Cherry Rivet Co.

National Labor Relations Board - Board Decisions

Jan 29, 1952

97 N.L.R.B. 1303 (N.L.R.B. 1952)

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.