Congdon Die Casting Co.

National Labor Relations Board - Board Decisions

Jun 9, 1969

176 N.L.R.B. 482 (N.L.R.B. 1969)

482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Congdon Die Casting Company; Sufco, Inc. and
International Molders and Allied Workers Union,
AFL-CIO, Petitioner. Cases 7-CA-6282 and
7-RC-8259
June 9, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On June 18, 1968, Trial Examiner Sidney J.
Barban issued his Decision in the above -entitled
proceeding . finding that Respondent had engaged in
and was engaging in certain unfair labor practices,
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices as
alleged in the complaint and recommended dismissal
of these allegations of the complaint . The Trial
Examiner further found that Respondent 's conduct
had interfered with the election held on January 4,
1968, and recommended that it be set aside.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner ' s Decision and a supporting
brief. Respondent filed an answer in opposition to
the General Counsel ' s exceptions and
cross-exceptions to the Trial Examiner's Decision
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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 Trial
Examiner 's Decision , the exceptions and briefs, and
the entire record in this case , and hereby adopts the
findings, conclusions , and recommendations of the
Trial Examiner , as modified below.
The exceptions filed herein are limited , dealing
principally with the Trial Examiner ' s Section 8(aX3)
findings involving two employees , and with his
Section 8 (aXl) findings concerning certain wage
increases.
Applying our established policy not to overrule a
Trial Examiner 's credibility findings unless a clear
preponderance of all the relevant evidence convinces
us that they were incorrect,' we find no basis for
disturbing the Trial Examiner 's findings relating to
the Sec . 8(a)(3) allegations of the complaint, more
specifically his findings that employee Graham was
discriminatorily discharged in violation of Section
8(a)(3), but that employee Sharpe was not.
176 NLRB No. 60
Respondent takes exception to the Trial
Examiner's finding that it violated Section 8(a)(1) of
the Act by using the 10-cent-per-hour raise given at
its Nine Mile Plant to impress upon the Twelve
Mile Plant employees that their union activities had
caused them to suffer an economic detriment,
namely, deprivation of a comparable wage increase.
We affirm the Trial Examiner ' s findings concerning
this matter, including his finding that the granting of
the raise at the Nine Mile Plant was part of
Respondent's plan to defeat the Union, and that
each of said acts, viewed in context, constituted a
piece in a pattern which interfered with , restrained,
and coerced employees in the exercise of their
Section 7 rights, in violation of Section 8(a)(1). We
are satisfied that such findings are adequately
supported by the evidence.
However, in view of our agreement with the Trial
Examiner 's principal findings and conclusions, we
find it unnecessary in the circumstances of this case
to pass upon his alternate finding that even
assuming the existence of sufficient business reasons
for granting the wage raise at the Nine Mile Plant
when it did , Respondent's conduct in refusing to
extend the raise to the Twelve Mile Plant would
nevertheless have been violative of the Act. And we
likewise find it unnecessary in the circumstances,
since it would not in any case -affect the remedy, to
pass upon the Trial Examiner's finding that
Respondent further violated the Act when it
subsequently, during the pendency of the
representation proceeding , granted a raise to the
employees at the Twelve Mile Plant . Accordingly,
we do not adopt the Trial Examiner's finding in this
respect.
The General Counsel requests that a remedial
provision be added requiring Respondent to
reimburse its Twelve Mile Plant employees for the
10-cent-per-hour increase withheld from them at the
time the Nine Mile Plant employees received this
increase. We find merit in the General Counsel's
position. It is clear, as the Trial Examiner found,
that Respondent first created a disparity in wage
treatment as between its employees in these two
plants and them used the disparity thus created to
discourage the union activities of the employees in
both these plants. The effect of Respondent's actions
in this respect was to discriminate against the
employees in its Twelve Mile Plant because of their
activities which led to the filing of a representation
petition , by depriving them of a wage increase which
Respondent , by its own assertion , was otherwise
willing to grant to them, and which, after a period
of some 4 months, Respondent did in fact extend to
them . In these circumstances we find, in agreement
with the General Counsel, that such unlawful
discrimination can best be remedied by requiring
Respondent to reimburse the employees of its
'Standwd Dry Wall Products , Inc.. 91 NLRB 544, enfd . 188 F.2d 362
(C.A. 3).
CONGDON DIE CASTING CO.
Twelve Mile Plant for the amounts of increase then
withheld from them , and our order shall contain
such a provision. I
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that Respondent, Congdon Die Casting
Company and Buffco, Inc., Sparta, Michigan, its
officers, agents, successors , and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as herein modified:
1. Delete paragraph 2(b) of the Recommended
Order, insert the following as paragraphs 2(b), (c),
and (d ), and reletter the succeeding paragraphs
accordingly.
"(b) Notify the above-named employee if
presently serving in the Armed Forces of the United
States, of her right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
"(c) Make employees whole for any losses they
have sustained as a consequence of the unlawful
discrimination as to wages by paying the wage
increase retroactively to the employees from whom
it was withheld , commencing at the date the increase
was given to the Nine Mile Plant employees and
continuing to the date it was subsequently granted
to the Twelve Mile Plant employees.
"(d) Preserve and make available to the Board or
its agents, upon request, the records necessary to
determine the adequacy of reinstatement of Jeanette
Kathryn Graham, and the adequacy of backpay due
her, and the amounts of retroactive wage increase
due employees from whom it was withheld, in
accordance with the section of the Trial Examiner's
Decision entitled The Remedy,' as modified by this
Decision and Order."
2. Immediately preceding the last indented
paragraph of the notice insert the following.
WE WILL notify the above-named employee if
presently serving in the Armed Forces of the
United States of her right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training
and Service Act, as amended, after discharge
from the Armed Forces.
WE WILL PAY retroactively to employees of our
Twelve Mile Plant the wage increase which was
unlawfully withheld from them when we granted
'Member Brown agrees with his colleagues that Respondent violated the
Act by unlawfully raising wages at the Nine Mile Plant and by using that
wage increase to influence the employees in their union activity at the
Twelve Mile Plant . But as it does not further appear that Respondent
unlawfully withheld a wage increase at the Twelve Mile Plant, he considers
the reimbursement order inappropriate.
483
this wage increase to the employees of our Nine
Mile Plant.
IT IS FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
violations of the Act not found herein.
IT IS HEREBY FURTHER ORDERED that the election
held on January 4, 1968 , in Case 7-RC-8259, be,
and it hereby is, set aside, and that said case be
severed from Case 7-CA-6282 and remanded to the
Regional Director for Region 7 of the Board for the
purpose of conducting a new election at such time as
he deems the circumstances permit the free choice of
a bargaining representative.
[Direction of Second Election' omitted from
publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote. all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them . Excelsior
Underwrw' Inc., 156 NLRB 1236; N. L . R.D. v. Wyman-Gordon Comply,
394 U .S. 759. Accordingly , it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters , must be
filed by the Employer with the Regional Director for Region 7 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director . The Regional Director shall make the list available to
all parties to the election . No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections arc filed.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN , Trial Examiner : These matters were
heard before Trial Examiner Sidney J. Barban at Grand
Rapids, Michigan, on April 23 and 24, 1968, upon
allegations in the complaint in Case 7-CA-6282 issued on
December 28, 1967, and amended on February 20, 1968
(based upon charges filed September 27, 1967, and
amended December 15, 1967), and upon an order of the
Regional Director for Region 7 of the Board, dated
February 21, 1968, consolidating hearing upon the
complaint with hearing upon the issues raised by the
objections of the Charging Party (herein called the Union)
to the election in Case 7-RC-8259.
The amended complaint in this matter alleges that the
above named Respondents constitute a single-integrated
business enterprise, which engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act (1) by
granting wage increases to some employees and advising
other employees that they would not receive wage
increases because of union organizing activities; (2) by
coercively interrogating employees about union matters;
(3) by creating the impression of surveillance of union
matters ; (4) by promulgating and enforcing work rules in
retaliation for union activities ; (5) by threats; (6) by
prohibiting talk about the Union during work hours to
chill union activities ; (7) by telliig employees that the
Union would force Respondents to hire Negro employees;
(8) by promising wage increases if the Union were not
designated ; (9) by granting wage increases after the
election; and (10) by instructing employees, while the
election was in progress, to vote against the Union; and
also violated Section 8 (a)(1) and (3) of the Act by
terminating the employment of Jeanette Kathryn Graham
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on September 15, and Shirley Sharp on September 18 (all
dates herein are in 1967, unless specified otherwise).
Upon a petition filed by the Union on August 25,
amended on September 8, the Regional Director directed
an election among production and maintenance employees
at Respondents' three plants, which election was held on
January 4, 1968. A majority of the employees voting
voted against the Union, and the Union duly filed
objections to the election on grounds encompassed within
the allegations of the complaint in this matter, which
objections , as previously noted , have been consolidated
with the complaint for hearing in this matter.
Respondents ' answer to the complaint denies the
commission of the alleged unfair labor practices.
Upon the entire record in this case,' from observation
of witnesses, and after due consideration of the briefs filed
by the General Counsel and the Respondents, the Trial
Examiner makes the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENTS
Respondent Congdon Die Casting Company, herein
called Congdon, and Respondent Buffco, Inc., herein
called Buffco , are Michigan corporations operating places
of business in Sparta, Michigan, at which they are
engaged in the manufacture and sale of zinc die castings.
During 1967, Congdon sold and delivered from its plant,
herein sometimes called the Twelve Mile Plant, to
customers outside the State of Michigan products valued
in excess of $50,000. During the same year , Buffco
furnished products to Congdon from its plants, herein
sometimes called the Nine Mile Plant and the State St.
Plant, of a value in excess of $50,000.
Careful study of the transcript of hearing in Case
7-RC-8259 , (received as exhibits in this case ), and the
record in this matter , supports the Regional Director's
findings and conclusion that "upon the whole record and
particularly in view of the common ownership and control
of Congdon and Buffco, their geographical proximity, the
similarity of their operations, their functional integration,
especially with regard to their labor and personnel
relations and other management functions . . . Congdon
and Buffco constitute a single employer for collective
bargaining . . .", and those findings and conclusions are
hereby adopted for purposes of this decision.
Upon the foregoing it is found that the Respondents
constitute a single integrated employer engaged jointly and
severally it) commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Evidence relating to alleged violations of Section
8(a)(1) of the Act
The union drive to organize Respondents ' employees,
though started somewhat earlier , began to achieve some
'General Counsel ' s motion to correct the record m this matter has been
dealt with in a separate order.
momentum among Respondents' employees in late
August, 1967. A petition for representation at
Respondents' Twelve Mile Plant was filed on August 25.
On September 8, this petition was amended to include
Respondents' Nine Mile Plant, although Respondents did
not receive notification from the Regional Director of this
fact until September 14. Meanwhile, however, on
September 12, Respondents announced a wage increase to
the employees of the Nine Mile Plant, retroactive to
September 4.
Prior to this, on August 31, Max Congdon, the
president of both Congdon and Buffco, had advised the
employees at the Twelve Mile Plant that he intended to
"oppose a union in this plant in every proper and legal
way," that he believed a union would be "undesirable and
harmful," which he would later explain, and said he would
be pleased to talk to any of the employees who desired to
talk to him "about unions and our Company."
On September 6, the day before a scheduled union
meeting , the Superintendent of the second shift at the
Twelve Mile Plant, Joseph Lipchick, came over to Nancy
Frein, and, according to her testimony, "said `I hear you
have a union meeting tomorrow,' and I said `Yes, we do,'
and then he said `Maybe I should go and take some of the
names that are going there.' " Also, according to Frein,
the day after the Union meeting , she had the following
conversation with Lipchick: "He said `Did you attend the
union meeting?,' and I answered `Yes." And he said `Did
you have a good turn out?,' and I said `Fair,' and he said
`Was there very many of my night shift there?,' and I said
`Pretty good,' and that was all." Frein agreed, on cross
examination , that the pros and cons of unionization were
discussed generally in the plant , among the employees and
with the supervisors, including Lipchick. She stated that
she had been personally uncertain of her position on the
issue, and that Lipchick, among others, suggested that she
go to the Union meeting to hear what the Union had to
say. Frein stated that Lipchick did not ask her for names
of employees who went to the meetings, and
acknowledged that Lipchick could have been kidding in
the conversations set forth above, since he often kidded
with her. Lipchick was not directed to Frein's testimony,
and he did not deny it. He did testify that no employee
told him that she had gone to a Union meeting. Frein's
testimony is credited.
Also, on September 6, President Congdon posted a
notice to the employees advising them that the
probationary period for new employees and rehired
employees was 60 days.
Subsequently, two other notices to employees were
either posted, or distributed. One of these, relating to
absenteeism , was promulgated in September , and provided
that any employee losing more than 2 days in a 30-day
period would be subject to disciplinary action. The rule
was made retroactive to all employees who had lost more
than 2 days in the preceding 30 days. The notice stated
that the penalty for a second offense would be a 1-week
layoff, for a third offense, discharge.
In another, undated, notice to the employees, Max
Congden asserted a union was "undesirable" -for the
"Company" and for "all employees," because "A union
cannot help any of us and could hurt all of us," "The
major interests of a union are money - your money and
power,"- "A union means dissension and unhappiness,"
"Strikes hurt everyone," and "A union could seriously
damage our competitive position ." Congdon concluded
that "we can discuss and solve our own problems better
CONGDON DIE CASTING CO. 485
and faster without outside interference ," and suggested
that those employees who had questions , talk to members
of the "management team."
Another notice , dated September 21, apparently
addressed only to the employees at the Twelve Mile Plant,
signed by Max Congdon , advised the employees as
follows:
There has been some loud noises started by some
loud noisemakers at this plant about the difference in
pay scale for female operators between 9 mile, Buffco
plant and our 12 mile road plant.
Let me set all of you straight on this.
There is a difference of 10 cents more for female
press operators at 9 mile plant . The reason for this is
- we gave an increase of 10 cents at Buffco shortly
after we started up at that plant - before there was
any union activities with the National Labor Relations
Board.
Since a raise was not instituted at this plant previous
to Union activities with National Labor Relations
Board, we cannot give out any increases at this point or
until such time as it is cleared up.
If we did give out increases this could be termed as
unfair labor practice since union activities have been
initiated into Labor Relations Board.
Your best understanding on this matter will be
appreciated.
About this same time , on the day of a union meeting,
Darlene Shively stated she recalled Lipchick making a
statement to a group of employees in which he "asked
about the union," but the details of which Shively did not
otherwise recall . Lipchick did not mention this incident in
his testimony.
Employee Paul Kilts related two instances in which
Max Congdon and Kilts spoke concerning the Union. In
early October, on an occasion when Kilts happened to be
passing Congdon ' s office , Congdon greeted him, and
asked Kilts how the Union was coming along , to which
Kilts replied , "Not too bad , but I [won't] know until
about a month or so."
On another occasion , about 3 weeks before the election,
Kilts states , he went to see Office Manager Don Usher, in
response to Respondents ' advice that any employee with
questions about the Union might talk to members of
management , and discussed with Usher "the reason the
union was trying to get in there was because of wages, low
wages there ." Usher told Kilts that he couldn ' t discuss
anything concerning wages with him, but that Kilts might
speak to Congdon . Later that day, Kilts spoke to
Congdon , and said he would vote for the Union for higher
wages and better working conditions , to which Congdon
said "he couldn ' t discuss any increase in wages at that
time because he would be violating the [law]."
January 2, 1968 , was a busy day in regard to these
matters. At 3 p.m., Congdon met with the employees on
the first shift , in the lunchroom , to discuss the Union.
This meeting was repeated at 6:00 p . m. with the second
shift . Congdon stated that he made approximately the
same comments at both meetings , which were described as
question - and-answer periods . After the first meeting, but
,before the evening meeting , two employees , Frein and
Visger , who worked on the second shift, also visited
Congdon in his office to question him about these matters.
An employee witness for the Respondents , Basler,
testified that she attended the afternoon meeting in the
lunchroom . She states that she asked Congdon if the
employees would get a wage raise and that he said the
Respondents couldn't promise anything on account of the
labor laws. She recalled that the subject of piece rates on
the punch presses was raised, but asserts that it was not
discussed for lack of time. She also testified that someone
brought up the subject of hiring colored people, and states
that Congdon said that if colored people came in and he
needed help, they would be subject to being hired. For the
remainder, she stated that the questions were raised so
rapidly that this was all she could remember.
Two witnesses for the General Counsel, Frein and
Shively, and one employee witness, Visger, in addition to
Max Congdon, for Respondents, testified concerning the
evening meeting in the lunchroom, on January 2, 1968.
Frein stated generally that there was discussion at that
meeting with respect to "money, working conditions,
hourly pay, vacation pay," and referred specifically to a
question which was raised concerning Respondents' policy
on holiday pay, and to Congdon' s statement , in answer to
a question raised by an employee, to the effect that since
the Union representative was a Negro, there would
probably be a lot more Negroes working in the plant, a
condition to which it was said the employees were
opposed.
Shively recalled that when the subject of hiring Negroes
was brought up, she asked if Respondents were not
obligated under law to hire a certain ratio of colored
applicants, to which Congdon answered, "Yes, it is true, if
they come in, but the Union would send colored to be
hired."
Visger recalled that on this subject, Congdon said that
by law if Negroes made application, and he needed them,
they would be hired. She also stated that a question was
raised about Buffco employees getting 10 cents more an
hour than the Twelve Mile Plant employees.
Congdon recalled that after the question of employing
Negroes was raised by another employee, Shively had
asked if he were not required by law to hire them.
Congdon states that he answered that Respondents had to
hire colored people whether the Union was in the plant or
not. Congdon also stated that the matter of the wage
increase at Buffco was brought up by an employee, to
which he replied that the female employees at the Nine
Mile Plant were receiving 10 cents more, and that the
reason he couldn't give the raise to the Twelve Mile Plant
was due to the fact that Union activities had been initiated
and he might be accused of an unfair labor practice.'
Congdon further stated that he was asked if the employees
were going to get an increase , but that he requested that
the employees not ask for that since he would not be able
to give them an answer on that subject.
As noted above, prior to the evening meeting,
employees Frein and Visger went to Congdon's office to
question him about the Union, in response to his notice
encouraging such action. Frein asserts that when the
question of money was brought up, Congdon promised
that he would give the employees a 10-cent raise.' Frein
also stated that when she asked how the Union could get
higher wages for the employees, Congdon stated that the
Union couldn't get more than he was already giving.
Visger, on the other hand, testified that "Mister Congdon
said he could not make any promises about raises because
'Congdon stated that the Twelve Mile Plant employees "would have got
the same increase had it not been for the fact that the union had initiated
their activities at the N .L.R.B., and it would have been an unfair labor
practice if I had."
'Frein testified that the employees received a 15-cent raise in their first
paycheck after the election.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the union." Congdon asserted that he told the two
employees that he could do nothing about increases "until
the union activities were settled one way or another."
Frein also testified that the subject of layoffs was
discussed during this conversation . On direct examination,
she stated that it was said that " If the union would be in
- We would be layed-off because of slack work or lack
of work." On cross-examination , Frein agreed that it was
she who brought up the subject, by asking if there would
be a layoff if the union came in, and that all Congdon
said was "That there could possibly be a layoff."
During the conversation in the office , one of the girls,
probably Frein, asked if more Negroes would be brought
into the plant with the Union , since the Union
representative was a Negro. According to Frein, Congdon
said that more Negroes would probably be brought into
the factory.
Visger ' s version of the conversation on these subjects
was somewhat different . She states that Congdon was
asked if it were true , as rumor in the shop had it, that
women over 44 or 45 would be laid off if the Union came
in, and Congdon denied this . Visger states that Frein
asked if colored people would be hired if the Union came
into the plant, and Congdon "said, no, that they could be
hired any time they put their application in, and if he
needed help he could hire them."
On his part, Congdon stated it was his recollection that
the question as to whether there would be a layoff was
raised , not in his office , but during the evening meeting in
the lunchroom. He asserts that he told the employees that
the matter of layoffs or employment was really
determined by the Respondents ' customers , who gave
them business , rather than by Respondents. With respect
to hiring colored people, Congdon testified that he told
the girls that he was required by law to hire them.
Aside from one incident which will be considered
hereafter in connection with the termination of Jeanette
Kathryn Graham, only one other supervisory action
alleged to have violated Section 8(axl) of the Act requires
consideration at this point .' In this instance , supervisor
Lipchick, on the day of the election was overheard telling
an employee, near the door of his office, that she should
go vote and vote "no." The employee answered that she
had already voted. This incident occurred in a part of the
plant separate from the polling place. No other facts with
respect to this matter appear.
2. Evidence relating to alleged violations of Section
8(a)(3) of the Act
a. Jeanette Kathryn Graham
Graham was first employed by Respondents in
mid-October, 1966. In the last part of June, 1967, she
asked Usher for a leave of absence in order to attend her
child who required eye surgery, and Usher stated that
would be all right, that she should let him know when she
was ready to return. About the last of August, Graham
main activity of group leader Jack Denton is also alleged in the
complaint as violating the Act. However, since Denton was found by the
Regional Director , after a hearing on the issue and without objection by
the Union, not to be a supervisor , and thus eligible to vote in the election,
and in the absence of any evidence that Respondents encouraged,
authorized or ratified the conduct complained of, Respondents cannot be
held responsible for Denton 's conduct during the preelection period with
respect to the election . Delta Sportswear. Inc.. 160 NLRB 300, and cases
cited at 305. See also M & A Electric Power Cooperative. Inc., 154
NLRB 540, 544.
called Usher and advised that she was ready to return;
Usher asked whether she would prefer working at the
Twelve Mile or the Nine Mile Plant; Graham stated a
preference for the Twelve Mile Plant and she was taken
back to work at that plant about the 30th of August.
After her return to work, Graham signed a Union
authorization card, talked openly about the Union, and
appears to have been quite active and vocal on its behalf.'
On one occasion , according to Graham 's undenied
testimony, which is credited, the following occurred:
A. Well, I was caught up in my line and I went back
to the rest room, and on the way back I stopped, and I
was caught up on my machine, so I was going to stand
and talk to this one girl there; she was asking me
questions about the union and everything and how I
felt, and I told her and asked her if she was for it, and
she said yes, and then Russ Koeman saw me talking
and he come up and told me to get back to my
machine. '
Q. Now, up to that time had there been any rule
with respect to talking to other employees during the
free time?
A. Not as long as we weren 't behind.
Q. Did you have any other conversation with Mister
Koeman then?
A. That evening, about closing time , just before I
guess, and I asked him how come he told me to get
back to my machine when I was caught up, and I never
did goof around, and he said you was talking union,
wasn't you, and I said yes, and he said, "That's the
reason."
The following evening Graham and Koeman had
another conversation in a local bar, which these two, as
well as other employees, frequented. Graham's undenied
and credited testimony is that during a discussion about
the Union, Koeman told Graham that he was against the
Union and would do anything he could to keep it out of
the plant, to which Graham replied that she was for it and
would do what she could to assist the Union to get in the
plant.
About September 13, Graham was transferred to the
Nine Mile Plant. On Friday, September 15, her supervisor
at that plant, Fred Kline, told her that she was fired.
Kline said that he did not know the reason, that she would
have to ask Usher or Max Congdon. Graham went to see
Usher, and although she indicated that she did not find
out from him the reason for her termination (she says he
told her to go see Max Congdon), it is clear that he
informed her, either during that conversation or sometime
that day that she had missed too many days from work.
Max Congdon testified that he made the decision to
terminate Graham. He stated that Graham had quit in
June, but had been imprudently rehired by Usher when
she asked to return. Congdon asserted that 2 weeks
'Respondents made some point at the hearing that the affidavit of
William Wertz stated that Graham ' s Union activities were secretive.
However , the context of the affidavit makes plain, as the General Counsel
contends, that the word "not" was inadvertently dropped before the word
"secret" in the statement . In any event, the record as a whole shows that
Graham's activities on behalf of the Union were open and she appears to
have been quite outspoken on the subject.
'On cross-examination , Graham admitted that when Koeman came up to
her on this occasion , he asked if she had any work to do , and when she
replied in the affirmative , told her to get back to her machine. The general
tenor of Graham's testimony , which is not controverted, is that in stopping
to talk she was following an accepted practice in the plant, while waiting
for parts to reach her place of work . She admits that there were "about
two piles of work " to do when she returned to her place.
CONGDON DIE CASTING CO. 487
elapsed before he found out that Graham was back at
work, after which, in his words, " I examined her record to
make sure I was not wrong, found it to be a very, very
poor record, and decided to let her go."' Congdon stated
that at the time he did not know Graham was interested
in the Union, but "I knew that she was a probationary
employee and I wasn 't about to let her get sixty days in
and continue to have as bad a record as she had
previously."
So far as Congdon knew, Graham had not been warned
or disciplined previously with regard to her attendance
record; and it does not appear that any supervisor had
complained to him about Graham. Although Congdon
was not sure whether the September notice with respect to
absenteeism had been posted prior to the discharge of
Graham, he asserted that policy was not applied to
Graham because she was a probationary, rather than a
regular employee.
Congdon also testified that several named employees
had previously been discharged by Respondents because of
poor attendance records, but this testimony was
considerably weakened by details brought out on
cross-examination. In any event, the circumstancs of those
cases differ so much from those here involved that it is
not considered necessary to further lengthen this decision
by examining those situations in detail herein. Similarly,
evidence adduced by the General Counsel to the effect
that, in the past, Respondents have been tolerant of
absenteeism, will not be considered in detail. The record
leaves the firm impression, confirmed by Max Congdon's
testimony, that Respondents' attitude toward absenteeism
in the past has not been consistent,' and discipline in these
cases, undoubtedly, was influenced by individual factors in
each instance.
b. Shirley Sharp
Sharp was first employed by Respondents in May 1966.
In September of that year she quit her employment, but in
November of that year Respondents reemployed her as a
new employee, though at the same rate of pay she had
previously received (this apparently being higher than the
starting rate given employees during the probationary
period). Sharp had a rather poor attendance record, and
in June 1967, and, after a number of warnings , she was
given a 1-week disciplinary layoff by supervisor Lipchick
for that reason. When she did not return at the end of the
layoff, Office Manager Usher, who admittedly has
authority to hire employees on his own judgment, called
her home to ask her to return . Sharp advised Usher that
she would not be able to return until the following
Monday because she had to tend to infant pigs that the
sow was too sick to nurse. She returned to work and was
reinstated the following week. Her attendance thereafter
improved.
'Congdon gave no reason that his attention had been d irected to
Graham 's return . He indicated that he was barely aware of her, stating
that he had probably only seen her once during her employment with
Respondents . Employee records came to his attention on an irregular
basis.
'Congdon testified , Inter a/la, as follows:
Q. Nevertheless, it was your practice to warn employees who missed
quite a few days wasn't it?
A. Some we have and some we haven't.
Q. And on occasion if the employee 's attendance record didn't
improve, the employee was discharged is that correct?
A. In some cases whether it improved or not.
In August, Sharp signed a Union authorization card,
and apparently attended the union meeting held on
September 7, as well as other union meetings. She
attempted to secure authorization cards from other
employees and spoke in favor of the Union. It was
testified that Sharp attempted to secure an authorization
card from a relative of group leader Denton, in the
lunchroom, at a time when Denton was present. Denton
testified that he was unaware of this, and his testimony is
credited.
Sharp also testified that she had a conversation with
Denton on September 7, while she was at work, about the
Union. Upon consideration of Sharp's testimony, both on
direct and cross-examination, it appears that in this
conversation Denton asked Sharp and another employee
who was with her whether they had gone to the union
meeting . When Sharp stated that they had, Denton, in
effect, said that the Union would not benefit them and
might cause harm. Sharp replied that she thought that the
Union would benefit the employees. Denton, who was
called as a witness by the Respondents, was not asked
about this conversation and did not deny it. The next day,
September 8, was the last day Sharp worked for
Respondents.
On Saturday, September 9, Sharp's mother died. The
following Monday, she called Respondents' office and
Office Manager Usher and advised that her mother had
died and she therefore had no one to babysit with her
child. Sharp testified that she asked for 2 weeks off, "and
he said yes, I could." Sharp denied that Usher told her
that she should call back at the end of the 2 weeks and
that he would see what he could do then. Usher testified
that, upon Sharp's request for time off, he consulted with
Max Congdon, and they decided that "we couldn't
actually guarantee that we could put her back to work,
but definitely if we had work available we would consider
it when she was able to return to work." Although Usher
did not specifically state that this was related to Sharp, he
apparently agreed with General Counsel's position that
Sharp was refused a leave of absence at this time.
Congdon testified that it was not Respondents' policy to
grant leaves of absence for reasons such as that given by
Sharp, and his testimony was consistent with that of
Usher with respect to Sharp's request for time off. In the
circumstances, it is found that it was not Respondent's
intent to promise Sharp that her job would be available
upon return in 2 weeks' time , but that this would depend
upon the situation when she sought to return.
This conclusion is substantiated to some extent by the
fact that Sharp did call Usher before coming in to work
(which she stated she did, not because Usher had
requested it, but because her son suggested she do so).
Usher informed Sharp that he wanted to talk first to her
supervisor, Lipchick, about her returning to work, and
would call her back. Usher did not call her again.
Usher testified that when he asked if Lipchick wanted
Sharp back, Lipchick said that he didn't want her because
he felt her absenteeism was excessive; however, Usher
stated that he had no recollection of relaying this
information to Sharp. Lipchick, in his testimony,
confirmed this conversation with Usher. Both denied that
they knew that Sharp was active in the Union at the time.
Usher admitted that about the time Sharp took 2 weeks
off Respondents were extensively engaged in hiring
employees, and, in fact, was experiencing some difficulty
in obtaining employees.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Conclusions
1. The alleged interference, restFamt, and coercion of
employees
It is asserted, in paragraphs 13(a) and (b) of the
complaint, that the Respondents violated the Act by first
granting a wage raise to the employees at the Nine Mile
Plant, on September 12, and then advising the employees
at the Twelve Mile Plant that the raise could not be
extended to them because of their union activities resulting
in a petition for certification by the Board. The
Respondents claim that the raise at the Nine Mile Plant
was given at a time when they were not aware that the
Union intended to raise a question concerning
representation there. The reason for the decision to grant
the raise to the Nine Mile employees in the circumstances
was not explained.' It is admitted that the raise would
have been given to the employees at the Twelve Mile
Plant, also, if the matter of union representation had not
been raised at that plant, as the employees there were
advised.
Considering the closeness of the two plants, both in the
same community, the integration of functions and
interchange of employees between them, and the identity
of management, one would have to be naive, indeed, to
believe that Max Congdon was not aware of the real
possibility that, having secured a substantial foothold at
the Twelve Mile Plant, the Union's attention would soon
be directed to the Nine Mile Plant. Given the timing of
this increase, the lack of any evidence of a legitimate
reason for the raise, Max Congdon's avowed opposition to
the Union, and his use of this raise as a part of his
campaign in opposition to the Union at the Twelve Mile
Plant, there seems to be no reasonable alternative, indeed,
to the inference that the raise was given in these
circumstances as part of Respondents' plan to defeat the
Union, and it is so found.
Having found that the wage raise was initiated as part
of Respondents' antiunion campaign, it follows that
Respondents' further use of that raise - to show the
Twelve Mile Plant employees what they had lost by their
union activities - becomes a piece of that pattern, and
like the granting of the wage raise, interfered with,
restrained, and coerced the employees in the exercise of
their rights under Section 7 of the Act, and thus violated
Section 8(a)(1) of the Act.
Indeed, even if it were assumed that Respondents had
good and sufficient business reason for granting the wage
raise at the Nine Mile Plant when they did, it is clear that
their conduct in refusing to extend the raise to the
employees at the Twelve Mile Plant, and advising them
that they would not receive the raise, solely because of
their union activities, would, nevertheless, still be in
violation of the Act. It has long been established that not
only may an employer grant benefits to employees during
the course of union activities giving rise to a question of
representation, where such benefits are justifiable on
normal business or other legal grounds, but, in fact, an
employer violates the Act by refusing to grant such
benefits and advising its employees that they were not
given because of such union activities. The Food Mart,
158 NLRB 1294. enfd. 386 F.2d 192 (C.A. 1).
'The nearest thing to an explanation which appears is a statement in the
notice to the Twelve Mile employees (G.C Exh 4) that the raise was given
at the Nine Mile Plant "shortly after we started up at that plant."
The evidence submitted in support of the allegation of
coercive interrogation of employees set forth in paragraph
13(c) of the complaint is not persuasive. For the most
part, the interrogation appears to have been casually made
by supervision and taken casually by the employees.
Lipchick's statement to Frein that perhaps he should take
the names of those who might attend the Union meeting
seems to have been made in a jocular fashion
(notwithstanding that many serious sentiments are so
clothed) and apparently was not taken seriously.
Similarly, Lipchick's queries of Frein after the meeting
were related by Frein in her testimony in terms of idle
curiosity, made and answered without restraint. If there
was an ulterior motive here concealed, it was not apparent
from Frein's testimony, or from the context of the record
as a whole. The other instances of interrogation of
employees concerning Union matters set forth (excluding
that attributed to Denton) are even less impressive.
The claim that Respondents illegally created an
impression of surveillance of Union activities of the
employees alleged in paragraph 13(d), is based upon the
interchanges between Frein and Lipchick noted above, and
are subject to the analysis already noted. It will be
recommended that those parts of the complaint alleging
interrogation of employees and the creation of an
impression of surveillance of Union activities in violation
of the Act be dismissed.
The General Counsel claims that the notices posted by
Respondents setting forth rules governing absenteeism and
a probationary period were promulgated and enforced in
retaliation for the employees' Union activities (par. 13(e)
of the complaint). Respondents contend that these were
rules previously posted and in effect, which had been
misplaced when the plant bulletin board had been moved.
However, it is clear that the bulletin board had been
moved about 2 years previously. Since no explanation was
offered as to why Respondents, having experienced no
prior compulsion to do so, felt it necessary to repost the
notices just at this time, in the context of this record, it
would be logical to assume that the posting of these
notices, like the granting of the wage increase, was not
merely coincidental, but was consciously motivated to
defeat the Union organizing effort
This conclusion is further confirmed by the fact that, at
least as to the absentee rules, the record as a whole, as
well as the internal evidence of the notice, itself, is
convincing that these were new and more stringent rules
than those which had existed in the past. Thus, the notice,
itself, provides for retroactive application, a provision that
does not comport with the notion of a rule that has been
continuously in effect. In addition, while Max Congdon
testified, during Respondents' presentation of its defense,
that the rules on absenteeism posted in September, 1967,
were the same as those Respondents had before, in his
previous testimony, when called by the General Counsel,
Congdon agreed that, in the past, Respondents did not
have a rule specifying the number of days which would
constitute excessive absenteeism, which forms the essential
basis for the system of penalties set forth in the 1967
notice.'
"It appears that Respondents previously had a probationary program,
geared to paying employees a probationary rate of pay for the initial
period of their employment , and perhaps governing the amount of their
vacation and some other benefits . Shirley Sharp testified that when she was
rehired, in 1966 , after quitting , she did not consider that she was put on a
new probationary period since she was rehired at her old regular rate of
pay The terms of the 1967 notice would indicate a change in this practice.
CONGDON DIE CASTING CO.
In the context of this record, from the timing of the
notices, the absence of any reason for the posting of these
notices at just this time, and because of the more
restrictive impact of the rules, I am convinced that the
content and timing of these rules were designed to
interfere with, restrain and coerce the employees in their
union activities, which were attaining some momentum at
the time, and find and conclude that Respondents thereby
violated Section 8(a)(I) of the Act.
Although the complaint alleges, in paragraph 13(f) that
employees were threatened with loss of employment if the
Union were successful, this conduct is attributed solely to
Jack Denton. For the reasons stated previously,
Respondents may not be held responsible for Denton's
statements to employees with respect to the Union prior
to the election, and it will be recommended that this
allegation of the complaint be dismissed.
The General Counsel contends, in accordance with the
allegations of paragraph 13(g) of the complaint, that
Respondents violated the Act by supervisor Koeman's
conduct in sending Graham back to work on an occasion
in which she was talking to another girl about the Union
during working hours, and later advising her that the
reason he did so was because the subject of the
conversation was the Union. Insofar as this contention
attacks Koeman's specific action in sending Graham back
to work, in the circumstances, I do not agree. This was
clearly working time, Graham admitted there was work
awaiting her when she returned, and Koeman would have
been justified in sending Graham back to her station no
matter what she was talking about. However, Graham's
testimony to the effect that what she was doing accorded
with normal practice was not denied, and Koeman's stated
explanation to Graham for his action sought to restrict
Graham, not from talking in accordance with her normal
practice, but from talking about the Union only. This
constitutes an improper restriction upon employee rights
under the Act, and was violative of Section 8(a)(1) of the
Act.
The amended complaint alleges, in paragraph 13(h),
that Respondents, on January 2, 1968, violated the Act,
inter alia, by stating that the Union would force
Respondents to hire Negro employees to displace its
present white employees, thus exacerbating racial feelings.
On the basis of all of the testimony, and with particular
reliance upon the testimony of Darlene Shively, which is
credited, it is found that on that date, Max Congdon, in
response to employee questions, in addition to advising
that the Respondents by law had an obligation to hire
among applicants for available jobs without discrimination
based on color, also told the employees, for the purpose of
influencing them to vote against the Union, that if the
Union were chosen as their representative, the Union
would send more colored applicants for jobs, and
therefore that more Negroes would have to be employed,
a course which the employees clearly wished to avoid.
The attitudes expressed furnish a deplorable, perhaps
tragic, commentary on the gulf that separates the ideals of
industrial democracy, so often expressed, and the practices
by which it is too often shaped." But not all such appeals
to racial prejudice, either by employer or union , no matter
how much we may decry their use, necessarily offends the
Act. Cf. The Archer Laundry Company, 150 NLRB 1427.
Indeed, the statements with which we are here concerned
do not partake of that pervasive, threatening appeal to
racial divisiveness which the Board found to be violative
of the Act in Bush Hog, Inc., 161 NLRB 1575, and
Atkins Saw Division, Borg-Warner Corp., 148 NLRB
489
949, but were rather a more temperate and factual
(though purposefully elaborated and pointed) response to
employee queries not shown here to have been initiated by
Respondents. It will, therefore, be recommended that this
allegation be dismissed. Cf Allen Morrison Sign Co., 138
NLRB 73.
The General Counsel alleged in paragraph 13(h) that
Max Congdon, on January 2, 1968, also threatened
Respondents' employees with loss of employment if the
Union were selected by the employees as their
representative. He relies, for support of this allegation,
upon the testimony of Frein referring to Congdon's
comments on the possibility of layoffs in the event the
Union came in. Frein's testimony, taken as a whole, is not
sufficient to sustain the burden.
The General Counsel also argues that some of the
statements in Respondents' undated notice to the
employees - stating "a union cannot help any of us and
could hurt all of us"; "a union means dissension and
unhappiness"; "strikes hurt everyone"; and "a union could
seriously damage our competitive position - violated the
Act. In the opinion of the Trial Examiner, only the first
of the statements referred to deserves discussion; the
others appear to be fair comment in the circumstances of
this case , whatever might be their significance in another
context.
The theme that the selection of the Union could not
help the employees and could be a source of harm,
however, was more than a passing comment in
Respondents ' campaign to defeat the Union. In Max
Congdon's first notice to the employees opposing the
Union, it was stated that he considered the selection of a
union "undesirable and harmful." Congdon asserted that
he would explain his reasons shortly. Thereafter, Congdon
advised the employees at Twelve Mile that they were not
receiving the same increase as given at Nine Mile because
they had engaged it) Union activities (and, conversely, the
Nine Mile employees had received the increase because
they had not been involved in union activities when the
money was to be distributed); and took occasion to
pointedly advise the employees that the advent of the
Union would increase the probability that colored
employees would be hired, which the employees did not
desire; advised employees on January 2, 1968, that the
union couldn't get any more than he was already giving;
and, in the notice here considered, again reminded the
employees that "a union cannot help any of us and could
hurt all of us." It seems rather plain that this latter
statement in the context of Respondents' other actions
would most likely be understood by the employees to
mean that because of Respondents' opposition, the
selection of the Union as a bargaining representative
would be a futile act, as well as threatening harm to them
by reason of action on the part of Respondents, if the
Union came into the plant, and therefore tended to
interfere with, restrain , and coerce the employees in the
exercise of their rights under the Act, and violated Section
8(a)(1) of the Act. _
The allegation in paragraph 13(i) of the amended
complaint that Max Congdon, on January 2, 1968,
promised a wage increase if the Union lost the election,
"In a similar context , John W . Gardner, former HEW Secretary, had
occasion recently to write, "Such attitudes on the part of whites must
come to an end if this nation is to survive as a free society . Each one who
adds his bit to the storm of hatred does his share to move us toward a
final reckoning that no free American will like." Plain Talk About Hatred
and Violence (Reader's Digest , June 1968, p. 52)
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rests upon the testimony of Nancy Frein with respect to
the conversation in Max Congdon's office on that date.
Inasmuch as Congdon, himself, admits that he told the
employees that he could do nothing about the increases at
Twelve Mile "until the union activities had been settled
there," it is understandable that Frein should have
interpreted his comments to mean that a raise would be
forthcoming if the Union were defeated, particularly since
it was stated that the raises at Nine Mile had been given
because that plant had not been involved with the Union.
However, Frein is the only witness who asserts that
Congdon made so clear and unequivocal a promise. All of
the other evidence indicates that Congdon carefully
avoided such a commitment. In the circumstances, I
cannot credit Frein's recollection on the point, and it will
be recommended that this allegation in the complaint be
dismissed.
Paragraph 13(j) of the complaint asserts that
Respondents violated the Act by granting a wage increase
at the Twelve Mile Plant shortly after the election.
Respondents' action in granting this wage increase
manifestly did violate the Act. It was given in complete
disregard of the fact that the question of representation
which had been raised had not been resolved, and, in fact,
still remains current. By this action Respondents
interfered with the Board's processes and interfered with,
restrained, and coerced the employees in their right to
make a free choice in a second election, if one should be
ordered, and by such conduct violated Section 8(axl) of
the Act.
It will be recommended, finally, that the allegations in
paragraph 13(k) of the complaint, that an agent of
Respondents, during the election, instructed an employee
to vote against the Union, be dismissed. The incident
involved a rather innocuous campaign statement, made
while the polls were open, but at a place not shown to
have been in the vicinity of the polls. Cf. Mi chem, Inc.,
170 NLRB No. 46; Star Expansion Industries
Corporation, 170 NLRB No. 47.
2. The alleged unlawful termination of employees
Jeanette Kathryn Graham: The evidence is convincing
that Graham was discharged because of her union
activities. Although her attendance prior to June when she
took about 8 weeks off, was, for a number of weeks, less
than that scheduled, her supervisors apparently found this
to be tolerable for she was not warned or disciplined for
these matters. When she advised Respondents of her
availability to return to work, about the last of August,
Office Manager Usher not only made no objection, but
offered her a choice of places to work and acceded to her
request in this respect.'
"Usher stated that he did not "think" he was aware of Graham's
attendance record at the time , and indicated that he did not check her
record on the occasion because help was so difficult to get and he was so
busy hiring employees . I do not find Usher's rather qualified denial that he
was aware of Graham 's record persuasive . It was, in the first place,
uncertain . Usher, further, was in a position to have access to, and regular
contact with, the personnel records of the approximately 60 Congdon
employees , and would likely have general . if not specific, knowledge of an
employee such as Graham , who had been employed for 8 months. This was
even more likely if her record was particularly bad, as Respondents claim.
Indeed, it is noted , as discussed hereinafter, even Max Congdon, who saw
the records only infrequently, asserted that he was aware of Graham's
record . In addition , it would appear from Usher's testimony, that he did
not casually accept Graham's return to work , but interviewed her at the
plant before she came back . On the whole , it would appear that Usher's
Prior to the time of Graham's return, she had not been
identified with the Union. After her return, however, she
did become active and identified as an advocate of the
Union, which was certainly well known to Respondents'
supervision." At the same time, after her return to the
plant in September, her attendance markedly improved.
Nor was there, so far as the record shows, any other
criticism of her work or conduct, other than the single
instance involving supervisor Koeman noted above, which
is not alleged to have played a part in her discharge.
On this record, Max Congdon's summary decision to
discharge Graham is difficult to understand, except on the
basis of Graham's Union activities. According to Congdon
he barely knew Graham as an individual, being able to
recall only one occasion on which he may have seen her
while she was employed in the plant. There is no evidence
that any supervisor had ever complained to him about
Graham, either before or after her return to work.
Nevertheless, Congdon's testimony is that he knew of
Graham's prior bad attendance record, and when he
became aware that Graham was back in the plant
(through means not revealed in the record), he went to her
records to make sure that he was "not wrong," and
thereupon made up his mind to let her go. Congdon,
admittedly aware of the "considerable improvement" in
Graham's attendance record since her return, states that
he nevertheless decided not to warn her merely, in
accordance with his asserted absentee policy, but
discharged Graham, instead, because he considered her a
probationary employee, "and I wasn't about to let her get
sixty days in and continue to have as bad a record as she
had previously."
However, it is nowhere explained how a change from
probationary status (assuming , without deciding, that this
was Graham's status at the time) to regular employee
status would have in any way affected Respondents' right
to discharge Graham, if her attendance again deteriorated.
Respondents' absentee policy, providing for penalties for
absenteeism , appears to apply to all employees without
distinction. It may be that in his testimony Congdon was
suggesting an analogy to some collective-bargaining
contracts which grant regular employees greater security
than probationary employees, but there is no showing here
that Respondents had any such commitment to their
employees, and the analogy is thus both superficial and
inaccurate.
Indeed, the pretextual nature of the reason assigned for
the termination of Graham is further shown by the fact
that, while Congdon asserted that shortage of help was the
reason Graham had not previously been discharged for her
poor record, Usher's testimony establishes that when
Graham came back to work that shortage of help still
persisted, and, therefore, that she was actually needed by
the Respondents in their operations. Nor was there any
credible evidence that this situation had changed 2 or 3
weeks later, when the decision was made to terminate
Graham.
On the basis of the whole record, including observation
of the witnesses, it is found that Respondents were aware
uncertain recollection of whether he was aware of Graham 's record when
she returned to work was prompted more by his knowledge of
Respondents' defense to her discharge than by any positive recall of the
fact, and his testimony in this regard is not credited.
"Respondents' brief refers to the fact that after Graham 's discharge,
Supervisor Koeman asserted his surprise when advised of the fact , and said
he would do what he could to help her get her job back. This is not
inconsistent with Koeman 's having advised management of his knowledge
of Graham 's activities , however.
CONGDON DIE CASTING CO. 491
of Graham 's Union activities and that she was discharged
because of such activities and not for cause , in violation of
Section 8 (a)(3) and ( 1) of the Act.
Shirley Sharp: Although the matter is not free from
doubt, I have come to the conclusion that the General
Counsel has not sustained his burden of proving that
Respondents refused to reinstate Sharp because of her
Union activities.
Favoring the General Counsel ' s position , it has been
noted that this refusal occurred approximately at the time
Respondents were discriminatorily terminating Graham,
and were apparently in need of employees . Further, it has
been considered that the same supervisor who decided not
to have Sharp return , on a prior occasion had merely
suspended her, and did not discharge her for her poor
attendance; and that Office Manager Usher, apparently
because of the shortage of help at the time , went to
unusual lengths to get Sharp to come back to work when
she did not promptly return from her suspension. All of
this occurred before the advent of the Union. Sharp, after
her return , apparently improved her attendance , and does
not seem , thereafter , to have been a source of trouble on
this score . She then became involved in the union
campaign in the plant. When she thereafter sought to
come back to work, after a short absence occasioned by
the death of her mother and the necessity of obtaining
another babysitter for her child, Office Manager Usher, in
contradistinction to the practice he had followed with
Graham, consulted with Sharp's supervisor, Lipchick, who
decided that Sharp should not be recalled. Also peculiar is
Usher's failure to ever notify Sharp directly that she was
not to be returned to work or the reason for that decision.
Nevertheless, Sharp 's union activity does not impress
me as being outstanding or particularly noteworthy. Nor
is there persuasive evidence, on this record , that her
sentiments in this regard came to the attention of anyone
in Respondents ' management other than Denton" unless
this can be inferred from the fact that this was not a large
plant and Sharp 's activities do not appear to have been
concealed.
I am not convinced that Denton advised Respondents
of his knowledge of Sharp ' s union activities . At least one
employee, called as a witness by General Counsel , testified
that she considered Denton neutral in the union campaign.
He continued to eat and associate with the employees
during this period , the Union raised no objection to his
voting in the election , and, as has been noted, he was
found to be an eligible employee by the Regional
Director. Neither side questioned Denton on this matter
while he was a witness . Under the circumstances, I do not
think that Denton 's information should be attributed to
the Respondents.
Moreover , in the circumstances of this case , considering
the lack of evidence of a pattern of interrogation, or of
surveillance , or of persistent communication between
employees and management on these matters , the lack of
widespread activity on the part of Sharp, and on the
record as a whole, I do not believe that knowledge of
Sharp 's individual interest in the Union should be inferred
to Respondents . In coming to this conclusion, I have
considered the fact that Frein had advised Lipchick that
"The General Counsel misreads the record when, in his brief, he asserts
that Lipchick admitted knowledge of Sharp's union activities when he
decided that he did not want her back. Lipchick specifically denied such
knowledge, although he admitted general knowledge of union activities in
the plant. It is this admission to which the General Counsel refers in his
brief.
there had been a large turnout of his shift at the first
Union meeting , and, therefore, that Lipchick may have
been activated in respect to Sharp by suspicion, rather
than knowledge of her activities. However, it has also
been noted that Sharp had been warned a number of
times and had been once penalized for her poor
attendance, and Lipchick may well have decided that her
final absence - albeit for good cause - was the last
straw.
For the reasons stated, it will be recommended that the
allegations of the complaint with respect to Sharp be
dismissed.
3. Conduct affecting results of the election
I find and conclude that the Respondents' conduct
occurring prior to the election held on January 4, 1968,
which has previously been found in violation of the Act,
interfered with the employees' exercise of a free choice in
the election, and that the postelection grant of a wage
increase was made as a further inducement to vote against
the Union if another election were ordered. Accordingly,
it will be recommended that the election of January 4,
1968, be set aside, and a new election be conducted at a
time to be determined by the Regional Director.
CONCLUSIONS OF LAW
1. The Respondents constitute a single-integrated
employer engaged jointly and severally in commerce
within the meaning of Sections 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondents have engaged in and are engaging
in unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, and in conduct interfering with, restraining
and coercing employees in their exercise of a free choice
in an election conducted by the Board , which unfair labor
practices and conduct affect commerce within the meaning
of Sections 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondents engaged in
unfair labor practices in violation of Section 8(a)(1) and
(3) of the Act, it will be recommended that the
Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the purposes of
the Act.
It will be recommended that the Respondents offer
Jeanette Kathryn Graham immediate and full
reinstatement to her former or substantially equivalent
position, without prejudice to her seniority and other
rights and privileges, and make her whole for any loss of
earnings she may have suffered by reason of the
discrimination against her to the date of offer of
reinstatement, less interim earnings , and in a manner
consistent with Board policy set out in F. W. Woolworth
Company, 90 NLRB 289, and Crossett Lumber
Company, 8 NLRB 440, to which shall be added interest
at the rate of 6 percent per annum as prescribed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
It will also be recommended that Respondents preserve
and make available to the Board or its agents, upon
request, for examination and copying, all payroll records,
social security payment records, timecards, personnel
records and reports, and all other records and reports
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
necessary to analyze the amount of backpay due and the
right to reinstatement under the terms of these
recommendations.
It will be recommended that Respondents ' posted rules
with respect to absenteeism and probationary status,
which have been found to have been instituted in reprisal
for the employees ' Union activities , be rescinded. This
shall not be interpreted as preventing the Respondents
from publishing and putting into effect rules , which, in all
the circumstances, do not interfere with , restrain or coerce
the employees in the free exercise of their rights under the
Act, and are not in reprisal for the exercise of such rights.
In order to make effective for the employees of the
Respondents the guarantee of rights contained in Section
7 of the Act, it will be recommended that the Respondents
cease and desist from, in any manner, infringing upon the
rights guaranteed in that Section.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and upon the entire record in this case,
it is recommended that Respondents, Congdon Die
Casting Company, and Buffco, Inc., Sparta, Michigan,
their officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Discharging or otherwise discriminating against
employees in order to discourage membership in and
support of International Molders and Allied Workers
Union, AFL-CIO, or any other labor organization.
(b) Granting or promising benefits to or withholding
benefits from employees to discourage membership in or
assistance to a labor organization, or otherwise to
interfere with the rights of employees to select or reject
representation for collective bargaining.
(c) Advising employees of Respondents' action or
intention to act in a manner set forth above.
(d) Publishing, continuing in effect, or enforcing rules
with respect to working conditions which are in reprisal
for, or which interfere with, restrain or coerce employees
in the exercise of rights under the Act.
(e) Threatening or warning employees with harm or
reprisals if they join or assist a labor organization, or
select a representative for collective bargaining.
(f) Threatening or warning employees that the selection
of a collective bargaining representative will be a vain and
futile act.
(g) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer to Jeanette Kathryn Graham immediate and
full reinstatement to her former or substantially equivalent
position without prejudice to her seniority, or other rights
and privileges, and make her whole for any loss of
earnings she may have suffered by reason of Respondents'
discrimination against her as set forth in the "Remedy"
section of this Decision.
(b) Preserve and make available to the Board or its
agents, upon request, the records necessary to determine
the adequacy of reinstatement of Jeanette Kathryn
Graham and the adequacy of backpay due her, as set
forth in the "Remedy" section of this Decision.
(c) Rescind the written rules with respect to
absenteeism and probationary status posted in September
1967, in accordance with the "Remedy" section of this
Decision.
(d) Post at Respondents' plants at Sparta, Michigan,
copies of the attached notice marked "Appendix.""
Copies of said notice, on forms provided by the Regional
Director, for Region 7 shall, after being duly signed by an
authorized representative of Respondents, be posted
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7 in
writing, within 20 days from the date of this Decision,
what steps Respondents have taken to comply herewith.16
IT IS FURTHER RECOMMENDED that the complaint be
dismissed as to any alleged violations not found herein;
and that the election held on January 4, 1968, in Case
7-RC-8259 be set aside, and said case be remanded to the
Regional Director for Region Seven to conduct a new
election when he deems that circumstances permit the free
choice of a bargaining representative.
"In the event that the Recommended Order be adopted by the Board,
the words " a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of the United States
Court of Appeals the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order be adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps
Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT discharge you, or in any other manner
cause you harm , because you join or help International
Molders and Allied Workers Union , AFL-CIO, or any
other labor union.
WE WILL NOT attempt to discourage you from
joining or helping a labor union , or selecting a labor
union as your representative -
By promising or granting employee benefits for
that reason, or
By keeping benefits from you to defeat the union,
or
By telling you that we have done or will do such
things, or
By making working rules or regulations that
interfere with your right to engage in union activities,
or
By threatening you with any sort of harm, or
By warning or threatening you in any way that the
Company will see to it that you get no benefit from
union representation.
WE WILL NOT in any other way interfere with your
right to -
Organize yourselves, or form, join or help unions
CONGDON DIE CASTING CO.
Bargain for your working conditions through a
representative freely chosen by a majority of workers
in the plant
Act together for mutual aid or protection of your
working conditions
Refuse to do any or all of these things.
WE WILL see to it that the rules about absenteeism
and probationary employees that were posted in
September 1967, are canceled , and that any future rules
and regulations on those matters are not made or
carried out because of your union activities, or to
interfere with your union activities.
WE WILL offer Jeanette Kathryn Graham immediate
and full reinstatement to her former or substantially
equivalent position without loss of seniority or other
rights and privileges, WE WILL make her whole for any
pay she lost because we discharged her, with interest.
All of our employees are free to become or remain, or
493
refrain from becoming or remaining , members of
International Molders and Allied Workers Union,
AFL-CIO, or any other labor organization.
Dated By
CONGDON DIE CASTING
COMPANY; BUFFCO, INC.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 500 Book
Building, 1249 Washington Boulevard , Detroit , Michigan
48226, Telephone 226-3200.