Cherry Rivet Co.Download PDFNational Labor Relations Board - Board DecisionsJan 29, 195297 N.L.R.B. 1303 (N.L.R.B. 1952) Copy Citation CHERRY RIVET COMPANY 1303 have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY Since it has been found that the Respondents have engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act, the under- signed will recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It having been found that the Respondents have refused to bargain collectively with the Union, the statutory representative in the appropriate unit, it will be recommended that the Respondents bargain collectively with the Union and embody any understanding reached in a signed agreement. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAw 1. Local 108, International Ladies' Garment Workers Union, A. F. of L., is a labor organization admitting to membership employees of the Respondents. 2. All production and shipping employees employed by the Respondents at their Dauphin plant excluding office and clerical employees, machinists, and supervisors as defined in Section 2 (11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b); of the Act. 3. Local' 108, International Ladies' Garment Workers Union, A. F. of L., is now, and has been at all times since August 29, 1949, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of col- lective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing on September 6, 1949, and at all times thereafter, to bargain collectively with Local 108, International Ladies' Garment Workers Union, A. F. of L., as the exclusive representative of its employees in the aforesaid appropriate unit, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] CHERRY RIVET COMPANY and INTERNATIONAL UNION, UAW-CIO. Case No. 21-CA-964. January 29, 1950 Decision and Order On July 10, 1951, Trial Examiner Martin S. Bennett issued his Intermediate Report in the above-entitled proceeding, finding that 97 NLRB No. 212. 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action as set forth in the copy of the Inter- mediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint, and recommended that those alle- gations of the complaint be dismissed. Thereafter, the Respondent, the Union, and the General Counsel filed exceptions and supporting briefs. . The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent that they are con- sistent with this Decision and Order. 1. We agree with the Trial Examiner 's finding that while the circumstances surrounding the dismissals of Harold Fox, Frank Crac- chiola, and Louis Petrone are suspicious, the record does not establish that these individuals were discharged because of their activities on behalf of the Union. We also agree with the Trial Examiner's finding that no promotions were withdrawn from employees` Stephens and Sias in violation of Section 8 (a) (3) of the Act. 2. We agree with the Trial Examiner's finding that the Respondent violated Section 8 (a) (1) of the Act by Foreman Jaeger's interro- gating employee Underwood concerning his' union activities and threatening to discharge -him for engaging in union activities; by General Manager Stau's threatening Underwood with economic repri- sals foil participating in union activities or for respecting a prospective picket line; and by Foreman Howlett's falsely ascribing to the Union responsibility for the postponement of a longer workweek in the threading department. As the record does not sustain the General Counsel's contention that the wage increases of September 6 and October 18, 1951, were granted in order to interfere with the organi- zational campaign of the Union, or that the Respondent threatened ' At the close of the General Counsel 's presentation of evidence , the Trial Examiner, upon motion of the Respondent , dismissed certain allegations of the complaint on the ground that no prima facie case had been established as to those allegations . The General Ccunsel and the Union excepted to this ruling on the grounds that a prima facie case had been made out, and that the Trial Examiner had no power to dismiss any portion of the complaint before both sides had presented their evidence . We disagree with these con- tentions . The evidence introduced by the General Counsel to support the allegations in question was speculative and inconclusive , and would not have supported a finding that the Act had been violated . Furthermore , we find nothing in either the Administrative Procedure Act or our own Rules and Regulations which prevents the Trial Examiner from dismissing a complaint under such circumstances . Such dismissals are tiiell established judicial and administrative practice , and are in the interest of speedy administration of the law. CHERRY RIVET COMPANY 1305 employees Wilson, Sias, Stephens, and Maish with economic reprisals because of their union activity, we also agree with the Trial Examiner's finding that the Respondent did not thereby violate Section 8 (a) (1) of the Act. 3. The Trial Examiner found that the Respondent had not inter- fered with the right of self-organization of its employees by distribut- ing buttons bearing the legend "I AM FOR CHERRY RIVET" or by according disparate treatment to adherents and opponents of the Union. We do not agree with this finding. On November 20,1950, the Union distributed union buttons as part of its organizing campaign. The record shows that a few employees requested management repre- sentatives to provide them with buttons to demonstrate their loyalty to management. The Respondent thereupon ordered buttons bearing the legend "I AM FOR CHERRY RIVET," and on November 30, 1950, posted a notice proclaiming the availability of these buttons, stating that wearing them was strictly optional with the employees and of no concern to management, and advising employees wishing to wear them to ask the person wearing one. The Respondent'distributed the buttons to the foremen and leadmen, who wore them and who handed them out during working hours to employees requesting them. On January 29, 1951, the Respondent posted the following notice on its bulletin boards. WARNING RELATIVE TO ORGANIZING ACTIVITY During the next few weeks before March 27, 1951, it will be a great temptation to a few of you to solicit union memberships inside the plant of the Cherry Rivet Company. The Company will not interfere with your solicitation of mem- bers on your own time, nor will the Company attempt to dictate to the employees as to what their attitude should be on union organization matters. The management will do its best to be just and honest in this matter and will expect the same attitude on your part. On the 'other hand, the Company has a long established rule against any and all campaigns or solicitations in this plant except for the Community Chest and the Red Cross. 'The Company tries to protect the time and the earnings of all Cheriveters. Numerous complaints have come to the management that com- pany-time is being wasted by members of the Committee and that non-union employees are being annoyed during working hours. Therefore, you are hereby put on notice that soliciting union memberships, distributing union literature, electioneering or 1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activity or campaigning on Company time by members of the union organizing committee, or anybody else, will be cause for immediate dismissal. Following the posting of this notice,2 the Respondent, on March 9, 137 17, 24, and 26, posted on its bulletin boards letters to its employees which set forth at some length the Respondent's opposition to the Union and its reasons for this opposition. The March 24 bulletin urged the employees to read the material on the bulletin boards and, if they had not had time to do so, to "take a few minutes, on the com- pany and digest the facts." We do not here decide whether, standing alone, the Respondent's posting of the notice of January 29, 1951, or its distribution of the Cherry Rivet buttons amounted to a violation of Section 8 (a) (1) of the Act. On the entire record, however, we find that by distributing Cherry Rivet buttons on company time and urging the reading of antiunion literature on company time, in contrast with its posting of a notice which forbade campaigning for the "Union on pain of dis- charge but which failed to mention antiunion campaigning, the Re- spondent accorded disparate treatment to union adherents and op- ponents. The restraining effect of this disparity of treatment must be considered in the light of the Respondent's previous conduct of interrogating employees concerning their union activities and threat- ening them with economic reprisal for participation in such activities. By thus giving preferential treatment to opponents of the Union, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, its officers, agents, successors, and assigns shall: 1. Cease and desist from : _ (a) Interrogating its employees concerning their union activities, threatening them with reprisals and discharge for engaging in union and concerted activities, and falsely ascribing to the union responsi- bility for postponement of a longer workweek in the threading department. (b) According disparate treatment to adherents and opponents of International Union, United Automobile, Aircraft and Agricultural 2 The "long established rule against any and all campaigns or solicitations" referred to in this notice , as it appears in the personnel manual, prohibits only the solicitation of funds, not the solicitation of membership in any organization. CHERRY RIVET COMPANY 1307 Implement Workers of America, CIO, or of any other labor organi- zation: (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement re- quiring membership in a labor organization as a condition of employ- ment as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post at its plant at Los Angeles, California, copies of the notice attached hereto and marked "Appendix A." 3 Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region, shall, after being duly signed by the Respondent's authorized representative, be posted by it immediately upon receipt thereof and maintained by it for sixty (60) days consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Re- spondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola- tions with respect to the discharges of Harold Fox, Frank Cracchiola, and Louis Petrone, the withdrawal of promotions, and the granting of wage increases, be, and it hereby is, dismissed. MEMBER HOUSTON took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board , and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: 8 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." 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT interrogate our employees concerning their union activities, threaten them with reprisals and discharge for. engag- ing in union and concerted activities, or falsely attribute to INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO , responsibility for postponement of a longer workweek in the threading depart- ment. WE, WILL NOT accord disparate treatment to adherents and op- ponents Of INTERNATIONAL UNION, UNITED AUTOMOBILE, AIR- CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, or of any other labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist INTERNATIONAL UNION, UNITED AUTOMOBILE, AIRCRAFT AND AGRI- CULTURAL IMPLEMENT WORKERS OF AMERICA, CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of the above-named Union or any other labor organization. We will not discriminate in regard to the hire or tenure of employment or any term or condition of employment against any employee because of member- ship in or activity on behalf of any labor organization. CHERRY RIVET COMPANY, Employer. By ----------------------------- (Representative) (Title) Dated--------T----------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report and Recommended Order STATEMENT OF. THE CASE The General Counsel of the National Labor Relations Board issued a com- plaint dated March 23, 1951, based upon charges duly filed by International Union, United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, herein called the Union, against Cherry Rivet Company, herein called Respondent. The complaint alleged that Respondent had committed CHERRY RIVET COMPANY 1309 unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, amended complaint, charges, and notices of hearing thereon were duly served upon Respondent and the Union. Specifically, the amended complaint alleged that Respondent (1) had dis- charged four named employees because of their concerted activities;) (2) had questioned employee Underwood concerning union activities and had threatened Underwood and four named employees with reprisals for engaging in same ; (3) had combated its employees' efforts toward self-organization by supplying them with buttons bearing the legend, "I'm for Cherry Rivet" ; (4) had withheld periodic wage increases from certain employees and had withdrawn promotions accorded others because of their concerted activities; (5) had announced and then withdrawn, prior to a Board election an increase in the work day from 8 to 10 hours and had falsely ascribed such rescission to objections by the Union ; (6) had created an atmosphere of violence by (a) causing police to be present at the plant when union leaflets were being distributed, and ,(b) falsely spread- ing a rumor that the Union would establish a picket line and assuring the em- ployees that Respondent would provide adequate police protection for them ; (7) had hired an employee known to have antiunion views for the purpose of creating provocation and an atmosphere of violence; (8) had accorded disparate treat- ment to adherents and opponents of the Union in the uSe of paid company time for expressing their arguments and opinions; and (9) had granted general wage increases and merit increases in order to undermine the organizational efforts of the Union. Respondent's answer admitted the termination of the four above- named employees and denied the commission of any unfair labor practices. Pursuant to notice,, a hearing was duly held at Los Angeles, California, from May 7 to 24, 1951, before the undersigned Trial Examiner, Martin S. Bennett. The General Counsel and the Respondent were represented by counsel and the Union by its representative. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the outset of the hearing, the undersigned denied a motion by Respondent to dismiss the complaint on the ground that the CIO was not in compliance with the provisions of Section 9 (f), (g), and (h) of the Act. The General Counsel announced during the hearing that he had administratively determined that such compliance had been timely achieved. See U S. Gypsum Co., 94 NLRB 112; moreover, Respondent offered no evidence of defects in said compliance. Red Rock Co. v. N. L. R. B., 187 F. 2d 76 (C. A. 5) cert. denied 341 U. S. 950. The undersigned also granted in part and denied in part motions for further particulars sought by Respondent subsequent to various amendments of the complaints on motion by the General Counsel. After the General Counsel rested, Respondent moved that certain allegations of the complaint be dismissed for failure of proof. The undersigned granted this motion in part on the ground that, on the basis of the record as it then stood, a prima facie case had not been made out with respect to certain of the allegations ; those dismissed related to several of the alleged violations of Section 8 (a) (1) of the Act and included (1) creating an atmosphere of violence 1 Their names and dates of discharge are as follows : Harold Fox, December 6, 1950. Frank Cracchiola, December 6, 1950. Don Hamlin, December 18, 1950. Louis Petrone, March 15, 1951.• 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by causing police to be present at the plant when union leaflets were being dis- tributed; (2) creating an atmosphere of violence by falsely spreading a rumor that the Union would establish a picket line and assuring the employees that Respondent would provide adequate police protection for them; (3) granting of merit wage increases to undermine the organizational efforts of the Union ; and (4) hiring an employee known to have antiunion views for the purpose of creat- ing provocation and an atmosphere of violence.' The General Counsel there- after, on May 11, sought permission to appeal this ruling and submitted an argument in support of same to the Board, which, on May 15, denied the request with leave to file exceptions to the ruling after transfer of the case by the under- signed to the Board. The undersigned also denied motions by Respondent to strike certain allegations of the complaint on the ground that they were not specified in the timely filed charges. Kansas Milling Co. v. N., L. R. B., 185 F. 2d 413 (C. A. 10). At the conclusion of the hearing, the undersigned granted a motion by the General Counsel to strike the allegations of the complaint that Don Hamlin had been discriminatorily discharged on December 18, 1950, and that Respondent had withheld from three named employees periodic wage increases granted to other employees. A motion by the General Counsel to conform the pleadings to the proof purely with respect to formal matters was granted. The parties were afforded an opportunity to argue orally before the undersigned, but waived same. They were also afforded an opportunity to file briefs' and/or proposed findings of fact, and conclusions of law with the undersigned. The period for filing said documents was duly extended on motion by Respondent and briefs have been received from Respondent and the Union. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Cherry Rivet Company is a division of Townsend Company, a Pennsylvania corporation,' and is engaged in the manufacture of blind rivets at Los Angeles, California. During the year 1950, Respondent purchased raw materials valued in excess of $150,000, of which over 75 percent was shipped to its plant at Los Angeles from points outside the State of California. During the same period, it sold finished products valued in excess of $1,000,000, of which over 50 percent was shipped to points outside the State of California. The undersigned finds that Respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED International Union, *United Automobile, Aircraft & Agricultural Implement Workers of America, CIO, is a labor organization admitting to membership em- ployees of Respondent. 2 Cf. Interlake Iron Corp. v. N. L. R. B., 131 F. 2d 129 (C. A. 7). That portion of the motion numbered ( 4) was originally denied, but upon renewal and reconsideration, the undersigned granted same later in the hearing. 8 Respondent, Cherry Rivet Company, merged with Townsend Company on January 1, 1951 , and it is not clear whether the corporate status of Respondent has been dissolved or whether this has merely been a transfer of assets. There has been no change in the nature of its business, and William B. Hubbard, president of Respondent for approximately 100 years prior to the merger , has continued as managing director of the division. CHERRY RIVET COMPANY III. THE UNFAIR LABOR PRACTICES A. Background; the issues 1311 Labor organizations have been unsuccessfully attempting for some years to achieve selection in Board-conducted elections as the bargaining representative of the employees of Respondent . The Union lost an election held in 1943 as well as a later election in 1947 . United Automobile Workers, AFL, attempted to organize Respondent's employees in 1950, and also lost an election held in March of that year . As will appear below in more detail , the Union commenced another organizational campaign at Respondent 's plant in the fall of 1950 . Ernest Mazey, an international representative of the Union , arrived in Los Angeles on August 13 of that year and immediately commenced to contact interested employees at their homes. The public campaign started on September 8, on which date Mazey appeared at the plant for the first time and distributed a leaflet. Distribution of leaflets by Mazey continued at the plant for over 6 months. In the interim, on January 5, 1951, the Uniofi filed a petition for certification of representatives ; Respondent thereafter agreed to the holding of a consent election which was held on March 27, 1951 . A majority of the 252 eligibles in a production and maintenance unit voted against union representation and objections to the elec- tion were thereafter filed ; apparently no action has been taken by the Regional Director with respect to same. The General Counsel alleges that the discharges of Fox and Cracchiola on December 6, 1950, and that of Petrone on March 15 , 1951 , were discriminatory and that certain conduct of Respondent both prior to and after the election was violative of the Act. B. The discharges As stated , distribution of union handbills commenced at the plant on September 8. 1950 . On November 20, 17 to 20 union supporters first donned buttons at the plant which identified the wearers as committeemen of the Union . Included in this group were the three dischargees discussed below whose union activities, insofar as the record indicates , were not otherwise prominent. 1. Harold Fox Fox entered the employ of Respondent in September 1950 as a machinist trainee in the machine shop . He joined the Union soon thereafter and commenced wearing his committeeman button on November 20. He was discharged on December 6, at or near the conclusion of a 90 -day probationary period, allegedly for misfeasance of work in connection with his duties . The latter included the drilling of holes in pieces of stock metal and the immediate cause assigned at the time of his discharge was the drilling of a hole in the wrong place in a large number of parts. This resulted in the scrapping of approximately 40 percent of the large order he turned out on his last assignment ; stressed by Respondent is the fact that the metal thus lost was alloy steel, obtainable solely under Gov- ernment priorities . The General Counsel apparently places reliance , as evidence of Respondent 's discriminatory motive, on the fact that Fox had donned a union button on November 20, and on certain conversations that took place in the plant. These are set forth below. Kenneth Callander entered Respondent 's employ in April 1950 as a machinist trainee in the gun production department of the machine shop under the super- vision of Foreman Sheldon Drysdale . When Fox commenced work in September 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,of that year he was assigned to similar duties and the two men worked near each other until Callander voluntarily resigned in November of 1950. Callander, a clear and forthright witness, testified that Foreman Drysdale on one occasion during the 2 months he and Fox worked together asked him , Callander, if he knew where Fox was from and "if [International representative ] Mazey was living with him or not because they were both from the same State," and if Callander knew "what Mazey's car looked like."' Plant Manager Stan , accord- ing to Callander , also asked Callander where Fox lived and if Fox was living with Mazey. Drysdale admitted that he knew Fox was from Detroit, but claimed he saw Callander using Fox 's car and asked the former if Fox was living with him; Drysdale denied ever referring to Mazey. The undersigned credits Callander, whose testimony impressed the undersigned favorably . Stan denied ever speak- ing to Callander , claiming that the latter was a comparatively new employee. Here, too, Callander 's testimony impressed the undersigned favorably. More- over , inasmuch as Callander entered Respondent 's employment in April of that year, 5 to 7 months before the period in question , the undersigned does not credit Stan's denial . Callander further testified that Stan on one occasion asked him, "How is our union boy getting along ?" There is, however , nothing outside of Callander's conclusion to indicate that Stau was referring to Fox on this occasion. On the day Fox first wore his union button, Foreman Drysdale stated, "Don't tell me you are a union man." Fox replied that he was and Drysdale expressed surprise and asked what he thought of John L . Lewis. Fox indicated his admira- tion for Lewis, whereupon Drysdale asked Fox what he thought of unions in general. Fox stated that he believed in unionism and Drysdale replied that he could not "see" Lewis or unionism . Drysdale did not recall whether he had spoken to Fox relative to Lewis and denied commenting on Fox being a union man. Although Fox displayed somewhat of a tendency toward elaboration in his testimony , the undersigned credits his version of this incident. There is also testimony by Callander that after Fox had been in Respondent's employ for 2 or 3 weeks , Drysdale asked him , Callander , how Fox was doing, and he replied that Fox was progressing satisfactorily . Drysdale then stated that Fox worked "kind of steady . . . instead of working off and on." There is no evidence of Fox receiving any compliments during his employment ; he never received a merit wage increase and, according to Drysdale , was never recommended for one. Turning to Respondent 's defense herein , it appears that in late October or early November , Plant Manager Wilson commenced a crackdown on waste and excess spoilage in the plant . The record is clear that on one occasion 2 or 3 weeks before his discharge Fox experienced great difficulty with a tapping operation and was removed from it with a warning that a repetition would result in his discharge . The versions of Respondent ' s witnesses concerning this incident are substantially corroborated by Fox. Thus, it appears that Fox was assigned to a certain tapping operation wherein be was called upon to thread with a small tap a hole previously drilled in a small piece of metal stock. Fox admitted that he broke a number of taps, which he placed at two and which Foreman Drysdale placed at seven, all within a short period . Fox then summoned the setup man, Frank Wilson, who in turn called in Drysdale. Although nothing appeared to be wrong with the fixture used in this operation , Drysdale decided to eliminate it as a cause of the trouble and replaced it with a new one several hours later ; according to Drysdale he found no defects in the original fixture. Fox was then returned to the operation 4 It appears that Fox and Mazey are both from Detroit, Michigan. CHERRY RIVET COMPANY '1313 and broke, as he testified, two more taps, but as Drysdale claimed, three or four additional taps, during the following 30 to 45 minutes. This exhausted Respondent's supply of small taps and Fox was forthwith transferred to a different tapping operation wherein he used larger taps. Shortly thereafter more small taps were procured and the original operation was entrusted to an- other trainee, William Thompson, who completed it without breaking any taps. Drysdale reported the incident to Plant Manager Wilson, and Fox was summoned to the plant office where he was reprimanded by Wilson in the presence of Drysdale for breaking a large number of taps. Fox protested that it was not his fault, but that of the fixture ; however, Wilson informed him that this was the last warning, and that on the next occasion he would be discharged. Fox claimed that Drysdale said on this occasion that he, Fox, talked too much, that he walked around the department, and that he had talked to employees for an entire afternoon.' Fox insisted that he could talk and do his job as well, but Wilson said this was out of the question and reminded him of the earlier warn- ing by Drysdale on this topic. Two or three weeks later, the final incident took place. During the greater part of the intervening period, Fox had been assigned to a drilling operation which had been commenced by Callander prior to his resignation in November ; after Callander ran 100 pieces, Fox was assigned to the operation. Fox pro- ceeded to turn out 1,500 to 1,600 units of production but shortly before December 6 it was discovered that approximately 600 of them had been improperly drilled-, the hole had been drilled in the wrong portion of the stock and the 600 units had to be scrapped. Something had gone amiss during the latter stages of the assign- ment and the error, according to Drysdale, should have been detected had Fox periodically inspected approximately every twenty-fifth unit of production for deviations. Respondent contends that a lock nut which held the part in place in the jig had loosened, this resulting in the part slipping in the jig and the improper location of the hole. Fox admitted that he had not checked the lock nut and, in fact, was shown, in his terminal interview, the improperly drilled stock, the error of which he conceded. It is contended by Respondent, without contradiction, that the lock nut is in an accessible place and that had Fox con- centrated on inspecting his job he could readily have observed that it was loose; moreover, the defective batch represented at least several days' output and the discrepancy was such that it could be observed by the naked eye had Fox periodi- cally compared the product with an approved sample which had been placed beside his work bench. Fox was taken off this job and assigned to another operation. According to Fox, this latter operation lasted several days, but, ac- cording to Drysdale, Fox was discharged on the following day. In either event, Wilson called in Fox and told him that if he were alert he would have detected the loose lock nut and thus have avoided so great a loss of scarce alloy steel. Fox claimed that it was not his duty to check the-machine for error, but this explana- tion is, to the undersigned, untenable. The record discloses that the operator was expected to periodically observe and check the work he was turning out and even Callander so testified. Wilson informed Fox that it was his responsibility to check the work and that he was not cut out for work in a machine shop; he forthwith paid 'ox off. As is apparent, the earlier statements to Callander and Fox render Fox's dis- charge suspicious. They were made during the union campaign and served, in 5 Drysdale , as he testified , had spoken to Fox on an earlier occasion in October concerning this proclivity on his part and had told Fox that it created a hazard both to employees and the machines . Drysdale had also similarly warned Callander and another employee against talking while working. 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the eyes of Respondent , to link Fox with International Representative Mazey of the Union. On the other hand, the discharge of Fox, as well as that of Crac- chiola discussed below , was but one of a number that Respondent carried out during this period for various grounds of misfeasance or nonfeasance of duty. The fact is that Fox, 2 or 3 weeks before his discharge, displayed some degree of Ineptness on an operation and received a warning . That a defective fixture was not the cause of the tap breakage is shown by the fact that Fox continued to break taps after the fixture was replaced. Not only does it appear that this took place shortly before he donned his union button , but it was also sometime after Drysdale had paid him a mild compliment in the early stages of his em- ployment. The undersigned concludes that the final incident involved neglect of duty on the part of Fox and that after consultation on the part of manage- ment It was decided to discharge him, this significantly taking place shortly prior to the end of his 90-day probationary period. While Respondent was concededly opposed to the Union, the undersigned is impelled to conclude that a preponder- ance of the evidence does not support this allegation of the complaint. Of. Rouch Sawmill, Ltd ., 94 NLRB 298 , and Superior Co., Inc., 94 NLRB 586. 2. Frank Cracchiola Cracchiola entered the employ of Respondent as a wire tender in the header department and 4 to 6 weeks later was promoted to the position of inspector by then Foreman Asher Thomas ; as the title Indicates, his duties as inspector were to inspect aircraft rivets being produced in his department by automatic machines, to compare them with blueprints, and to stop production if he detected faulty parts coming through the production line. Cracchiola remained in the department as inspector until he was discharged on December 6 for neglect of duty. He donned a union button on November 20, but does not appear to have been prominent or active in the union campaign. According to Cracchiola, Plant Manager Wilson had on a number of occasions paid him compliments relative to his work. There was testimony from former employee John Boyd that Foreman Thomas had referred to Cracchiola in the early part of September as a good inspector. Similarly, former employee Lonnie Jones testified that Foreman Thomas; shortly after Jones had quit as a result of his dissatisfaction with the standard of inspection of his work by Cracchiola, told him, Jones, that Cracchiola had inspected the work properly and that Cracchiola was one of Respondent's best inspectors. The testimony of Cracchiola and Thomas placed this incident with Jones as taking place during August or September and in the fall, respectively.6 There is, on the other hand, considerable evidence which is not substantially disputed by Cracchiola concerning complaints made to him by management that his inspection was not thorough and that he was permitting improperly made parts to pass through his primary inspection, all of which were later junked as scrap. The record indicates that in the latter part of October, Plant Manager Wilson informed Foreman Thomas that his department was producing excessive scrap and that this had to be stopped. On or about November 1, Thomas spoke to Cracchiola, as well as to Luther Ford, the inspector on the other shift, and told them to tighten up on inspection in the future because there was a shortage of the aluminum wire used by Respondent in its product. "Thomas gave some dubious testimony herein concerning the reason Jones quit on this occasion . One of the three reasons assigned by Thomas was Jones ' resentment over the selection of one Eddie Norman as Ieadman rather than Jones ; it appears, however, that Norman did not receive this promotion until approximately November. CHERRY RIVET COMPANY 1315 On or about November 18, Cracchiola permitted approximately 73,000 rivets, weighing 56 pounds, to pass through inspection ; it was later discovered that these could not be used by Respondent because they were not within the mini- mum required tolerance and they were scrapped. On November 20, Thomas reprimanded Cracchiola for passing the scrap and informed him that if he repeated the offense, he would be discharged. The latter admitted that he had passed the scrap but claimed that Thomas was picking on him because of the union button he had donned that day. Thomas replied that the criticism was in no way related to his union button. On or about November 28, Cracchiola passed another load of rivets, weighing 35 pounds, which were later discovered to be too long. He was summoned to Wilson's office, after Thomas informed the latter that he was recommending Cracchiola's discharge. Cracchiola admitted to Wilson that he had not checked this rivet when he commenced his shift because the machines had been set up by the prior shift and he had assumed that production had been inspected by the prior shift. The plain fact is that he neglected to inspect these. According to Cracchiola, Wilson informed him that he should be fired forthwith, but that be had decided to give him another chance and would transfer him to another department in the plant which he did not identify. Cracchiola replied that he would rather be discharged than transferred to another_ department. Wilson then stated that he would give Cracchiola one more chance as an inspector but that no further errors would be tolerated. It also appears that some criticism was directed to Inspector Ford at about this time. On December 5, Cracchiola passed another load of defective rivets which had to be scrapped; Wilson and Thomas claimed that this load was a large one, weighing 72 pounds. Cracchiola was called in and the rivets, which were faulty in two respects, were exhibited to him. He at first denied that there was any error in the rivets but after measuring them with a gauge, admitted that the rivets were defective, claiming, however, that he could not have passed so much scrap on the previous day. Wilson informed him that as a result of this incident he had decided to terminate his employment. Cracchiola again protested that he was being terminated because he wore a union button and Wilson replied that such was not the case. As in the case of Fox, there are suspicious circumstances present here, for there is evidence of praise of Cracchiola during the early part of his employment prior to his wearing a union button. On the other hand, the evidence is clear that later in the year Respondent commenced a crackdown on waste because of the metal shortage. Cracchiola received a first warning in November and later that month received a second. On the latter occasion, he refused to accept a transfer to another department in the plant, stating that he would rather be discharged. After a third incident, he was discharged because of improper inspection on his job; moreover, as in the case of Fox, his was but one of a series of discharges for ineptitude and inefficiency. Under the foregoing circumstances, the undersigned is of the belief and finds that a preponderance of the evidence does not support this allegation of the complaint.' ° The General Counsel developed testimony to the effect that Cracchiola at the outset of his terminal interview was required to fill out a new employment application. It appears that there was a discrepancy between the information relative to prior employment history supplied by Cracchiola on his original application and that supplied by him to the bonding company which' bonds the employees of Respondent, and that the latter concern just prior to December 6 asked Respondent to obtain more information concerning a certain period of Cracchiola's prior employment. The undersigned believes this line to be immaterial to and of no assistance in a resolution of the present issue. _ 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. Louis Petrone Petrone entered the employ of Respondent on July 29 , 1950, as a setup man on automatic drilling machines in the drilling department . After approximately 1 week, he was transferred to drill grinding in the same department where he remained until the following December or January when he was transferred to the operation of deburring rivets. Petrone remained in that capacity until March 14, 1951, when he was -discharged , according to Respondent , because his job was abolished as a result of the sale of the deburring machines. He donned a union button on November 20, 1950, but there is no evidence of his engaging in other union activities. The record is clear that Respondent had been dissatisfied with the low number' of rivets processed on its three debarring machines , all of which were operated by. Petrone. One machine was later converted to another operation but Petrone continued to operate the two remaining dehurrers. Several days before Petrone's discharge, General Manager Stan chanced to meet one Bowser , who had originally sold the two machines to Respondent. Bowser, who was then subcontracting certain operations for Respondent , informed Stan that he, Bowser , could obtain three to four times as much production from the machines because of his familiarity with their operation . After some further discussion and negotiations, Stan decided , shortly before Petrone 's discharge , to sell the machines to Bowser .and to have the latter subcontract the deburring operation for Respondent., Ac- cording to Stan, Bowser quoted him a rate per thousand rivets which was below what it cost Respondent to perform the operation itself. The sale was made and this subcontracting arrangement was still being carried on at the time of the instant hearing . Respondent has not, since the date of sale, done its own deburring. Stan informed Bowser at the time of the sale that the man then doing the debarring , Petrone, was doing a "fair job " Bowser replied that he needed an experienced man to operate the two machines plus a third deburrer in Bowser's plant and instructed Stan to send Petrone over to see him. On March 14, Petrone was summoned to the office by Asher Thomas, then assistant to Stau. Thomas informed Petrone that the machines had been sold on the previous day to Bowser and that it was therefore necessary to discharge him because there were no vacancies for which he was mechanically suited. Thomas told Petrone that he could undoubtedly secure employment from Bowser and offered him Bowser 's address . This Petrone refused , stating that he could look it up himself if he needed the work. Petrone testified that he then asked to be assigned to the drilling machines, where he had worked for approximately 1 week when he entered Respondent 's employ. Thomas replied that he had been advised by the supervisory staff that Petrone had been unable to handle that operation . Petrone did not ask for work on drill grinding , his assignment immediately prior to deburring , for, as he testified , two adequate workmen were performing that operation . He asked whether he was being terminated because of his union activities and Thomas replied that such was not the case. , Thus, the position of the General Counsel apparently reduces itself to the claim that Respondent , when it sold its deburring machines , the legitimacy of said sale not being in dispute herein, should not have arranged for Petrone"s future employment with Bowser in a capacity similar to that he had been filling, but should rather have transferred Petrone to the position which he filled for about 1 week when he entered Respondent 's employ. Accordingly , the under- signed will consider Petrone's work record with Respondent. CHERRY RIVET COMPANY 1317- The General Counsel contends that Petrone was an exemplary worker whose- ability was recognized by merit wage increases. Petrone testified that he received- one such increase but 2 weeks before his termination. The record indicates. that such was not the case. Actually, Respondent had at the time increased its hiring rates of pay and in order to preserve traditional differentials, it had on the occasion cited by Petrone granted proportionate increases to its older- employees. Thus, on February 26, Petrone and 10 to 12 older employees received- this increase. There is uncontroverted testimony by Respondent's witnesses that Petrone- had been unsatisfactory on the setup work. Some suspicion does present itself when it is noted that Petrone was retained on his second assignment, drill grind- ing, for several months. Respondent claims, however, and there is evidence by Personnel Director Jackman that this was caused by inability to procure a satisfactory replacement for Petrone whose work on drill grinding is also claimed to have been unsatisfactory. As to the latter contention, there is a conflict of- testimony. The General Counsel contends that Petrone was capable on the job, as is shown by his alleged training of new employees ; Respondent counters with the claim that Petrone was actually just acquainting new employees with their duties. However, in addition to other supervisors, General Foreman W. F. Simmons of the machine shop testified that he received a number of complaints concerning drills which Petrone had ground, that he personally "continuously from time to time" had to help Petrone on this operation, and that after Petrone had been on the assignment for 20 or 30 days he, Simmons, informed Plant Manager Wilson that Petrone would never be an efficient drill-grinder. The preponderance of the evidence supports Simmons' testimony and the undersigned- so finds. Moreover, the issue is largely academic, for Petrone never asked to return to drill grinding, conceding at the hearing that two adequate men were- then on the job. Respondent's witnesses who had observed Petrone's work on deburring characterized his ability as ranging from fair to poor. Thus, there is credited testimony from Leadman Kenneth Torkelson that he found it necessary to help out Petrone because of his inability to perform certain tasks on this: assignment e In sum, the evidence discloses that Respondent did speak to Bowser and arrange similar employment for Petrone, which the record does not disclose to have been of a less desirable nature than that on Petrone's last assignment with Respondent. Petrone, on the other hand, was aggrieved because he was not transferred to his original briefly held position. Although there is some con- flict among Respondent's witnesses as to whether Respondent shortly before Petrone's discharge had hired new employees for the setup work, a preponderance. of the evidence does not warrant a finding that Petrone's work was such as to. merit reassignment to that operation. The General Counsel has also stressed the fact that Petrone did not receive severance pay as provided by Respondent's personnel manual . Not only is the manual out of date, but there is also uncon-- troverted testimony that Respondent's policy with respect to same was not uni- formly followed. Moreover, the failure to give Petrone this pay is, in the view- of the undersigned, not significant in resolving the present issue. In view of the foregoing, the undersigned will recommend that this allegation of the complaint be dismissed.' It may be noted that a contention that his deburring work was poor is somewhat para- doxical inasmuch at Petrone , had he accepted the work with Bowser, would then have worked' on Respondent 's rivets 9 Petrone testified, as evidence of Respondent's discriminatory motive, that Leadman Torkelson who usually worked on the night shift, had worked days for several weeks prior .986209-52-vol. 9 7--84 1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Interference, restraint , and coercion 1. Interrogation and threats The complaint alleges that employee Underwood was questioned on or about October 20, 1950, concerning his union activities, and was threatened on No- vember 29, 1950, with reprisals for engaging in same ; the latter threat was attributed in the complaint to General Manager Stau and the former in par- ticulars submitted by the General Counsel, to Foreman Robert Jeager of the equipment section of the machine shop. It will be recalled that International Representative Mazey regularly distrib- uted leaflets at the plant for a period of months, commencing on September 8, 1950. Underwood testified that on or about October 20, Foreman Jeager sum- moned him to a plant office. Underwood, upon entering, speculated aloud whether the visit "could be about the Union" and Jeager replied that Underwood was correct ; he stated that he, Jeager, had been informed that Underwood was supplying information to Mazey concerning conditions in the plant, and asked "what about it?" Underwood admitted that he had seen Mazey on two or three occasions and had signed a union card. Jeager asked why be had done this, and Underwood replied that he believed in unions and would vote for organized labor at any time. Jeager stated that "with that attitude" Underwood could be dis- charged the first time he committed an error. Underwood asked if Jeager was threatening him and Jeager replied that he was merely pointing out what might happen. Jeager did not testify in this proceeding, and the undersigned credits Underwood's testimony. During November, Underwood, who has been a machinist in Respondent's employ for 7% years, was assigned to work on an important experimental die. According to Stau, Underwood initially botched the assignment and admitted his error to Stau. Soon thereafter, according to Underwood who had resumed work on the die, Stau approached him and asked how Underwood and his "lousy friends outside" were making out. Stau added, "Anybody that would join with them suckers outside . . . is a traitor and I am warning you, you better do a good job of it this time." Stau then offered to bet Underwood at five to one odds that the Union would not "get in" to the plant. Stau denied making the above statements to Underwood, but admitted that he had once asked Underwood if he was giving odds on the election to be held at the plant. The undersigned credits Underwood's version of the incident and further finds that Stau's state- ments would inevitably be construed as a threat to penalize Underwood for his union activity. - Underwood also testified that on one occasion during this period he asked Stau to comment on the rumors then circulating in the plant that a picket line was to be established. Stau replied that a picket line would be established. Under- to his discharge and had followed Petrone about the plant. Torkelson's explanation, that he had temporarily worked days at the time in order to assist Foreman Goodwin who was devoting his time to the training of new men , is credited. Petrone also claimed that Stan, when he gave him the alleged merit raise, mentioned that Petrone was a union man and that he did not like union organizers. Stan's version was that Petrone asked for the raise and that he, Stan, replied that all the men would be given a raise, as they presently were. Petrone then claimed that he was not appreciated by Plant Manager Wilson and that he was not at heart a union man. Inasmuch as it has been found that Respondent did not grant Petrone a merit raise on this occasion , the undersigned accepts Stan's version of this talk. ° CHERRY RIVET COMPANY 1319 wood disputed this view and Stan then stated, "Anybody that doesn't go through that picket line Monday morning will not work at Cherry Rivet any more." The undersigned finds that the questioning of Underwood by Jeager concerning his union activities and the threat to discharge him; the clear reference by Stan to the union organizational campaign, and the warning of economic reprisal ; and the threat by Stan to discharge any employees who engaged in concerted activity by respecting a picket line, constitute interference, restraint, and coercion of employees in the exercise of rights guaranteed by the Act 1° 2. Cherry Rivet buttons The complaint alleges that Respondent combated the efforts of its employees toward self-organization by supplying them with buttons bearing the legend, "I am for Cherry Rivet." 11 As stated , 17 to 20 of the employees in the plant donned union committeemen buttons on November 20, 1950, and continued to wear them throughout the union campaign . Stan and Personnel Manager Jackman un- controvertedly testified that they had been approached by employees who pointed out that union adherents were wearing buttons in the plant and that they there- fore desired to wear company buttons . Stan arranged for the purchase of but- tons bearing the above legend , and these were turned over to Plant Manager Wilson with instructions to make them available to anyone who wanted one ; Wilson was not questioned concerning this matter . Stan, in consultation with his counsel herein , prepared the following memorandum , which was posted over Stan 's signature for at least 1 week : NOVEMBER 30, 1950 CHERRY RIVETEERS": SO MANY CHERRY RIVET EMPLOYEES HAVE ASKED FOR CHERRY RIVET BUTTONS THAT THE COMPANY DECIDED TO MAKE THEM AVAILABLE TO ALL OF THOSE WHO CHOOSE OF THEIR OWN VOLITION TO WEAR THEM. THESE BUTTONS "I AM FOR CHERRY RIVET" ARE AVAILABLE IN VARIOUS PARTS OF THE PLANT . THE WEARING OF THESE BUTTONS IS STRICTLY OPTIONAL WITH ALL EMPLOYEES AND IS VOLUNTARY ON YOUR PART . THE MANAGEMENT OF THE COMPANY WILL NOT BE INFLUENCED IN ANY WAY BY WHETHER AN EMPLOYEE DOES OR DOES NOT WEAR THESE BUTTONS. IF YOU CARE TO HAVE THEM ASK THE PERSON WEARING THEM. The buttons were then distributed to foremen and leadmen , apparently by Wilson , with instructions to pass them along to anyone who desired one. The question does arise whether the leadmen are in fact supervisory employees within the meaning of the Act; a resolution of the conflicting testimony on this point is deemed unnecessary, for it is clear that the leadmen in the distribution of these buttons were acting as the duly authorized agents of management . Thus, Fore- men Howlett and, Goodwin testified that they distributed the buttons solely to employees who requested them. Howlett's testimony was corroborated by that "There is evidence of the interrogation of employees Hamlin and Halstead by Plant Manager Wilson, which the latter admitted in part, but in large measure disputed. The undersigned has not resolved the conflict, for this subject matter is clearly beyond the very specific allegations of the variously amended complaint, as well as the particulars sub- mitted ; hence, no findings, which, if adverse, would in any event be cumulative to the fore- going, are predicated upon said conduct. Viewed similarly is the questioning of employee Fox by Foreman Drysdale, as found hereinabove, as well as an earlier incident when Stan allegedly asked Underwood to help defeat the Union. 11 Except in one respect hereinafter noted, there was no substantial conflict in the testi- mony on this topic. The button in question actually read, "I'm for Cherry Rivet." a 1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employees Maish and Stephens , who did ask him for buttons. Their testi mony that Howlett at first distributed the buttons to other employees nearby is not contrary to his claim that the buttons had been requested . Leadman Ricer testified that he distributed approximately 1 dozen buttons on one occasion to girls who asked for them. The testimony of employee Wilson that Ricer gave her one, and that of employee Sias that Ricer distributed them to some of the girls in his department are likewise not contrary to his version . There is a conflict between the testimony of Leadman Torkelson that he did not hand a button to employee Halstead , and the latter 's testimony that he walked over to Torkelson and accepted a button when Torkelson proffered it. Save for the possible exception in the case of Halstead , the evidence indicates that these buttons were distributed solely to employees who asked for them. In sum, the Union distributed union buttons to a number of employees who proceeded to wear them in the plant . Thereafter , requests were made by other employees that management distribute buttons to those employees who desired to wear buttons reflecting their feelings towards management . This was done and, save for one possible instance , distribution was made only to those em- ployees who asked for the buttons . In effect, the Union utilized the medium of buttons whereby employees might signify while at work their adherence to the Union and management , at the request of employees , in turn utilized the same medium. Buttons indicating support for management , and presumably opposi- tion to the Union, were made available , on request , to those employees who desired them . The undersigned deems this to be distinguishable from the prof- fering of buttons to all employees b^p management - which might be construed as= compelling an employee by accepting or rejecting the button to declare his views. on the subject of union representation . In view of the foregoing and under the circumstances herein present , the undersigned finds that the foregoing conduct was not violative of the Act. 3. The proposed change in working hours The amended complaint alleges that on or about . March 20, 1951 , Respondent announced a 10-hour •day effective March 26 for the threading department ilt lieu of the existing S-hour day ; thereafter , on or about March 22, announced that the change would not become effective until after the Board election to be held. on March 27 ; and falsely ascribed its rescission of, the plan to objections by the Union. At a meeting held at the Regional Office about 1 week before the election , voting hours were established for the hours of 3 to 6 p. in. on March 27. There was, according to Mazey, an understanding that there would be "further discussion prior to the election" relative to voting hours if there should be a change in shift hours. On March 19 or 20, General Manager Stan called a meeting of threading department employees and pointed 'out that the rest of the plant was already on a longer shift ; he announced that the threading department had not previously been placed on the longer shift due to a shortage of materials , but that it would' commence a 10-hour shift on Monday, March 26. Shortly before March 27, a conference was held at the Regional Office for the purpose of reviewing the eligibility list. On the previous day, Mazey learned of the announcement that the threading department would, start a 10-hour day on March 26. Consequently, Mazey asked at the conference that in view of the impending 10-hour day , the voting hours be extended in order to facilitate voting. At this point , Stan spoke privately with Lund , who suggested postponing the effective date of the longer day and Lund and Stan informed Mazey that there CHERRY RIVET COMPANY 1321 would be no change in schedules at the plant until after the election. It then became unnecessary to consider a change in the voting hours and the subject was dropped.12 Respondent then proceeded to inform the employees of the postponement. Ac- cording to Virginia Wilson, Foreman Howlett of the threading department ap- proached her on Friday, March 23, and announced that the 10-hour day would be postponed until March 28 "because the Union won't let them." Identified as present by Wilson was employee Callahan who, as a surrebuttal witness for Re- spondent, testified that Howlett informed her of the postponement without any further comment ; on the other hand, Callahan also testified that several girls were in the area but opined that they had not heard Howlett's remarks inasmuch :as they later questioned her as to what he had said. Minnie Stephens testified that Howlett approached her and announced the postponement, assigning as a reason the fact that "the Union won't agree." Howlett, a vague and unimpres- sive witness, recalled telling Stephens of the postponement but did not recall "too much" of the conversation ; he did not recall speaking to Wilson. The under- .signed credits Stephens and Wilson herein. Respondent also produced five wit- nesses who testified on this topic ; three claimed that Howlett informed them bf the postponement "on account of the election" and two averred that Howlett merely announced the change without assigning any reason.13 It is apparent that the advent of the 10-hour day was postponed by Respondent .only after the Union proposed an extension of voting hours. It was then that Respondent, on its own initiative, decided on the postponement at the suggestion df its counsel. The General Counsel does not appear to contend that the increase In. working hours prior to the election was violative of the Act and in any event, it uncontrovertedly appears that Respondent bad previously increased the work day in all other departments of the plant but had postponed the increase in the threading department because of a shortage of materials. Hence, no adverse finding is made with respect to either the granting or rescission of the 10-hour day. Respondent, however, proceeded to make use of the resulting situation in a manner which the undersigned believes to be violative of the Act. Howlett by his statements to Wilson and Stephens falsely attributed the postponement and resulting loss of earnings to objections by the Union and to the refusal of the Union to permit it. These statements inevitably interfered with, restrained, and coerced the employees in the exercise of the right to engage in concerted activities because they falsely attributed to the Union responsibility for the delay and the consequent loss of increased earnings . The undersigned so finds. 4. Alleged withdrawal of promotions The complaint alleges that the Respondent withdrew promotions accorded em- ployees Sias and Stephens for the reason that they had engaged in concerted activities. These activities, insofar as the record indicates, were the donning of union buttons on November 20, 1950. The instant hearing was held from May 7 through 24, 1951, and the alleged discrimination took place approximately 3 weeks and 1 week prior to the hearing in the respective cases of Sias and Stephens. 12 The testimony of Stan, Mazey , and Respondent 's counsel , Richard Lund , is in agreement herein. 19 Norma Noack credibly testified that Night Superintendent Pete Stewart informed her that the postponement was brought about "because of the election and because of union activity " , Stewart was not questioned on the topic and Respondent points out in its brief that particulars furnished bpi the General Counsel on this topic did not name Stewart, in the findings that follow , no reliance is placed on the quoted statement. 1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sias entered Respondent 's employ in September 1950 and was 1 of approxi- mately 100 employees in the threading department . She testified that for a pe- riod of 2 weeks , approximately 3 weeks prior to the hearing , she was sent nightly to perform work in the boxing department, that after 2 weeks the timekeeper sent another girl in her place , and that she was thereafter kept on her customary- threading duties. The pay on both positions was the same , although employees detailed to boxing were not required to meet a quota as were those on threading. Stephens was also hired in September 1950 and assigned to the threading de- partment. She was detailed to sorting on 1 evening about 1 week prior to the bearing, but on the following evening was replaced by another girl and returned to her customary threading duties. Management informed Stephens that her production had been too low to merit her assignment to sorting work . The record does not indicate the union membership or lack thereof of the other employees assigned to boxing or sorting. These transfers are the promotions adverted to herein by the General Counsel. It appears that the boxing and sorting departments have their own personnel but that from time to time, as needed , threading department employees are detailed on a temporary basis to duties in those departments ; not all employees desire the detail, although many consider the duties less arduous than those in threading . These assignments are made each evening in the numbers required as the girls report for work in the threading department . There is uncontro- verted evidence that the plant practice has been to assign workers with the highest production records to boxing and sorting work . The assignments are made from a list which reflects the employees ' production records. Such a use was produced at the hearing and did not contain the names of Sias or Stephens. Respondent contends that Sias was assigned to boxing through an error, because her production record did not warrant her selection ; that Leadman Ricer was guilty of an oversight in selecting her ; and that he had erroneously selected both women from a seniority list. Assistant to the Plant Manager Thomas later discovered the error and directed that Sias be returned to the threading department . Respondent 's records disclose that for the most part, Sias had not been meeting her production quota and that the same condition was also true of Stephens . The latter was assigned one evening to sorting by Ricer and this too came to the attention of Thomas. He discussed it with Ricer, pointing out the error in selecting Stephens , and on the following evening, Stephens was returned to threading where she thereafter remained. There is also evidence that Stephens had worked in a careless manner on her one night in sorting . In sum, the record supports Respondent 's contention that, according to its policy, these assignments of Sias and Stephens to boxing and sorting should not have been made initially , in view of the production records of the two women . When detected by management , the transfers were forthwith rescinded and the women returned to their customary threading duties. In view of the foregoing, the undersigned finds no evidence that the transfers were revoked for discriminatory reasons and recommends the dismissal of this allega- tion of the complaint. 5. Alleged threats of economic reprisal to Wilson , Sias, Stephens , and Maish The complaint alleges that the four above-named employees , all employees of the threading department , were threatened with economic reprisals as a result of their union activities . The latter consisted solely of the wearing of union 11 CHERRY RIVET COMPANY 1323 buttons after November 20, 1950. It may be noted that Wilson and Maish also wore the Cherry Rivet buttons discussed hereinabove. Apparently, the threats in question consist of certain discussions with the employees by management that took place on or about December 1, 1950. For some time Respondent has had a production quota of 1,150 rivets per hour for employees of the threading department. New employees are required to attain this standard by the end of a 90-day probationary period. Confer- ences are held by supervisors with employees after 30 and 60 days at which the 90-day probationary period with its automatic wage increases is explained to the new workers. Weekly production records are maintained and it has generally been the policy to terminate new employees who have not attained their quota by the end of the probationary period. If, at the end of said period, the production quotas are too low, the employees are given 2 weeks, on penalty of discharge, to bring their quotas up to the norm. The four employees named herein had, by the latter part of November, either completed or were about to complete their probationary period. Accordingly, they were interviewed by Foreman Howlett and warned to bring up their production which was below the quota. Several days later, on or about December 1, these four, together with several other threading department employees who are not alleged herein to have been the recipients of discriminatory treatment, were summoned to the office of Plant Manager Wilson. The latter, as was his practice, reviewed with them Respondent's quota system and gave them 2 weeks to raise their production on penalty of discharge. Respondent's records disclose that as of that date the four employees had not met the quota. None were discharged, although Wilson voluntarily left the employ of Respondent in April 1951. In fact, Respondent contends herein that it has refrained from discharging Sias, Maish, and Stephens because of low production solely because they have worn union buttons. In view of the fore- going and particularly the fact that the four women were treated in precisely the same fashion as several other employees whose production was low, in accord with Respondent's regular procedure, the undersigned finds no evidence in sup- port of this allegation of the complaint and recommends its dismissal. 6. Alleged disparate treatment of union adherents and opponents The complaint alleges that Respondent accorded disparate treatment to union adherents and opponents in the use of paid company time for expressing their arguments and opinions. With respect to treatment of union adherents, reliance is apparently placed by the General Counsel on the testimony of witnesses Fox and Halstead. As set forth above, Fox in November 1950 was given a warning by Plant Manager Wilson on the occasion of his excessive breakage of taps ; on that occasion Foreman Drysdale told Fox that he talked too much." According to Halstead, Wilson spoke to him and reprimanded him for "running around the plant talking about the union" and also against "doing union activity on company time." Shortly afterward, on January 29, 1951, the following bulletin, signed by Managing Director Hubbard, was placed on the plant bulletin board for the purpose, as Respondent states, of eliminating loss of working time during the preelection period. It read as follows : 14 As found, Fox at a later date claimed that he could handle his work while talking but was disabused of the notion by Plant Manager Wilson who reminded him of the earlier warning by Drysdale. 1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WARNING RELATIVE TO ORGANIZING ACTIVITY DURING THE NEXT FEW WEEKS BEFORE MARCH 27, 1951, IT WILL BE A GREAT TEMPTATION TO A EE\V OF YOU TO SOLICIT UNION MEMBERSHIPS INSIDE THE PLANT OF. THE CHERRY RIVET COMPANY. THE COMPANY WILL NOT IN'1ERFERE WITH YOUR SOLICITATION OF MEMBERS ON YOUR OWN TIME, NOR WILL. THE. COMPANY ATTEMPT TO DICTATE TO THE EM- PLOYEES AS TO WHAT THEIR ATTITUDE SHOULD BE ON UNION ORGANIZATION MATTERS. THE MANAGEMENT WILL DO ITS BEST TO BE JUST AND HONEST IN THIS MATTER AND WILL EXPECT THE SAME AL'PITUDE ON, YOUR PART. ON THE OTHER HARD, THE COMPANY HAS A LONG ESTABLISHED RULE AGAINST ANY AND ALL CAMPAIGNS OR SOLICITATIONS IN THIS PLANT EXCEPT FOR THE COMMUNITY CHEST AND THE BEI) CROSS. THE COMPANY TRIES TO PROTECT THE TIME AND THE EARNINGS OF ALL CHERIVETERS. NUMEROUS COMPLAINTS HAVE COME TO THE MANAGEMENT THAT COMPANY TIME IS BEING WASTED BY MEMBERS OF THE COMMITTEE AND THAT NON-UNION EMPLOYEES ARE BEING ANNOYED DUR- ING WORKING HOURS. THEREFORE, YOU ARE HEREBY PUT ON NOTICE THAT SOLICITING UNION MEM- BERSHIPS , DISTRIBUTING UNION LITERATURE, ELECTIONEERING OR OTHER UNION ACTIVITY OR CAMPAIGNING ON COMPANY TIME BY MEMBERS OF THE UNION OR- GANIZING COMMITTEE , OR ANYBODY ELSE, WILL BE CAUSE FOR IMMEDIATE DISMISSAL. It is assumed the talks to Fox and Halstead together with the January 29 .announcement are offered as evidence of Respondent's attitude toward union adherents. However, turning to the remainder of the General Counsel's con- tention herein, the evidence purporting to show that Respondent accorded disparate treatment to opponents of the Union simply does not stand up. The only evidence of any substance presented was to the effect that employee Ledon on occasion would walk outside the plant during the afternoon, return with union leaflets, and pass them around. Louis Petrone claimed that supervisors were present when Ledon departed for the leaflets which presumably were being distributed by Union Representative Mazey. There is no evidence that man- agement representatives were present when Ledon returned with the literature and distributed it; moreover, even if Ledon's return and subsequent distribution had been observed and tolerated, there is nothing to indicate that management knew Ledon was opposed to the Union. Petrone also claimed that Ledon ques- tioned him during working hours with respect to the Union but admitted that no supervisors were present when this took place. On the other hand, there is evidence that, employees were reprimanded by foremen for talking to employees during working hours on matters apparently unrelated to the union campaign. In sum, Respondent's posted notice prohibiting union solicitation during work- ing hours is per se a valid regulation. Peyton Packing Co., Inc., 49 NLRB 828. Respondent was within its rights in reprimanding employees who violated the rule. While it is true that a discriminatory application of this policy would be violative of the Act, the undersigned finds that the evidence relative to Ledon does not constitute substantial evidence of a discriminatory application of the rule. It will accordingly he recommended that this allegation of the complaint be dismissed . Cf. Monolith Portland Cement Co., 94 NLRB 1358. 7. The wage increase The General Counsel contends herein that two 5 percent general wage increases announced respectively on September 6, 1950, effective September 18, and on October 19 effective October 23, were granted in order to undermine the organi- CHERRY RIVET COMPANY 1325 zational efforts of the Union . Respondent contends that it granted the increases in order to maintain its wage rates on a par with those of the airframe industry to which it supplies rivets. It is claimed that those rates had at the time ma- terial herein begun to reflect the rise in the cost of living since the outbreak of the Korean war in June 1950. In this connection , Respondent 's brief directs attention to the Statement of Considerations issued by the Wage Stabilization Board on February 16, 1951, together with General Wage Order No. 6, reading in part: There were broad changes in wages, salaries , and other compensation paid employees during 1950 and January 1951 until the issuance of General Wage Regulation No. I by the Economic Stabilization Administration. These changes followed the period of late 1949 and early 1950 , when wage and salary rates had remained relatively unchanged . The consumer price index was also relatively stable in that same period. In the Spring of 1950 business conditions improved, and both wages and the cost of living comr menced to rise. The outbreak of the Korean war accentuated these develop- ments. [Emphasis added.] Not only is the above common knowledge , but specific evidence of such upward spiral in the cost of living was introduced herein. Respondent 's officials, Hub- bard, Stan , and Jackman also credibly testified that wage increases , on the basis of their investigation , had become more frequent during this period. The wage problem was specifically taken up at a board of directors meeting held late in August and , according to Managing Director Hubbard , the directors agreed that Respondent should increase its rates in view of the general wage picture; it was left to Hubbard to determine the precise amount of the increase and its effective date. Certain preliminary information relative to the wage situation was brought to the attention of Stau and Hubbard by Personnel Director Jackman prior to Sep- tember 6, 1950 . Both Stau and Jackman had by then experienced difficulty in hiring new employees because of higher rates that were springing up in the Los Angeles area . Jackman pressed for more time to round out the complete picture but did inform Hubbard that the rate increases were then averaging between 7.5 and 9 percent . Hubbard decided that prompt action was required and decided to grant a 5 percent increase forthwith . The matter was left with the understand- ing that when Jackman's research was complete , another raise would be given so as to bring Respondent 's rates up to the industry average. Thus , the first 5 per- cent increase was announced on September 6 in a letter to the employees , effective September 18. By mid-October , Jackman had completed his survey and it was de- cided by management to grant another 5 percent increase on October 19, effective October 23 , thus bringing Respondent 's rates up to the average increase granted in the area. It is Respondent 's position that the two increases are actually part of a single policy decision made prior to the date of announcement of the first in- crease and there is evidence that wage rates in the area had risen approximately 10 percent at the time . In this connection , the General Counsel stresses that in a letter to its employees dated August 7, 1950, Respondent discussed business con- ditions but made no mention whatsoever of the possibility of a wage increase or that it was even under contemplation . This does not serve , however, to rebut Respondent 's claim that the cost of living and wage situation was under study by it at the time. That Respondent did not refer in the letter to a current survey is readily answered by the fact that there was actually nothing to announce to em- ployees. However, the letter does discuss the business problems then facing Re- 1326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent and in fact envisages a period of operating losses, thus raising some ele- ment of suspicion as to Respondent's bona fides in announcing the raise in Septem- ber. . Respondent further contends that the first wage increase was granted prior to the time it learned of the commencement of the organizational campaign. This contention is correct insofar as it relates to the public aspects of the campaign, for Mazey did not appear at the plant for leaflet distribution until September 8, 2 days after the first increase had been announced. However, there is certain significant testimony relative to conversations between Stau and employee Under- wood prior to the announcement of the September 6 wage increase. Stan testi- fied that Underwood informed him that a representative of the Huck Manufac- turing Co. of Detroit 15 had called upon him and other workers but that he, Stan, did not consider this to be indicative of a union organizational campaign in Sep- tember ; Stan relied on his belief, which was correct, that since an election had -been held in March 1950, the Board would not direct another election until March 1951. Underwood's version of the talk is that on September 1, Stan told him to be on the alert for one Mazey, a representative of Huck who was in Los Angeles to cause trouble, and that Respondent could not afford to meet Detroit wages. Un- derwood allegedly told Stan that Mazey had already visited his home on two occasions ; Stau denied that Mazey was mentioned by name on this occasion. The record indicates, as Mazey credibly testified, that he had been in Los Angeles since August 13 collecting material and contacting workers preliminary to com- mencing the public organizational campaign. Weighing the contentions of the General Counsel and crediting the testimony of Underwood, there are indeed suspicious elements to the wage increases. The undersigned agrees that the August 7 letter in no way indicates that a wage increase was under contemplation. And, on the face of Underwood's testimony, Stan possessed knowledge of the presence in Los Angeles of Mazey, prior to the announcement of the wage increase. On the other hand, the economic picture relative to the cost of living and wage rates lends weight to Respondent's version of the wage increases . The pattern did stabilize at or near the 10 percent figure and that is precisely the amount of increase that Respondent awarded. While it is true, as the Union contends, that no general increases had been granted by Respondent for some time prior thereto, the economic picture was indeed different. This is specifically noted in the Statement of Considerations quoted above. And the mere fact that a Wage Stabilization Board had been estab- lished with control over wages is well nigh conclusive on the point. In sum, while there are suspicious circumstances and the matter is indeed close, the undersigned finds that a preponderance of the evidence does not support this allegation of the complaint. - IV. THE EFFECT OF THE UNFAIR PRACTICES UPON COMMERCE The activities of Respondent set forth in Section III, above, occurring in connection with the operations of Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among' the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 1E This concern , located in Detroit , Michigan, is a competitor of Respondent and there is apparently no love lost between the two. Mazey was active in organizing the employees of Huck and Respondent, in its correspondence to employees, claimed that Mazey had been sent to Lost Angeles at the instigation and with the financial support of Huck. BENTON'S CLOAK & SUIT COMPANY 1327 V. THE REMEDY It has been found that Respondent has engaged in certain unfair labor prac- tices. The undersigned will recommend that it cease and desist therefrom and from related conduct and take certain affirmative action designed to effec- tuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CoxcLuszoNs of LAw 1. International Union, United Automobile, Aircraft & Agricultural Implement Workers of America; CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By interrogating its employees concerning their union activities, by threaten- ing them with discharge and reprisals for engaging in union and concerted -activities, and by falsely ascribing to the union responsibility for the post- ponement of a longer workweek in the threading department, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) oof 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. Respondent has not engaged in unfair labor practices by discharging Harold Fox, Frank Cracchiola, and Louis Petrone, or by supplying its employees with Cherry Rivet buttons, withdrawing promotions, treating union adherents and opponents disparately in the use of paid company time, and granting wage Increases. [Recommended Order omitted from publication in this volume.] BENTON'S CLOAK & SUIT COMPANY and AMALGAMATED CLOTHING WORKERS OF AMERICA, CIO , PETITIONER . Case No. 13-RC-1911. January 09, 1952 Supplemental Decision and Direction Pursuant to a Decision and Direction of Election 1 issued on July 23, 1951, in the above proceeding, an election by secret ballot was conducted on August 22, 1951, under the direction and supervision of the Regional Director for the Thirteenth Region. At the conclusion of the election, the parties were furnished with a tally of ballots which shows that, of approximately 53 eligible voters, 49 cast ballots, of which 22 were for the Petitioner, 2 were for Retail Clerks Interna- tional Union, Local 37, A. F. L., hereinafter called the Intervenor, 14 were cast against the participating labor organizations, and 11 were challenged. i Benton's Cloak .f Suit Company, 13-RC-1911, July 23, 1951, not reported in printed volumes of Board decisions. 97 NLRB No. 200. Copy with citationCopy as parenthetical citation