Burke Golf Equipment Corp.

National Labor Relations Board - Board Decisions

Apr 18, 1960

127 N.L.R.B. 241 (N.L.R.B. 1960)

BURKE GOLF EQUIPMENT CORPORATION 241
supervisors within the meaning of the Act and include them in the
unit.?
Dispatcher: This employee determines the flow of goods within the
plant pursuant to the production schedule set by the production
manager. He transmits instructions as to the priority of work and
sees to it that all necessary parts are available at the proper time
for assembly. He also does some actual handling of materials. We
find that he is a plant clerical employee and include him in the unit.,,
Senior time-study engineer: As there is no incumbent in this posi-
tion, we shall not make a determination at the present time.9
We find that the following employees of the Employer constitute a
unit appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees at the Employer's
Roanoke, Illinois, plant, including the inventory control clerk,
standards-cost clerk, inspectors, dispatcher, the linemen of tool crib,
pumps, assembly, lathers, mills, saw and torch cut, and welding line-
men, the maintenance leadman, the lead stockman, and the lead inspec-
tor, but excluding officer clerical employees, professional employees,
the junior methods engineer, guards, and supervisors as defined in the
Act.
5. The Employer contends that its employee complement, will sea-
sonably increase in April 1960, and at that time reach a peak of 150 to
160 employees in the unit. There are presently 90 to 100 employees
in most of the classifications. Inasmuch as the current season will
have begun and peak seasonal employment will have been reached
within our usual time for holding elections, we shall direct an immedi-
ate election in this case.10
[Text of Direction of Election omitted from publication.]
7 Mayfair Industries, Incorporated, supra
0Fairbanhs, Morse & Company, 117 NLRB 1449, 1452 (scheduler).
9 Hamilton Watch Company, 118 NLRB 591, 592, footnote 4
10 Central San Pacente, Inc., 117 NLRB 397, 399
Burke Golf Equipment Corporation and Textile Workers Union
of America, AFL-CIO . Case No. 8-CA-1817. April 18, 1960
DECISION AND ORDER
On August 18, 1959, Trial Examiner James T. Rasbury issued his
Intermediate Report in the above -entitled proceeding finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
127 NLRB No. 32.
560940-61-vol. 127-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel filed exceptions to
the Intermediate Report together with a supporting brief. The Re-
spondent filed a brief in support of the Intermediate Report in reply
to the exceptions of the General Counsel.
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 Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and finds merit in some of the General Counsel's exceptions.
Accordingly, the Board adopts the findings of the Trial Examiner
only to the extent that they are consistent with this Decision and
Order.
The complaint alleges in substance that the Respondent violated
Section 8(a) (1) and (3) of the Act, respectively, by causing a poll to
be taken among its employees for the purpose of determining whether
they were in favor of the Textile Workers, by interrogating employees
in an unlawful manner, and by the discriminatory discharge of em-
ployee Edwards and the discriminatory layoff of employee Dupler.
The Respondent defends on the grounds that: (a) It did not cause
the poll to be taken; (b) the interrogations of employees were for a
lawful purpose; and (c) the discharge of Edwards and the layoff of
Dupler were motivated by valid economic reasons. The Trial Ex-
aminer found in favor of the Respondent with respect to all complaint
allegations. We do not agree with his recommendation that the com-
plaint be dismissed in toto, in part because we believe that the Trial
Examiner arrived at his conclusions without full consideration and
analysis of all the pertinent evidence in the record.
The record shows the following facts : l For some time before the
fall of 1958, the Respondent had dealt with the Independent Golf
Association as the bargaining representative of its employees. Some-
time in September or October 1958, the Charging Union, herein called
the Textile Workers, commenced a drive to organize the Respondent's
employees 2 Schaffner, the Respondent's president, heard of these
activities and that they were carried on during meetings of the Inde-
pendent. He asked for an explanation from Dodson, president of the
Independent Union, who at that time had already signed an authori-
zation card for the Textile Workers. Schaffner indicated, according
to his testimony, that if in fact a majority of the employees preferred
the Textile Workers then the thing to do was to discuss it with "them."
1 The Trial Examiner did not discredit the testimony of the General Counsel's wit-
nesses. At one point of the Intermediate Report lie specifically mentions that his findings
are based on his "observations of the demeanor and candor of both General Counsel's and
Respondent's witnesses." Our factual findings take into account the testimony of all the
witnesses in this case.
a Official Board records show that the Textile Workers Union filed a representation
petition on October 31, 1958. Case No. 8-RC-3319.
BURKE GOLF EQUIPMENT CORPORATION 243
0
Dodson expressed his uncertainty as to whether or not the Textile
Workers had a majority and said that he would take the matter under
advisement. Shortly thereafter, a poll was taken by shop committee-
men of the Independent Union, according to Dodson's testimony upon
his direction. The poll showed an overwhelming majority in favor
of the Textile Workers. Nevertheless, Dodson expressed the opinion
that the Textile Workers should not be recognized by the Respondent
without a Board-conducted election because he felt that the few re-
maining loyal members of the Independent should have an opportu-
nity to express their desires in an official election. Schaffner, although
at that time he had already had an expression of the employees' de-
sires through the poll, and although he knew that a Board-conducted'
election was imminent, circulated in the plant and interrogated 30
out of the 60 employees, some of them repeatedly, as to their union
allegiance, union activities, and happenings at union meetings. In
the course of the interrogation of employee Pickrel, Schaffner stated
that she and employee Grace Dupler "were two of the biggest banner
carriers of the CIO."
The Board-conducted election took place on December 9, 1958. By
that time the overwhelming majority for the Textile Workers shown
in the poll conducted by the Independent had substantially decreased.
The Textile Workers obtained 24 votes, the Independent, 20 votes; 13
votes were cast against representation by labor organizations, and 3
votes were challenged. This development required a runoff election
which, however, has not as yet been held, pending the disposition of
the unfair labor practice charges against the Respondent.
Five days after the election on December 16, 1958, employee
Edwards was told by her foreman , Dush, that she was being discharged
as of the same day. He stated that he did not know the reason for the
action. Edwards went to the office of the vice president, Frankenbery,
who explained that she had not been doing her work well, had been
wandering around the plant, and had been guilty of excessive talking.
President Schaffner gave her substantially the same reasons for her
discharge. After her discharge Edwards was for some time a patient
in a hospital. Foreman Dush visited her and told her that he was
very sorry that he had to let her go and that he never had any com-
plaints against her work. Edwards pressed for an explanation and
said "You know and I know that I got let out because of the Union."
Dush replied, according to Edwards' uncontroverted testimony : "Yes,
I know that Jerry. I am sorry there is nothing I can do." 3 The
record is clear and the Trial Examiner found that Edwards was a
knowledgeable competent inspector of wood head golf clubs during
the 51/2 years of her employment. During the last 3 years of her
8 Foreman Dush appeared as a witness at the hearing. He did not deny Edwards'
testimony.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment she had been warned three times about unnecessarily
talking to other employees. However, she was not told at these occa-
sions, or on any other occasion, that disciplinary action would be
taken against her if she continued to talk excessively.4 On the day of
her discharge Vice President Frankenbery observed her for a period
of about 5 minutes during which time she was away from her
work area talking to employee Pickrel. An investigation, which
Frankenbery did not undertake, would have shown that Edwards was
away from her work area on company business and talking to Pickrel
about work on a golf club that had to be performed by Pickrel's
section.
On January 7, 1959, employee Dupler was laid off by her foreman,
Wright, on the ground that the Respondent wanted to replace her by
a man. Dupler went to Frankenbery who told her that she was being
laid off because two fellow employees, Harris and Bowman, objected
to her filling a man's job. President Schaffner explained on the wit-
ness stand that after the inconclusive election of December 9 he had
approached Harris and Bowman with the following statement:
Fellows, it is obvious there is some dissatisfaction in this plant
with working conditions. Otherwise there would not have been
24 people going to the polls and voting for the Textile Workers.
Now what is the problem in your department?
Harris and Bowman, both polishers, complained, inter alia, that
Dupler, as a woman, could not under State law make certain minor
repairs on the golf clubs which she had inspected and that such defec-
tive golf clubs had to be returned to the polishers thereby reducing
their piece-rate wages. Although Schaffner on previous occasions,
prior to the election, had rejected similar demands for the replacement
of Dupler, he now complied. Approximately 2 months later, after
the first charge herein, Dupler was rehired by the Respondent for a
different job.
We agree with the Trial Examiner that the evidence is not sufficient
to ascribe the taking of the poll conducted by the Independent's shop
committeemen to the Respondent, although it seems clear that the
impetus for the poll was given by President Schaffner's discussion of
the employees' union sympathies with Dodson. Moreover, there is
no evidence to support a finding that at the time of Schaffner's dis-
cussion with Dodson, Schaffner had any other purpose in mind than
to establish whether or not the Textile Workers had a majority which
would permit Schaffner to recognize it as the bargaining representa-
tive of the Respondent's employees .5 Accordingly, we shall, in
4 Other employees, male and female, also engaged in extended conversations, in some
instances up to 45 minutes, without being warned or disciplined.
5 We do not adopt the Trial Examiner's statement to the effect that a poll taken or
caused to be taken by a company is ipso facto a ground for finding a violation of the Act.
BURKE GOLF EQUIPMENT CORPORATION 245
agreement with the Trial Examiner, dismiss the complaint insofar as
it alleges that the Respondent violated Section 8 (a) (1) in connection
with the taking of the poll.
We do not agree with the Trial Examiner that the interrogations
conducted by President Schaffner after the poll was taken and before
the Board election was held were lawful. Schaffner knew that the
poll had shown an overwhelming majority for the Textile Workers.
He also knew that a secret election was scheduled by the Board in
which any doubts he might have had about the reliability of the poll
would be effectively resolved. There was, therefore, no legitimate
reason for him to engage in questioning 30 out of 60 employees as to
which of the two competing unions they favored. This questioning,
which was repeated as to some employees and which contained no
assurance to the employees that no reprisals against them would be
taken for their sympathies for the Textile Workers, tended to create
the impression that the Respondent, who obviously was on close terms
with the president of the Independent Union, favored the latter and
wanted to find out which of the employees opposed the favored Union.
The rule of the Blue Flash Express, Inc. case,6 on which the Trial
Examiner relies, does not apply to the situation herein. In Blue Flash
the Board merely rejected the doctrine that interrogation is per se un-
lawful. The Board held that where it is clear from the record that the
only purpose was to ascertain whether a union demanding recogni-
tion actually represented a majority, interrogations could be legiti-
mate, provided that they were communicated to the employees with
assurances against reprisals and provided that the questioning oc-
curred in a background free from hostilities to unions. Here no such
assurances were given, and during the interrogation of employee
Pickrel the Respondent's President Schaffner clearly demonstrated
his attitude towards supporters of the Textile Workers by referring
to Pickrel and Grace Dupler as "two of the biggest banner carriers
of the CIO." The Respondent's hostility towards the Textile Work-
ers and his desire to reduce its voting strength were further demon-
strated by the actions taken against Edwards and Dupler after the
conclusive election and during the pendency of the runoff election.
Under those circumstances, we find that Schaffner's interrogations
tended to undermine the Textile Workers' organizational drive in
favor of the Independent, which is borne out by the result of the De-
cember election in which the overwhelming majority of the Textile
Workers dropped to a mere plurality. We conclude that Schaffner's
interrogations interfered with the concerted activities of Respond-
ent's employees and that the Respondent thereby violated Section
8(a)(1) of the Act.'
e 109 NLRB 591.
7 American Furniture Company, Inc., 118 NLRB 1139; anion Furniture Company, Inc.,
118 NLRB 1148
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As mentioned heretofore, employee Edwards was a competent and
efficient employee. During the 51/2 years of her employment there
were not more than three or four instances where the Respondent had
objected to her talking to other employees. She was discharged with-
out an investigation. An inquiry would have shown that on Decem-
ber 16 she engaged in a conversation on legitimate company business.
The Respondent's officers told her that one of the reasons for her
discharge was inefficiency. This they were unable to maintain on the
witness stand. Moreover, Foreman Dush, a supervisor and agent of
the Respondent, admitted to Edwards that her discharge was moti-
vated by her union activities. This admission against interest clearly
indicates that the alleged excessive talking of Edwards was a mere
pretext veiling the true purpose of the Respondent of eliminating
from the electorate in the pending runoff election an adherent of the
Textile Workers. On the basis of- the record as a whole we find that
Edwards was discharged for her union activities and that the Re-
spondent thereby violated Section 8(a) (3) and (1) of the Act.
As to employee Dupler, the undisputed facts show that Schaffner
in a desire to find the causes of employee dissatisfaction which led
to the plurality of the Textile Workers in the December election
approached at least two employees to ascertain the causes for the
dissatisfaction of the employees with plant working conditions. Such
solicitation of grievances timed and designed to influence the outcome
of a pending Board election to the detriment of one of two competing
!unions constitutes an interference with the employees' concerted
activities and a violation of Section 8(a) (1) of the Act.' Schaffner
admitted that he laid off Dupler, who was a satisfactory employee for
many years, so as to meet the desires of the employees whose griev-
ances he had solicited. He also admitted that on prior occasions, be-
fore the Textile Workers appeared on the scene, he had refused to lay
off Dupler as requested by the polishers. It is clear to us that Dupler
would not have been laid off had it not been for the desire of Schaffner
to influence the votes of her fellow employees. Accordingly, we find
that in laying off employee Dupler the Respondent violated Section
8 (a) (1) of the Act.'
THE REMEDY
Having found that the Respondent has engaged in certain unfair
labor practices, in violation of Section 8(a) (1) and (3) of the Act,
we shall order it to cease and desist therefrom, and take certain affirm-
ative action designed to effectuate the policies of the Act.
We have found that the Respondent discriminatorily discharged
Geraldine Edwards on December 16, 1958, and discriminatorily laid
8 American Furniture Company, Inc., 118 NLRB 1139, 1140.
0 We find it unnecessary to decide whether or not the layoff of Dupler was also in viola-
tion of Section 8(a) (3) of the Act, because the remedy necessary to effectuate the policies
of the Act is identical in either case. Tex-Toga, Inc, 112 NLRB 968.
BURKE GOLF EQUIPMENT CORPORATION 247
off Grace Dupler on January '1, 1959. Accordingly, we shall order the
Respondent to offer these employees immediate and full reinstate-
ment to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges. We shall
also direct the Respondent to reimburse the foregoing employees for
any loss of pay they may have suffered by reason of the Respondent's
discrimination against them, by paying to each of these employees a
sum equal to the amount they normally would have earned as wages
from the date of their discharge to the date of offer of reinstatement,
less their net earnings, to be computed on a quarterly basis in the man-
ner established by the Board in F. W. Woolworth Company, 90 NLRB
289, at 291-294. Earnings in one quarter shall have no effect upon
the backpay liability for any other such period. It will also be recom-
mended that the Respondent make available to the Board, upon
request, payroll and other records to facilitate checking the backpay
due. F. W. Woolworth Company, supra. Because the Trial Exam-
iner recommended dismissal of the complaint, and in accordance with
Board practice, we exclude from the above period the time from the
date of the Intermediate Report to the date of the Order herein in
computing the amount of backpay to which each employee is entitled.10
In view of our findings concerning the Respondent's discrimination
against employees Edwards and Dupler, a potential threat of future
violations exists which requires the inclusion of a broad cease-and-
desist provision in our Order."
CONCLUSIONS OF LAW
1. The Respondent, Burke Golf Equipment Corporation, is engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. The Union, Textile Workers Union of America, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By interrogating its employees concerning their membership in,
sympathies for, and activities on behalf of, the Textile Workers
Union, the Respondent has engaged in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
4. By discriminating in respect to the hire and tenure of employ-
ment of Geraldine Edwards and Grace Dupler, thereby discouraging
membership in the Union, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a) (3) and (1) of the Act
with respect to Edwards and Section 8 (a) (1) of the Act as to Dupler.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
10 Lewin-Mathes Company, Division of Cerro de Pasco Corporation, 126 NLRB 936.
nN.L.R.B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondent, Burke Golf
Equipment Corporation, Newark, Ohio, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Textile Workers Union of Amer-
ica, AFL-CIO, or any other labor organization, by discriminatorily
discharging or laying off any of its employees because of their union
membership or activities, or by discriminating in any other manner
in regard to their hire or tenure of employment or any term or condi-
tion of employment, except to the extent permitted by Section 8 (a) (3)
of the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(b) Interrogating its employees as to their membership in, sympa-
thies for, or activities on behalf of, the Textile Workers Union of
America, AFL-CIO, or any other labor organization, in a manner
constituting interference, restraint, or coercion in violation of Section
8(a) (1) of the Act.
(c) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization, to
form, join, or assist Textile Workers Union of America, AFL-CIO,
or any labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities, except to the extent
that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
in Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Geraldine Edwards and Grace Dupler immediate and
full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay suffered by them by reason of
the discrimination against them in the manner set forth in the section
of this Decision and Order entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, personnel
records and reports, and all other records necessary to analyze the
amounts of backpay due and the rights of employment under the terms
of this Order.
(c) Post at its plant in Newark, Ohio, copies of the- notice attached
hereto marked "Appendix." 12 Copies of said notice, to be furnished
"In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
BURKE GOLF EQUIPMENT CORPORATION 249
by the Regional Director for the Eighth Region, shall, after being
duly signed by the Respondent's representative, be posted by the Re-
spondent 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 Respondents to insure that said notices are
not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Eighth Region, in writ-
ing, within 10 days from the date of this Order, what steps the Re-
spondent has taken to comply herewith.
IT Is YURTIIER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent conducted or caused
to be conducted a poll amongst its employees in violation of Section
8(a) (1) of the Act.
MEMBERS RODGERS and JENKINS took no part in the consideration
of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in or activities on behalf
of Textile Workers Union of America, AFL-CIO, or any other
labor organization of our employees, by discriminatorily discharg-
ing or laying off any of our employees because of their union
membership or activities, or by discriminating in any other
manner in regard to their hire or tenure of employment or any
term or condition of employment, except to the extent permitted
by Section 8(a) (3) of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
WE WILL NOT interrogate our employees as to their membership
in, sympathies for, or activities on behalf of, Textile Workers
Union of America, AFL-CIO, or any other labor organization, in
a manner constituting interference, restraint, or coercion in
violation of Section 8(a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self -organiza-
tion, to form, join, or assist Textile Workers Union of America,
AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any or all such activities, except to the extent that such right may
be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer Geraldine Edwards and Grace Dupler immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges.
WE WILL make the above-named individuals whole for loss of
pay suffered by them by reason of the discrimination against
them.
All our employees are free to become or remain members, or to
refrain from becoming or remaining members, of any labor organiza-
tion. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employee because of membership in, or activity on behalf of, any such
labor organization.
BURTiE GOLF EQUIPMENT CORPORATION,
Employer.
Dated----------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard in Newark , Ohio, on
May 25 and 26, 1959, before the duly designated Trial Examiner on complaint of the
General Counsel alleging violations by the Respondent of Section 8(a)(1) and (3)
of the Labor Management Relations Act, hereinafter called the Act, and the answer
of Respondent . The Respondent and the General Counsel submitted briefs.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation duly organized and existing by the laws of the State
of Ohio, having its place of business in Newark, Ohio. It is engaged in the manu-
facturing and sale of golfing equipment . The complaint alleges and the answer
admits that Respondent annually ships finished products outside the State of Ohio
valued in excess of $50,000. 1 find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Textile Workers Union of America , AFL-CIO , herein called the
Union , is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The complaint alleges that Respondent violated Section 8(a)(1) and ( 3) of the
Act in that it (1) caused a poll of the employees to be taken to determine if the
BURKE GOLF EQUIPMENT CORPORATION 251
employees desired the Union; (2) by its officers interrogated, threatened, and
promised benefits to the employees; (3) discriminatively discharged Geraldine Ed-
wards, nee Danlee; and (4) discriminatively laid off Grace Dupler from January 7,
1959, until March 16, 1959, all in violation of the Act. The Respondent denies
each of the allegations . I shall discuss seriatim each allegation and the proof relating
thereto.
A. Taking of a poll
Respondent for a number of years had recognized and negotiated with an in-
dependent union, known as the Independent Golf Workers. The latter part of 1958
the employees became interested in affiliating with the Textile Workers Union and
on December 9, 1958, an inconclusive election was conducted by the National Labor
Relations Board.' It is undisputed, however, that prior to the Board-conducted elec-
tion and at a time during which company officers had knowledge of the asserted
interest of the Textile Workers Union, a poll of the employees as to their union
preference was taken. Under well-settled Board law this Trial Examiner must hold
the taking of the poll to be violative of the Act if the poll was taken by the Re-
spondent or the Respondent caused the poll to be taken. According to Ernest
Dodson, president of the Independent Union at the time the Textile Workers Union
officials were invited to appear at a meeting of the Independent Union, and an em-
ployee who, like many others, had signed a Textile Workers' authorization card,
the poll was taken at his direction by the Independent Union shop committeemen.
Dodson testified that Schaffner, the Respondent's president, had not suggested the
taking of the poll, but that the idea "was all mine, every bit of it." In spite of this
direct and candid testimony by the party that caused the poll to be taken, the
General Counsel seeks to attribute the poll taking to Schaffner because of certain
hearsay testimony by employees Betty Pickrel, Geraldine Edwards, and Grace Dupler
which the Trial Examiner felt was admissible under the particular circumstances and
for a limited purpose. In view of the direct credited denial by Schaffner, the admis-
sion by Dodson that the poll taking was his idea alone and that Schaffner had not
caused him to take the poll, this aspect of the General Counsel's complaint must fail.
I find, contrary to the allegations of the complaint, that Respondent did not take
the employee poll or cause the poll to be taken. I shall recommend dismissal of
this portion of the complaint.
B. Interrogation , threats, and promises
There is no question but that Schaffner , president of the Respondent , talked to
a number of the employees concerning their feelings and attitude toward the Union.
Schaffner's own testimony candidly admits discussions with rank-and-file employees
concerning the Union . If such conversation, standing alone, regardless of the effect
on the employees, is violative of Section 8(a)(1) of the Act, then this Respondent is
guilty of violating the Act. However, such is not this Trial Examiner's understand-
ing of the law. As the Board stated in Blue Flash Express, Inc., 109 NLRB 591,
"In our view, the test is whether, under all the circumstances, the interrogation rea-
sonably tends to restrain or interfere with the employees in the exercise of rights
guaranteed by the Act." In Blue Flash Express the Board specifically overruled and
repudiated Standard-Coosa-Thatcher, 85 NLRB 1358, the Board case that had
enunciated interrogation as unlawful per se. Not a single witness testified to any
threats or promises of benefit by the Respondent either directly or veiled. Respond-
ent is a small corporation employing approximately 60 people and the evidence in-
dicated that Schaffner frequently wandered through the plant and talked with the
employees. Most of the employees referred to Schaffner by his first name. There
is no evidence of union animus by any member of management . What then was
the reason behind Schaffner 's union discussions with the employees? As previously
indicated, Schaffner was an extremely frank, candid, and honest witness whose
testimony I credit fully. If Respondent were guilty it could best be found in
Schaffner 's own admissions of his conversations with the employees . It does not
seem unreasonable then to look at Schaffner 's explanation of why he talked to the
employees . The following testimony-which is corroborated by Dodson to the
:'At the bearing the parties stipulated that in Case No. 8-RC-3319, the tally of ballots
showed the following results : Votes cast for the Textile Workers Union of America, AFL-
CIO, 24 ; votes cast for the Independent Golf Workers , 20; votes cast against the partici-
pating labor organizations , 13; valid votes counted, 57 ; challenged ballots, 3 ; valid votes
counted plus challenged ballots, 60.
252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent of his participation-provides what I find to be a reasonable explanation by
Respondent.
Q. Now, in order to be specific, did you on the occasion in early November,
which you have spoken of, when you and Mr. Dodson were discussing the CIO
and the independent union, did you suggest or cause to be taken a poll of the
employees that Mr. Dodson took, or was that his idea? Whose idea was that?
A. The poll was Mr. Dodson's idea.
Q. As a result of the information from that poll to the effect that the majority
of the members of the independent favored the Textile Workers Union, what did
you advise Mr. Dodson?
A. I told Mr. Dodson it seemed to me the Textile Workers had made a
sale, and there remained only for them to come in and pick up the order.
Q. And what did he at that time tell you?
A. He told me at that time that he held an opposing view, that so long as
there was one loyal member of the Independent Golf Workers-and he indi-
cated that he himself could be that man-we should have an election.
Q. Had you at that time discussed with any of the employees, individ-
ually, whether or not they favored the Textile Workers or the CIO?
A. I did immediately following that.
Q. Now, after Mr. Dodson expressed the view to you that there should be an
election, what did you tell him and what steps did the company take?
A. I told him I would again take the matter under advisement, and I did.
In the interim I spoke with several of our people and, frankly, I couldn't make
up my mind whether the majority favored the Textile Workers or not. It
seemed that they did. And when Mr. Reger [a Textile Workers' official who
had earlier contacted Schaffner to arrange for a conference to discuss the Union's
interest] phoned me, I was almost sure they favored it, and I was receptive to
meeting him. However, the next two or three days later, two or three of our
people made it very emphatic to me they felt in all fairness they should have a
right to express an opinion in an election. Consequently, I phoned Mr. Reger
and he was out of his office. I left the message with the secretary that it would
not be possible for me to take lunch with him.
I further felt that if Mr. Dodson and others felt as strongly as he did, I was
reaching outside my power really to show favoritism to one union over another.
As I understood the law, it was perfectly possible for me to talk about one
union in favor of another, but not actually show favoritism, if I am making
myself clear.
After careful analysis of the record and from my observations of the demeanor
and candor of both General Counsel and Respondent witnesses, I am convinced that
nothing was done or said by Respondent that could reasonably tend to interfere with,
restrain, or coerce employees in the exercise of the rights guaranteed in Section 7
of the Act. I shall recommend dismissal of that portion of the General Counsel's
complaint dealing with interrogation, threats, and promises.
C. Alleged discriminatory discharge of Geraldine Edwards, nee Danlee
Geraldine Danlee Edwards had worked for the Respondent approximately 5'/z
years. All but 6 weeks of that time had been spent as an inspector in the wood
head department. There is no serious dispute as to the basic and relevant facts
surrounding her discharge. Edwards was a knowledgeable and competent inspector
of the wood head golf clubs when she stayed at the job. She was not known as an
ardent union supporter and according to her own testimony did nothing more on
behalf of the Union than sign an authorization card. On December 16, 1958,
Edwards was discharged on order of John Frankenbery, vice president in charge
of production, because, as he stated, on that morning he had observed her for a
period of at least 5 minutes during which time she was away from her work area
and was visiting with other employees.
Edwards' own testimony admits of twice that she had been spoken to by manage-
ment because of excessive visiting with other employees. Former officers of the
Independent Golf Workers Union told of two or more occasions on which they had
discussed Edwards' excessive talking problem because they had been told by Re-
spondent that she must correct her ways. The evidence is overwhelming to the
effect that Edwards had been warned about her excessive talking and visiting with
other employees. I am likewise convinced from the record that Edwards' discharge
was precipitated solely by her conduct on the morning of December 16, 1958, that
was observed by Frankenbury. In order to establish an 8(a )(3) violation of the
Act, there must be some evidence showing discrimination in tenure of employment
BURKE GOLF EQUIPMENT CORPORATION 253
tending to encourage or discourage membership in any labor organization , or such
must be a reasonable inference under all the circumstances . No such inference or
evidence can be found in this record . I find that Mrs. Geraldine Danlee Edwards
was discharged by Respondent because she was guilty , or believed by management
to be guilty , of excessive talking with her fellow employees following adequate
warnings . Respondent 's conduct was not so unreasonable under all the circum-
stances as to raise any suspicion or inference that Edwards ' discharge was in any
manner connected with union activity or violative of Section 8(a)(3) of the Act.
I shall recommend dismissal of that portion of the complaint alleging the discharge
of Geraldine Danlee Edwards as violative of the Act.
D. Alleged discriminatory layoff of Grace Dupler
Again the basic facts surrounding the layoff of Grace Dupler from January 7,
1959, until March 16, 1959, were not in dispute . Similar to the allegation con-
cerning Edwards, this is a problem of discerning motive. Grace Dupler was an-
inspector in the iron head department . The quality of her work was satisfactory'
to management and she was regarded as a good worker. She was not a vigorous
protagonist for the Union , nor had she been instrumental in promoting their interest
at the plant of Respondent , although she did sign a union authorization card and
when nominated and elected to serve as an observer in the election conducted by
the Board she accepted and did so serve. According to the testimony of Ralph
Bowman,2 several employees in the polishing department were disgruntled because
the Respondent had a woman inspector on the iron heads. Respondent had a bonus
or incentive piece-rate plan and the income of the employees in the polishing depart-
ment was affected by their individual production . Wnen iron heads that had minor
defects were returned by the woman inspector to the individuals for reworking it
naturally slowed down their piece-rate production and affected their pay . By State
law a woman was not permitted to perform any work at the buffing or polishing
machines . Immediately prior to Grace Dupler working as an inspector in the iron
head department , a man had occupied the position and he customarily made some
minor imperfection repairs in the course of his regular duties as an inspector. Be-
cause a man inspector could and had in the past made such minor repairs, it
allowed greater time for the regular polishers to increase their piece -rate production.
Such a situation then created a real complaint or grievance by the employees in the
polishing department and it was communicated to management . Respondent reluc-
tantly acceded to the grievance of the complaining polishers and replaced Grace
Dupler with a man. Dupler was laid off in January 7, 1959. She was recalled
on March 16 , 1959, due to an increase in the production and sales of iron golf clubs,
and given a job involving the painting of wood golf club heads at which she should
regularly earn more money than she had as an inspector 3
The record is clear and it is difficult to understand how even the most imaginative
individual could infer an illegal reason for the layoff of Grace Dupler . I find that
Grace Dupler was laid off by the Respondent in the course of settling an employee
grievance or complaint that was wholly unrelated to union activity or interest and
Respondents action in this regard was not violative of any section of the Act. i
shall recommend dismissal of the General Counsel's allegation of an unlawful
layoff of Gi ace Dupler.
Upon the above findings of fact , and upon the entire record in the case, I make
the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act
2 The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3 The Respondent has not violated Section 8 (a) (1) of the Act as alleged in the
complaint
4 The Respondent has not engaged in conduct violative of Section 8(a)(3) of
the Act as alleged in the complaint.
[Recommendations omitted from publication.]
2 A rank-and -file employee who had been president of the Independent Union and one
of the individuals who had aided the Textile Workers in their organizational efforts at
Respondent ' s plant
3 Dupler ' s pay as an inspector averaged $71 45 per week for a representative period and
$ 79 15 per week in her new job.