there was no improvement on
Butcher's part during the last 3 months of his employment
"Butcher acknowledged that the only machine he was able to set up
competently was the 4 Kingsberry
"Butcher testified that following his exit conversation with Knoth he
returned to the machine shop and informed Neely that he had been fired
Neely asked why and he said it was because his performance was not up to
par According to Butcher , Neely replied , " Well, I can't understand that,
because I gave you a good report " Neely ' s version of the conversation,
which I credit , is entirely different According to Neely , he asked Butcher
why he had been discharged and Butcher stated it was because he was a
union organizer
"Butcher testified that he kept the blank cards in his toolbox He further
testified that employees who signed cards either gave the signed cards to
him in person or deposited them in his toolbox
and even Butcher did not attempt any serious
contradiction of such testimony Charging Party poses the
question, why was not Butcher discharged much sooner if
his performance was as unsatisfactory as it is represented
to have been by the Company As the question was not
asked at the hearing the answer is a matter of speculation
One possible answer may lie in the fact that the Company
was finding difficulty in hiring setup men
General Counsel advances some finely spun arguments
to support his thesis that Butcher's union activities were a
significant influencing factor in the Company's decision to
discharge him First, General Counsel asks why Butcher
was not transferred to another job, if he was an
unsatisfactory setup man, in accordance with the
Company's practice of transferring men who do not
satisfactorily perform the jobs to which they are originally
assigned Knoth answered the question by testifying that
Butcher's conduct in relation to the female employees
made him unsatisfactory in any job and also any job to
which he could be transferred would involve a substantial
reduction in pay
General Counsel next asks, "Why then did the
Respondent fire Butcher before a difficult to find
replacement was secured, and why did Respondent fire
Butcher on Thursday when his normal work week ended
on Friday " The answers to these questions are not
necessarily unfavorable to Respondent's defense. First,
although Respondent had not made advance arrangements
to hire a replacement for Butcher, there is no evidence
that its production suffered because of Butcher's
termination Second, there is no evidence in the record
that it was unusual for the Company to terminate
employees before the end of their workweek Thus, the
answer which General Counsel gives, namely that
"Respondent found it necessary to fire Butcher with such
unseemly haste because they feared that Butcher's
protected activity would bear fruit" is not the necessary
answer to the questions posed
Next, General Counsel argues, "It was mere
coincidence that Butcher was fired approximately the
same time he was due for the 9 months review This
timing was due to the discovery of Butcher's union
activity " The argument can just as readily be turned
around namely, that it was mere coincidence that Butcher
had begun his union activities at or about the time he was
due for the 9 months' review " General Counsel further
argues, "Butcher may not have been the most satisfactory
employee, but his standard of performance was adequate
Butcher had been retained at the three months review and
even given a raise when Knoth stated that a month after
Butcher was hired, he knew Butcher could not make it At
the 6 months review, Butcher was again retained During
the interval between the 3 months and the 9 months
reviews Neely and Knoth spoke to Butcher on several
occasions about his work, but they never warned him once
that his job was in jeopardy until he was unlawfully
discharged on March 14, 1968 The reasonable employer
would warn an employee that his work was not
satisfactory and that he will be terminated unless his work
improves It is only fair to assume that Butcher was not
told his job was in jeopardy because he was not in danger
of losing his job until he engaged in protected activity " I
find this argument unconvincing When an employee is
informed as many times as Butcher was informed during
"If one were to speculate, a plausible hypothesis would be that Butcher,
anticipating that he might be discharged upon the completion of his 9
month's review , attempted to forestall the discharge by obtaining union
backing
BRAKE PARTS CO. 257
his 9 months of employment that his work was
unsatisfactory and that his conduct in the plant had been
the subject of complaint by other employees, it is entirely
unnecessary and superfluous for the employer to add that
unless there is improvement he will be discharged
Contrary to General Counsel, it is my opinion that the
reasonable employer would expect the employee to
understand that if there is no improvement he might be
discharged and I further believe that the normal,
reasonable employee would understand in such
circumstances that his job was in jeopardy.
Finally, General Counsel argues that because Knoth did
not give Butcher a written warning regarding his
deportment towards the female employees that such
misconduct was not considered serious According to
Knoth, Butcher was discharged because his work was
unsatisfactory Thus, his behavior towards the female
employees was not the assigned reason for his discharge.
However, he was not given the opportunity to transfer to
another position for two different reasons, namely, that it
would involve a substantial cut in pay which probably
would cause him to become disgruntled, and that his
behavior towards the female employees made him a
generally undesirable employee The absence of a written
warning does not mean that Respondent condoned
Butcher's behavior
The fact that Butcher was discharged on the day after
the Company's personnel manager learned of his union
activities raises a suspicion that the Company discharged
Butcher for such reason This suspicion is strengthened by
the further fact that the Company was vehemently hostile
to the organization of its employees However, despite
such suspicions, I find that General Counsel has not
proved by a preponderance of the evidence that Butcher's
union activities were a motivating factor in Respondent's
decision to discharge him, and to the contrary, I find that
Respondent discharged Butcher for a cause 28
Sharon Hosch began working for the Company in
February 1968 as an operator of a femco machine on the
third shift.29 At the time she was hired Hosch advised the
Company that she could work only on the third shift.
Hosch continued to work on the third shift until the shift
was eliminated on April 27, 1968.
Hosch became active in the Union's organizational
campaign when, on March 19, 1968, at the request of
employee Ed Schultz, she signed a union authorization
card and received from him about 50 cards for
distribution. She passed out approximately 13 cards to the
18 employees on the third shift and distributed the
D The Alleged Discrimination Against Sharon
Hosch
"In making this finding I have not overlooked the testimony of Dorothy
Hanson that group leader Wardell, whom I find to be a supervisor within
the meaning of the Act, told her that Butcher had been discharged because
the Company found union cards in his toolbox Although Wardell is a
supervisor within the meaning of the Act, he was not generally treated as a
part of management He was paid on an hourly basis, unlike the foremen
and other recognized supervisors , and did not attend the meetings of the
supervisors There is no evidence indicating how Wardell gained access to
the information he imparted to Hanson Furthermore , it does not appear
from the record that he and Butcher worked in the same department or
that he exercised any supervisory function with respect to Butcher
Accordingly, there is no reason to infer that in the normal course of events
Wardell would have been informed by the Company' s management as to
the reason Butcher was discharged
31Hosch previously had been employed by the Company from February 9
until March 9, 1967, as an operator in the machine shop
remaining cards to employees on other shifts. Also, Hosch
was the only representative of the third shift on the
in-plant organizing committee She testified to an incident
that occurred about April 17, 1968, from which it is
claimed that the Company acquired direct knowledge of
her union activities Sharon Hosch was sitting at a table
with her brother-in-law Al Hosch and three other
employees, including Paul Winston and Wally Chalewa 30
Also present and sitting nearby was Milton McHale,
machinery supervisor According to Hosch's further
testimony, within the hearing of McHale, Chalewa said
loudly, "Sharon, get out a union card and sign up Paul "
Sharon Hosch did nothing, but Al Hosch took out a
union card and gave it to Paul Winston
Contrary to Respondent, I infer that the Company
acquired knowledge of Hosch's union activities In
addition to the fact that Hosch's testimony regarding the
cafeteria incident, overheard by Supervisor Milt McHale,
is undenied, it is highly improbable that after she had
distributed 13 authorization cards to employees on the
third shift when the aggregate number of employees on
the shift was about 18, that the supervisory personnel
would not have learned about her activities
Hosch's employment terminated on April 27, 1968,
with the elimination of the third shift Hosch was then
earning $1.83 per hour presumably computed on the basis
of $1 68 base rate plus 15-cent shift differential
On Wednesday, April 25, General Foreman Wayne
Moore notified the third-shift employees individually that
the shift was being discontinued and that the Company
intended to absorb the employees on the other two shifts.
Moore asked each employee for his shift preference.
According to Moore, at that time, he did not offer a
specific job to any employee, but informed the employees
that their assignments on the first and second shifts would
be discussed on Friday. Moore testified that Hosch
informed him that she would have a problem working on
the first or second shift because then she would have to
get a babysitter. On Friday Hosch told Moore she would
not be able to work on either the first or the second shift
and would be looking for other employment 3i
"Donald Henderlong, supervisor of the rubber area, testified that in
April 1968 Chalewa was a foreman on the third shift
"I credit Moore's versions of his conversations with Hosch According
to Hosch, on April 25 Moore told her that the Company was discontinuing
the third shift as of April 27 and that she could be put on a sorting job on
the first or second shift The base rate for a sorter was $1 60 Hosch did
not testify that she knew what the rate for a sorter was Hosch asked
Moore whether there were any openings in the machine shop to which he
replied that he did not know of any but would check upon the matter
Hosch explained to Moore that she couldn ' t afford the reduction in wages
which a change to the sorting job on the first or second shift would involve
because she would have to hire a babysitter plus drive herself to and from
work She told him she would check with her husband The next evening
she spoke with Moore again and told him that she could not accept any
job other than in the machine shop and Moore replied that he was sorry
but there wasn ' t any opening at that time , "that he would let me know .
And that I would have to take a layoff until then " While Hosch testified
that the consideration which impelled her to refuse the job as sorter was
that she "couldn 't take the cut in the wages that would have been on that
particular job," her further testimony reveals that she was uncertain as to
the rate of pay for an operator in the machine shop When on
cross-examination she was asked whether she knew the difference in rates
of pay for a first-shift machine operator and a second -shift sorter (with the
10-cent shift differential the base rate for a second -shift sorter was more
than the base rate for a First-shift machine operator ) Hosch answered, "I
didn't know the exact amount, but I knew that I could make any incentive
on the machine , running the machine job I was positive " She also stated
she did not believe there was an incentive on sorting but did not make any
inquiry about the matter If Hosch ' s prime consideration was how much
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A week after her termination Hosch had a conversation
with Personnel Manager Frank Caruk in his office 32
According to Hosch, she asked Caruk whether there was
an opening in the machine shop He replied that there was
none She said that she would take a job in the machine
shop on either first or second shift Caruk agreed to let
her know Caruk denied Hosch's version of their
conversation and testified that on the occasion to which
she referred she had come into the plant to pick up her
last check She remarked that she regarded herself as
having been laid off and he responded that the Company
considered that she had quit because she had been offered
another job I credit Caruk's version of the described
conversation, rather than Hosch's
Contrary to the contentions of General Counsel and the
Charging Party I find that Hosch quit her employment on
April 27 when the third shift was eliminated and that the
circumstances do not spell out a constructive discharge
Thereafter, on September 5, 1968, Sharon Hosch
applied to the Company for employment in the machine
shop" by mailing the following letter to Caruk
I am still available for employment in the machine shop
either first or second shift and would appreciate being
called at the first opening that is available "
she would earn upon transfer to the first or second shift, rather than the
problem of caring for her small children , then it is implausible that she
would not have made inquiry as to the rates of pay and shift differentials
for the various lobs
"Hosch testified that as she was about to leave the plant on April 27 she
observed Martin Olliges, assistant personnel manager , walking in
According to Hosch , " I went up to him and said that I had heard rumors
from the other employees that I had quit, and that I wanted it on my
records that I hadn ' t, that I would take the first opening on the first or
second shift in the machine shop And he said, well, he would look into it
and be sure my record was straight" Olliges testified that the conversation
took place near the loading dock as he was entering the plant According
to Olliges , "she stopped me and indicated she considered losing her
employment to be a layoff And in the process I acknowledged what she
said " Charging Party argues , " regardless of whether Olliges told her that
he would see to it that the records conformed to her request , or whether he
merely acknowledged receipt of her request , it is clear that he, the assistant
personnel manager of the Company , was being informed by Hosch that she
'did not wish to be considered a quit , but wished to be on layoff In other
words she was telling Olliges that her relationship with the Company was
not severed, but that she wished to be recalled if any opportunity arose
Whether Olliges misled her by merely saying yes or ok, or whether he
actually said, yes , I will correct the records ,' the important thing is that
she explained her position to him and that he understood her explanation "
I do not agree with Charging Party ' s argument even if the incident
occurred as Hosch testified it did Whether or not Hosch quit her
employment turns not upon her state of mind or upon her intentions but
upon what happened The operative facts are that Hosch was advised that
her job on the third shift was being eliminated , that she was offered
employment on either the first or second shift , and that she rejected such
employment In these circumstances , regardless of what she might have
intended to do, she quit her employment (This follows regardless of
whether the Company through the device of offering her an unacceptable
job unlawfully and in violation of Sec 8 ( a)(3) induced her to quit her job
and regardless of whether she applied for employment in a job different
than the one offered to her ) Furthermore , according to Hosch , Olliges'
response to her statement that she had not quit and would take the first
opening on the first or second shift in the machine shop was merely that
"he would look into it and be sure my record was straight And he
told me he would let me know " Thus, he neither told her that he accepted
her assertion that she was not to be considered as an employee who had
quit her job or that the Company would consider her as an applicant for
employment in the machine shop on the first or second shift
"Hosch testified that on several occasions after her last conversation
with Caruk she telephoned Respondent ' s plant with the object of speaking
about employment in the machine shop but that on none of those
occasions was she successful in contacting Caruk or any other official of
the Company
Caruk responded by letter, dated September 16, 1968,
which reads as follows.
Dear Miss Hosch
This letter is in reply to your letter dated September
5, 1968, informing us that you are still available for
employment in the machine shop for either the first or
second shift
As you are well aware, at the time we eliminated our
3rd shift operation on April 26, 1968, all 3rd shift
employees including you, were offered available jobs on
the 1st and 2nd shifts Rather than take one of these
positions you informed us that you could not work
either of these shifts and chose to voluntarily quit the
Company You were at that time and until just recently
eligible for rehire and had you notified us of your
availability for work on the 1st or 2nd shift and applied
for a job with us, you would have undoubtedly received
favorable consideration.
In the past few days, however, it has come to our
attention, and your letter implies, that you contend that
at the time of the 3rd shift elimination you made the
request to several management officials to work on the
1st or 2nd shifts and your request was refused You as
well as Company officials know that you made no such
request and that you voluntarily quit the Company.
If such is now your contention we can only conclude
that you are not truthful and trustworthy, therefore, not
of the caliber or type of person we desire to have as an
employee and would not be eligible for rehire by the
Company
Since, however, we are not absolutely certain as to
what your contention is about your quitting the
Company, we must withhold decision on your
employment eligibility until it can be determined
Please understand that your refusal to determine
your employment eligibility at this time has nothing to
do with you having filed a charge against the Company
with the National Labor Relations Board We respect
your rights and the rights of all of our employees to
utilize any legal rights and remedies available to them
When we learned you had filed a charge with the
National Labor Relations Board we were surprised but
felt that perhaps you sincerely, although mistakenly,
believed that the 3rd shift was eliminated to
discriminate against you, or that you had some other
reasonable but mistaken grounds for feeling you had
been discriminated against. Apparently, however, such
is not the situation We, therefore, must withhold
decision on your request until such time as your
truthfulness and trustworthiness can be determined.
Very truly yours,
BRAKE PARTS
COMPANY
FRANK H. CARUK
Personnel Manager
General Counsel and Charging Party contend that this
letter in and of itself constitutes a violation of the Act
because 'Jilt is an attempt to punish a person for using
Board processes although the pretext is that she is being
punished for untruthfulness." I agree
The letter advises Mrs Hosch that she is not
immediately eligible for employment with the Company
because there now exists a question concerning her
"truthfulness and trustworthiness " This question,
"Mrs Hosch testified that the representative of the General Counsel had
suggested that she write a letter to the Company after she had complained
to him that telephoning didn't seem to help much
BRAKE PARTS CO. 259 ,
according to the letter, (I) arose in the past few days, (2)
because the Company believes she contends (3) that at the
time the third shift was eliminated she asked several
management officials for work on the first or second shift
and was refused "
Mrs Hosch's contention referred to in the letter
appears to be the contention which was advanced in these
proceedings that Hosch had been constructively discharged
by being refused a transfer to a job in the machine shop
on the first or second shift. No explanation has been
offered to the contrary. Neither Caruk nor any other
witness who testified on behalf of' the Company explained
how the Respondent learned of Hosch's contention
although Caruk's letter states that "[tin the past few days
it has come to our attention that you contend,... "
'However, on September If, 1968, 5 days before the
Respondent wrote its letter to Sharon Hosch, counsel for
General Counsel served upon Respondent an Answer to
Interrogatories which states, in pertinent part, as follows
2. With respect to paragraph 7(a) of the Complaint
and General Counsel's More Definite Statement, the
Respondent refused to reinstate former employee
Sharon Hosch to her former or substantially equivalent
position of employment on April 26, 1968 and at all
times thereafter
3 With respect to paragraph 7(a) of the Complaint
and General Counsel's More Definite Statement,
Sharon Hosch requested to be transferred to an
available job on or about April 25, 26, and 27, 1968
and May 3, 1968
4 With respect to paragraph 7(a) of the Complaint
and General Counsel's More Definite Statement,
Sharon Hosch requested to be transferred to the
machine shop.
5 With respect to paragraph 7(a) of the Complaint
and General Counsel's More Definite Statement,
Sharon Hosch made the request to transfer mentioned
above to Frank Caruk, Martin Olliges, and Wayne
Moore either individually and/or jointly in the plant "
Absent any other explanation the reasonable inference is
that Caruk in his letter was referring to the Answer to
Interrogatories as the source of the information which
came to the Company's attention within "the past few
days." Thus, Respondent's claim that Hosch may be
untruthful and untrustworthy is founded upon information
set forth in the formal papers served in these proceedings
The self-serving statement in the letter disclaiming any
connection between the action taken against Mrs Hosch
and the pending proceedings before the Board is without
substance The letter states specifically that "we must
withhold decision on your employment eligibility until
[your contention about your quitting the Company] can be
determined " However, this contention is the very issue
that must be resolved in order to decide and dispose of the
allegations in the complaint that the Respondent had
unlawfully discriminated against Mrs Hosch when her
employment terminated on April 27, 1968 How then can
the determination referred to in the letter be unrelated to
the pending Board proceedings? The letter, I find, informs
Mrs Hosch that she is being penalized by being refused
consideration as an applicant for employment because of
her involvement in these proceedings and the contentions
being advanced herein with respect to her termination."
Respondent thus has discriminated against her for reasons
prohibited by Section 8(a)(4), and because the
discrimination arises out of a proceeding brought upon the
instigation of the Union it would tend to discourage
membership in the Union. Accordingly, I further find that
on September 16, 1968, Respondent in violation of
Section 8(a)(1), (3), and (4) of the Act discriminated
against Sharon Hosch by rejecting" her application for
employment."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices, I shall recommend that it cease and
desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent unlawfully
discriminated against Sharon Hosch with respect to her
application for employment, I shall recommend that the
Respondent offer her immediate employment as a
machine operator in its machine shop if such position
became available on or after September 16, 1968, when
Respondent rejected her application for employment. I
shall further recommend that the Respondent make
Sharon Hosch whole for any loss of earnings suffered by
her as a result of the discrimination against her by
payment to her of a sum of money equal to that which
she would have earned from such date beginning on and
after September 16, 1968, as a job for which she applied
became available, until the date of such offer, less her net
earnings during said period. Such backpay shall be
computed on the basis of calendar quarters, in accordance
with the method prescribed in F W Woolworth
Company, 90 NLRB 289 Interest at the rate of 6 percent
per annum shall be added to such net backpay and shall
be computed in the manner set forth in Isis Plumbing &
Heating Co, 138 NLRB 716
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
"Neither in its letter nor at the hearing did Respondent contend that
Mrs Hosch lacked the qualifications to perform the job for which she
applied
"In response to Respondent's request for a more definite statement of
the allegations of the complaint in this case, on August 19, 1968, counsel
for General Counsel served upon Respondent a More Definite Statement,
as follows
With respect to paragraph 7(a) of the Complaint, the Respondent
"constructively discharged" employee Sharon Hosch in that it
terminated her by refusing her request to be transferred to an available
job after her shift was eliminated
"It is not material that the charge filed on Hosch's behalf, or the
contentions advanced in support of the charge, may turn out to be without
merit John Oster Manufacturing Co, 173 NLRB No 82, fn 3, TXD,
Waterman Industries , Inc, 91 NLRB 1041, 1043, fn 8
"It is immaterial whether the rejection was final or was provisional
"Hoover Design Corporation, 167 NLRB No 62, Lee Cylinder Division
of Golay & Co , 156 NLRB 1252, modified in other respects 371 F 2d 259
(C A 7), G C Lingerie Corporation of Alabama, 146 NLRB 690,
Majestic Metal Specialties, Inc, 92 NLRB 1854, 1865-66, Dubin-Haskell
Lining Corp v N L R B , 386 F 2d 306, 309 (C A 4), cert denied 393
US 824
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
I By threatening employees with discharge and other
reprisals for engaging in union activities, by coercively
interrogating employees as to who favored or who was
actively assisting the Union and as to who was going to be
the union steward, and by threatening employees that it
will spy upon or otherwise engage in the surveillance of
their union activities, the Respondent has interfered with,
restrained, and coerced its employees in the exercise of
rights guaranteed to them by Section 7 of the Act, and
has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act
2 By discriminatorily rejecting Sharon Hosch's
application for employment because the Union filed
charges on her behalf with the National Labor Relations
Board and because of her involvement in these
proceedings, thereby discouraging membership in the
Union, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(3), (4), and (1) of the Act
3 The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act
4. The Respondent has not engaged in any violations of
the Act by reason of conduct alleged in the complaint in
Case 38-CA-506 to constitute unfair labor practices except
insofar as such conduct hereinabove has been found to
violate Section 8(a)( 1), (3), or (4) of the Act
[Recommended Order ommitted from publication
APPENDIX A
I
First of all let me say that it is good to see all of you
again With my schedule being what it is, it is hard for me
to come up here to see you as often as I would like.
Unfortunately, this visit is not for a pleasant purpose
Those of you who have been here since the plant opened
will remember us discussing this ugly subject before. I'll
get right to the point I have come up here to talk to you
about a very serious matter-the future well being of this
plant and your jobs
I'm no orator and I don't like long speeches, but I have
a lot of important things to say so I have written them
down so I wouldn't forget or leave anything out.
Everything I say today is important to all of us'
You know, your future job security and welfare as a
Brake Parts Company employee depends on one thing and
one thing alone, the well being of this plant, its ability to
compete with other companies and grow in volume of
sales and to maintain our high quality standards.
Anything that can hurt our ability, our growing volume
and quality standards can and will hurt you Let me point
out that security for all of us depends upon our ability to
sell our products at a profit in an open competitive
market If we can't do this, if our products pile up here in
our warehouse our shareholders will send us a big padlock
and we're out of business
I am here today because I have just heard about
something that could have a very adverse effect on this
plant and, in the long run, on your fobs. I'm talking about
the UAW
I understand they are passing out their propaganda and
cards and I understand they are trying to get you to sign
their cards telling you it is only to get an election' Don't
sign without knowing what is involved and don't believe it
is only for an election They don't want just an election.
They want to get in any way they can Those union cards
are dynamite' I can assure you they have more plans for
your signature than an election. They haven't told you
everything and don't want to
They probably would try to use those cards to get in
here by some short cut method without having an election
Namely, by a demand to the company to recognize the
Union as the bargaining agent for ALL employees
without an election. Ask them if the only reason they
want you to sign a card is to get an election9 I think you
will find that they have already lied to you about those
cards They look at those cards as monthly dues of about
$6 00 or $7.00 dollars or more from each of you.
Assessments-You probably are aware of the recent Auto
strikes whereby the UAW assessed all of its membership
additional money to help support the strike
Another way they may have lied to you about those
cards is by saying no one will ever know if you sign one.
Many times employees have to get on the witness stand in
open court and swear under oath that you signed a card
Those cards are one of the trickiest little legal
documents you can ever put your signature on Your
signature is too valuable and important and binding to put
on something when you have never dreamed about all the
consequences. Think! Don't sign anything) Don't sign the
card without having all the facts, even though we
recognize the pressure some fellow worker may bear on
you Let's move on and talk about the basic question of
whether you need a union here or whether a union would
be in your best interests
First of all, I want you to know in no uncertain terms
that we prefer to deal with you without a union on a
man-to-man basis as we have always done in the past,
without any outsider who knows nothing about making
and selling brake parts coming in charging you dues and
assessments and stirring up constant trouble I want to tell
you now that we intend to use every. legal means to keep
these outsiders from coming in We recognize we have had
problems with equipment and parts but we have made
tremendous strides in the right direction and have many
more similar projects under way No union can help solve
these problems. These are solved by Management and
Employees. Let me explain WHY we take this attitudes
1. We have a relatively small plant here. Everyone
knows almost everyone, we're not a big giant where
people are numbers. In a small comfortable plant like
ours, we don't need a union to deal with each other. -
Our basic philosophy-get the job done through people
by being able to communicate individually with our
people we can and will accomplish the end results
2. We are going to do what we think is fair by you
and what our business will allow-union or no union.
No union can make us do more or less. The only way
they have to try to make us do anything is by pulling
you out on strike!
3. Unions can call strikes Nobody wins in a strike;
you lose wages, and we lose customers, we also lose
sales and the ability to pay you Remember, your
paycheck comes from the company If we lose
customers, the business suffers and if the business
suffers, you suffer
4 Unions cost companies money by stirring up
constant conflicts and friction between employees and
management. They must do this to justify charging
monthly dues.
5 You don't need a union because you are going to
get everything without a union that you could get with
a union, and without having to pay dues to the union.
We believe we have proved to you our sincere concern
BRAKE PARTS CO. 261
for all employees. We have made many changes in
benefits and working conditions and we intend to do the
same in the future Many of these changes have
resulted from discussions with our employees
6 Unions have been known to run plants completely
out of business --losing jobs for everyone It has
happened many places that I know about
So don't sign those cards without considering all the
facts Furthermore, if you did sign one without knowing
all the facts, you have a legal right to get it back by
asking for it We intend to protect your legal right, so
if you ask for your card and it is not immediately
returned to you, we want to know. It they refuse to give
back a card, we can have it invalidated legally for you.
I'm sorry for being a little long, but I believe I
would not be fair to you if I did not point out these
things to you. It is a very serious matter and I owe it to
you as our employees to tell you how we feel and what
we know
If you have any questions, feel free to talk to me or
any member of management after this meeting. We are
ready and willing to discuss this union thing with any of
our employees any time In fact, as you have done in
the past, come to us any time with any question or
problem. We want to help.
Thank you
APPENDIX B
June 7, 1968
Dear Employee,
As we told you in our letter of Friday, the 24th of
May, the UAW has had its say, and they probably do not
want you to hear the Company's side of this current union
question They know that if you are exposed only to their
"brain washing" tactics and do not get ALL THE
FACTS, they have a better chance of getting you to vote
for them so they can get their hands into your
pocketbooks These UAW "organizers" have been known
to boast that if they can get your ear for long enough
without you hearing the other side of the picture, they can
get anybody to vote for them.
Well, we do not intend to fail to meet our obligations
to you We recognize an obligation to you as our good
employees to point out to you things that we think you
should consider before deciding how to vote on this all
important matter that may affect you and your family for
a long time to come, whichever way you vote
It is because of this obligation and because, quite
frankly, we believe that the future well being of this plant
will be better insured by continuing to deal face to face
with each other rather than through this outsider that
cares nothing about the well being of your Company.
One of the things that the UAW will not tell you about
is STRIKES!! No, they won't bother to mention strikes
because they know that the sorry spectacle that results
from a UAW strike is something they do not want you to
think about before voting. They know that the only way
they have to force a company to agree to anything that it
does not believe it should agree to, or that it does not
want to agree to, is to pull employees out on strike to
walk a picket line for an unknown period of time.
Many of you have never experienced the miseries and
hardships that come from a UAW strike to try to force
acceptance of their demands A few of the things that
accompany these unfortunate events are:
I Paychecks stop!
2 The State does not pay unemployment!
3. The Company has a right to continue to operate!
4. The Company has the right to permanently
replace strikers the minute they walk out the door! This
means that when the strike is over the replaced strikers
have no /obst
5. The union can still collect dues from strikers'
6. The paychecks of the union organizers do not stop
because they are paid out of union dues! Paid by
employees like you?
7. Possibility of lost customers and ultimate
reduction in jobs'
8. Possible violence that sometimes results from
strikes!
It is not a very pleasant picture, is it9 Well-it happens
all the time No doubt, the UAW will try to tell you that
they will take care of you during a strike They will talk
in terms of their strike benefits which they pay employees
during a strike. You had better take a close look at the
exact amount they are talking about (and to be on the
safe side, get an agreement from them in writing saying
that if you have to go out on strike and miss any
paychecks they will make up what you lose) before you
take a chance on these fast talking organizers who will try
to make you think you can walk a picket line with no
paycheck coming in without feeling the pinch. I wonder if
your creditors would buy the UAW assurances, or if they
want something more concrete? Many employees have lost
cars, homes, appliances and other things they were buying
on time because of wages lost during strikes
Another aspect about strikes that the UAW does not
like to talk about is the fact that they often assess
employees who are not out on strike and who have no
quarrel with their company for strikes called in other
places You know, the news is almost always full of talk
about a UAW strike in some big automobile plant
somewhere Last summer, as you all know, Ford Motor
Company had a lengthy strike During this strike the
UAW assessed its members in non-striking plants in other
industries as well, approximately $30.00 each, to help pay
for the Ford strike. That doesn't seem quite right, does it?
Ask the "in-plant committee of organizers" about these
facts. Tell them to put their answer in writing the way
your Company deals with you.
Now, we want it clearly understood that unionization
would not necessarily result in a strike here or the loss of
benefits or jobs. We are not saying that we would refuse
to bargain in good faith, that bargaining would be futile,
or that we would try to precipitate a strike by failing to
uphold our obligations under the law. On the other hand,
the law does allow an employer an absolute right to stand
firm and not give in to union demands just because the
union threatens a strike If the UAW came in here with
unreasonable demands, though, we would not sell this
Company and your job out by agreeing to things that we
believed would shackle this Company down to the point
that it simply could not operate profitably
We do not mean to imply that we would try to cause a
strike by retaliating in the event of unionization, but we
would not be upholding our obligation to you if we did
not point out to you the very real possibility of a strike
when the parties fail to reach agreement during
negotiations.
You know, it all boils down to a very simple
proposition. without the UAW, we can guarantee you
there will be no lost paychecks becauseofa UAW strike-
with the UAW they cannot guarantee you that there will
be no strike and no lost paychecks Can you afford to
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take this risk?
YOU BE THE JUDGE AFTER LOOKING AT ALL
THE FACTS'
VOTE "NO" ON ELECTION DAY'
Sincerely,
J W Adel