Dart Industries, Inc.

National Labor Relations Board - Board Decisions

May 30, 1975

218 N.L.R.B. 116 (N.L.R.B. 1975)

116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aztec Chemicals, a -Subsidiary of Dart Industries, Inc.
and Earl Benton
union matters . Thus, he testified on cross-examina-
tion:
Aztec Chemicals , a Subsidiary of Dart Industries, Inc.
and International Brotherhood of - Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 571, Petitioner. Cases
8-CA-8124 and 8-RC-9331
May 30, 1975
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On August 30, 1974, Administrative Law Judge
Jerry B. Stone issued the attached Decision in this
proceeding. Thereafter, Respondent and the General
Counsel each filed exceptions and a supporting brief,
and the Respondent also filed a brief in answer to the
exceptions and brief of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the' record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
1. The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) of the
Act by Foreman Teehan's interrogation of employee
Marries in December 1973, and by Plant Manager
Lucas' interrogation of employee Benton in the same
month. Both these incidents of interrogation oc-
curred before the date on which the Union filed its
representation petition.
2. We agree with, and adopt, the Administrative
Law Judge's finding that Respondent did not
suspend employee Benton for discriminatory reasons
in violation of Section 8(a)(3) and (1) of the Act.
3. The Administrative Law Judge found that
Plant Manager Lucas unlawfully interrogated em-
ployee Bodey as to his union feelings during a job
interview in November 1973. In making this fording
the Administrative Law Judge referred to Bodey's
testimony on direct examination which indicated
that Lucas had questioned Bodey as to the latter's
union attitude . However, on cross-examination, not
referred to by the Administrative Law Judge, Bodey
stated that it was he who initiated discussion about
218 NLRB No. 22
Q. Mr. Bodey, you have or at the time of your
application for employment you had a relative
working for Aztec Chemicals, did you not?
A. Yes, sir, I did.
Q. You asked'him to see whether or not you
could be employed by Aztec, did you not?
A. Yes, sir, I did.
Q. Isn't it a fact that you told him that you
were unhappy where you were working because
of the fact that there was too much internal strife?
A. Yes, sir, I did.
Q. You were interviewed by whom?
A. By Mr. Lucas and Mr. Bender, Leo
Bender.
Q. And you filled out an appointment appli-
cation, did you not?
A. Yes, sir, I did.
Q. And you told Mr. Lucas, did you not, that
you wanted a job without internal hassles.
A. Yes, sir, that's a fact.
Q. And you said that he asked you what you
meant?
A. Yes, sir.
Q. What did you tell him?
A. I told him that I worked for union and
non-union shops and what I said previously about
the good and the bad in both of them.
I told him that I had just come or was currently
employed, during my interview, I was currently
employed by a company that was union and that
definitely there were problems within the compa-
ny at that time.
Q. And in response to that, Mr. Lucas told
you that Aztec did not have union, did not have a
union, didn't he?
A. Yes, sir, he did.
Q. And he told you that Aztec's policy was
that it always tried to treat employees in such a
manner that they would never feel that a union
was necessary.
A. Yes, sir, that's correct.
In no sense can Lucas' employment interview with
Bodey be said to have been coercive. As Bodey's
above testimony makes clear, it was he who first
mentioned the subject of unions in a context in
which he indicated dissatisfaction with his previous
employment because of union considerations. Lucas'
reply was simply that Respondent did not have a
union and that its policy was to treat employees so
that they would not feel the need of a union. There
AZTEC CHEMICALS 117
was no need of interrogation of Bodey by Lucas as to
Bodey's feelings toward a union. Bodey had volun-
teered information which indicated that he did not
want to work in a union shop. Upon the basis of the
foregoing testimony, we fmd, contrary to the Admin-
istrative Law Judge, that Respondent did not
coercively interrogate employee Bodey during his
employment interview in November 1973.
4. The Administrative Law Judge found that
Foreman Wharton coercively interrogated employee
Benton on December 27, 1973. We do not agree.
On December 27, 1973, according to Benton's
credited testimony, Wharton, following Benton out
to the parking lot, said:
"Earl [Benton], I'm very disappointed in you,"
and I asked him, "What do you mean, John
Wharton ]?"
He said, "Well, the things that are going
around in the plant right now, I'm very disap-
pointed that you are involved in this." And I told
John that I felt that something had to be done
and I was glad that I could be an impetus to begin
a change at the plant.
I also told him that one man doesn't make a
vote and one man doesn't make a movement and
we ended our conversation at that.
The Administrative Law Judge found that by the
foregoing conversations Foreman Wharton unlaw-
fully interrogated employee Benton as to his union
activities . Wharton and Benton were friends. Ben-
ton's prounion activities were openly conducted and
known to management. There was no necessity to
interrogate him to find out about his known feelings.
Wharton's declaration of disappointment was not
accompanied by any sort of threat, actual or implied.
His statement appears to have been little more than a
personal opinion as to Benton 's activities. We find
that it did not violate Section 8(a)(1) of the Act.
5. The Administrative Law Judge found, and
Members Jenkins and Penello agree, that Respon-
dent violated Section 8(a)(1) of the Act by Foremen
Teehan's and Smith's interrogation of employee
Bodey in February 1974. Both of these interrogations
occurred after the date on which the Union filed its
i Member Kennedy would not find a violation in the Smith-Teehan
interrogation of employee Bodey. According to the testimony credited by
the Admimstrative Law Judge , on separate visits by Bodey to the foreman's
office to discuss other matters, Smith and Teehan asked him if he had heard
anything or had any feelings in regard to the union campaign that was going
on. According to Bodey's testimony , he told Teehan that he didn't have any
feelings, that he had worked for union and nonunion shops and had
favoi able experiences with both , and that so long as he was treated fairly he
didn 't feel that a union was necessary
The foreman's office was a small cubbyhole about 7 feet by 7 feet that
was used by employees to take their breaks, smoke cigarettes , have coffee,
or just sit do}vn and chat. It was a place where employees felt comfortable
and relaxed, ! and where informal discussions between employees and
representation petition and therefore relate both to
the unfair labor practice issue and to objections to
the election.'
The Administrative Law Judge recommended
sustaining the Union's objections to the election
based on the unlawful interrogation of employee
Bodey by Foremen Smith and Teehan in February
1974. He also recommended overruling all other
objections to the election. While Member Penello
agrees with Member Jenkins that Foremen Teehan's
and Smith's interrogation of Bodey was unlawful, he
finds that such limited interrogation of one employee
is not such serious or coercive conduct in these
circumstances as to warrant setting aside the elec-
tion. As Member Kennedy does not find that these
interrogations were unlawful, he concurs with Mem-
ber Penello in the decision not to set aside the
election. Accordingly, the results of the election will
be certified.
AMENDED CONCLUSIONS OF LAW
Delete Conclusion of Law 5 from the Administra-
tive Law Judge's Decision and substitute the follow-
ing:
"5. By interrogating employees concerning their
union activities in a manner constituting interfer-
ence, restraint, and coercion Respondent violated
Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that Respondent,
Aztec Chemicals, a subsidiary of Dart Industries,
Inc., Elyria, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order as modified below:
Delete the third, fourth, and fifth paragraphs
following 2(b).
Foremen Smith and Teehan frequently occurred. Bodey's own testimony on
cross-examination was that during this period the union campaign was an
open subject of discussion among all employees. In this context, where there
is no evidence to show that the Employer engaged in a pattern of hostility
towards its employees (the Administrative Law Judge found , with the
exception of the evidence relating to the 8(a)(l) conduct , that there was no
evidence to reveal a propensity by Respondent to engage in unlawful
conduct and to interfere with, threaten, or engage in reprisal toward its
employees because of their union activity or beliefs) and the questions asked
were of a general nature in an informal setting, Member Kennedy would
not find that the queues of Foremen Teehan and Smith were threatening or
coercive.
118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CERTIFICATION OF RESULTS OF
ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 571, and that
said labor organization is not the exclusive represent-
ative of all the employees, in the unit herein involved,
within the meaning of Section 9(a) of the National
Labor Relations Act, as amended.
MEMBER JENKINS, dissenting:
I disagree with my colleagues' findings regarding
the Bodey-Lucas and Benton-Wharton interroga-
tions. In my view, the record and our own precedent
compel 8(a)(1) findings in each instance.
According to his credited `testimony, Bodey, in the
course of his job interview, was asked by Plant
Manager Lucas whether he "had any opinions pro or
con in regards to a union." Bodey gave an equivocal
response, indicating that there was "good and bad in
both [union and nonunion Shops]." To be sure, the
conversation then turned to a discussion of unions in
general, but it is Bodey's credited (and uncontradict-
ed) testimony that Lucas broached the subject of
unions by asking what Bodey's feelings were, i.e., the
"pros and cons." Moreover, after carefully consider-
ing Bodey's testimony on cross-examination, cited by
the majority, and Lucas' testimony as well, I find no
basis for reaching a different conclusion. For, at
most, all that this further testimony adds is Bodey's
desire for a job without "internal hassles" and the
fact that there "were problems within the company at
that time." 2 (Emphasis supplied.) In sum, I fmd no
support for the majority's conclusion that during the
interview Bodey "indicated dissatisfaction with his
previous employment because of union considera-
tions." (Emphasis supplied.)
Therefore, I would find the violations as alleged,
especially since we have recognized that a job
interview is a "peculiarly sensitive moment when the
employee is particularly sensitive to pressure."
Phillips-Van Heusen Corp., 165 NLRB 1, 11 (1967).
And I would reach the same result even if the record
supported a finding that Bodey first mentioned the
subject of unions. See Reliance Insurance Companies,
173 NLRB 1063 (1968).
My colleagues fmd nothing unlawful in Foreman
Wharton's interrogation of employee Benton because
they were "friends," Benton's activities were well
known and there was no need to interrogate him
about them, and Wharton's declaration of disap-
pointment was not accompanied by threats. I
disagree. Wharton was Benton's immediate supervi-
sor, and in that capacity he had repeatedly warned
Benton about his various derelictions, was privy to
management discussions about disciplinary action
against Benton, told Benton outright that he was not
eligible for a coveted promotion, participated in
investigating Benton's absences, and, along with the
other supervisors, was much opposed to the union
movement of which Benton was the prime mover.
True, Wharton considered their relationship"friend-
ly," , but that overlooks the crucial fact that Wharton
also represented the Respondent. Moreover, Whar-
ton's "declaration of displeasure" was a serious
matter for in itself it was a threat because Wharton
had on occasion interceded on Benton's behalf and
might have been expected to do so in the future at
least until Benton left to attend college. But, at the
conclusion of the interrogation, Wharton told Ben-
ton that he was "starting something" he "won't be
around to face the consequences of." It is clear to me
that Wharton was impliedly warning Benton's
followers (and Benton, too, if he remained) of having
to "face the consequences" of their union allegiance.
Finally, I am troubled by the conclusion that the
harmful effect of these interrogations was somehow
minimized because there was "no need" to know the
union attitudes of these employees. Employer motive
or purpose is no more determinative than whether
the asserted misconduct succeeded or failed in
coercing the employee. For it has long been
recognized that ours is an objective test which turns
on whether such conduct "tends to interfere with the
free exercise of protected rights." The Cooper
Thermometer Company, 154 NLRB 502, 503, fn. 2
(1965). See also N.L.R.B. v. Illinois Tool Works, 153
F.2d 811, 814 (C.A. 7, 1946). Accord: N.L.R.B. v.
Burnup & Sims, Inc., 379 U.S. 21 (1964).
In conclusion, I would adopt and spell out the
Administrative Law Judge's findings and order a
new election.
2 In further explanation of these "hassles ," Bodey added , according to
Lucas' testimony , that he had been wrongfully accused by his present
employer of some alleged dereliction.
DECISION
STATEMENT OF THE CASE
JERRY B . STONE, Administrative Law Judge: This
consolidated proceeding, under Section 10(b) and Section
9 of the National Labor Relations Act, as amended, was
tried pursuant to due notice on July 9 and 10, 1974.
The charge in Case 8-CA-8124 was filed on January 18,
1974. The complaint in Case 8-CA-8124 was issued on
March 21, 1974. The issues in Case 8-CA--8124 concern
whether the Respondent has violated Section 8(a)(1) of the
Act by acts of interrogation, threats, and promises, and by
discriminatory suspension from employment of an employ-
ee, all related to the question of union activity, and whether
Respondent has violated Section 8(a)(3) of the Act by
AZTEC CHEMICALS
suspension from employment of an employee for discrimi-
natory reasons. _
The petition for certification by the NLRB, as the
exclusive collective-bargaining representative of certain of
Respondent's employees in Case 8-RC-9331, was filed by
the Union on January 3, 1974. An NLRB election, in Case
8-RC-9331, was held on March 7, 1974. Said election was
pursuant to a stipulation for consent election entered into
on January 24, 1974, and approved by the Regional
Director on January 25, 1974.
The Tally of Ballots issued after the election showed that
of approximately 41 eligible voters, 40 cast ballots, of
which 19 were cast" for, and 19 against, the Petitioner.
There were two void ballots and no challenged ballots.
Timely objections to said election were filed on March 14,
1974.
The Regional Director's Report on Objections issued on
April 17, 1974. Said report recommended overruling of the
petitioner's written objections but recommended hearing
on certain unnumbered objections (the ones involved
herein). The Employer filed exceptions to such report with
the Board. Thereafter, on June 12, 1974, the Board adopted
the Regional Director's report, findings and recommenda-
tiorts and directed that a hearing be held on the
unnumbered objections (involved herein). Thereafter an
order consolidating Cases 8-CA-8124 and 8-RC-9331 was
issued and the hearing herein duly set.
The objection issues relate to (1) the alleged unfair labor
practices issues alleged to have occurred between January
3, 1974 and March 7, 1974, and (2) alleged misrepresenta-
tion concerning the benefits of a health plan.
All parties were afforded full opportunity to participate
in the proceeding, and the Respondent and, General
Counsel filed briefs which have been considered.
Upon the entire record in the case and from my
observation of the witnesses; I hereby make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER 1
Aztec Chemicals, A Subsidiary of Dart Industries, Inc.,
the Respondent, is now, and has been at all times material
herein, an Ohio corporation and a subsidiary of Dart
Industries, Inc., a Delaware corporation, having its main
office in Los Angeles, California. The Respondent has its
principal office and place of business in Elyria, Ohio,
where it is engaged in the manufacture, sale and delivery of
chemical substances. Annually, in the course and conduct
of its business, the Respondent, ships and receives gross
products valued in excess of $50,000 to and from points
directly outside the State of Ohio.
As conceded by the Respondent and based upon the
foregoing, it is concluded and found that the Respondent is
' The facts are based upon the pleadings and admissions therein
2 The facts are based upon the pleadings and admissions therein.
s The facts are based upon the pleadings and admissions and statements
narrowing the issues.
4 The facts are based upon a composite of the credited aspects of the
testimony of Stockard and Benton, and the logical consistency of all the
facts. The facts are not in real dispute.
5 Since this is a combined proceeding involving unfair labor practices
and objections to an election , the conduct prior to the filing of the petition
119
now, and has been at all times material herein, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED2
Teamsters Local Union No. 571, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, herein sometimes
referred to as the Union, is now, and has been at all times
material herem, a labor organization within the meaning of
Section 2(5) of the Act. It is so concluded and found.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Issues Supervisory Status3
At all times material herein, the following named persons
occupied the positions set opposite their respective names,
and have been, and are now, agents of the Respondent,
acting on its behalf, and have been, and are now,
supervisors within the meaning of Section 2(11) of the Act.
Art Haag President (since 1/1/74)
Dan Lucas - Plant Manager
John Wharton - Foreman
Al Smith - Foreman
John Teehan - Foreman
B. Commencement of Union Activities4
Benton and fellow employees commenced discussion of
the possibilities of unionization of Respondent's employees
in mid-December 1973. Around the 11th of December
1973, Benton contacted Union Official Stockard and made
inquiries concerning unionization. Thereafter, around
December 15, 1973, Benton secured union authorization
cards and literature from the Union. Thereafter, Benton
secured help from other employees, talked to other
employees about the Union, and generally engaged in
union organizational activities. Such activities clearly
became known to the Respondent around December 26 or
27, 1973.
C. Interference, Restraint and Coercion Prior to
January 3, 19745
1. The General Counsel alleges and the Respondent
denies that the Respondent engaged in acts of unlawful
interrogation of employees as to their union feelings or
activities on several occasions in November and December
1973.
Witnesses Bodey, Benton and Manies were presented in
support of the General Counsel's contentions. Witnesses
Lucas, Wharton and Teehan were presented in support of
the Respondent's contentions. The issues of whether
for determination of a collective-bargaining representative is set out at this
point. Such conduct (since it is conduct occurring outside the period for
determination of objectionable conduct affecting the results of the NLRB
representation election held on March 7, 1974) has bearing only on the
unfair labor practice issues. The pertinent time for such objectionable
conduct is the period between the filing of the petition in Case 8-RC-9331,
filed on January 3, 1974, and the date of such election , held on March 7,
1974.
120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violative conduct occurred boil down to supple credibility
issues . Considering the totality of the facts, the logical
consistency of the facts, and the testimony and demeanor
of the witnesses, I find that the overall version of facts
presented by Bodey, Benton and Manes more credible
than I do the denials contained in the testimony of Lucas,
Wharton and Teehan.6
Bodey credibly testified to the effect that Plant Manager
Lucas, during a job interview in November 1973, ques-
tioned him as to his ' union feelings as is revealed by the
following credited excerpts from Bodey's testimony.
Q. When Mr. Lucas interviewed you for the
position, did he make any reference to your feelings
about this?
A. Yes, 'sir, he did. He inquired whether or not I
had any opinions pro or con in regards to a union.
Q. Did you have an answer for him at that time?
A. Yes, sir, I did. I told him that I had worked for
both union and non-union shops and that I have had
favorable experiences in both non-union and union
shops and I felt so long as I got a fair shake or that I
was treated fairly and properly by the Company, I
thought there was no need for a union.
questioned him about his union activities. Such conduct is
revealed by the following credited excerpts from Benton's
testimony.8
We got into further discussion at that time. He told
me he had been - well, his words were, `in my corner
since I was hired in for the past couple of years.' He
had been in my comer, but lately he was upset with the
things he had been hearing about me.
I asked him what he meant and he said that in the
past six months he just hadn't been pleased.
I told him he should keep his objectivity all the time
and I reminded him that about a year ago he had heard
a rumor that I was passing around a petition for a
union and I told him that I was fortunate that he was in
my comer then, because he called me into his office to
discuss the credibility of it without taking other action,
you know, and during the discussion, during our talk, it
was quite obvious there was no substantiality to that
rumor at all. And then he said that, yes, he had heard
that rumor again, and I asked Mr. Lucas, `Well, what
are you trying to say? If you have a question, ask me
and I will try to answer it.'
He said, `Well, is there a petition going around the
plant now?'
The facts are undisputed that Bodey had worked at a
prior company that had had a union and that had had
union problems. The facts also reveal that Bodey was not
particularly interested in working where such problems
existed. The facts are further clear that Plant Manager
Lucas was aware of Bodey's attitude prior to the job
interview.? Lucas' version of the job interview does not
really dispute Bodey's version of facts. Further, Lucas did
not specifically deny that he questioned Bodey as to his
attitude. Rather, the Respondent seems to have presented
testimony relating to Bodey's attitude and prior employ-
ment as a suggestion that the conversation relating to
attitudes arose and that questioning did not occur. I note,
however, that Lucas, with respect to an incident of
interrogation of Benton, specifically denied questioning of
Benton as to how many "cards" were signed. Simply
stated, I found Lucas to appear sincere and truthful in his
specific denial of questioning Benton as to how many cards
were signed. I am persuaded that Lucas did not specifically
deny the questioning of Bodey because such questioning
had occurred. To the extent that Lucas' total testimony, as
to the Bodey incident, was presented for an interpreted
denial, I do not so interpret and do not so credit.
Benton credibly testified to the effect that on December
27, 1974, he had a conversation with Plant Manager Lucas
about taking a vacation and in such conversation Lucas
6 I have considered Mames' obvious confusion on direct examination
and in answer to questions by me as to the timing of remarks about
Benton's suspension. I found hum to appear to be a very truthful appearing
witness, and this confusion , does not affect the real meaning of his testimony
on the points involved herem.
T These facts are based upon a composite of Lucas' and Bodey's credited
testimony.
8 As indicated previously, I credit Lucas' denial that he questioned
*
A. I replied to that. I told him that I had not seen
any petition for a union and he said, `Well, is there a
movement?'
* * * *
A. He asked - well, speaking again of the rumor
of a year ago that I was passing around a petition, he
said he had heard that same rumor again now and I
told him that there was no petition going around the
plant. And he asked me then if there was a petition and
if there was a movement.
Q. What did you say?
A. I said, yes, there was.
Benton also credibly testified to the effect that Foreman
Wharton interrogated him about his union 'activities on
December 27, 1973 . Such conduct is revealed by the
following credited excerpts from Benton 's testimony.9
* * * * *
John Wharton, my foreman, followed me out into
the parking lot and he just said, `Earl, I'm very
Benton as to how many cards were signed . I do not credit Benton's
testimony to such effect . Although both Lucas and Benton appeared
credible as to much of this testimony, I am persuaded that Benton has tied
to build his case (for a discriminatory suspension) to some extent.
9 I found Benton to appear to be a more credible witness on this point
than I di,t Wharton. In such determination I have considered the logical
consistency of all the facts and the tuning of events.
AZTEC CHEMICALS
disappointed in you,' and I asked him, `What do you
mean, John?'
He said, 'Well4 the things that are going around in
the plant right now, I'm very disappointed that you are
involved in this.' And I told John that I felt that
something had to be done and I was glad that I could
be an impetus to begin a change at the plant.
I also told him that one man doesn't make a vote
and one man doesn't make a movement and we ended
our conversation at that.
Manies credibly testified to the effect that Foreman
Teehan interrogated him about his union activities or
desires on several occasions in December 1073. Such
conduct is revealed by the following credited excerpts from
Manes testimony.lo
* * * * *
A. I was first approached by him on the 19th or
20th of December and it was out by the lake shack.
* * * * *
Q. (By Mr. Minni) Okay. Continue.
A. I had taken the cards which I had signed out to
my car at lunch and I was on my way back When he
stopped me on the way back to work and he asked me
if I had been pushing the cards around, and I said,
`What cards?'
He said, `The Union cards.'
I said, `I don't know what you're talking about,' and
he said, `We know who signed them and we know that
you are the one pushing on your shift.'
* * * * *
A. I was working in Building 11 and he came
through and I was standing by the control desk. It's just
a desk where you work on paperwork, and he asked me
if I had some cards and I said, `What cards? I don't
even play cards.'
* * *
Considering the foregoing, I conclude and find that (1)
Plant Manager Lu"cas interrogated employee (applicant)
Bodey concerning his union feelings in November 1973;
(2) Plant Manager Lucas interrogated employee Benton as
to his union activities on December 27, 1973 ; (3) Foreman
Wharton interrogated employee Benton as to his union
activities on December 27, 1973; 11 and (4) Foreman
Teehan interrogated employee Manies about his union
activities or feelings on several occasions in December
1973. Such interrogation as to employees' union activities
or feelings were not for legitimate purposes , were not
accompanied by assurances of nonreprisal, and were done
in a manner constituting interference , restraint and
'° Mames appeared to be a franker, more forthright and truthful witness
than did Teehan . I credit his testimony over Teehan's where in conflict.
11 The ' accusation clearly was designed to elicit a reply thereto.
12 Such conduct set forth herein relates both to the unfair labor practice
121
coercion within the meaning of Section 8(a)(1) of the Act.
Such conduct constitutes conduct violative of Section
8(a)(1) of the Act. It is so concluded and found.
2. The General Counsel alleges and the Respondent
denies in effect that Foreman Smith, on January 2, 1974,
during a safety meeting on the Respondent's premises,
threatened employees with suspension from work if he
(Smith) were to observe them exercising their right to form,
join or assist a labor organization.
Witness Simcoe testified to facts which, if credited,
support the General Counsel's contentions. Foreman
Smith credibly testified to facts which support the
Respondent's denial. The issue is one of credibility. The
versions of facts, though differing in respects, are some-
what similar. I found Smith to appear to be a very
objective, clear, frank, forthright and truthful witness on
this issue and credit his version of facts. The facts, as
credited, are revealed by the following excerpts from
Smith's testimony.
A. We were at the shift and the safety meeting and
at the meeting, we discussed safety, like I said, and we
got to the shift part and anything at the shift, if there is
anything they wanted to know about Company policies
and so forth. And I waited a little bit and nobody said
anything-
I said, `I want to talk about the Union situation.' I
said, `I want to let you know where I stand on it, and I
want to let you know what I expect out of you,' and
everything along these lines.
And my statement was, I said, `Tonight, if it takes
two or three hours, let's get it out of our system because
after tonight, I don't want to have any lengthy
discussion about the Union because you know what
you call do as far as the Union:
I told them that it's just like a sales pitch and you
listen to both sides of the thing and whichever makes
the best selling points, you will buy.
I also said if, after tonight, if I was to catch anyone
on the shift involved in Union activities during working
hours, not including their lunch or breaks, but during
working hours, that I wouldn't tolerate it and I would
follow the normal disciplinary steps as far as soliciting
and things like that during working hours.
* * * *
Considering the foregoing, I conclude and fmd that the
preponderance of facts does not reveal conduct violative of
Section 8(axl) of the Act. Smith merely announced the
institution or maintenance of a lawful rule.
D. Interference, l testraint and Coercion After
January 3, 1974 to March 7, 197412
Bodey credibly testified to incidents of interrogation as
to union feelings or beliefs of employees in February 1973,
issues and to the objection issues (Case 8-RC-9331). Certain minor and
self-evident errors in the Transcript record of the proceeding are hereby
ordered corrected. Thus "jog" on transcript page 229,1. 9 is corrected to
`job", and "ands" on transcript page 270 , 1.24 is corrected to "and."
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Foremen Smith and Teehan. Smith and Teehan testified
in denial of such interrogation. Bodey appeared completely
as a disinterested witness. I found him to appear to be a
more frank, forthright and truthful witness than I did
Smith or Teehan on these issues. I credit Bodey's testimony
in full. The facts are revealed by the following excerpts
from Bodey's credited testimony.
I told him at that time again that I had already
worked for non-union and union shops and that I had
favorable experiences with both and so long as I got a
fair shake, as long as I wasn't mistreated and-so long as
I did my job and I didn't get harassed for some
ridiculous reason, that I didn't feel it was necessary to
have a Union.'
Interrogation by Smith
* * * * *
Q. Directing your attention to on or about the first
part of February 1974, did you have a discussion with
Mr. Smith about the union campaign?
A. Yes, sir, I did.
It was on the second shift. I'm not exactly sure of the
date, but it was rather slack at that period of time and I
had all my responsibilities fulfilled.
On the second shift, when we worked, we were under
the direct supervision of a shipping foreman and seeing
as there was no shipping foreman at that time, I went
into his office to check with him and see if there were
any other responsibilities that he had for me for the rest
of the evening and he said no, and it was at this time
that we began discussing the operation of the depart-
ment, shipping and receiving, and it was at this time
that he asked me if I had heard anything or had any
feelings in regard to the Union campaign that was
going on.
Q. Was he the one who first brought up the subject
of the Union campaign?
A. Yes, sir.
*
Interrogation by Teehan
* * * * *
Q. Did he ever discuss your Union sympathies or
activities?
A. Yes, sir, he did.
It was basically under the same situation as Mr.
Smith. Again, it was second shift in the period where
my responsibilities were pretty well taken care of and I
had to go into his office to ask him if there was
anything else that needed to be done in regard to my
responsibilities, and he asked me if I heard any rumors
or remarks, from the men in the plant, in regard to a
Union campaign.
Q. What if anything did you answer Mr. Teehan at
that time?
A. At that time I told Mr. Teehan I heard remarks
both pro and con in regard to the Union, and he asked
me what my particular feelings were and I said, `Well, I
don't have any feelings.'
13 The facts are based upon a composite of the credited aspects of the
testimony of Lucas, Benton, Smith , Matek, Wharton, Romoser, Kos,
Blackford, McHugh, and the logical consistency of the facts. Testimony of
witnesses inconsistent herewith is discredited.
14 The Respondent allowed employees to make and receive necessary
telephone calls relating to work and overtime and similar matters. The
Considering all of the foregoing, the lack of legitimate
basis for such interrogation, the lack of assurances of
nonreprisals, and the totality of the facts, I conclude and
find that such interrogation was carried on in a manner
constituting interference, restraint, and coercion within the
meaning of Section 8(a)(1) of the Act. Such conduct is
violative of Section 8(a)(1) of the Act. It is so concluded
and found.
E. The Alleged Discriminatory Suspension of Earl
Benton for 20 days13
Earl Benton, the alleged discriminatee, was employed by
the Respondent from September 1971, through March
1974. Benton was a young but mature employee, a former
sergeant in the U.S. Marine Corps, and had attended
college for a part year prior to employment. Benton
appeared to be an intelligent young man as a witness.
Benton's employment record with the Respondent was
essentially good prior to the crucial events in this case.
Benton's job attendance was good until late in 1973 when
he commenced taking some days for sick leave. In late
1973, Foreman Wharton orally warned Benton about
receiving telephone calls and being away from his work
area . Wharton and Plant Manager Lucas had discussed
Wharton's dissatisfaction with Benton's attendance, the
receipt of telephone calls, and being away from his work
area . Wharton, however, had persuaded Lucas that he
should be allowed to handle the matter orally.14
Benton's father also worked at the Respondent. It is
undisputed that Benton's father was opposed to the idea of
unionization of Respondent's employees. Benton, himself,
prior to the critical events in this proceeding had been
opposed to the idea of unionization for Respondent's
employees. About a year before the critical events of
December 1973 through March 1974, Benton had circulat-
ed, with Plant Manager Lucas' approval, a petition relating
to shift hours. At the time, a rumor to the effect that
Benton was circulating a petition for unionization purposes
was reported to management . Benton spoke to Plant
Manager Lucas and reminded him that it was the petition
for shift hours and not for unionization.
The facts are clear and the Respondent readily concedes
that it is opposed to the unionization of its employees and
feels that it can deal with its employees better without a
union. Excepting for the evidence relating. to the 8(a)(1)
conduct found violative herein, and such evidence as set
telephone calls involved were telephone calls from a stockbroker from
whom Benton had made inquiries concerning the value of "Dart" stock and
his interest in buying such stock. The absences , the telephone calls, and the
oral reprimands , all occurred prior to Benton's union activities and
Respondent's knowledge thereof.
AZTEC CHEMICALS
forth hereinafter, there is no evidence to reveal Respon-
dent's propensity to engage in unlawful conduct and to
interfere with, threaten, or engage in reprisal toward its
employees because of their union activity or beliefs.
During his employment at Respondent's plant, Benton
had thoughts of returning to college, at least for part-time
enrollment. Such attitude was cleanly made known to
company supervisors and officials. He considered going to
a nearby community college and continuing his employ-
ment at the same time. He discovered, however, that the
courses he desired were not available under such condi-
tions. He then commenced exploring the idea of going to
Ohio State University, located at Columbus, Ohio, around
150 miles from the location of Respondent's plant. Benton
did not keep his ideas about going to school to himself. He
openly discussed them with others, including his superior,
Wharton.
As revealed by the following credited excerpts from
Benton's testimony, Benton told Foreman Wharton of
moving his family to Columbus, Ohio, (over 150 miles from
Respondent's plant) and his plans to enter college and
cease working.
* * * *
THE WTTNEss: In November when I moved my
family down to Columbus, I told my immediate
supervisor, John Wharton, that assuming everything
worked out, that I would be going back to college and
if the Veteran's check came and everything worked out,
that I would probably be leaving some time in January.
Then, in the early part of January and when I saw
this situation, I told John Wharton on the phone that I
would be working at least into February.
* * * * *
Benton's father also told Plant Manager Lucas about
Benton's move to Columbus, Ohio.
Thus, it appears that during the fall and the period of
time preceding December 15, 1973, Benton became more
definite concerning his desire to go back to college, part or
full time. Around this time, Benton's attitude toward
unionization of Respondent's employees changed. Some of
his fellow employees, knowing of his intention to resume
colllege, and apparently assuming he intended to ultimately
leave Respondent's employ, persuaded him that he was the
one who could best spearhead the idea of unionization of
Respondent's employees. As previously set forth, Benton
contacted the Union in mid-December 1973, secured union
cards, and commenced formal union organizational efforts.
As previously indicated, in December 1973, the Respon-
dent became aware of Benton's union activities, and both
Plant Manager Lucas and Foreman Wharton, on Decem-
ber 27, 1973, interrogated him about his union activity.
Around the end of 1973, Benton asked his foreman,
Wharton, if he could have a week'-s vacation. Wharton told
Benton that he would check, checked with Plant Manager
Lucas, and told Benton that he was not entitled to a week's
vacation. Benton saw Lucas and was told by Lucas to the
same effect that he was not entitled to a week's vacation.
What Lucas told Benton is revealed in effect by the
following credited excerpts from Lucas' testimony.
123
A. I walked over and into Building 6 where Earl
was working and I said, `I understand you want to see
me, Earl,' and he said, `Yes, I do.'
He said, `I need a week's vacation,' and I said, `Well,
you don't have a week's vacation accrued.'
He said in a demanding tone that he was going to
take a week's vacation.
In the course of our conversation -
Q. May I interrupt and ask you if he told you why
he wanted a week's vacation at that time?
A. I don't know if he told me right now or later,
but in a sense, the reason he wanted a week's vacation
was that he had only one class scheduled and that this
was in an orientation class, which was an hour a week
course or something very minor, and he said he needed
this week to work on that to talk to professors
individually and work on getting other classes set up.
Whether or not he would attend school this quarter
depened on whether or not he could get the courses he
needed.
So there was nothing really definite about his going
to school.
Q. These classes were where? Were they at Ohio
State University?
A. Ohio State University, yes.
Q. The Columbus campus?
A. Yes.
Q. I'm sorry. I interrupted you.
You may continue. You were saying that he wanted
a week?
A. I told him because he was quitting that it would
be foolish for the Company to give him a week's
vacation in advance that he would not have accrued
because, by the, time that he was quitting, or at least it
seemed that there was a possibility he might be quitting
at any day or in two or three weeks or one or two
months, and we didn't know for sure.
I told him that all I could really recommend was
what he was given, which was the three days that he
had accrued.
* * * *
A. Yes. The thing that brought this up was that he
was telling me that he had an excellent work record and
nobody had complained about it and that I had no
reason to question any wrongdoings on his part.
I referred back to what one of his previous
employers had told or what I had found out during the
investigation of his application, and in conversation
with his previous employer, I had called his previous
employer, who was -
*
Jui iE STONE: Okay, go ahead.
TIm WITNESS: In explaining to Earl or discussing
why I wouldn't give him a full week's vacation, I told
him that his previous employer, when I called him,
said, `He still works for us. He's on vacation now.'
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I questioned Earl about this and he said he told him
immediate supervisor that he was going to be quitting
and that he was advised, I believe, by that supervisor
not to report quitting until after he could tell the proper
people so that Earl wouldn 't lose his vacation time.
I said, `This could be the same sort of thing , Earl.'
Later, however, Benton was informed by Lucas that he
could have the days off that had accrued to him with
reference to a vacation.
As of this time, the Respondent was aware of Benton's
plans to leave employment to attend school. The facts
reveal that some of Respondent's employees have been
allowed to take vacation time beyond the time accrued.
Considering the fact of Respondent's knowledge of
Benton's plans to leave its employment before earning all
of the contemplated vacation time, I find Respondent's
action fair and not discriminatory.
Benton took his, vacation time and holidays during the
period of time preceding January 6, 1974. Benton had
moved to Columbus, Ohio. Benton registered for the
winter semester at Ohio State University on January 3,
1974, and around that time engaged in the necessary
registration, orientation, course selection and counseling.
Benton commenced classes as a full-time student on
January 4, 1974, and between such date and January 15,
1974, attended some classes almost daily but missed many
of the classes. Benton had certain problems to arise while
attempting to attend school. First, checks from the
government (Veteran's benefits) did not arrive. Second,
Benton became sick. It appears that Benton first thought
that he merely had a sore throat. Later, Benton self
diagnosed that he had "strep throat". Such diagnosis was
based upon Benton's having had a "strep throat" while in
the U.S. Marine Corps. Benton went to an "open door"
clinic on January 9, 1974, received some medication and
received the following note, dated January 8, 1973, by
mistake for the date of January 8, 1974.
To Whom it May Concern,
Earl Benton was seen here at Open Door Clinic, on
this date. As a result, he has been advised to refrain
from working for approximately one week.
In accordance with our policy, at Open Door we do
not release information on any of our client, without
their permission, but if you have any questions, please
feel free to call.
Sincerely,
/s/ J.E. Barnes, R.N.
Beginning on January 6, 1974, and to January 15, 1974,
Benton called Foreman Wharton daily and reported that
he had to be off because he was sick. Initially Benton told
Wharton that he had a "sore throat". Later, on January 9,
1974, Benton told Wharton that he had "strep throat".
Wharton and Lucas discussed Benton's absences and the
telephone calls from Benton that occurred during the days
following January 7, 1974. Lucas instructed Wharton to
ascertain what the facts were and whether Benton had seen
a doctor. On January 14, 1974, Wharton questioned
Benton as to whether he had been to a doctor and learned
that he had been to a clinic but not to one for students at
Ohio State University. Wharton reported this conversation
with Benton to Plant Manager Lucas.
Around this time, Plant Manager Lucas made some
telephone calls to Ohio State University and learned that
Benton had enrolled as a student and was attending
classes.'
On January 15, 1974, Benton telephoned Wharton and
told him in effect that he was going to see a doctor and
would probably be in to work on January 16, 1974.15
Benton, on January 15, attempted to see a Dr. Monroe and
did see a Dr. Groff on January 16, 1974. Dr. Groff
examined Benton and gave him a note indicating that he
was able to return to work.
Around January 15 or 16, 1974, Plant Manager Lucas
and Foreman Wharton discussed Benton's absenteeism
and the reported "strep throat". Lucas was familiar with
problems of "strep throat" and that it was contagious.16
Lucas left instructions that Benton was not to report to
work until after being examined by the company doctor.
Benton reported to work on January 16, 1974, to
discover his timecard was out of the rack. Benton saw
Foreman Wharton who told him that the Respondent
could not accept Dr. Groff's release, that he would have to
be examined by the company doctor and cleared before
returning to work.17 Benton displayed his anger by
slamming a folder on a small table. Benton stated that the
company had gone too far, that he wanted the fact that he
was being sent home to be in writing. Wharton told Benton
that he did not think that he could do this. Benton then
saw Lucas and the two discussed the length of his absences,
his attendance at school, the "strep throat" and the
contagious nature thereof. Lucas, who was aware of the
medical techniques and time necessary to determine
whether "strep throat" existed, explained the same to
Benton. Benton appeared to be mollified and agreeable to
seeing the company doctor.
Lucas told Benton, in effect, that he did not want him
around employees while the possibility of "strep throat"
and contagiousness thereof existed. Lucas told Benton, in
effect, that he would not lose the night's pay because it
would be considered part of sick pay. Lucas told Benton to
come back the next day and he would arrange for the
company doctor to examine him.
Benton left Lucas and started toward the "locker room".
On the way Benton encountered some of the employees on
his shift who were assembled to receive their instructions.
The facts are clear that Benton could have avoided such
employees had he so desired. The facts are clear that
Benton knew that the Respondent's officers had told him
in effect that they did not want him around such employees
because of the contagious nature of "strep throat". Benton
15 Either during this conversation or a prior conversation, Wharton had
told Benton that he would have to have a medical certificate in order to
return to work.
16 Lucas has had strep throat , and members of his family have had strep
throat.
17 Company policy provided that the company could require such doctor
certificates and examination by the company doctor.
AZTEC CHEMICALS 125
spoke to the employees and told them that the Respondent
didn't. want him to "contaminate" them.
The facts are clear that Benton spoke to the employees in
a voice louder than normal and a that he conveyed that he
was unhappy and disagreed with the Company's not letting
him work. Employee Blackford told Benton in effect that if
the Company would not let Benton work that the
employees would not work. Benton told the employees that
they should work, that the company's Odessa plant needed
the work.18
Foreman Wharton asked Benton to leave on several
occasions.19 Benton did not leave but continued to talk to
the employees, signalling and indicating to the employees
that the hearing in Case 8-RC-9331 had been set for
February 24, 1974. These events occurred in a short period
of tune. The preponderance of the evidence does not reveal
any physical obstruction relating to Foreman Wharton's
giving written orders or sheets to the employees. The
preponderance of the evidence does reveal, however, that
Benton's talking to the employees interfered with Foreman
Wharton's ability to have the attention of the employees
directed to what he wished to tell them.
Foreman Wharton, who normally accompanied the
employees to their job, did not do so. Foreman Smith, from
the earlier shift, did this for Wharton.
Benton went to the "locker room" and continued his
argument against having to leave the plant. Wharton
continued to try to get Benton to leave. Foreman Wharton
told employee Matek to whom Benton was talking, that
Benton was having to leave because of the contagious
possibility of "strep throat". Wharton told Benton that he
(Wharton) was going to have to stay there until he left.
Wharton followed Benton into the parking lot and told
Benton not to try to sneak back or he would call the police.
Benton continued his disagreement about leaving by
further discussion with an employee named Siincoe in the
parking lot.
Later, Foremen Smith and Wharton reported the
incidents to Plant Manager Lucas. Benton returned to
Respondent's plant on January 17, 1974. What occurred is
revealed by the following credited excerpts from Benton's
testimony.
* * * *
A. Well, I was told to come and see Mr. Dan
Lucas, the plant manager, before going to see the
Company doctor so I went into the plant and then
proceeded and went up to Mr. Lucas' office.
A. Yes.
Q. Was anyone else there at that. meeting?
A. No, at the meeting, no.
We were inside his office, in Mr. Lucas' office, and
he and I talked over a number of things for about an
hour and a half, I'd say.
He asked about my illness and he impressed upon
me the seriousness of strep throat, that is that it is
is Benton's later indication about the oncoming representation hearing
suggests thathe did not want to upset the same.
something that could lead to other conditions that
would be fatal and that it was contagious.
I then told him that I - I actually apologized for
being upset for the $8 to pay the doctor. I told him that
I realized I had to see a doctor anyway whether I got to
see the Company doctor or not, and in view of the
seriousness of the thing, I was willing to go and see the
Company doctor, and I would go.
I asked if he had the appointment made and Mr.
Lucas said, `That won't be necessary now, not after last
night's incident.'
Q. What did you say?
A. I said, `What incident? What do you mean?' and
he said, `You were insubordinate. You did not leave the
plant when you were asked to and besides that, I want
to investigate this. I don't see how any employee could
be absent for this period of time with your excuses and
it is a very serious 'matter when an employee tries to
defraud the Company so I'm going to have to
investigate this and you can consider yourself suspend-
ed until we look into this.'
I asked him why I was going to be suspended
because I said, `I'm being punished and you said you're
looking into this. Why don't I work while you are
checking into this?' I said I was ready to work.
What occurred thereafter is revealed by the following
credited excerpts from Benton's testimony.
*
Q. Did you see Dr. Salvadore, the Company's
physician, after your meeting with Mr. Lucas?
A. Not the same day, but during the meeting, I told
Mr. Lucas I was impressed about what he told me
about strep throat and because of the illness that I
would like to have the right to'see the Company doctor
for the sake of myself and my family, and he agreed
that he would make an appointment and substantially
he gave me an appointment for the following after-
noon. That would have been Friday, the 18th.
Q. What did Dr. Salvadore do to you?
A. He took my temperature and he looked at my
throat.
His nurse took a throat culture and he listened to my
heart.
Dr. Salvadore told me in his opinion I was fit to
work and I should be working, and I told him that I
agreed and I wanted to work, but they wouldn't let me
and he was confused at that, but that was the extent of
that.
Q. Did you meet with Mr. Lucas or anyone from
Aztec management after the 18th?
A. Not until the following Tuesday.
Q. What date would that have been? The 22nd?
19 I credit Wharton's and Smith's testimony over that of Benton's on this
point. Blackford's testimony corroborates Wharton and Smith on this point.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. It was the 22nd. I'm certain it was on a Tuesday
and I was to meet with him in the morning. I had to
wait in the lobby for quite a long time and it was
Tuesday morning.
Dan Lucas explained that our Company president,
Mr. Haag, would not be back until Tuesday morning
and so -
Q. Did Mr. Lucas send any other communications
to you with that check?
A. There was a note with the check in the same
envelope. The note said the same thing on the phone
that the throat culture had come back positive and to
take immediate precautions for myself and for my
family.
Q. Did the throat culture taken at Dr. Salvadore's
office - strike the question, please.
'At this meeting between Mr. Haag and Mr. Lucas
and yourself, what was decided in your case?
A. We discussed the incident and Mr. Haag said he
had two foremen and three employees who had given
him statements that I was insubordinate and that it was
a very serious thing and that I was subject to dismissal
and that in view of the fact that I had no previous
problems - there was nothing previously on my
record, on my past record at Aztec, I had been
promoted- right along, and my work performance had
been above average, in view of my record that he would
only in this case suspend me for 20 days.
At that point I asked Mr. Haag, I told him that I
understood there was quite a bit of overtime at the
plant and I asked Mr. Haag if he would let me continue
to work since my work record at the plant had been
clean; wouldn't it be enough simply to have the' written
reprimand, whatever they wanted to write into it, but to
please let me work.
He said no and that this was a business decision.
Later , Benton learned that the throat culture taken in Dr.
Salvadore's office showed that he had "strep throat" as
revealed by the following credited excerpts from Benton's
testimony.
* * * *
Q. What day would this have been?
A.' It was Thursday so it would have been the 24th
of January. It was on a Thursday that I received a
telegram in Columbus, my Columbus address.
It was from my parents and the telegram simply said
to call home collect.
Q. Did you?
A. Yes, I called right away and my mother told me
that Mr. Lucas had called in the morning and had said
the throat culture had come back positive and that
there was definite traces of strep throat and that I was
to take immediate precautions.
With that knowledge, the following day I went up to
Elyria. I left Columbus and went up to Elyria and I
called Aztec and called Mr. Lucas and he told me, `Yes,
the throat culture had come back positive,' and they
had put a check in the mail, or perhaps the check was
already in the mail.
He told me something about a check in the mail for
my sick leave, the week that I was sick.
Benton later returned to work on February 14, 1974.
Considering all of the foregoing, I am persuaded and
conclude and find that the facts are insufficient to reveal
that the Respondent discriminatorily suspended Benton on
January 22, 1974, retroactively to commence on or around
January 16, 1974, for 20 days. The Respondent admittedly
is opposed to unionization of its employees. Benton clearly
was an active union adherent and the Respondent knew of
such activity. The Respondent has engaged in unlawful
interrogation of employees (including Benton) as to their
union activities. However, the Respondent's conduct does
not reveal that it has a propensity to discriminate against
employees for their union activities or beliefs.
I am persuaded that Respondent's conduct, relating to
allowing Benton to have vacation time at the end of 1973
and beginning of 1974, reveals an attitude of fairness and
correctness on its part rather than an attitude of discrimi-
nation. Thus, Respondent was aware of Benton's plans, or
tentative plans, to leave its employment and to attend
school. The Respondent was aware that Benton was
already taking the first steps in such plans to attend Ohio
State University. Further, Respondent had reason to
believe, from a conversation with Benton's former employ-
er, that Benton might attempt to use vacation or sick leave
in a manner inconsistent with its purposes. The Respon-
dent accorded Benton the amount of vacation time to
which he was actually entitled.
Much evidence was adduced in detail for the apparent
reason of showing that the Respondent was discriminatori-
ly motivated toward Benton with respect to its requirement
that Benton be examined by a company doctor before
returning to work on January 16, 1974. The overall facts
reveal that the Respondent was suspicious that Benton's
taking of sick leave from January 7, 1974 to January 15,
1974, was not proper. Thus, Respondent was aware of
Benton's plans to leave its employment and to return to
school, was aware of a former employer's report that
Benton had secured vacation or sick leave at the time of his
termination in a manner inconsistent with such employer's
policy, and was aware that Benton was attending, school
during the time he was claiming sick leave. The Respon-
dent was aware of Benton's reported treatment at the Open
Door clinic and not at a student's clinic. Plant Manager
Lucas was also aware that a throat culture had not been
taken with respect to determination of the "strep throat"
and that "strep throat" was contagious. Under such
circumstances, I am persuaded that Lucas was suspicious
that Benton had not been sick but was not sure that
Benton had not been sick, that Lucas believed that if there
were a possibility that Benton had "strep throat" it was
best that he not be allowed to work until an examination
by the company doctor revealed that he should be allowed
AZTEC CHEMICALS 127
to work. Thus, as to the requirement that Benton be
examined by the company doctor on or around January
16, 1'974, such requirement appears proper. Assuming that
Respondent believed Benton to have had "strep throat", it
clearly was a reasonable precaution. Assuming that
Respondent believed Benton to be offering a pretextuous
excuse, "strep throat", such action appears reasonable. ,
The facts are clear that Benton, on January 16, 1974,
disregarded the import of Lucas' directions relating to
prevention of "contagion" from "strep throat", showed
displeasure toward Wharton by slarnmmg a folder on a
table, insisted upon his having to go home reduced to
writing, and disregarded Wharton's directions to leave the
plant. Accordingly, I am persuaded that the facts prepon-
derate for a fording that Benton was suspended because the
Respondent considered such conduct to be insubordinate.
The General Counsel argues that Plant Manager Lucas'
having Benton into a conference with President Haag and
himself on January 22, 1974, reveals that Lucas did not
sincerely believe that Benton had "strep throat". This may
be so, but as indicated, under such assumption or a
contrary assumption, I am persuaded that Respondent's
motivation for the suspension of Benton was because it
considered his conduct to be insubordinate.20 Accordingly,
I recommend that the allegation of conduct violative of
Section 8(a)(3) and (1) of the Act in such regard be
dismissed.
F. The Unnumbered Objections 21
(Case 8-RC-9331)
1. One of the unnumbered objections presented for
resolution in this case concerns the unfair labor practice
issues set forth above in section III, subsections D and E.
Such unfair labor practice issues concerned unlawful
interrogation as to employees' union activities and feelings.
Such conduct as found has been found to be violative of
Section 8(a)(1) of the Act. Accordingly, it will be
recommended that the unnumbered objection relating
thereto be sustained to such extent.
Such unfair labor practice issues in section III, subsec-
tions D and E, also related to (a) threats relating to
employee union or concerted rights and (b) the alleged
discriminatory suspension of Benton. Such allegations
have not been found to be supported for a fording of
conduct violative of Section 8(a)(1) and (3) respectively.
Accordingly, it will be recommended that the unnumbered
objection relating to the unfair labor practice issues in such
regards be overruled.
2. The other unnumbered objection relates to Petition-
er's contention that the Employer, at a meeting on March
5, 1974, 2 days before the election (on March 7, 1974)
misrepresented, in a grossly derogatory and inaccurate
manner, the benefit of a health plan that the Petitioner
would expect to obtain for the employees if it won a
majority in the election.
The facts are rather simple. The Union, in its organiza-
tional efforts, had told the employees that if it became their
collective-bargaining representative, it would try to obtain
the health benefits for them that were listed as H2 in The
Benefit Plan of the Ohio Highway Drivers' Welfare Fund
(July 1, 1973).
On March 5, 1974, the Respondent had a meeting with
employees, and Respondent officials discussed Respon-
dent's health benefits. What the Respondent's official
related to employees about health benefits is revealed by
the following credited excerpts from the testimony of Esau.
A. The purpose of the meeting was to talk to the
employees of Aztec Chemicals about their employee
benefits and also to point out to them the advantages of
the employee benefits that they had at Aztec Chemicals
and to draw some comparisons between benefits they
had at Aztec and benefits that were in effect at some
other companies which were organized by the Team-
sters.
I generally began the meeting by putting on a flannel
board some illustrations highlighting the different
aspects of an employee benefit program and then
showing what those benefits were next to each category
of benefit for the Aztec Chemicals employee benefit
program and then, secondly, on the local cement
company which was organized by the Teamsters and
also with a Dart Company in the State of Ohio that was
organized by the Teamsters.
When I was through with the flannel board presenta-
tion, I then turned briefly to some charts which
illustrated a comparison between different plans and
how they paid off in different kinds of claim situations.
When I was through with that, I then asked if
anyone had. any questions and we spent quite a bit of
time on questions and answers. I answered most of the
questions. I answered all of the questions.
As I recall, one of the questions that was put to me
was did I say that the benefits illustrated on the board
were those that would actually be in effect at Aztec
Chemicals if they went union and I very clearly pointed
out that this was not the case and that if Aztec did go
Union, the benefits they would have after the contract
was signed would only be those that were negotiated.
Nothing more, nothing less.
The question was also raised regarding the Ohio
Highway Drivers' Welfare Fund and I answered
questions about that and I usually made a remark to
begin with by saying the employees might feel that they
would be able to negotiate the benefits which were
shown in the highest class in the plan - there were
different classes shown in the booklet, which I believe
was called Class H, but on the other hand, I may very
well argue that they would only be able to negotiate
only the benefits that were shown in Class E, the lowest
class.
But, for comparison purposes, I felt it would be fair
to talk about benefits halfway between the lowest
category and the highest category and so that I then
made comparisons halfway in between with benefits
20 Benton, in fact, had "strep throat". having set forth "Unnumbered Objections" is overruled inasmuch as the
21 The Respondent's renewed objection to the Regional Director's Board has previously passed upon the same.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
showing in Class E-3, which is halfway between the
bottom and the top.
We also talked about the benefits and we did not
discuss whether these benefits would or would not be
provided through the Ohio Highway Drivers' Welfare
Fund.
That essentially sums up what happened at the
meetings.
Q. The present benefits under the Aztec plan are
those applied to a policy between Dart and Aetna
Insurance Company, is that correct?
A. That's correct.
The Benefit Plan of the Ohio Highway Drivers' Welfare
Fund (July 1, 1973) refers to benefits (Class E, D-1, E-1, E-
2, E-3, F, F-1, G, and H-2). Class H-2 of such benefit plan
was fully available for negotiation purposes on March 5,
1974. Class E of such benefit plan was technically available
for negotiation purposes on March 5, 1974.
The Union contends that using classes other than Class
H-2 of the benefit plan for a comparison purpose
constitutes a gross misrepresentation to which they did not
have time to reply. The facts would indicate that the Union
did not have a realistic opportunity to reply to the election
propaganda.
I note, however, that the Employer did not tell the
employees that the Union would not try to bargain for the
higher class of benefits which the Union had spoken about
in its propaganda. Nor did the Employer indicate that
bargaining had to be related to the lesser benefits. In my
opinion , the remarks about various benefit plans and
classes and opinion as to how the bargaining would occur
stayed well within the limits of legitimate electioneering
campaign propaganda, opinion and argument.
Considering all of this, I conclude and find that the
employer's propaganda meeting relating to health benefits
did-not contain misrepresentations of a nature that would
interfere with employee election choices. Rather, it
constituted simply election propaganda. Accordingly, it
will be recommended that the unnumbered objection
relating to "health benefits" be overruled.
V. THE REMEDY
(Case 8-CA-8124)
-Having found that the Respondent has engaged in unfair
labor practices, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative
action to effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Aztec Chemicals, a Subsidiary of Dart Industries,
Inc., the Respondent, is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Teamsters Local Union No. 571, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining and coercing its
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondent engaged in unfair labor practices
proscribed by Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. By, during the period of time January 3, 1974 to
March 7, 1974, engaging in the conduct of interrogating
employees about employee union activities and sentiments
in a manner constituting interference, restraint, and
coercion within the meaning of Section 8(a)(1) of the Act,
the Employer engaged in conduct, as averred in an
unnumbered objection, which interfered with the employ-
ees' exercise of an untrammelled choice in the election in
Case 8-RC-9331, held on March 7, 1974, with respect to
the employees in the following appropriate bargaining
unit:
All production and maintenance workers, including
chemical workers, shippers, truck drivers and leadmen
at the Employer's facility at 555 Garden Street, Elyria,
Ohio, excluding all laboratory employees, salesmen,
office clerical workers and all professional employees,
guards and supervisors as defined in the Act.
Upon the foregoing findings of fact and conclusions of
law, and the entire record and pursuant to Section 10(c) of
the Act, I hereby issue the following recommended:
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate and substantial relationship to trade, traffic and
commerce among the several states and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
22 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec.
ORDER 22
Respondent, Aztec Chemicals, a Subsidiary of Dart
Industries, Inc., its officers , agents, successors and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
union membership, activities and sympathies.
(b) In any like manner interfering with, restraining, or
coercing Respondent's employees in the exercise of their
rights guaranteed in Section 7 of the Act except to the
102.48 of the Rules and Regulations be adopted by the Board and become
its findings, conclusions and Order, and all objections thereto shall be
deemed waived for all purposes.
AZTEC CHEMICALS 129
extent that such rights may be affected by lawful
agreements in accord with Section 8(a)(3) of the Act.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Post at Respondent's plant at Elyria, Ohio, copies of
the attached notice marked "Appendix." 23 Copies of said
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by Respondent for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced or covered
by any other material.
(b) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of receipt of this Decision,
what steps the Respondent has taken to comply herewith.
It is iecommended that the allegations of the complaint,
in Case 8-CA-8124, not found to be violative herein be
dismissed.
It is further recommended in Case 8-RC-9331, that the
unnumbered objection relating to alleged misrepresenta-
tion as to health benefit plans and that the unnumbered
objection relating to alleged unfair labor practices not
found to be violative herein be overruled. It is recommend-
ed that the unnumbered objection relating to unfair labor
practices (unlawful interrogation as to employee union
activity and sentiment) found violative herein be sustained.
It is further recommended that the NLRB election held
on March 7, 1974, be set aside and that a second election
be held.
It is further recommended that the Board direct that a
second election by secret ballot be conducted among the
employees in the appropriate unit, at such time as the
Regional Director for Region 8 deems appropriate and
under his direction and supervision and pursuant to the
National Labor Relations Board's Rules and Regulations,
Series 8, as amended. It is recommended that the eligibility
of voters shall be in accord with the eligibility of voters'
requirements set forth in J. P. Stevens & Co., Inc., 167
NLRB 266 (1967).
It is further recommended that the Employer shall be
required to file an election eligibility list with the Regional
Director in accord with and for the purposes set forth in
Excelsior Underware Inc., 156 NLRB 1236 (1966).
23 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees as to
their or other employees' union membership, activities
or desires.
WE WILL NOT in any like manner, interfere with,
restrain or coerce Respondent's employees in the
exercise of their rights guaranteed in Section 7 of the
Act except to the extent that such rights may be
affected by lawful agreements in accord with Section
8(a)(3) of the Act.
AZTEC CHEMICALS, A
SUBSIDIARY OF DART
INDUSTRIES, INC.