Detroit Plastic Products Co.

National Labor Relations Board - Board Decisions

Aug 14, 1958

121 N.L.R.B. 448 (N.L.R.B. 1958)

448 _, DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hilma H.. Erikson and Erik • E. Erikson d/b/a Detroit - Plastic
Products Company , a co-partnership, Erin Plastic Products
Company, a corporation , and Detroit Plastic Products Com-
pany, a corporation and United' Rubber, Cork, Linoleum and
Plastic Workers of America , AFL-CIO. Case No. 7-CA-1475.
August 14, 1958
DECISION AND ORDER
On December 21, 1957, Trial Examiner Eugene F. Frey issued his
Intermediate Report in the above=entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. He also found that the Respondents
had not engaged in surveillance as alleged in the amended complaint,
and recommended dismissal of that allegation. Thereafter, the Gen-
eral Counsel and the Respondents filed exceptions to the' Intermediate
Report and supporting briefs, including reply briefs pursuant to
leave granted. ,
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, except as noted below.
1. As more fully set forth in the Intermediate Report, the Trial
Examiner found, and we agree, that the Respondents violated Section
8 (a) (1) of the Act by (1) interrogating employees and applicants
for employment concerning their union sympathies and activities; (2)
threatening shutdown or sale of the plant and discharges of individual
employees; (3) attempting to form an unaffiliated rival union; (4)
actually shutting down the plant, thereby curtailing plant operations
and laying off employees; and (5) issuing undeserved warning notices
of discharges for allegedly bad work. The Trial Examiner also found
that the Respondents similarly violated the Act by the issuance of a
leaflet, "The Truth Teller." In view of the other violations found,
we need not and do not pass on whether the publication of "The Truth
Teller" constituted an additional violation of Section 8 (a) (1) of
the Act.
2. For the reasons indicated by the Trial Examiner, we also find
that the Respondents violated Section 8 (a) (3) and (1) of the Act
121 NLRB No. 63.
DETROIT PLASTIC PRODUCTS COMPANY 449
by discharging Catherine •-Elkins,l Julia Vadasy, Janice Witherite,
Angeline Romesburg, Bessie Pappas, and Mary Louise Wuestewald.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondents, Hilma H. Erik-
son, Erik E. Erikson, Erin Plastic Products Company, a corporation,
and Detroit Plastics Products Company, a corporation, and their
respective officers, agents, successors, and assigns, jointly and severally,
shall :
1. Cease and desist from :
(a) Discouraging membership in United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, or any other labor
organization of their employees, by discharging, laying off, or in any
other manner discriminating in regard to the hire, tenure, terms,
or conditions of employment of their employees.
(b) Interrogating employees and applicants for employment con-
cerning their union affiliations, sympathies, and activities in violation
ofSection8 (a) (1).
(c) Threatening employees with discharge, or loss of employment
by a sale or shutdown of the plant, or other reprisal, to. discourage
membership in, or activities on behalf of, said Union.
(d) Shutting down their plant and laying off employees for the
purpose of discouraging membership in, and activities on behalf of,
said Union.
(e) Initiating, sponsoring, or assisting in the formation of any
labor organization of their employees.
(f) Imposing disciplinary measures upon employees for the pur-
pose of interfering with, restraining, or coercing them in the exercise
of rights guaranteed by Section 7 of the Act.
(g) Promising their employees benefits to discourage their affili-
ation with or support of said Union.
(h) In any other manner interfering with, restraining, or coercing
their employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO, or any other
1 The Trial Examiner did not resolve a conflict in testimony as to whether the Union's
organizer, Watson, notified the plant superintendent, Richards, early in the union's
organizing campaign as to the names of the plant organizing committee, including Elkins.
Richards admitted in his testimony that a conversation did take place with Watson at
the time and place indicated by Watson. The Trial Examiner discredited Richards'
testimony as to other aspects of the case . Under all the circumstances, we credit Watson's
testimony and find that Richards had knowledge of Elkins' union activities. Accord-
ingly, we rely on this finding, as well as the factors relied on by the Trial Examiner, in
concluding that the Respondents had knowledge of Elkins' union activities.
487926-59-vol. 121-30
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities
for the purposes of collective bargaining or other mutual aid or
protection, or` to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring
membership in a labor organization as, a condition of employment
as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Catherine Elkins, Bessie Pappas, Julia Vadasy, Janice
Witherite, Angeline Romesburg, and Mary Louise Wuestewald im-
mediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority and other
rights and privileges, and make them whole for any loss of earnings
suffered by them as a result of the discrimination against them in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(b) Make whole each of their employees involved in the plant
shutdown and lockout of June 30, 1956, for any loss of earnings
suffered by them as a result of said discrimination against them, in
the manner set forth in the section of the Intermediate Report entitled
"The Remedy."
(c) 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 necessary to analyze the amounts of back
pay due and the rights of employment under the terms of this Order.
(d) Post at their plant in Mt. Clemens, Michigan, copies of the
notice attached hereto marked "Appendix A."' Copies of said notice,
to be furnished by the Regional Director for the Seventh Region,
shall, after being duly signed by Respondents' representatives, be
posted by Respondents immediately upon receipt thereof and main-
tained by them for sixty (60) consecutive days thereafter in con-
spicuous 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 the Seventh Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the amended complaint, insofar as it
2 In the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
DETROIT PLASTIC PRODUCTS COMPANY 451
alleges that the Respondents violated the Act by actual surveillance
of employees in their protected activities , be, and it hereby is, dis-
missed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees ,that :
WE'WILL'NOT discourage membership in United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO, or any
other labor organization of our employees, by discharging, lay-
ing off, or in any other manner discriminating in regard to the
hire or tenure of our employees.
WE WILL NOT interrogate employees or applicants for employ-
ment concerning their union affiliations, sympathies, or activ-
ities, in a manner violative of Section 8 (a) (1). of the Act.
WE WILL NOT threaten our employees with discharge, or loss of
employment by a sale or shutdown of the plant, or other reprisal,
to discourage membership in, or activities on behalf of, the above-
named labor organization.
WE WILL NOT shut down our plant, or lay 'off our employees,
for the purpose of discouraging membership in, and activities
on behalf of, the above labor organization.
WE WILL NOT initiate, sponsor, or assist in the formation of
any labor organization of our employees.
WE WILL NOT impose disciplinary measures upon our employees
for the purpose of interfering with, restraining, or coercing them
in the exercise of rights guaranteed by Section 7 of the Act.
WE WILL NOT promise our employees benefits to discourage
their affiliation with or support of the above-named labor organi-
zation.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist United Rubber,
Cork, Linoleum and Plastic Workers of America, AFL-CIO, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) '(3) of
the Act.
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Catherine Elkins , Bessie Pappas , Julia Vadasy,
Janice Witherite , Angeline Romesburg and Mary Louise Wlieste-
wald immediate and full reinstatement to their former or substan-
tially equivalent positions without prejudice to their seniority
and other rights and privileges , and make them whole for any
loss of earnings suffered by them as a result of the discrimination
against them.
WE WILL make whole each of our employees involved in the
plant shutdown and lockout of June 30 , 1956, for any loss of earn-
ings -suffered by them as a result of said discrimination against
them.
All our employees are free to become or remain, or to refrain from
becoming or remaining , members of the above-named labor organiza-
tion, or any other labor organization , except to the extent that this
right may be affected by an agreement in conformity with Section 8
( a) (3) of the Act.
HILMA H. ERIKSON,
Employer.
ERIK E. ERIKSON,
Employer.
DETROIT PLASTIC PRODUCTS COMPANY,
Employer.
By--------------------- ---------------
(Representative ) ( Title)
ERIN PLASTIC PRODUCTS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative )' ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The issues in this case arise on an amended complaint ,1 issued February 27, 1957,
by the General Counsel of the National Labor Relations Board (herein called Gen-
eral Counsel and the Board ) and duly served on Respondents Hilma H. Erikson
and Erik E. Erikson, doing business as Detroit Plastic Products Company, a co-
partnership (herein called the Partnership ), Erin Plastic Products Company, a cor-
poration (herein called Erin) and Detroit Plastic Products Company (herein called
the Corporation ),2 and an answer filed and served by Respondents.
The main issues are (1 ) whether Respondents laid off or discharged six employees
named below , and refused to reinstate or reemploy them, because they joined or
assisted the Union and engaged in other protected activity , in violation of Sections
1 The amended complaint was issued after due filing and service of an original and
amended charges by United Rubber , Cork , Linoleum and Plastic Workers of America,
AFL-CIO, herein called the Union.
2 The caption is set forth as amended herein by the Trial Examiner for-reasons stated
below.
DETROIT PLASTIC PRODUCTS COMPANY 453
8 (a) (3) and (1) and 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act, or whether they were lawfully termi-
nated for cause; and (2) whether Respondents interfered with, restrained, and
coerced employees in the exercise of their rights guaranteed by the Act in violation
of Section.8 (a) (1) of the Act, by interrogation of employees, promises of benefits
and threats of reprisal, an actual shutdown of their plant and consequent layoff
of employees, and other conduct alleged in the amended complaint.
Pursuant to notice, a hearing was held at Detroit, Michigan, on various dates
between March 18 and April 10, 1957, before the duly designated Trial Examiner,
in which all parties participated and were represented by counsel, and were afforded
full opportunity to be heard, to examine and cross-examine witnesses, to introduce
evidence bearing on the issues, to present oral argument, and to file briefs and pro-
posed findings of fact and conclusions of law, or both. During the presentation of
General Counsel's case-in-chief, the Trial Examiner granted his motions to dismiss
the amended complaint as to Catherine Grandy, and to further amend the com-
plaint to include an allegation that Mary Louise Wuestewald was discriminatorily
discharged by Respondents on or about September 4, 1956. At the close of General
Counsel's case, the Trial Examiner denied various motions of Respondent to dismiss
the complaint in whole and in part. Respondent's similar motions at the close of
the whole case were taken under consideration, and are now disposed of by the
findings and • conclusions made in this report At the close of the testimony, all
parties waived formal oral argument. General Counsel has filed a written brief
with the Trial Examiner, which the latter has considered in conjunction with the
various oral arguments on the issues and the merits of the case which Respondents
presented during the hearing on numerous motions and objections. -
Upon the entire record in this case, a careful consideration of the arguments of
the parties, and my observation of the witnesses on the witness stand, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
For several years prior to January 1, 1957, the Respondents Hilma H. Erikson
and Erik E. Erikson, doing business as the Partnership above named, maintained
their principal office and place of business at Mt. Clemens, Michigan, where they
were engaged in the production and sale of plastic products.3 During the calendar
year 1956, in the course of its business the Partnership manufactured, sold, and
shipped from said plant to customers located outside the State of Michigan finished
products valued in excess of $100,000. I find that the Partnership was at all times
prior to January 1, 1957, engaged in commerce within the meaning of Section 2 (6)
and (7) of the Act.
On December 31, 1956, the Partnership was legally dissolved by the partners,
and on January 1, 1957, the entire business, plant, work force, and assets of the
Partnership was taken over, and has since been owned and operated, by Detroit
Plastic Products Company, a Michigan corporation in which the individual Respond-
ents hold the same equal stock interest and control that they held in the Partnership .4
II. THE LABOR ORGANIZATIONS INVOLVED
I conclude and find that the above-named Union and the Employees Repre-
sentative Group referred to hereafter are labor organizations within the meaning
of Section 2 (5) of the Act, which admit to membership employees of Respondents.
3 Hilma H. Erikson is the mother of Erik E Erikson, and has not been active in the
operation of the plant during the period covered by the allegations of the amended
complaint
4 For a short period after January 1, 1957, during which the Eriksons were engaged in
completing the incorporation of Detroit Plastic Products Company, they ran the business
through the medium of Respondent Erin, another Michigan corporation, the stock of
which they own and control in equal shares, and which operated under the name and
style of Detroit Plastic Products Company. Erin is no longer operating the business,
for on the last day of the hearing the parties stipulated that the employer was then
officially Detroit Plastic Products Company, a corporation. I have therefore changed
the caption of the case to designate "Detroit Plastic Products Company" as a corporation.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prior labor history of Respondents 6
The business of Respondents was founded in 1950 by Erik E. Erikson. The
Partnership took over the business in 1953. Between 1953 and the end of 1956,
various labor organizations have tried to organize Respondents' employees and
secure statutory bargaining rights at its plant, but without success. In July or
August 1952, a local of the United Automobile Workers, CIO, started an organizing
campaign among the workers, and in August petitioned the Board for certification
as bargaining representative. An election was held August 22, 1952, which that
union lost. 'Sometime in August 1954, a local of the. International Union of Doll
and Toy Workers, AFL, began another organizing drive at the plant, and on
May 23, 1955, petitioned the Board for certification. An election was conducted
by the Board in September 1955, which that union lost. In the course of this
campaign, Erik E. Erikson, chief executive officer of the Partnership, and other
management officials had discussions with employees on the basis of which the
above union filed unfair labor practice charges with the Board which were fol-
lowed by the usual proceedings under Section 10 of the Act, in which the Board
on November 16, 1955, issued a Decision finding the Partnership in violation of
Section 8 (a) (1) of the Act, and an order prohibiting it from illegal interro-
gation of employees and any other interference with their rights guaranteed by
the Act. In the same Decision, the Board dismissed the complaint insofar as
it alleged that the Partnership had illegally contributed support to, dominated,
or- interfered with the administration of a labor organization of its employees
known as the Employees Representative Group (herein called ERG), which, as
will appear from the Trial Examiner's report forming the basis for that decision,
was an independent labor organization formed by the employees late in 1952.
The Partnership and its successor corporations have since bargained with that
labor organization as the representative of the employees with respect to wages,
rates of pay, hours, and other conditions of employment. General Counsel does
not challenge the validity of that organization, nor make any claim that Respondents
are or have been dominating, assisting, or giving illegal support to it. On July
23, 1956, the Union herein filed with the Board its petition for certification as
bargaining representative, pursuant to which the Board conducted an election on
October 9, 1956, which the Union lost.6
During the 1954-55 campaign of the Doll and Toy Workers Union, Julia Vadasy,
a molding press operator on the third, or midnight, shift, was active in the plant
in soliciting employees to join that union and vote for it in the coming election
Late in May 1955, Vadasy called President Erikson at the plant to ask whether
he would hire Janice Witherite, a neighbor of Vadasy. Erikson said he could use
another girl, "provided she was a non-union girl," because he "had too many
union girls as it was," and that he would like to get rid of a few of them, like
Angeline Romesburg, and Naomi and Arlene Miller. He suggested that Vadasy
send Witherite to the plant the next day for an interview with William P. Richards,
the plant production and personnel manager. Witherite was interviewed and
hired on May 30, 1955, by Richards.
A few days before the election of September 14, 1955, Erikson telephoned the
plant one night and had Vadasy called from her work to the telephone. Erikson
told Vadasy he had heard she was against the union, and that she had influence
with another employee, Jane Howell, and asked her to persuade Howell to vote
for the union . Vadasy said she would talk with Howell. The union lost the
election by a close vote? A few days after the election; Richards called Vadasy
5In my discussion of facts and events hereinbelow relating to 1956 and prior years,
the term "Respondents" refers to the above-named partners, the Partnership, and their
agents; with regard to events occurring after January 1, 1957, the term refers to Erin
and the Corporation , as such and as successor to the Partnership , and its officers and
agents
"These findings are based on proceedings of the Board In Cases Nos . 7-RC-1875,
7-RC-2806, 7-RC-3227, and in Case ,No. 7-CA,4157, resulting in Decision and Order in
Detroit Plastic Products Company, 114 NLRB 1014, of which the Trial Examiner takes
official notice, stipulations of the parties , and credited and uncontradicted testimony of
Erik E. Erikson and other witnesses of Respondents.
7 The vote was 15 for, and 15 against , the union , with 1 challenged ballot. The
challenge to the ballot was never resolved, because the Regional Director for the Seventh
Region dismissed the petition for certification in February 1956, due to the union's
failure to comply with Section 9 (f) (g) and ( h) of the Act.
DETROIT PLASTIC PRODUCTS COMPANY 455
at her home one afternoon , and said he was "surprised " at her and Jane Howell,
that he thought Vadasy was against the union . He claimed that he had a list
of every female worker who had voted for the union , and their names were on
the list . Vadasy disputed his claim , saying the vote had been secret and no one
knew how she had voted , but if he wanted to know , she did vote for the union.
About a week after the election, Erikson had a private talk in the plant with
employee Angeline Romesburg , who had been a challenger for the union at the
election . He indicated to her that he was angry and disturbed by the fact that
there had been so many votes cast for the union , saying he had not expected more
than 3 or 4, because there were girls in the shop who had borrowed money from
him and, had told him they would not vote for the union, but they had turned
around and voted for it. He claimed that he knew every girl who had voted for
the union . Romesburg denied that either he or she knew that because it was
a secret vote, but said there was only one he knew about . Erikson said, "Yes,
you," and she replied , "That's right, me." 8
When Mary Louise Wuestewald applied for work at the' plant early in Octo-
ber 1955, she was interviewed by Richards. During the interview, he asked her
what she thought about unions. She replied that it was "immaterial," that her
husband had worked for a local department store which had no union. Richards
told her that the Partnership had "just had an awful lot of trouble with a union,
therefore they wanted to have no more (sic) part of it." When Madeline May
had an employment interview with Richards on January 28 or 29, 1956, Richards
told her Respondents did not have a union in the shop , and did not want one, and
suggested that if she heard anyone mention the union, she should "influence them
the other way.". When Margaret England had a, similar interview with Richards
on January 30, 1956, he asked her if she was interested in a union. She replied it
did not matter to her one way or the other. He told her that, before "they would
allow one in there, they would close their doors." When Catherine Elkins was
hired by the Partnership on May 28, 1956, Richards interviewed her and asked
her if she was "for the union." She said it made no difference to her, that she just
wanted to work her 8 hours. He told her that if a union got into the plant, the pay
would be "short," due to union dues and different "cuts." He also said that if the
girls had any complaints in the shop, "they would always come to him, and they
would settle things." 9
It is clear from the above facts, and I find, that while Respondents have not been
averse to self-organization of their employees into an independent labor organiza-
tion, or what is known in labor relations parlance as a "company union," they
have since 1954 demonstrated hostility to their affiliation with any "outside" labor
organization affiliated with the AFL or CIO. To the extent that Respondents'
conduct occurred outside the 6-month statutory limitation period,10 it cannot be
the basis of a finding or remedial order in this case, but subsequent activities of
Respondents and their agents within the statutory period can be appraised and evalu-
ated in the light of the prior conduct, particularly that which the Board at one
point found to be an unfair labor practice. Delta Finishing Company, 111 NLRB
659, 663; Banner Die Fixture Company, 109 NLRB 1401, 1402. However, I find
that Richards' interrogation of England and Elkins about their union sympathies
when they applied for work constituted illegal interrogation in violation of Section
8 (a) (1) of the Act. His statement to England that Respondents would "close
their doors" before they allowed a union in the plant was likewise coercive and
violated the same section of the Act.
B. The union organizing campaign , and Respondents ' reaction to it
1. Alleged interrogation, threats, etc.
The Union began its organizing campaign at Respondents' plant on May 31, 1956,
when two of its organizers first distributed union literature and authorization cards
8 These findings are based on credited testimony of Julia Vadasy , Janice Witherite, and
Angeline Romesburg , as corroborated in part by that of Erikson and Richards. Other
testimony of Erikson and Richards in conflict therewith is not credited.
O These findings are based on credited testimony of Wuestewald, May, England, and
Elkins. I do not credit Richards' general denial of any instances, or practice, of interro-
gating applicants for work about their union sympathies or activities , for his remarks are
consistent with and followed the same pattern as his own and Erikson 's prior antiunion
remarks, as well as Erikson 's adjudicated illegal interrogation of employees, found by
the Board in the prior case.
30 As the original charge was filed herein on June 25, 1956, the statutory period runs
from December 25, 1955, to the filing date.
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to employees at the plant gates. Thereafter , the Union made similar distributions
at the plant weekly up to the election . One organizer , Isaac H. Watson, held
organizing meetings for employees on June 16 and 23 and July 7, 1956, at various
places in the Detroit area. The first meeting was attended by employees Julia
Vadasy, Catherine Elkins, Angeline Romesburg , Josephine McKennon , Mary Louise
Wuestewald , and Catherine Grandy. At that meeting Watson appointed these
employees as the Union 's organizing committee in the plant, and thereafter these
employees actively solicited other employees both in and out of the plant to join
the Union and, after the Union petitioned for certification , to vote for it at the
coming election.
Respondents were aware from the outset of the union campaign and of the union
sympathies and activities of members of the organizing committee , and took im-
mediate steps in opposition thereto. On June 1, 1956 , the second day of the
campaign , Erikson had a long talk with Romesburg at her machine about the Union.
He already knew that Romesburg had been an open advocate of unionism in the
plant ever since she started work there in 1952, that she had campaigned actively
for the Doll and Toy Workers Union in the 1955 campaign and had been a challenger
for it in the election . In this talk , Erikson asked Romesburg if she had seen "the
union out there ." She replied that she had , named the two organizers , and told
Erikson that the Union was a fine one, and that her husband had been a member of
it for years . Erikson reminded her that just a few months before the plant had had
"union trouble," and said , "I am sick and tired of fighting the union ," and "I am
not going to die a young death ( sic) like my father ," and that he was "going to
sell the shop ." On the next workday, Monday, June 4, 1956, Erikson came to
Romesburg at her machine which was located close to the office door opening into
the plant, repeated that he was going to sell the shop , and told her to "watch that
door and see who comes out that door," that there would be men "here from a
company in California to look at the shop , to look it over , and they are going to
buy it." Shortly after this , Romesburg saw several men with briefcases come out of
the office with Richards and walk through the shop . The next morning , Erikson
came to Romesburg 's machine again and said to her , "What did I tell you?" (ob-
viously referring to their talk and the appearance of the men the day before).
Romesburg replied that Henry Ford had said the same thing, but "they are still
operating bigger and better than ever." After further discussion of Ford, Erikson
asked Romesburg what "the girls think of this union ." She replied that she thought
it was "100 %, a good one ," and that the girls knew it was a big international union.
Erikson then asked if Romesburg knew that AMT 11 had a union . She said she
did not . He said AMT had an "independent union ," that it was a good one. Romes-
burg replied that she had heard rumors in the plant about an independent union, and
asked Erikson if he wanted one, and how it worked . Erikson said that her question
had been answered by the Board, that Trial Examiner Shaw had already "named
the Employees Representative Group as the union , and the only thing that union
lacked was certification ," and he understood a movement for certification was being
"sparkplugged" by Martha Paga and Joyce Constance . 12 As to the working of such
a union , Erikson explained that the girls would have to get "independent union
papers," hold a meeting and sign them , and he had a good labor lawyer who would
write up a good contract for them which would be filed with the Board , as in the
case of any other large union . Romesburg suggested Erikson call a meeting of the
female employees in the shop and talk it over with them. He replied he could not
do that because the "NLRB is going to get me," and said the girls would have to
hold a meeting outside the shop . Romesburg then suggested that she would call a
meeting of the female employees at her home, and asked if Erikson would attend.
He said he could not do that. Romesburg asked if he would post a notice on the
plant bulletin board announcing a Saturday meeting at her home. He said he
could not do that , either, because of the Board , but suggested that Romesburg
could have Lucille, Respondents ' office clerk, type copies of a notice for her, which
she could post on the plant bulletin board, and also distribute to workers on all
shifts through their ERG representatives. He also said that Romesburg would not
have to procure "independent union papers ," because Martha Paga already had
them in her locker in the plant . Romesburg at once called a relief girl to take over
her machine and went to the office to have Lucille prepare the notice . Erikson
11 AMT is Aluminum Model Toys , another plastics manufacturer for which Respondent
was making model automobile assembly kits.
"Paga had been day-shift representative for the ERG some years before , and Joyce
Constance was the present representative of the afternoon shift in that organization.,
DETROIT PLASTIC PRODUCTS COMPANY 457
told Lucille she would type it for Romesburg , but since neither girl knew how to
word it , he told Lucille what to say in the notice . Lucille typed the notice which read:
ATTENTION-GIRLS
THERE WILL BE A SHOP MEETING OF ALL SHIFTS ON SAT. JUNE 9,
1956 , 3:00 P . M. at 16760 STRICKER, corner of STRICKER AND SHAKE-
SPEARE, EAST DETROIT, MICHIGAN. PLEASE ATTEND.
Lucille brought the slips in 3 separate envelopes to Romesbiirg , who gave 1 to Julia
Schaller, the day-shift representative , and the other 2 to Constance , asking her to
deliver 1 to Alice DeCook, the midnight shift representative , for distribution to girls
on their respective shifts. She also left word for Paga to leave the "independent
union papers " at Romesburg 's machine the next morning . Romesburg found them
there at that time. In answer to inquiries from employees about the meeting, Romes-
burg told them it was called to explain the procedure for formation of an independent
union , which Erikson had outlined to her. At the meeting, which was attended by
about 26 female employees , Romesburg outlined the procedure for formation of an
independent union . There was some discussion about it, in the course of which
Romesburg argued for affiliation with a "big International union ." The meeting
ended without any agreement among those present or action by them. On an
unidentified date after that meeting, Erikson heard rumors around the plant that
Romesburg had tried to "organize the union " at the meeting, and had promised the
employees a 10-cent wage raise if they would sign some sort of petition. On the
basis of that rumor , Erikson came to Romesburg while working at her machine, and
asked her if she had made that promise . She admitted she did, saying "you have
got to promise them something ." Erikson replied that "you cannot in the name of
the company promise anything anywhere , and I want you to go back to the people
you promised and say that it is a black -faced lie."
On a day in the week of June 11, 1956 , when the union organizer had distributed
leaflets at the plant gates in the morning, Erikson came to Romesburg 's machine
just before the end of her shift, and said in angry tones that "I am not going to do
this time like I did last time, I know the girls who are for the union ," naming Julia
Vadasy, Catherine Grandy, and Janice Witherite , "and I am going to fire them."
He made these statements in the presence and hearing of Catherine Elkins, the after-
noon shift employee who had just arrived to take over operation of Romesburg's
machine.13
I conclude and find that Respondents interfered with and coerced employees in
the exercise of rights guaranteed by the Act, in violation of Section 8 (a) (1) of the
Act, by: ( 1) Erikson's statement to Romesburg on June 1, 1956 , that he would sell
the shop , after having mentioned the Union 's campaign , and that he was "sick and
tired of fighting the union ," and did not intend to die a "young death" like his father.
These remarks in substance conveyed a clear threat to close up the plant rather than
endure another union campaign , such as those Erikson had been through in past
years, and was calculated to coerce and restrain employees in their right to join a
union of their own free choice ; 14 (2) Erikson 's similar statement to Romesburg on
June 4, 1956, when coupled with his pointed reference to outsiders who inspected the
shop shortly thereafter , as prospective buyers; 15 and (3 ) Erikson's clear threat in the
presence of Romesburg and Elkins during the week of June 11 to discharge three
specific employees whom he identified as union adherents.
11 The findings above are based on credited testimony of Isaac H Watson, Vadasy,
Wuestewald, Romesburg , and Elkins , which is corroborated in substantial part by that of
Erikson, and documentary evidence . Erikson's secretary, Lucille , did not testify Other
testimony of Erikson categorically denying some of the remarks attributed to him, and
otherwise in conflict with the findings , is not credited , for Romesburg and Elkins impressed
me as being honest and truthful witnesses , telling the facts to the best of their memory,
and the remarks which they attributed to Erikson , as found above , are of the same tenor
as the antiunion remarks and attitude made and displayed by Respondents in prior years,
as found above . On the other hand, Erikson did not impress me as telling the whole
truth about his conversations with Romesburg.
119 The coercion inherent in these remarks is not lessened by the fact that Erikson had
been discussing sale of the plant and business with various prospective buyers during
1955 and 1956 , and had received several bona fide offers for purchase or lease of the
plant in that period
15 The record shows that the men to whom Erikson referred were officials of Revell-AMT,
a customer of Respondents ; who visited the shop to inspect and take inventory of material,
products , and tools owned by that customer in connection with a pending dissolution. of
that concern . However, the record fails to show that the purpose of their visit was
458 DECISIONS OF NATIONAL LABOR RELATION; BOARD
General Counsel argues that Erikson's suggestions to Romesburg about formation
of an independent union, his outline of the procedure to be followed in forming it,
and assistance in preparing notice of a meeting for that purpose, amounted to
unlawful interference by the employer with the employees' exercise of the right of
self-organization, and violated Section 8 (a) (1) of the Act. Respondents argue
that his conduct was not illegal because no labor organization ever came into exist-
ence as a result of his suggestions, since the meeting held at Romesburg's house was
abortive. The record shows that an independent labor organization, the ERG, had
been in existence in the plant since 1952, but had never achieved formal status with
a charter, nor collected dues, issued membership cards, held regular meetings, or
exercised other functions usually indicative of a formal labor organization. It has
never negotiated or signed a formal collective-bargaining agreement with Respond-
ents, and has never been certified by the Board as the collective-bargaining repre-
sentative of the employees. During the pendency of the 1955 representation pro-
ceedings, a Board agent apparently sent Respondents and the representatives of ERG
the appropriate documents which would enable ERG to intervene and be placed on
the ballot at the 1955 election, but ERG never took that step. Since that election,
and in view of its outcome, Respondents have only dealt in desultory fashion with
ERG as a grievance committee. As noted above, there is no claim that ERG is,
or has ever been, an illegal labor organization. In the light of these facts, it is
clear, and I find, that Erikson's suggestions to Romesburg regarding the formation of
an independent union, including his mention of the fact that ERG-lacked only cer-
tification, and that Romesburg could make use of the "independent union papers"
which Paga, a former ERG representative, already had procured, were made with
the purpose of persuading Romesburg, an employee of long service who had been
an open advocate of unionism, to take steps to complete the formalization of ERG
as a labor organization, with the intent that it seek certification by the Board,16 so that
Respondents could sign a formal collective-bargaining contract with it. He imple-
mented these suggestions by using company facilities and worktime of employees for
preparation of the notice of the meeting he had suggested, and its distribution to all
female employees. Finally, when Erikson got reports after the meeting about
Romesburg's attempts to organize the workers there, including a reported promise
of a wage raise, he tried to persuade her to retract the promise publicly, on the
assumption that it had been made in the name of the Partnership, which further
indicates that the meeting was employer-sponsored and that Erikson was well aware
that the employees knew it and would have reason to believe that any statements
made by Romesburg emanated from management. Erikson's suggestions'and assist-
ance coming a few days after the Union began its campaign, and in a context of
other coercive remarks which demonstrated Respondents' hostility to an "outside"
labor union, support the conclusion that Erikson was thereby trying to initiate and
set up a formal labor organization, using ERG as the foundation, for the purpose
of combating and forestalling the Union's organizational drive. Such conduct was
an unwarranted intrusion by the employer upon the right of employees, protected
by the Act, to engage in concerted activity for or against a union, and freely to
choose their own bargaining representative, and violated Section 8 (a) (1) of the
Act. The violation is not lessened or eliminated by the fact that the attempt was
abortive. The DeVilbiss Company, 102 NLRB 1317, 1322, 1323; Harrisburg Build-
ing Units Co., Inc., et al., 116 NLRB 334, 352, 353.
2. The extension of the warning system
Paragraph 7 (c) of the amended complaint charges that Respondents violated
Section 8 (a) (1) of the Act by "threats of reprisal seeking to persuade employees
to renounce adherence to the Union." General Counsel contends this charge is
supported by Respondents' institution of a "get tough" policy with employees at
the outset of the union campaign, including the sudden issuance of warning slips
to employees who were union adherents, on the slightest pretext or for no good
reason, which amounted to threats of discharge for continued union activity.
explained to Romesburg, or otherwise made known to her ; hence the real purpose of their
visit does not detract from the coercive effect of Erikson's threat to sell the shop, which
was enhanced by his opportune but misleading reference to them as prospective buyers.
Their appearance in the shop right after his remarks clearly led Romesburg to believe
that Erikson was serious in his threat, as she testified.
IS That Erikson had certification of a labor organization in mind when he talked with
Romesburg is clear from his admission that he knew Romesburg was holding the meeting
for "some sort of certification," and from the fact that, in his discussions with her, be
was the only one who mentioned certification.
DETROIT PLASTIC PRODUCTS COMPANY 459
Respondents answer that their use of the warning slip system was caused and
justified by an epidemic of poor production by employees during early 1956, which
was intensified after the union campaign started and caused them much financial loss
through rejection of defective merchandise by customers.
The record clearly shows that, beginning about February 1956, Respondents began
to experience substantial trouble with quality of production, which caused more com-
plaints and rejections of products by customers than usual. In some instances,
defects found were apparent from'casual inspection-of the product, hence it was the
responsibility of the machine operators in the first instance to spot the defect, scrap
the item instead of packing it, and report it to the foreman for machine alteration
or change in manufacturing procedure, whichever was necessary. This problem
continued into the early summer, after the union campaign began, and became par-
ticularly noticeable and disturbing to Respondents after they began production in
April of the Chrysler model car assembly kit described below. From the outset
Respondents had more trouble with that product than in their earlier manufacture
of a similar Mercury kit. As early as April, the customer, Revell-AMT, rejected
some shipments, and thereafter its agents conferred often with Respondents, and
visited the plant, in efforts to correct the trouble. The production problems were
corrected to some extent in May by alterations of machines and changes in packing
procedures, as more particularly described hereafter. In addition, at the request
of the customer, Respondents began a more thorough hourly inspection of kit pro-
duction by the foremen, who were required to keep detailed inspection reports of
their findings. Notwithstanding this, the customer still found defects and rejected
about 20,000 kits, which began to return to the plant late in May and early in June.17
Between 20,000 and 30,000 other kits, made but awaiting shipment, were rejected
in the plant. At that.time, at the insistence of the customer, Respondents instituted
a rigid "A. Q. L." inspection procedure described hereafter.
Richards testified that, following the rejections of Chrysler kits, he discussed
the whole problem and its probable effect on the business with Erikson, and they
decided to tighten up on quality of production. Early in June, Richards called a
meeting of foremen at which he gave orders to "get tough" and tighten up on
quality, and on June 4, 1956, he posted a general notice of intent to "stress quality
and inspection," which will be more fully discussed hereafter. These facts and
circumstances form a natural background and substantial business reason for
Respondents' decision to "tighten up" on quality, their orders to foremen to that
effect and posting of the notice of June 4, and subsequent extension'of the warning
slip system to instances of bad work, in efforts to eliminate that problem. The
decision itself apparently was made before the advent of the Union, hence there can
be no valid contention that. it had a discriminatory motivation. The posting of the
notice and orders to the foremen shortly-after the beginning of the union campaign
are suspicious circumstances on which General Counsel relies, but I do not consider
the timing of these events alone a factor sufficient to overcome the far more weighty
circumstances of prior increasing bad production, continual customer complaints,
and large rejections of defective merchandise in May found above. Hence, I make
no finding that the institution of the "get tough" policy as such at this time had a
discriminatory motivation.
However, the General Counsel relies heavily on the manner in which Respondents
used its warning slip system thereafter. For some years prior to the union cam-
paign, Respondents had made a practice of issuing written warning notices as part
of its disciplinary system for the offenses of excessive absenteeism, absenteeism with-
out prior notice, reporting to work late, and taking too much time during relief
periods. These were considered serious offenses by management because economical
and efficient plastic production requires that presses and the molten plastic going
into them be operated and maintained at a continual even heat around the clock,
which in turn requires uninterrupted attendance of press operators at the machines;
this requirement is endangered or at times impossible of achievement if an operator
on a later shift comes in late, is absent too often, or absent without calling in before-
hand to enable Respondents to secure a substitute or replacement to relieve the prior
operator going off duty. Hence, employees guilty of these offenses were given warn-
ing slips for first and second offenses and usually dismissed for the third. So far
as the record here discloses, prior to July 10, 1956, warning slips had been issued,
and employees discharged,' generally for such offenses, and not for bad work.is
14 The 20,000 kits were invoiced to the customer at a total price of $3,641.23.
19 These findings are based on credible and mutually corroborative testimony of Vadasy,
Wuestewald, May, DeCook, and Romesburg, and documentary evidence, as corroborated in
part by that of Erikson and Richards. Testimony of Richards to the effect that Re-
spondents began to apply the, warning slip practice to cases of bad work during 1955 is
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 10, 1956, the first day of resumed production following the plant shut-
down mentioned hereafter , Andrew E. Orahoske, third-shift foreman, gave Margaret
England a first warning notice for "defective work" and "carelessness " which he
explained in the notice as "many parts sent back to us lately with your packing slip
attached, fora few pie cont . [obviously "containers"] short and burned, and Chrys-
ler kits missing women and axles. (Please do better)." This was the first warn-
ing, written or verbal, that England had received about her work since she started
with Respondents in January 1956. I have found above that, when hired, England
was interrogated by Richards about her union views , and indicated she had no
preference either way. I also find from her credible testimony that she joined
the Union during the campaign and attended two union meetings, but in plant
discussions about the union she expressed the same neutrality, and did not take
any active part in the campaign . However, as I find , for reasons discussed here-
after, that Respondents kept themselves well informed about the union activities
and sentiments of the employees during the campaign, 19 I infer and find that they
were aware of her adherence to the Union at the time she received the first warning
notice.
On August 24, 1956, England received a second warning notice from Orahoske
reciting the same violations and explaining "you have been passing bad production
as good parts at the press, adding additional cost to inspect your work. Please
do better in the future (Thank you.)"
There are some circumstances which support the contention that she received
the warnings, not for bad work, but because of her union activities. England
packed Chrysler kits from the outset of that job until late in May. After that she
made pie containers for a few nights and was then transferred to inspection of
Chrysler kits, at which she worked until the shutdown of June 30. While making
pie containers, she returned from her lunch period one night, saw a pile of con-
tainers she had not made, and noticed a burned one on top. On checking others
in the pile, she found 18 of them either burned, short, or flashed,20 so she put
them aside; all of them had been labeled preparatory to packing. She showed
them to Orahoske, who tried to trim off the "flash," and cut out some of the
burnt parts, but could not make them perfect. He gave the trimmed items to
England, telling her to box them for shipping, and scrapped the short and burned
items. England boxed the best of the trimmed containers, and threw the rest
away. A few nights later, she remarked to Orahoske that none of them should
have been packed, but he told her it was "all right." While on this job, England
never received any verbal or written warnings or criticism of her work. In May
and June, the midnight shift had two relief girls, Ann Wendt and Martha Paga,
who put the regular operators' packing slips in boxes when handling their ma-
chines on relief, in accordance with usual plant practice. On July 10, Orahoske
gave England the first warning slip without any comment. When he returned to
her machine later that night, she angrily thanked him for "that cute little note you
just gave me." He replied, "I'm sorry, I just had to do it, it's orders." He also
said he did not like to give out slips to his girls.21 It is clear from these facts
that the defective pie containers had been made by a relief girl, and that England
packed some of them unwillingly on orders of her foreman. With regard to
"missing women and axles" stated in the first notice, England denied she ever
failed to drop these items in the Chrysler kit after she mastered the packing
supported only by evidence indicating that Richards discharged Lillian Wenderski, a press
operator, on July 15, 1955, for passing defective pie containers, after she had received a
warning about it a month before. At the time Wenderski was the chief organizer in the
plant for the Doll and Toy Workers Union during its campaign of that summer. However,
one such isolated instance of discharge does not establish a practice or policy, especially
where there is no proof of similar disciplinary action for a year thereafter, during which
Respondents were having increasing production troubles.
10 See discussion of this subject in my consideration of the discharge of Catherine Elkins,
below.
20 "Burning" of a product apparently is a discoloration and chemical change of a part
caused by excessive heat. A "short" shot is a part or product containing holes, or in-
completely formed otherwise, due to the mold running faster than proper, so that an
insufficient amount of plastic is injected into the mold during the cycle, or to the hopper
.of molten plastic running dry. A "flashed" part occurs when too much plastic enters the
mold due to overheating and thinning, so that some of it is forced out in a thin strip
between the two halves of the mold
21 These findings are based on credited and uncontradicted testimony of England, which
is corroborated in part by that of Orahoske Testimony of the latter in conflict therewith
is not credited.
DETROIT PLASTIC PRODUCTS COMPANY 461
operation ; she testified she formed the habit of dropping them in automatically
during the operation . I credit this testimony , for it is clear from the nature of
the packing operation , and credible testimony of Erikson and DeCook, that a
packer usually develops a certain rhythm in performing the various steps in that
operation, in order to keep pace with the production cycle of the machine.22 As
to the source of the omissions, I find from credited and uncontradicted testimony
of England that: While on that job, she noticed several times, on returning from
rest or lunch periods, that axles were missing from kits filled by relief-girl Paga.
She told Paga about it, and Paga admitted she forgot to throw in axles. England
then added axles to the kits Paga had handled, and packed them. When England
later inspected Chrysler kits, she noticed omissions of parts, such as statuettes
and axles, in the kits packed by both relief girls. Aside from his remarks found
above, Orahoske gave no credible explanation for the first warning slip, other than
a vague recital that he "probably" did it because of prior verbal warnings that
went unheeded, and because he had to protect himself by showing management
that he had been trying to correct the situation. He does not specify when or for
what reasons he gave the alleged prior warnings. He could not recall how or
where he got the packing slips which he assumes he must have had as the basis
for the written warning. Respondents do not produce any inspection or other
records indicating that the omissions charged were caused by England. Hence,
I do not credit his testimony on the subject. From all of the above facts, I am
compelled to conclude and find that there is no basis in fact for the first warning
slip, and that Orahoske gave it out only because he was ordered to do so. Since
he testified that his practice has always been to give out verbal warning notices
and use written notices only after verbal warnings prove ineffective, and as there
is no credible proof that England had received prior verbal warnings, or had done
anything to deserve any warnings, I must infer and find that the order to give her
the slip could only have come from management. As it was undeserved in fact,
it is unlikely that Respondents would give it for no reason at all; and the only
remaining possible reason apparent in the record is her union activity. In the
light of Respondents' antiunion animus and other unfair labor practices found
herein, I must conclude that this activity was the reason she received it.
With regard to the second warning notice, I find from credible and uncontra-
dicted testimony of England that: August 24, 1956, was her first night on manu-
facture of the plastic detergent cups on No. 2 press. As part of the job, she had
to run a buffer which smoothed rough edges from the bottom of the cups. Several
times during the early part of the shift, Orahoske gave her instructions about the
job, including the method of buffing the cup bottoms. Each time he explained
it, she said she was doing it the best she could. After the last explanation, about
2 a. m., Orahoske walked away, returned in a few minutes and handed her the
second warning notice without comment or explanation. During the remainder of
the shift, Orahoske checked her work as usual on his hourly inspection tour.
Each time England asked him if she was doing the work right, and he nodded
in the affirmative. I am satisfied from these facts that England here received
another warning which was not warranted by her work. His repeated instructions
in the first 2 hours of learning a new job can hardly be classed as verbal "warnings"
which went unheeded, so as to justify the issuance of a drastic warning slip at the
end of that time, hence I consider its issuance contrary to his normal lenient practice
of relying on verbal advice and using the warning slip only as a last resort. Again,
the notice, her second, clearly implied that, although she was just starting a new
job, she was subject to instant dismissal if she did not quickly master it. In this
respect, the warning was far more drastic discipline than anything Respondent
had applied in the recent past in connection with faulty production 23 In this con-
nection, although the notice mentioned "passing bad production as good parts at
the press, adding additional cost to inspect" it, Respondents produce no proof
of the amount of defective work she passed in 2 hours, how much, if any, was
=The nature of the operation of packing Mercury and Chrysler kits, and the steps
involved, is discussed at length in my consideration of the discharge of Janice Witherite
below
°- I find from credible testimony of Janice Witherite, Howard Caughill, and Christine
Jachimowicz that: Respondents posted a notice on the bulletin board in the fall of 1955,
displaying a nylon baby cup, advising that the cup was "off," and asking workers to be
more careful in its production. In the spring of 1956, another notice was posted advising
employees that nylon bushings were not being clipped properly, resulting in rejection by
the customer, and requested employees to clip the bushings closer There is no credible
proof that Respondents implemented these general warnings by specific written warnings
to employees involved , or by layoffs or discharges.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scrapped, or what the "additiogal", cost of its inspection amounted.to. Covering
only 2 hours of work, it certainly could not have been substantial or unusual,
for Erikson testified that in all plastic work, a certain amount of scrap is normal
and to be expected, depending on the type of product and difficulty of production.
Under all the circumstances, I am satisfied that the reason given was a pretext.
Finally, the fact that Orahoske gave her the notice without any explanation, in the
light of his own practice and his explanation for the first slip, warrants the inference
that he was issuing this one also "under orders" from management. For reasons
stated as to the first notice, I conclude that this warning also had a discriminatory
motivation.
On July 16, 1956, second-shift employees Madeline May and Josephine McKennon
received first warning notices from their foreman, Henry C. Frank, which charged
each with passing and packing an excessive amount of "scrap" on July 13. Both
notices were initialed by Richards, and were the first they had received since starting
with Respondents. 24 Frank handed the notices to each girl toward the end of the
shift without comment. Both girls had joined the Union and openly solicited other
employees in the plant to sign up with it; McKennon was also on the plant organizing
committee and attended union meetings. I find from testimony of both girls, ad-
missions of Erikson, and facts discussed hereafter in the case of Elkins, that Respond-
ents were aware of their union activities when they were given the notices.
At the time she received her notice, May had been making plastic tumblers on a
press for several days; prior to that she had been a relief operator. Shortly after
getting the notice, May asked Frank what it was for. He replied that she had put
out dirty tumblers. She asked to see one. He opened one of her boxes of produc-
tion, and could not find a dirty one, but showed her one and remarked that it was
rough on top, which was true. She asked if those made by operators on the other
shifts were also rough, and he brought her samples from production of those shifts,
which she noticed were also rough. One of May's duties was to smooth rough edges
from the tumblers with sandpaper, but she had discovered she could not take the time
to sand them smooth and still keep up with the production of her machine. On this
occasion, at May's request, Frank tried hand-sanding a tumbler and discovered it
required appreciable time to make it smooth. He took the tumbler to the office and
shortly thereafter management corrected the situation by rigging a power-driven
grindstone at her machine, which enabled her to smooth a tumbler quickly merely
by holding it against the stone for a few seconds. These findings, which are based
on credited and uncontradicted testimony of May, McKennon, and documentary
proof, make it clear that while May had difficulty in handling the work, which re-
sulted in the defects involved in the notice, the trouble was caused basically by the
inadequacies of Respondents' equipment and method of manufacture. Respondents
in effect conceded at the hearing that May's warning was not deserved.25
At the time McKennon received her notice, she was making baby tumblers of
hard plastic. She put them in individual boxes, taping the box shut and packing
100 boxes to a carton. In that operation she was required to put a powder on the
plastic mold itself to prevent the tumbler from cracking. When she got the notice,
McKennon asked Frank the reason for it, and he told her that she had put too much
powder on the molds. She commented that the tumblers had been "running bad"
that day, that she had to throw away about 300, and had passed and packed only
(about 600, but she did not think she had passed enough bad ones in the 600 to
warrant a warning. Later that day she asked another employee 26 about her produc-
tion, and he checked some packed boxes and told her the tumblers were dirty and
cracked. She noticed that the boxes he opened had been taped in a manner different
from her own method of taping. For some time before July 16, inspectors had been
opening and inspecting the boxes of tumblers, contrary to prior practice, for some
defect unknown to McKennon. Before she got her slip Frank had told her once,
after checking 2 large boxes from each shift, that he had found quite a few bad
tumblers in production of the day and midnight shifts, but only 2 bad items in a box
of hers, which he called "very good." These findings are based on uncontradicted
testimony of McKennon. While these facts indicate that Respondents had been
having trouble with tumbler production, and were checking it more closely than
usual, and that on the day she was warned McKennon herself had rejected about 30
percent of the production of her own machine for defects, I am inclined to find on
u May was hired in January 1956; McKennon in July 1955.
25 May did complain about the warning to Erikson at a later date, but Respondents did
not void or withdraw it May did not request them to do so because she never knew
that procedure was open to her.
21 She identifies him only as Mel, a man who, brought material to the girls and fixed
machines.
DETROIT PLASTIC PRODUCTS COMPANY 463
all. the above facts that her warning, like that of May, was not deserved . Respond-
ents produce no records or testimony from Frank, Mel, or any other employees which
support the charges in the slip, or overcome the inference from her own testimony
that McKennon had passed only good tumblers on the day in question . Coupling
the issuance of an undeserved warning slip with her well-known union activity, I
find that she received it for discriminatory reasons, and not for good cause.
I also find from uncontradicted testimony of McKennon that: The day after she
received her warning slip, she openly wore her union button at work. Erikson came
to her while at work that day and asked her why she wanted a union . She replied,
to get more money, and that she did not want to wait 5 years to get top pay. Erik-
son said he could not afford to pay that, and brought her figures from the office
showing the business debts, to prove Respondents could not afford higher wages.
The next day, McKennon did not wear her union button at work and Erikson asked
her where it was. She replied that maybe he had changed her mind. He said he
hoped he had. On one later occasion , Erikson asked her in the plant why she wore
the button, and she replied it was because she had received a warning slip, and she
figured that, considering the other warning slips being issued , he was "trying to do to
me like he did to the other girls." Erikson asked if she thought that, by wearing the
button, she was guaranteeing her job, so that she could not be discharged. She
replied that she knew he could not make her take it off, or discharge her, because
she wore it. I find that Erikson's interrogation as to her reasons for wanting a
union , and for wearing a union button, amounted to further violations of Section 8
(a) (1) of the Act, in line with similar illegal interrogations and other unfair labor
practices found herein.
One day late in January 1957, shortly after May began her shift, a sprue became
stuck in her press, and she called Day Foreman Al Van Nuck to remove it. While
doing so , he noticed a scratch on the die face. He called Afternoon Shift Foreman
Caughill,27 and told him he saw May scratch the die with her pliers. Caughill saw
the scratch on the die, and asked May if she did it. She denied it, and said she
did not know how it happened. Caughill shut down the machine, removed the die,
and had to polish out two scratches. He warned May verbally never to touch the
die with her pliers again. Shortly after, Richards came to Caughill at May's ma-
chine, told Caughill that Van Nuck had told him Caughill had said he was going to
"nail the girl," and, asked Caughill, "You are going to nail her for that , aren 't -you9"
Caughill replied he did not intend to take any action against her, because he did
not see her do it, and it was her word against that of Van Nuck. Richards said
he still thought she should be discharged, but left the decision to Caughill, who
did nothing more about it. Meanwhile, May had examined parts in the bottom of the
scrap barrel which had been scrapped by the day-shift operator, and found evidence
of the die scratches on the scrapped parts, and later in the shift she told Caughill
what she had found. Caughill did not verify her finding, or report it to Van Nuck,
but merely told May "you had better be careful, because they are after you." No
warning or other discipline was given to the day-shift operator. These findings
are based on credible and mutually corroborative testimony of May and Caughill.
Van Nuck did not testify. I find on the above facts that May received a verbal
warning for damage to equipment which was not caused by her and that, notwith-
standing this, top management tried to have her discharged on the basis thereof.28
Caughill's cautionary words to May on this occasion make it clear that Respondents
were searching for a pretext to get rid of her.
The record shows that during July and August 1956, the union campaign was
increasing in tempo. The three union meetings were held in the latter part of June
and early part of July, and in the same period and through August, the Union sent
a number of letters to Respondents and distributed many propaganda leaflets to
the employees. The fact that in this period Respondents issued four undeserved
warning slips to known union adherents, for alleged bad production, contrary to its
prior disciplinary policy, considered in the light of its prior and subsequent unfair
labor practices found herein, warrants the inference that these notices were issued
because of their union activity and as a retaliatory countermeasure to the union
campaign. The same inference is justified in the case of management's attempt
to have May discharged later for damage to equipment not caused by her, where
In the latter part of 1956, Caughill had been transferred to a foreman's position
from that of plant superintendent, at his own request.
28 May received a second warning notice just before the October election for not report-
ing to work on a Saturday after having volunteered to do so. She admits she deserved
this notice, and since it was caused by her absenteeism, I find that it was issued for non-
discriminatory reasons Having received two warning slips, Caughill had a "record"
justification for discharging her in January if he had found her guilty of damaging a die
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it clearly used as the basis therefor the improper written warning given to her
previously . Warning slips issued , and discharges attempted , in such circumstances
are tantamount to threats of discharge for union activity and are well calculated
to have a deterrent effect on employees ' exercise of their guaranteed right of self-
organization and to join or assist labor organizations . I therefore find that, by the
actual and attempted disciplinary actions against the three employees noted above,
Respondents further interfered with , coerced , and restrained employees in the
exercise of their statutory rights, in violation of Section 8 (a) (1) of the Act 29
3. The June 30 announcement and plant shutdown
Richards called a meeting of the employees , including the supervisory and mainte-
nance staffs , in the plant Saturday afternoon , June 30, 1956 . Most production
employees , except those on the early Saturday (midnight ) shift , attended . Richards
told them that Erikson was out of town , trying to collect money from customers,
and that for the first time in 5 years Respondents were being compelled to close
their doors because they had "gone broke," did not have enough money to run the
plant another week, since they were running short of funds due to failure of cus-
tomers to pay them , undelivered merchandise was piled high in the plant, and
business was slow . He said the plant would have to stay closed ' for an indefinite
period, and he did not know how long it would be before the employees were called
back to work , but assured them that they would not have to worry about their
paychecks which would be mailed to them , that the Company would pay them
even if it had to sell some equipment to get funds. Richards also listed the many
benefits which Respondents had been giving the employees , indicating that Re-
spondents had done as much , or more, for their employees in that respect than other
local business concerns , and that these benefits were part of the running expenses
which caused Respondents to be "hard up" at the time. One employee asked if
the employees should apply for State unemployment compensation benefits, and
Richards replied that all who were eligible for such benefits should apply. The
same day all employees who did not attend the meeting were notified by telegram
not to report to work "until further notice." The layoff continued until July 10, 1956,
when all production employees , with certain exceptions discussed hereafter, were
recalled.
Immediately after the general meeting, Richards called a separate meeting of
supervisors and male employees , at which he selected certain male employees to
continue at work with the supervisors . During the shutdown Respondents kept 10
supervisory and other male employees at work, to perform cleanup , inventory, in-
spection , and salvage work , as well as certain production to the extent mentioned
hereafter.30
General Counsel contends Richards ' speech amounted to a coercive announcement
of a plant shutdown , and the subsequent shutdown and layoff of employees was a
discriminatory lockout, in violation of Section 8 (a) (1) of the Act, arguing that
there were no financial or economic reasons existing on June 30 which in fact justi-
fied, or caused , the shutdown , hence it was a discriminatory act in line with Re-
spondents ' prior coercive threats to close the shop . Respondents rely on certain
facts and records to show an economic necessity for the shutdown.
In support of Respondents ' contention , Erikson and Richards testified, in sub-
stance, that the shutdown was caused by the following circumstances : ( 1) Immediate
shortage of cash in bank to meet payroll and current running expenses ; ( 2) shortage
of about $33,000 to pay off creditors ; ( 3) inability to move inventory and secure
immediate cash payments therefor ; ( 4) lack of production orders on its books.
In the week or 10 days prior to June 30 , Erikson was in California on a business
trip , during which he kept in touch with Richards and the progress of the business
by telephone . On Friday, June 29 , Erikson and Richards discussed the situation
on long-distance telephone, and concluded they would have to close down the plant,
0In reaching this conclusion, I do not rely on proofs showing that during July and
August at least five known union adherents ( May, Alice Decook, Patricia Elenko,
Patricia Stroup, and Mary Ann Skye ) received warning slips for various violations of
attendance rules, and that Respondents continued to issue warning slips for such reasons
thereafter . There is no proof offered by General Counsel that these warnings were not
deserved or unfounded in fact ; on the contrary , they find justification in Respondents'
continued absentee problem found above, and May admits hers was deserved . Hence,
although given to known union adherents , I am unable to conclude on all the pertinent
facts that they were issued for discriminatory reasons.
° These findings are based on a preponderance of credible testimony adduced by both
sides.
DETROIT PLASTIC PRODUCTS COMPANY 465
mainly because they could not meet the payroll. Erikson suggested that Richards
tell the employees the above facts, and that the plant would be 'shut down for 2 to
4 weeks to enable Respondents to convert some inventory into cash. While their
testimony as to their talks from its very nature cannot be contradicted, their story,
and particularly the reasons on which they rely, are discredited by other facts in
the record.
To show lack of funds on June 30, Respondents point to a financial statement
of the business as of that date showing a red-ink item "Cash in bank, $9483.90"
which, from a bookkeeping point of view, represents an overdraft at the bank.
However, Respondents produce no accountant, bookkeeper, or other records to
explain this item. In contrast, their bank statement for the period June 29 through
July 31, 1956, shows that on June 29 their account had a cash balance of $14,564.39.
The weekly plant payroll averaged between $2,500 and $3,000. Second- and third-
shift employees had received their paychecks on Thursday, June 28, for the week
ending June 30; the day shift received their checks on Friday. Assuming payroll
checks were cashed promptly, the bank probably paid them on July 2, the next
business day, in the lists of drafts totaling $3,082.24 and $5,162.33 paid that day.31
During the week ending July 10, the cash balance varied between a high of $11,482.15
on July 2 and a low of $2,080.53 on July 6. It is clear that when the shutdown
was announced, Respondents had ample funds to meet payroll checks outstanding,
and during the week of shutdown, they had a substantial continuing bank balance.
In addition, Respondents had some sort of working credit arrangement with their
bank, which Erikson called "codgering a check," whereby the bank agreed not to
dishonor any checks issued for lack of funds, but to allow Respondents to cover any
overdrafts when they secured funds. Erikson admitted that under this arrangement,
the bank never dishonored any of their checks. Furthermore, before the shutdown
announcement, Respondents had a reasonable assurance of substantial new work
for their plant, and of substantial funds to continue operations, aside from cash
on hand. I find on Erikson's admissions that in May, Erikson started negotiations
with Revell of California,32 for a $180,000 order for manufacture of 1957 model-car
kits. When he went to California to visit that concern in June, he already had
verbal assurance from Revell that it was ready to sign a contract. During further
personal negotiations in California, he received a definite verbal commitment for
the order, but was unable to secure an immediate $15,000 advance to enable Re-
spondents to let a subcontract to a diemaker for the new mold.33 While en route
back to Detroit, Erikson made a telephone call from Chicago on the evening of
June 29 to Woodward Commercial Corporation, of Chicago, to whom Respondents
were already indebted for about $6,000, and arranged for a loan of $36,000 on a
24-month note. Of this sum $6,000 was used to pay off the outstanding loan, and
the balance of about $30,000 was deposited in Respondents' bank account on July 10.
However, the credit was made available to Respondents on July 5 to cover out-
standing checks, and was actually used from and after that date for that purpose.
Since Respondents failed and refused to produce at the hearing canceled checks
shown on their July bank statement, the inference is permissible, and I find, that
many of those paid in that month were presented by material suppliers and other
creditors. All of these facts refute the claim that Respondents were short of funds
on June 30 and during the shutdown, to meet the payroll and pay creditors and
other current running expenses.34 The fact that Erikson so readily secured a
commitment of $36,000 on June 29 , before the shutdown was announced , in itself
compels the conclusion that Respondents' credit was good,35 that Respondents knew
'° Respondents produce no canceled checks or other records to show that the lists of
checks paid that day covered other items
32 This is the western half of the manufacturing combine mentioned in the discussion
of Witherite's discharge hereafter.
"The contract was actually signed, and the advance made, in August.
a+ The current running expenses , aside from payroll, to which Erikson and Richards
referred in their testimony were in the main- the costs of benefits given to employees, and
included hospitalization, free coffee service, paid holidays and vacations, etc. However, it
is inferable that Respondents had sufficient funds at all times to meet these expenses, for
Richards admitted they had "relatively little" bearing on the financial condition of the
company, as they continued even during the shutdown
85 Erikson testified that at the end of March 1956, Respondents had- a claim of about
$60.000 against Aluminum Model Toys (AMT), for merchandise delivered, which he
considered uncollectible Respondents point to this as evidence of their inability to
collect -funds. -The record shows, however, that when AMT appeared to be in bad financial
487926-59-vol. 121-31 '
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this when Richards stated lack of funds as a reason for the shutdown, and hence
that he made the false statement to conceal the true reason for the shutdown.
Other aspects of Respondents' operations and financial picture before the shutdown
compel the same conclusion. Respondents' financial statements show that they had
been able to borrow $5,000 in March and an additional $5,000 in June from their
accountant, one Sheeley; the total sum was carried on the books as a secured long-
term liability. Early in April, Erikson borrowed $25,000 from one Defever on his
personal note; the proceeds were used in the business, credited to Erikson as a
portion of his capital investment, and carried as a deferred capital liability of the
business. From March to the end of the year, Respondents carried current and
long-term liabilities averaging over $200,000, on some of which they made regular
monthly payments on principal. There is no proof that any of these creditors,
or others, called their loans or took other action requiring Respondents to pay off
$33,000 or any similar portion of its debts. The liquidity of the business in June is
also shown by the facts that (1) the partners in that month withdrew $8,067.34 for
their personal use, although they normally drew only $750 a month, and to the end of
the year their total withdrawals were only a little over $18,500; and (2) Respondents
collected almost $60,000 of current accounts receivable, giving its customers average
discounts of 2 percent, totaling $1,524.35, on about $30,000 worth of those accounts.
Respondents' liquid condition continued in July, for in that month they gave similar
discounts totaling $2,062.97, covering about $40,000 of collections.
The contention that Respondents had no orders, could not move inventory, and
were running out of work, is deprived of substance by the fact that their balance
sheets show that: (1) Their accounts receivable for July increased by about $8,500
over the total for June; (2) charge sales for July were $62,481.25 as against
$59,069.99 for June; the increase for July occurred in only 3 weeks of production,
whereas the plant was operating 4 full weeks in June; and (3) inventory on hand on
June 30 amounted to $99,308.72, which is about $11,000 less than May 31 inven-
tory of $110,741.31, and does not appear out of line with July 31 inventory of
$84,072.51, August 31 inventory of $88,860, September 30 inventory of $116,223,
and December 31 inventory of $101,206.48.38 These facts indicate that business
was improving somewhat, rather than falling off, and that Respondents were able to
dispose of inventory despite the normal seasonal slump in the early summer months.37
In addition, the record shows that the plant, which had been operating 5 days a week,
went on a 6-day week starting August 20, 1956, and on a 7-day week starting Septem-
ber 10, 1956. Finally, Richards admitted that prior to the shutdown Respondents
had enough materials on hand to continue operations, and the record shows that
during the week of shutdown, Respondents' production continued at about 25 percent
of the plant capacity, and some products were actually packed and shipped, in order
to convert inventory into cash. According to Richards, this production was planned
beforehand for the purpose of "balancing out" unit inventories, and assembling com-
plete units for immediate delivery on any orders which Erikson might bring in, and
the record shows that Respondents kept 3 foremen and at least 1 other male em-
ployee busy 4 or 5 hours a day running 2 machines during the shutdown. Respond-
condition about June, its creditors, including Respondents, held a creditors' meeting about
July 1. at which a composition of AMT's debts was arranged, to stave off bankruptcy,
and AMT has been paying down its debts ever since. In addition, the existence of the
AMT account receivable did not prevent Erikson from procuring the $36,000 loan on
June 29, and the debt did not long remain uncollectible, for the record shows that the
debt was reduced to $43,358 by May 31, and AMT has been reducing the principal amount
by monthly payments since August 1956, so that on December 31, 1956, it owed Respond-
ents $18,544 62. Finally, when Revell-AMT split up as of June 4, 1956, and in the process
divided its assets, Respondents readily waived any lien on valuable materials and dies of
the combine in their hands arising from their claim against AMT, which in itself indicates
that Respondents were apparently not concerned as early as June 4 about the collectibility
of the AMT account.
BOAnother indication that the inventory figure just before the shutdown was not
abnormal lies In Erikson's testimony that a substantial Increase in Inventory from
$73 360 27 on March 31 to $110,741.31 on May 31 was caused by Respondents' manu-
facture of certain products during the slack period, long prior to delivery schedules of
some customers, In order to keep employment level ; such products are stockpiled until
called for by the customers.
87 This ability to move inventory during the slack season Is all the more significant in
the light of the testimony of Orahoske, an old hand in the plastics Industry, to the effect
that the slack summer months constitute a "buyers market" In that industry , during
which the competition to maintain sales and production is greater than at other times
of the year.
DETROIT PLASTIC PRODUCTS COMPANY 467
ents offer no credible reason why they did not retain 25 percent of their senior
production employees on the payroll for this work. Their failure to do so affords
further support for the conclusion that the layoff of all production workers occurred
for other than economic reasons 38
With regard to new business, Richards testified that during the shutdown Erikson,
was out on a selling trip in local areas. He produced 3 orders for products, dated ini
that period and totaling about $1,570. I am convinced, however, that these few,
orders do not present the true picture of Respondents' orders on hand or in prospect
during the shutdown. If they were the only unfilled orders on hand, and Respond-
ents were then running production at about 25 percent of capacity, using only super-
visory and a few other male employees, this backlog would hardly have justified,
recall of its normal production staff on July 10. Hence, there must have been some
impending economic justification for their recall. Respondents failed to produce
sales ledgers for this period, which would have reflected any oral orders or other
business not recorded in formal purchase orders, but their operating statement for
the month of June indicates charge sales of over $59,000 in that month, the July'
statement shows charge sales of over $62,000 for that month, and in August that
figure rose to over $75,000. As Respondents produced no detailed records in sup-
port of these figures, the inference is warranted, and I find, that they represent a
growing dollar volume of new unfilled orders which came in during those months.
Another indication that Respondents' business was growing, rather than falling off,
in this period lies in the admissions of Erikson and Richards that their work force
has grown steadily since 1954, subject to seasonal fluctuations, and they hired new
employees from July 10, 1956, onward in the process of building up their staff.
All of the above facts and figures depict the opposite of a plant in poor financial
circumstances, short of funds, and running out of work, and in that respect constitute
a substantial refutation of Respondents' reasons for the shutdown announced at the
time and presented at the hearing. Absent a compelling and proven economic
necessity, the motive for the shutdown must lie elsewhere. Considering that Re-
spondent had already taken various coercive steps to combat the union campaign,
including threats to close the shop rather than deal with the Union; that the reasons
for the shutdown announced to employees were false and known as such to Respond-
ents, hence were obviously a pretext; that Richards announced an indefinite shut-
down, while at the same time detailing many benefits they had been receiving, but
failed to mention the fact that the plant would actually continue in operation; that
Respondents continued production at a reduced rate during the shutdown by use of
nonproduction personnel; that the shutdown came when the union campaign was
increasing in tempo, and that it was an unprecedented move in the history of the busi-
ness, I am convinced and therefore find that Respondents announced and put into
effect the plant shutdown, not for bona fide economic reasons, but as part of their
continuing effort to coerce and restrain employees from assisting the Union's cam-
paign. The announcement of the shutdown under such circumstances was coercive,
and the actual shutdown thereafter amounted to a discriminatory lockout, all in viola-
tion of Section 8 (a) (1) of the Act, and I so find.39
4. "The Truth Teller"
Respondents prepared and distributed to their employees on August 8, 1956, a
leaflet entitled "The Truth Teller." After stating some figures regarding their profits,
Respondents wrote in it the following:
We feel certain that many of you will be happy to know that we have a
bureau of the United States Government on our side. They are the National
Labor Relations Board. When we asked them about the charges the UNION
as Richards ' testimony that foremen were kept at work to prevent their loss to com-
petitors in the industry is beside the point, for they could have been kept on normally for
supervisory and other work if production had been handled by a normal complement of
production employees ; and his story that hopper boys were retained because they were in
training to become production men does not hold water, because presumably training of
hopper boys went on even when regular production employees were at work.
89 See Monroe Feed Store, 110 NLRB 630 , 634-637, enfd . 237 F. 2d 116 ( C. A. 9)
and ef. Shovel Supply Company . 118 NLRB 235.
In view of the context of Richards ' recitation at the June 30 meeting of benefits given
employees , I make no finding that such recitation amounted to a promise of benefits in,
violation of the Act . I am convinced that be listed the benefits only in order ' to build up
a picture of a failing business, and that the recitation was not intended , or reasonably,
calculated , to convey to employees the idea that such benefits would be continued if they
renounced their union affiliation.
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has filed in behalf of the six ex-employees who were discharged from Detroit
Plastic Products Co., they said the employer has and will continue to have the
right to hire and fire any employee on the payroll. However, to be fair about
this matter, we are going to allow everyone to vote, if there should be a vote.
Of course we reserve the right to challenge any vote.
General Counsel argues that these statements amounted to a distortion of advice
from the Board, and of the law itself, in a manner calculated to lead employees to
believe that Respondents could discharge them at pleasure, and they would be with-
out redress before the Board,`and that such statements amounted to a threat of dis-
charge,for union activity, and a restraint upon and interference with employees'
rights to engage in concerted or union activity, in violation of Section 8 (a) (1) of
the Act. General Counsel also argues that the deliberate nature of the threat is
shown by Respondents' refusal to comply with a request of the Regional Director to
clarify the misstatements in the document.
Erikson testified regarding the genesis of the "Truth Teller" as follows: He read
several union leaflets charging Respondents with "senseless" discharges, and in
addition he received numerous complaints from foremen that the employees were
"defiant" during the union campaign and hard to control, so that foremen found it
difficult to get proper production and good quality of work from them; and foremen
asked him if they still had power to discharge employees, after workers indicated
they could not be discharged during a union campaign. These queries prompted
Erikson to ask an employee of the Board's Seventh Regional Office if it was still
the prerogative of management to hire and fire employees, and that agent said that
it was. Erikson and Richards then prepared and issued the "Truth Teller." He
explains that the statement that the Board is "on our side" was intended to convey
the impression that the Board was "impartial," in that it was "on our side as well
as the Union's side, in labor relations," but he admits the document does not say
that, and charges this to his "inadequate ability to express myself." He says he
meant to say that the Board was "on our side" insofar as the Board agreed that
management still had the right to hire and fire as such, but that he expressed it
poorly, and he admits, "It goes without saying that we cannot fire for or dis-
criminate for organizational purposes." He also stated that Respondents had
already posted a notice to that effect pursuant to Board order in the prior unfair
labor practice case,40 and that it was a well-known fact in the plant that employees
could not be fired for union activity. The record also shows that: The Regional
Director for the Seventh Region received a copy of the "Truth Teller" from the
Union, and on and after August 17, 1956, requested Respondents at various times
to send to the Regional Office, and distribute to their employees, an explanatory
letter clarifying the "Truth Teller" by indicating that the statement as to the
Employers' right to hire and fire, in its context, was not concurred in by the
Regional Office, that the Board was neutral as between employers and labor organi-
zations, and disclaiming any contention that an employer could discharge employees
because of union membership or other activities protected by the Act. After pro-
curing advice of counsel, Respondents declined to issue the clarification in the
form requested by the Regional Director, but suggested Board investigation of the
union claims which provoked the "Truth Teller," which might be followed by an
appropriate letter issued jointly by the Union and Respondents. Respondents
have never issued or distributed any document clarifying or otherwise pertaining
to the "Truth Teller." It is clear from these facts that (1) Respondents have
elected deliberately to stand upon the quoted statements from the "Truth Teller,"
although 'admitting that they do not indicate that the Board is impartial in this
case, and (2) although their statement as to management's right to hire and fire
is correct so far as it goes, it is subject to the established statutory limitation that
the employer cannot discharge for union or organizational activities. In this
respect, the paper told a half-truth about the state of the law 41 It is also apparent
that the paper contained a false satement insofar as it stated that Respondents
asked the Board about the charges filed by the Union on behalf of six discharged
40 See Decision and Order in Case No. 7-CA-1157, 114 NLRB 1014.
u The omission of the statutory limitation on the right cannot be excused by the notice
Respondents posted in the earlier unfair labor practice case, for that notice only apprised
employees that Respondents could not "threaten our employees with reprisals because of,
or interrogate them as to, their membership in any labor organization," nor in any like
or related manner interfere with, restrain, or coerce employees in the exercise of the
rights enumerated in Section 7 of the Act. The notice makes no mention of discharges of
employees, as such, nor of the statutory prohibition against discharge of employees for
union membership or other concerted activities.
DETROIT PLASTIC PRODUCTS COMPANY 469
employees , as a preface to the Board concurrence in their statement or manage-
ment's continued hiring and firing prerogative . Erikson's testimony indicates that
he asked the Board agent a bald statement about the management prerogative,
without reference to the pending charges . As he states it in the "Truth Teller,"
however, employees could easily get the impression that the Board agent reiterated
management 's prerogative in a discussion about the charges, which the employees
must have known were under investigation.
The question here is whether the deliberate publication of a half -truth about
the law, coupled with the partially false statements as to the nature of the dis-
cussion with the Board , and ending with the conclusion that the Board is "on our
side," violates the Act. The Board has uniformly held that, absent threats or other
elements of intimidation , it will not undertake to police or censor campaign propa-
ganda put out by either side in an election campaign , but will leave to the good
sense of the voters the appraisal of such matters, and to opposing parties the task
of correcting inaccurate and untruthful statements. Comfort Slipper Corporation,
112 NLRB 183; L. G. Everist, Inc., 112 NLRB 810, 811; Stewart-Warner Corpo-
ration, 102 NLRB 1153, 1156-1158. The exception to the rule (aside from
threats or other coercion ) occurs where the propaganda contains forged material
or involves campaign trickery or other conduct so misleading as to prevent em-
ployees from making a proper evaluation of it and thus impairs their ability to
make a free and uninhibited choice of bargaining representative in the election.
Merck & Co., Inc., 104 NLRB 891; Tuttle & Kift, Inc., 118 NLRB 125. Under
this rule, campaign propaganda which includes exaggerations , inaccuracies , partial
truths, name-calling , and falsehoods , while not condoned , may be excused if it is
not so misleading as to have the effect on employees noted above. The Gummed
Products Company, 112 NLRB 1092; Comfort Slipper Corporation, supra.
Tested by the above rules, I am of the opinion that, while Respondents' state-
ments in the "Truth Teller" quoted above on the basis of Erikson's talk with a
Board agent are not to be condoned , they do not amount to coercion of employees,
for several reasons. First, Respondents truthfully gave the source of the official
concurrence in the statement of their bare legal right, so that the employees knew
the source was the Regional Office and could easily check with that office, either
through their Union or directly, to determine whether their employer had told
them the whole truth about the law. Second, the Union did not permit the half-
truths in the "Truth Teller" to go unchallenged. After apprising the Regional Office
of the document , the Union sent a letter to Erikson and Richards on August 20;
1956 , and distributed copies of it to the employees on the same date, in which it
answered and commented on the "Truth Teller" at length , calling attention to its
alleged false statements as follows:
Your statement about the National Labor Relations Board is a ridiculous
lie and you know it. Had you called the Board they would have told you
that YOU CANNOT DISCHARGE ANY EMPLOYEE FOR UNION
ACTIVITY. The truth is that you CANNOT FIRE AN EMPLOYEE FOR
UNION ACTIVITIES even when there are no Election Drives in progress.
Don't you make your "Truth Teller" so apparently a liar . Your statement
that you are going to be big-hearted and allow the discharged employees to
vote. The truth is that you cannot prevent the discharged employees from
voting while their cases are pending and they will be pending all of the way
to the United States Supreme Court , if necessary. You are not fooling with
the "Toy and Novelty Workers" Union. If the Truth is not too Foreign to
your makeup let me suggest that you become more familiar with the Art of
Telling the Truth, for a refreshing change.
In a leaflet distributed to the employees sometime in September , the Union stated
the following:
We will not tell you a falsehood! We can prove the truth of every statement
made about the AFL-CIO Plastic Workers Union . We challenge anyone to
disprove them factually!
The same cannot be said about the company as the "Truth Teller," contends.
It will be proven in the very near future that the N.L.R.B . is not on anyone's
side-the N.L.R.B. is an Agency of the Federal Government established to
protect the rights of all citizens.
Third , the record shows that the two paid union organizers were constantly direct-
ing and supervising the activities of the union adherents during the campaign , advising
them as to their rights under the law while engaging in organizational activities both
within and without the plant . It is clear from these facts that for over a month
before the election , the employees had before them the full story as to their employers'
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right to hire and fire: the employer had emphasized its bare legal right in its release,
and the Union had emphasized the limitation on that right in its countering leaflets.
If the employees had any doubts on the whole subject, they could easily have been
resolved by inquiry at the Regional Office which was as accessible to them and their
Union as to Respondents. Hence, the employees were in a position to decide for
themselves long before the election whether or not Respondents were telling the
whole truth, and whether the opinion that the Board was on the "side" of Respondents
was true or merely a boast or exaggeration. On the latter point, the Union's leaflets
emphasized that the Board was "not on anyone's side," but was established to pro-
tect the "rights of all citizens." Thus, the union propaganda tended to neutralize
any coercive impression that Respondents' propaganda may have given the employees,
to the effect that they were completely without redress if discharged like the union
adherents named in the union charges. Under all the above circumstances, I am
inclined to the opinion, and therefore conclude, that the deliberate half-truths pub-
lished by Respondents, considered in their entire context, were not so misleading
as that the employees were unable to evaluate them as partially true, partially false
campaign propaganda of Respondents. For the same reasons, and considering the
Union's earlier announcement to the employees in July that it was filing unfair
labor practice charges based on some of the earlier discharges discussed hereafter,
I am unable to conclude that the statements quoted above were clearly calculated
to put employees in fear of discharge or other reprisal because of their union or
other concerted activities. Hence, 1 conclude and find that such statements did not
violate the Act. See Stewart-Warner Corporation, supra.
In the "Truth Teller," Respondents also told their employees the following, in
pertinent part:
This paper is one of a series that will be printed in an effort to keep the
employees of Detroit Plastic Products informed accurately and truthfully
during the current organizational activities. We are looking for more reporters
for our paper. Just recently one of our young reporters told us that two ex-
employees have been staying up late nights passing out propaganda to other
plants. Undoubtedly they are being paid for this work. We wonder how much.
We understand one of them will get $1200.00 if the union gets into Detroit
Plastic Products.
The purpose of this paper is to give you the facts and all the loyal reporters
will do everything we can to protect you from the strong-arm and propaganda-
spreading people we are dealing with.
Another edition will be out soon. The next edition will deal with the facts
of why several employees were dismissed recently and exactly what charges
the union has talked them into making against Detroit Plastic Products Company.
General Counsel argues that these statements conveyed the impression that
Respondents were engaging in surveillance of employees ' union activities and were
soliciting employees to report on such activities , and that such statements violated
the Act. With,regard to the statements, Erikson said Richards was his only reporter.
When asked if he was making an open invitation to employees,to act as his "reporters,"
Erikson replied in his testimony:
Well, I don't think that we can take a concise , area here and discuss it. I
think we have to look at this thing in the over-all picture. You must realize as
public relations in our company we don't have a whole staff of people doing
it. It depends upon Mr. Richards and myself to keep the employees happy at
all times and to do the things that are necessary under employees relations.
The union had a number of people that were used as reporters for them in
their propaganda sheets that they put out, and we merely took this in a joking
manner, that here once again we are choosing up sides, as foolish as it may seem.
From a reading of the Union's propaganda leaflets, it is evident that the Union was
kept well posted about occurrences in the plant, including the discharges of employees
and other activities of Respondents discussed herein. Although its propaganda does
not state the source of that information, it is obvious that it must have come to
the Union from its plant committee and other union members and adherents. It is
also clear from the record that throughout the campaign there was open, un-
hindered discussion about unionism, and the Union in particular, among employees
and between them and management, and that Erikson received continual information
both from employees and supervisory officials about these discussions and the senti-
ments of specific employees on the subject. Hence, in a broad sense, both Respond-
ents and the Union had "reporters" keeping them advised about the course of the
union drive and employee sentiment in the plant throughout the campaign. From
the complete freedom of discussion allowed, it is also fair to infer that employees
DETROIT PLASTIC PRODUCTS COMPANY 471
who spoke up for the Union knew that their views and activities were known to
management. In fact, Erikson's own discussions with some members of the or-
ganizing committee found above, in which he indicated he knew which employees
favored the Union, makes this clear. General Counsel does not claim that Re-
spondents' receipt of information in this manner, whether from employees or super-
visors, denoted surveillance. In these circumstances, the statements in the "Truth
Teller" indicating that Respondents were getting information from various "re-
porters," and that they were seeking more "reporters" for the purpose of giving the
employees the true facts about the Union in future issues of the "Truth Teller," in
one sense appears to be merely a recognition of'the free flow and exchange of in-
formation, ideas, and sentiments which prevailed in the plant and which in itself
does not denote any violation of the Act. However, these statements, coupled with
the final assurance that "all the loyal reporters will do everything we can to protect
you from the strong-arm and propaganda-spreading people we are dealing with,"
when taken together, in my opinion were also reasonably calculated to foster the
impression among employees that Respondents had a group of persons, presumably
employees, loyal to management who were gathering information about the Union
and its adherents and reporting it to management, and that Respondents were
soliciting other employees to do the same. Such remarks, like actual surveillance,
are well calculated to intimidate employees and restrain them from exercising rights
guaranteed to them by Section 7 of the Act. I conclude and find that, by the
statements quoted above, Respondents further coerced employees in violation of
Section 8 (a) (1) of the Act.42
C. The discharge of Catherine Elkins
Catherine Elkins was hired by Respondent on May 28, 1956. I have found that
at the time of hiring, she was illegally interrogated by Personnel Manager Richards
about her union sympathies, and that she indicated she was neutral on that subject.
During her employment she worked on the afternoon shift as a molding press op-
erator under Foreman Henry C. Frank. After the union campaign started, Elkins
joined the Union, was made a member of its organizing committee at the first meeting,
attended all other union meetings, and openly solicited employees to join the Union,
both within and without the plant, during nonworking hours.
Elkins was hired as a probationary employee for 30 days, in accordance with
Respondents' customary practice. She was discharged on June 21, 1956, within
her probationary period. Her dismissal slip contained only the notation "Dis-
continuance of employment." She was never given a specific reason for her
discharge by her foreman or any other official of the employer.
The amended complaint charges that Elkins was discharged for her union activity.
An essential element of such a charge is that the employer had knowledge of her
union activity. There is no direct proof whatever that Respondents knew that Elkins
signed a union card, nor is there any specific admission that they knew of her other
union activities noted above. Elkins admitted that when she solicited in the plant,
no one other than the employees she solicited was present. To prove the requisite
,knowledge, General Counsel relies on the circumstances that: (1) Prior to the dis-
charges in question, Respondents had engaged in continuous interrogation of em-
ployees and applicants for employment about their union activities and sympathies;
(2) this was a small plant in which discussions about unionism had long been
carried on openly among the employees, and by them with their supervisors; and
(3) testimony of Watson attributing to Richards direct knowledge of Elkins' ap-
pointment to the organizing committee. The circumstances found above that (a)
Erikson and Richards knew, or claimed to know, the identity of various union
adherents during the 1955 campaign, (b) Richards' and Erikson's comments about
the outcome of that election indicating similar knowledge, and (c) Richards' illegal
interrogation of new applicants for employment early in 1956, make it clear that
Respondents displayed great interest in the union sympathies and activities of their
employees during the 1955 and 1956 campaigns and took various steps to keep
themselves well posted on that subject. The record also shows, and I find, that
during the 1956 campaign employees freely and openly discussed the pros and cons
of unionism among themselves and with their supervisors, including Erikson himself.
Erikson admitted that: From the outset of the 1956 campaign, he had talked freely
with workers about their union views, had often broached the subject himself by
42Cf. Knickerbocker Plastic Co., Inc., 96 NLRB 586 , 587. I find no substantial proof
in the record that Respondents actually spied on union meetings or other employee con-
certed activities . Hence I shall recommend dismissal of the amended complaint to that
extent.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reciting the benefits they were receiving, and had gathered from many the impression
that they were happy at the plant without joining any international union. During
the present and prior union campaigns, he had many talks with foremen about the
attitude they should take toward employees with regard to discipline and discussion
of unions, and in these discussions names and activities of specific employees were
often mentioned. In the present campaign he received reports from foremen, and
from production employees, about the union sympathies of other employees, and
he names at least nine employees, aside from the dischargees discussed herein, whose
union adherence he learned from such sources. In addition, it is clear that he se-
cured, or tried to secure, the same information about others during his illegal inter-
rogation of them found herein. He admits that his talk with Romesburg following
the June 9 meeting at her home was occasioned by the fact that he had heard
"rumors" in the plant about her organizing activities and remarks to employees at
that meeting. Finally, Erikson's knowledge of the identity of active union adherents
is shown by his angry remarks to Romesburg, within hearing of Elkins, about 11
days before the latter's discharge, when he said he knew the girls who were "for
the union," naming 3 active union adherents, and would discharge them. I am
satisfied from the above facts and circumstances, and therefore find, that Respondent
Partnership was aware of Elkins' adherence to the Union before her discharge 43
Respondents claim that Elkins was discharged for good cause. In support thereof
Richards testified that Elkins was discharged during her probation solely on the
recommendation of Foreman Frank, which Richards accepted and acted on in the
normal course without further or independent investigation. I find from Richards'
credible and uncontradicted testimony that: During the probation period, it is the
duty of the foreman to watch and evaluate the performance and overall attitude of
the new employee, with regard to quantity and quality of production, ability to take
orders, attitude toward safety requirements, and all other pertinent factors. At
the end of the probation period, the foreman has the sole right to decide whether
the employee shall be retained or not. His decision is accepted without question
or investigation by management, unless the discharged worker protests or appeals
to Erikson or Richards, in which case either will review the decision. In Elkins'
-case, Richards acted on Frank's discharge recommendation without further review,
because Elkins never appealed to him or Erikson after the discharge.
The record shows that, prior to her employment with Respondents, Elkins -had
several years of experience in operating presses and other machines in other plants,
that during her employment at Respondents' plant she got along well with her co-
workers, had no trouble in learning to operate the molding presses and in maintain-
ing her production, that Foreman Frank found no fault with her work or attitude,
but told her almost daily that she was meeting production requirements. Richards
testified, and Respondents conceded at the hearing, that his examination of Elkins'
production records since the discharge indicates that her production was satisfactory
as to quantity, and he could find no evidence pointing to poor quality. As to the
reason for discharge, Richards testified that: In the summer and early fall of 1956,
he had occasion to conduct a general investigation of the conduct of Frank, as
foreman, and took a written statement from him in September 1956, about his
handling of various employees, including Elkins and Bessie Pappas, and that he
recalls that, as to Elkins, Frank's statement had "something to do with an accident
rate, or a potential," and that "she might have had a high accident potential," which
Richards considered very serious. However, Frank, who was discharged by the
Partnership in October 1956, was not called by Respondents to support Richards'
vague testimony on this point, nor to explain his own reasons for the discharge, nor
do Respondents produce Frank's written statement on the subject. There is no
proof, nor claim, that Frank was unavailable to testify. Richards' vague testimony,
standing alone, falls far short of meeting, much less overcoming, the preponderance
of credible testimony, and Respondents' own admission, demonstrating that Elkins'
work was in fact satisfactory. Richards also admitted that Frank erred in discharg-
ing several probationers, including Elkins and Bessie Pappas, who were not at
fault, and that Respondents would entertain applications for employment from them
as new employees. Since Respondents are fully responsible for the actions of their
foremen in discharging personnel, it follows, and I find on the basis of all of the
above testimony, that Elkins was not discharged for a real cause, as claimed by
43 In view of the admissions of Erikson, and 'other facts, noted above, I find it un-
necessary to resolve or make findings on conflicting testimony of Watson , the union
organizer, and Richards about their discussion outside the plant on June 19, 1956 In the
light of Erikson's admissions, I do not credit testimony of Richards to the effect that
supervisors had been ordered to remain neutral during the campaign, and to hold no
discussions with employees about unionism.
DETROIT PLASTIC PRODUCTS COMPANY 473
Respondents. However, Richards testified without contradiction, and I find, that
the Partnership hired Frank, knowing that he had been active in a union in a plastic
plant in St . Clair, Michigan, and was prounion in sentiment . From this testimony,
Respondents argue that his prounion background alone warrants the inference that
he would not have discharged Elkins for union activity in the course of the union
campaign . The contention thus comes to this: Lacking good reason for the dis-
charge of Elkins, and admitting that Respondent was mistaken in discharging her,
and lacking clear proof of Frank's personal motive in doing so, his prounion back-
ground requires the negative inference, that it was not for her union activity or
affiliation.
Since there is no proof that Respondents ever told Elkins, or anyone else, the
exact reason for her discharge, the issue must turn on whether the inferences to be
drawn from circumstances cited by General Counsel which point to a discriminatory
discharge are offset by the contrary inference which may be drawn from Frank's
prounion background. Respondents' general hostility to the union campaign is
clearly evidenced by their illegal interrogation of Elkins and other employees and
threats to close the shop and to discharge known union adherents, of whom Elkins
was one. The desire and intent to discharge union adherents is inferable from
such illegal conduct, and since I have found that Erikson was aware of the identity
of the active union adherents, including Elkins, it is likewise inferable that the earlier
threat to discharge known union adherents, which specifically included Vadasy and
Witherite who shortly became members of the committee and were later illegally
discharged, as found hereafter, also encompassed Elkins, even though he never
mentioned her by name In my opinion, these facts and circumstances, and the
inferences arising from them, followed by Elkins' discharge, establish a prima facie
case of discriminatory discharge which required Respondents to go forward with
convincing proof in rebuttal that the discharge was for good cause. Instead, Re-
spondents now change their defense, admitting that there was no good cause for the
discharge, and that it was made in error. They place all the blame on Frank, and
rely' on Richards' vague recollection, unsupported by records, that Frank might
have cited a possible "accident potential" of Elkins to Richards as the reason for
his action . But, Respondents' failure to produce Frank to testify on this vital
point , or to show that he was unavailable to testify, or to produce the "written"
statement which he is alleged to have given Richards, warrants the inference that
neither his testimony nor his statement, if produced, would support Richards'
story. Respondents' present argument that the discharge was an honest mistake,
and not based on ulterior motives so far as top management was concerned, does
not impress me as sincere but as a last-minute expedient, for several reasons. The
original charge herein, alleging that Elkins was illegally discharged, was filed with
the Board on June 25, 1956, 4 days after the event, and served on Respondents the
next day. Richards says he discussed the discharge with Frank in September. If
Richards had suspected then that Frank had erred in his treatment of Elkins, in-
vestigation of her production records and general performance at the time would
have convinced him of it, as it did when he made the investigation just before the
hearing. If Respondents had been sincerely desirous in September or October of
correcting the error into which they had been led by Frank, they could have done
so by offering immediate reinstatement to Elkins. The fact that they failed to do
so, and that Richards even testified at the hearing that he would consider an appli-
cation from Elkins then only as a new employee, convinces me that her discharge
was not an honest error, but if anything was a deliberate action taken by Respondents
for a specific reason. It is inconceivable to me that they would have discharged a
promising probationer like Elkins who had a satisfactory performance record, without
any reason at all. The only reason disclosed by substantial proof in the record
is the desire and expressed intent of management from the outset of the union cam-
paign to rid itself of known union adherents. Hence, I am of the opinion that
General Counsel's prima facie case of discriminatory discharge has not been rebutted
by the vague testimony and shifting defenses offered by Respondents, and I conclude
and find that Respondents discharged Elkins on June 21, 1956, because of her
union affiliation and activity, and that such discharge tended to discourage mem-
bership in the Union, and thereby violated Section 8 (a) (3) of the Act. The
same conclusion is strengthened by an examination of similar action and contentions
of Respondents in, the case of Bessie Pappas, another probationer discharged by Frank.
D. The discharge of Bessie Pappas
Bessie Pappas was hired on June 14, 1956, and worked on the afternoon shift under
Foreman Frank until her discharge. During her hiring interview with Richards, he
told her the Partnership had had union trouble before, and was having similar trouble
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
again ,- and did not want to "bother with it." He also said that another employee,
Margaret England , "probably told you all about it," and Pappas admitted that
England had , and said she (Pappas ) was not interested in the union , only in the
job. Richards replied that she was hired , and "you have a steady pay check com-
ing." Pappas joined the Union sometime after she was hired , and attended the
third union meeting held on July 7, 1956 . So far as the record discloses , she en-
gaged in no other union activity before her discharge.
Pappas was laid off on June 30, 1956 , in the general layoff of female employees
which will be discussed hereafter . On July 9 or 10 , 1956 , within her probationary
period , Respondents discharged her by mailing her a "Probationary period report,"
dated July 9, 1956, and signed by Richards , which read:
Your foreman , Plant Superintendent and Personnel Director have evaluated
your work since you joined this company on 6-13 -56. This evaluation is as
follows: Disapproval for continued employment . Remarks: Failure to meet
minimum production standards 44
At the outset , I find that the Partnership violated Section 8 (a) (1) of the Act
by (1) Richards ' statement to Pappas that England had probably told her all about
the union trouble, a form of a leading question which was calculated to, and in
fact did , elicit an admission from Pappas about her union discussions with other
employees , and her own views about unions; and (2) Richards ' statement to her
that she had a "steady pay check coming" after learning she was not interested in
the Union ; in its context , it amounted to a thinly veiled illegal promise of steady
employment to a temporary , or probationary , employee , if she adhered to her
professed indifference to the Union.
As in Elkins' case , Respondents at first claimed that Pappas was discharged for
good cause, but at the hearing admitted through Richards ' testimony that her pro-
duction records indicated satisfactory production , with no evidence of poor quality,
and that Frank 's recommendation for the discharge , on which Richards says he
acted without question or investigation , had been in error . I find from credible
and uncontradicted testimony of Bessie Pappas, Madeline May , and McKennon that
after her break-in period , Pappas' production was on a par with that of other, more
experienced workers doing the same work , and that Foreman Frank - often compli-
mented her on her work . On these facts, and Richards ' admissions , I find that Bessie
Pappas did satisfactory work during her employment , and that the reason for dis-
charge stated on her dismissal report has no basis in fact.
Respondents present two real defenses in Pappas ' case : first , complete ignorance
of her union affiliation or activity, and second, the negative inference from the
prounion sentiments of Frank, who discharged her, that , whatever his reason for
the discharge , it was not for her union activity.
On the issue of knowledge , the record shows that while Pappas was a union adher-
ent, her union activity was minimal , for she attended only the third union meeting,
held during the June 30-July 10 layoff . There is no direct proof that Respondents
knew of her affiliation with the Union , or of her attendance at that meeting. The
only direct knowledge Respondents had on that subject was to the contrary , gleaned
from her own statement to Richards that she was not interested in the Union, and
this fact alone rebuts any inference of employer knowledge of prounion activity in
her case which might otherwise be drawn from Respondents ' illegal interrogation
of her , or of other employees and applicants for employment . General Counsel
contends that an inference of employer knowledge can be drawn from the free and
open discussion of unions in the small shop during the union campaign . However,
this is only one factor which tends to support that inference , and it is of doubtful
value in her case, where there is no proof that she engaged in such open discussion
in the plant. Of course , Erikson admitted he learned of the employees ' sentiments
about the union generally from his open discussions with them , and his remarks
and threats made to Romesburg , as found above, indicate that he knew the active
union adherents ; but there is no direct proof that he ever talked to Pappas on that
subject , or learned from others of her union affiliation . Having observed her rather
shy and retiring demeanor on the stand , and the fact that-she spoke English slowly,
with some difficulty and with a foreign accent , and was far from being a voluble
witness, I consider it more likely than not that she engaged in little or no union
discussion with other employees or with management officials which would tend
to reveal her union views . Nor does the fact that Pappas was discharged for a reason
not justified in fact , only 2 days after she attended the third union meeting, which
was her sole, open act of union support , compel an inference that Respondent knew
44 These findings are based on credited and uncontradicted testimony of Pappas, and
documentary evidence.
DETROIT PLASTIC PRODUCTS COMPANY 475
of that activity and discharged her for it. At most, the factors cited by General
Counsel, which relate to facts and circumstances prior to the discharge, raise a
strong suspicion that her dismissal was for a discriminatory reason, but suspicion
is not proof sufficient to support even a prima facie case.
General Counsel also relies on conversations between Richards and Alexandria
Pappas, daughter of Bessie, after the discharge, as indicative of discriminatory
motive. I find from credible testimony of Alexandria Pappas, which is corroborated
in part by testimony of Richards, that: Alexandria, who lives with her mother, was
hired by Richards at the request of her mother on June 15, 1956, and started work
on June 18, 1956. She was laid off in the June 30 layoff, and was called back
to work on July 10. When she came in that morning, she approached Richards
and asked him if there was any mistake in the fact that her mother had not been
recalled, since she and her mother had the same name and lived at the same address.
Richards said it was "no mistake," and told her to see him privately in the office.
He called her to the office later, and told her that the quality of her mother's work
did not meet their standards. Alexandria said her mother had told her that Foreman
Frank and others had complimented her mother on her work. Richards then said
her mother had not put out enough work. Alexandria replied her mother told
her that her production had been on a par with that of other employees, including
I worker of 4 years' service. Richards said, "Is that right?" He then said that,
during the layoff, they had taken inventory and checked a lot of rejected production,
and discovered that in 10 boxes of her mother's production rejected and returned
to the plant, they found the "pieces were counted wrong," and that during probation
the employer had to "watch for just about everything" and found it easier to let
an employee go during probation period than after she had worked there 30 days.
When Alexandria was leaving the office, Richards said, "I hope this won't be affecting
you in the same way as it did your mother."
About 3 weeks later, Richards called Alexandria to his office, told her he had
received a complaint against the company which contained a list of names including
her mother's, and said he could not understand why she was filing a complaint against
him.45 Alexandria replied she did not know much about that, except that her mother
needed a job badly, and felt she was "let go unfairly," as her work was good.
Richards commented that her mother had never come to see him about that, that if
she had done so, "maybe we could have done something, but it is too late now to
come back, she can't come back now." Alexandria replied they did not know a dis-
charged worker could come back and see about getting a job. Richards told Alex-
andria, "You are 21 now, you don't have to follow your mother any more, you can
think for yourself." Then he asked her, "What do you think about all this?" Alex-
andria replied, "I don't know much about my mother's business, but to be on the safe
side, I am favored with the company." Richards replied, "Well, I am glad to hear
that, that's good." Alexandria was working on a press at this time, and continued to
do so until September 19, 1956, when she was transferred to office work in the plant
office, which she has done ever since. After she started work at the plant, Alex-
andria Pappas joined the Union, but never entered into any of the discussion about it
in the plant, nor attended any of its meetings.
Richards' remarks to the daughter furnish strong evidence in support of the infer-
ence that the Partnership not only knew of the mother's union affiliation, but dis-
criminatorily discharged her because of it. His statement at the close of their
second talk on July 10, that he hoped "this won't be affecting you in the same way
as it did your mother," followed by his remarks in the third conference during dis-
cussion of the charge filed by the Union for the mother, that the daughter was of
age, did not have to "follow your mother any more," and could "think for yourself,"
and ending with his query as to "what do you think of all this," which drew the reply
that she was "favored with the company" in order to be "on the safe side," with which
Richards indicated his approval, all occurring during the union campaign, indicates
to me (1) that Richards had learned of Bessie Pappas' adherence to the Union, and
(2) that he was warning the daughter that she could avoid the fate of her mother if
she did not follow in her mother's footsteps and join the Union. The reference to
"this" in his second talk, and inquiry as to what she thought of "this" in the third,
could only refer to the prevalent union campaign which had been the main subject of
open discussion in the shop for over a month past; it could not refer to her mother's
performance as a worker, for there was nothing wrong with either her production or
her attitude as a worker, as Respondents now admit; hence, the reference could only
4GRichards obviously referred to the first amended charge filed by the Union herein
on July 20, 1956, which was served on the Partnership by registered mail on July 24,
1956. That charge alleged that Bessie Pappas and others had been discharged in violation
of the Act.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have been to the union campaign and her mother's decision to join the Union. Con-
sidering these remarks in the context of the proven animus of Respondents toward
the Union, and their admitted knowledge of the union views of other employees,
gathered by both legal and illegal means, I am satisfied and find that Respondents
knew of Bessie Pappas' adherence to the Union at the time they discharged her.
Richards' other remarks to Alexandria Pappas found above amounted to a thinly
veiled threat of discharge if she joined the Union like her mother, which led her,
when questioned about her own views about the Union, quickly to assure Richards
that, to protect herself, she would take the same antiunion attitude as the company.
The threat and interrogation were both coercive and clearly calculated to restrain
Alexandria from openly adhering to the Union, as was her right under the Act. The
fact that she concealed her union affiliation demonstrates the effectiveness of the
coercion. I find that by these remarks, Respondents further violated Section 8
(a) (1) of the Act.
Richards' first remark to Alexandria about her mother's discharge, that it was "no
mistake," coupled with the wording of the dismissal notice signed by him, and fol-
lowed in the second discussion by his recital of specific alleged defects in her work,
including reference to evidence thereof he claims was found upon a check of rejected
and returned merchandise made by Bessie Pappas, are facts which clearly indicate
that the discharge was a deliberate action of top management 46 It is also clear that
the reasons assigned by him were false and stated to the daughter to cover up the
true motive for discharge. Thus, he testified at one point that he personally ex-
amined the mother's records after Alexandria's initial protest and found evidence of
poor quality. He changes his story on cross-examination by stating he had Frank
make the investigation of the records and report to him, and then says that his an-
swers to Alexandria were based on "assumptions," and that it was difficult for him
to give her "any type of answer on the thing." Finally, he discredits his whole story
by admitting that examination of the mother's work records before trial revealed
nothing wrong with her work. Again, he shifted his position at the hearing by
testifying in a vague manner that, when he took a written statement from Frank about
both Elkins and Bessie Pappas, he "thinks" Frank said something about Pappas' atti-
tude toward him, in that she accused Frank of "playing favorites." Pappas admits
that on June 29, 1956, she accused Frank in a joking manner that he might put a
younger woman on the job in her place, when she got an infected hand, but she says
be laughed about it and replied that she was still a young woman and doing fine.
I find that their discussion on this subject was amicable and entirely in jest, and had
nothing to do with Pappas' work or her general attitude. I consider Richards' refer-
ence to it as a last-minute, expedient defense which is without merit. Respondents'
claim that Pappas' discharge, while erroneous, was not their fault, is also deprived
of merit by the fact that they have never made any attempt to rectify the error, but
have continually evaded correction of the error by various excuses. Thus, when
Pappas' daughter promptly registered a strong protest against the discharge on behalf
of her mother, Richards avoided corrective action by charges of bad production which
were in fact false and which he must have known were such. At most, he intimated
to Alexandria that something might have been done if the mother had protested in
person, and he testified that he did not consider the daughter's protest the same as a
personal application for redress by the mother, sufficient to warrant any investigation
or action by him. I consider this excuse untenable, in the light of his self-contradic-
tions as to investigations made shortly after the discharge. Further, it seems per-
fectly natural for the daughter, still working in the plant, to speak up for her mother,
who appeared to me to be rather retiring in nature. Finally, if personal application
for reinstatement were essential, it is significant that Richards never suggested to the
daughter on July 10 that her mother should come in to see him, but instead offered a
series of false reasons for the discharge. Again, Richards' remark to Alexandria,
after being served with the charge, that it was "too late, she can't come back now"
indicates that Respondents were discriminatorily refusing on and after July 24 to
rectify the error which they blame on Frank, because the mother had engaged in
further protected activity by seeking union assistance in invoking the processes of
the Board with respect to her discharge. Respondents have in effect maintained the
same stand to date by Richards' refusal at the hearing to consider any application for
work from Bessie Pappas except as a new employee. This attitude in itself is indic-
ative of a discriminatory motive, and belies the claim that their error was chargeable
solely to Frank. In addition, there is the overriding consideration that, even if Frank
"Richards testified he got the information for the vague remark "failure to meet mini-
mum production standards" on the dismissal notice from the foreman, but admitted in
effect there was no meeting between the foreman, the plant superintendent, and him for
evaluation of her work, as stated in the notice.
DETROIT PLASTIC PRODUCTS COMPANY 477
had acted solely without knowledge of top management, his error as supervisor was
still chargeable to Respondents and would not relieve them from the duty of rectifica-
tion, when the facts were brought to their attention.
Considering all of the above facts and circumstances, including the shifting de-
fenses and excuses advanced by Respondents both before and at the hearing, none
of which are sincere or based on fact, I am satisfied that a preponderance of the
credible evidence in the record considered as a whole supports the conclusion that
Respondents discharged Bessie Pappas on July 10, 1956, because of her union
affiliation and activity, in violation of Section 8 (a) (3) of the Act, and I so find.
E. The discharge of Julia Vadasy
Julia Vadasy was hired by Respondents in January 1953, and worked on the
third (midnight) shift until her discharge. After working as a packer for a
few months, she was transferred to a molding press and worked as a press operator
during the remainder of her employment.
Vadasy signed a union authorization card at the outset of the campaign, was
appointed a member of the plant organizing committee at the first union meeting,
and attended the other two meetings. Between June 1 and 16, while awaiting a
call from Richards about a packer's job, as will appear below, Vadasy drove
Witherite and another employee to work every night, and each night she openly
solicited employees for the Union in the plant lunchroom before the midnight shift
started. While so engaged, her foreman, Andrew Orahoske, usually came to the
lunchroom to assign employees to their machines for that shift, and on several
occasions Vadasy had discussions with him about the Union, in which she spoke
for the Union and he spoke against it. Vadasy also attended the meeting of em-
ployees at Romesburg's home on June 9, 1956, at which she openly supported
Romesburg in advocating affiliation with the International Union. These facts,
together with Respondents' extensive knowledge of the union activities and
sympathies of many employees and Erikson's threat in the week of June 15, 1956,
to discharge Vadasy as found above, make it clear, and I find, that as early as that
week Respondents knew about Vadasy's union affiliation and activities and had
formed a desire and intent to get rid of her.
Vadasy suffered a serious injury to her left hand on January 27, 1956, while
trying to remove a plastic obstruction from the die in the No. 2 press, which she
was operating that night in place of the regular operator, who was absent 47 As a
result of the accident, Vadasy was absent from work about 4 months, during which
she received extensive treatments in an effort to save the middle finger of her left
hand; the treatment failed, and that finger was amputated on May 14, 1956. On
May 28, 1956, her doctor told her that the wound had healed sufficiently to enable
her to return to work and perform "light work." She called Richards and advised
him of the doctor's verdict. Richards told her to report to work on her regular
shift that night, which she did. On reporting to Foreman Orahoske (who had
worked for Respondent only since May 7, 1956), she told him about the injury,
showed him the injured hand, which was not completely healed and still lightly
bandaged, and told him the doctor had told her to do only "light work." Orahoske
had several presses running on different products, and assigned her to the No. 2
press, turning out small plastic buttons, which he felt would, not be too bulky for
her to handle.48 He asked her if she could run it, and at first Vadasy refused flatly
to operate it, saying it was the machine on which she received her injury, that it
was not her regular machine, and she could not operate it. He replied that he
did not think he had any other job running which would be easier for her to handle,
and suggested she try it and see how she got along, telling her not to "worry. about
getting behind," as he would help her keep up with the production. Vadasy ran
the press the entire shift (actually on May 29), but at the end of the shift, her
injured hand was aching and swollen. Several times during the shift, Orahoske
helped her when she fell behind, and by the end of the shift, she was almost keeping
pace with the machine cycle 49 On May 31, the next workday, the doctor examined
Vadasy's hand, and gave her a slip stating, "Request lighter work with left hand;
or work favoring left hand for 30 days." Vadasy returned to work that night
4* Vadasy's regular machine was No. 5, which she had been operating for about 3 years
48 Richards had left orders for Orahoske to put her back to work, without specifying
any particular assignment.
46 In running this machine, Vadasy had to open the safety door to the die cavity, re-
move the "spider" or plastic frame holding the buttons, and clip the buttons from the
frame with a clipper. Being left-handed, she did all of these operations with that hand,
using the right only to hold the spider while clipping off the buttons. -
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(June 1 ), but when Orahoske again assigned her to the No. 2 press , she refused
to run it, telling him the doctor had said she could not operate a machine . Orahoske
said he had no other work for her, but suggested she go down the line of presses
then operating to see if she could find one she thought she could operate. She
replied that she could not run a press, and if he had nothing else, she would have
to go home and would talk to Richards in the morning. She went home without
working, and saw Richards at the plant that morning. She told him why she had
refused to run a press, giving him the May 31 slip from the doctor. Richards
told her that the doctor 's request would require giving her a full -time job as packer,
,the only other type of work Respondents had, which was performed only on day
shift, and asked her if she could do that work on day shift. She said she would.
He also reminded her that packing work was seasonal , that summer was usually a
slack season for packing, and that she might get laid off. Vadasy said she under-
stood that. He then told her that it was not company policy to have employees
perform only packaging work, and that he would have to talk to Erikson about
changing that policy in her case to allow her to do only that operation . He said
that he thought Respondents could probably "open up the policy, change it, and
rewrite the policy again , and close it up again ," to prevent hard feelings on the part
of other employees. Richards told her to wait, and he would call her after talking
to Erikson about it . The same day Richards sent Vadasy a letter confirming their
talk, which reads as follows:
DEAR JULIA : Kindly allow this letter to serve as confirmation of our discussion
which took place this morning.
As we had discussed we will endeavor to have you assigned to the day shift
as a packer. Since this is contrary to the existing company's policy that every
woman employee must be capable of operating a press, we must first of all
secure permission from the President of the Company to deviate from this
policy . Providing your request goes into effect you will be assigned to the
packing department.
By accepting the newly created job as packer you must realize that if the
work load now being carried by the packing department should slacken you
would be subject to immediate lay off.
Our objective in creating this position is to retain you as an employee of this
Company in spite of your handicap. You will be advised of the out come of
this matter as soon as possible.
Vadasy waited about 3 weeks to hear from Richards , but when she heard nothing
from him , she assumed a seasonal slump had occurred , as June was normally a slack
month at the plant , and that she was laid off. She then applied to the State of
Michigan for unemployment compensation. Respondents received notice of her
application on June 22 , 1956 , and Richards immediately sent her a letter terminating
her employment, in the following terms:
DEAR Juu&: In today's mail, we received a copy of your request to the
Michigan Unemployment Securities Commission for benefits.
As you well know, in my last letter, I mentioned that this company would
endeavor to change its policy regarding the employment of personnel , for pack-
ing operations only. When this matter was brought up with the policy maker
and several of the employees, we encountered several difficulties regarding this
matter.
It was pointed out, that many of the girls who have been working in a dual
capacity of packer and machine operator, would object strongly to a policy of
this type, even though it be directed specifically to you.
The action which you have taken , by applying to the Michigan Unemployment
Securities Commission for benefits , indicates to us that you are not willing to
wait until this matter can be settled and this also helps us in making our decision
on this matter. We will suggest that benefits be paid to you and that your
employment in this company is terminated as of this date.
Although it is clear from the record that Respondents knew about Vadasy's pro-
union sentiments and activity in the 1955 campaign , and that their hostility to an
outside labor organization continued in 1956 and was actively directed against the
Union as soon as it started its campaign , there is no proof that at the outset of that
Campaign , and 'specifically on June 1, 1956 , Respondents knew anything about
Vadasy's sentiments toward this Union, or that they had any intent at that time
to get rid of her for discriminatory reasons . Richards' talk'with Vadasy •on"June 1,
and his confirming letter of that date , indicate that he was willing to ^ comply with
her doctor's recommendations by putting, her' to work as a packer .' I am satisfied
DETROIT PLASTIC PRODUCTS COMPANY 479
that this was a sincere effort at the time to keep her at work while making allowances
for the handicap due to her injury, because credible testimony of Richards , Vadasy,
and other witnesses makes it clear that : Respondents ' general policy was to have
all production workers trained to perform both packaging and press operations so
that packers could run a press whenever a regular press operator was ill and vice
versa. The record shows that all employees who testified had performed both opera-
tions, but that packing of most products made on all shifts was normally performed
by day-shift personnel ; packing operations on third shift was spasmodic , not a reg-
ular practice . Hence, if Vadasy was put on packing work , she would normally be
subject to call for press operation in such instances , particularly since she was an older
worker and had a high seniority . However, since her doctor had ordered "light
work," and Vadasy had refused to handle a press , Respondent would have to make
an exception to its policy for her, by putting her on day shift as a full -time packer,
not subject to call for machine operation . Erikson was the only one who could
authorize such deviation in policy , hence Richards had to get his approval . Vadasy
was aware of this policy from her own experience , for she admitted she had done
part-time packing on her own shift when first employed , and thereafter often packed
products while running a press, and that packaging , inspection , grinding of scrap
plastic, and other nonproduction jobs were not regular jobs on day shift, but were
usually performed by press operators when temporarily. off their regular machines.
Richards acted promptly the same day on his promise to Vadasy by discussing the
proposed transfer with Plant Superintendent Howard Caughill and Julia Schaller,
head of the packing department . Caughill, who had previously seen Vadasy 's injury,
indicated that he had no objection to putting her on packing , if there was work for
her to do , and she could keep up with it; however , he made no recommendation, but
left the decision to Richards 50 Schaller told Richards that she might use another
packer. She did not specifically object to Vadasy , but indicated that she did not
"favor" the idea of taking her on, because she had doubts whether Vadasy could keep
up with the work ; however, she , too, made no specific recommendation one way or
the other, but left the decision to Richards . 51 Richards then spoke to Erikson about
the policy change, and told him he had already talked to Caughill and Schaller.
Erikson replied that he would make the policy change on Richards ' recommendation.
I also find from uncontradicted and credited testimony of Romesburg that on a Friday
night 1 or 2 weeks later (which would be June 8 or 15, 1956 ), while Romesburg was
riding home from work with Schaller , as was her custom , Schaller told her that Rich-
ards had told Schaller that day that Vadasy was going to start work packing on the
day shift the following Monday . Schaller also said "but she is not going to be
babied ." 52 I find from all the above facts that Respondents decided on June 1, 1956,
so As to the talk with Caughill , I credit his clear testimony as to the fact of the con-
versation , which Richards admitted, and Caughill 's lack of objection to the proposed
transfer . I do not credit Richards' conflicting testimony which tends to show that
Caughill was definitely against the transfer , for he vacillated oil this point . At first, on
cross-examination , be says Caughill felt Vadasy could not do "certain jobs" requiring full
use of the hands , but later he indicates Caughill kept asking Richards whether he
thought Vadasy could keep up with packaging , and was "actually kind of undecided" ;
finally , he admits that Caughill made no recommendation at all about Vadasy.
511 base the finding as to the talk with Schaller only on admissions of Richards,
gathered from his entire testimony on this point , which was in large part vague and
self-contradictory . Schaller did not testify . On direct examination , Richards says
Schaller "pointed out to me that she did not think it would be quite the thing to do,"
but he does not state that Schaller gave a definite reason, except to state his impression
"I think it was because of Julia 's injury ," and then he goes on to explain his own
opinion why Vadasy's injury would prevent her handling the packing job. On cross-
examination , he says Schaller did not favor the idea of using Vadasy , but she did not
make a recommendation , saying , "Well , if that is what you want-," to Richards'
statement that he intended to put Vadasy on packing . At another point, Richards says
be asked her point-blank what she thought of putting Vadasy on , and Schaller said, "Well,
I don ' t know , it's up to you , whatever you want to do." On later cross-examination,
Richards says Schaller "just raised the quesiton as to whether she would be able to keep
.up with the rest of the girls." Finally , he admits Schaller made no recommendations on
it at all.
52 The record shows that Julia Schaller was in charge of the'employees in the packaging
department , giving orders and assigning work to the regular packers and to press operators
whenever they were sent over to assist in packaging work. , I find that she was in a
supervisory capacity , and that her duties were' such as, to lead employees to believe that
she was speaking for management.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or shortly thereafter, to place Vadasy on day shift as a full-time packer, as an excep-
tion to their normal work assignment policy, and that arrangements had been made
to call her back for that work on June 11 or 18.
In the face of this decision, which appears to be a bona fide action of manage-
ment and is not questioned by General Counsel, Respondents give several expla-
nations for the discharge letter of June 22, 1956. First, they contend that Vadasy
"voluntarily quit" when she elected to apply for State unemployment compensation
while Respondents were trying to arrange a packaging job for her, that this action
"indicates to us that you are not willing to wait until this matter can be settled,"
as stated in the letter, hence Respondents terminated her employment without
making further attempts to place her; and since she did not protest the termination,
or show any interest in returning to work for Respondents by inquiring about the
new job, it was "more of a mutual arrangement than an outright firing." The
record shows that, while' awaiting a call from Richards about the packing job
between June 1 and 16, Vadasy was in the plant each night visiting and soliciting
employees for the Union before work, and she admits that in this-period she could
have called Richards or inquired of her foreman, shift representative, or other
employees, about the new job. However, I cannot construe her failure to make
such inquiries as substantial proof of lack of interest in the job or an abandonment
thereof, in the face of (1) Richards' oral and written instructions to wait for a
call from him, on which she was entitled to rely; (2) her credible testimony on
cross-examination, from which I find that in the waiting period she talked to
Foreman Orahoske about returning to work, and he told her he had nothing to do
with it, that "it had to come from the office," which conversation not only shows
she was still interested in returning to work, but also further justified her waiting
to hear from Richards; 53 and (3) Richards' suggestion to all employees a week
later that they apply for unemployment benefits, after he had announced a shutdown
of indefinite duration. Nor can her application for unemployment compensation
during an extended waiting period be construed as an unwillingness to wait longer
or as a quitting, where she had reason to believe that Respondents' silence might
arise from the fact that it was a slack season, and on that assumption applied for
unemployment compensation as a laid-off employee awaiting recall. Although
her application to the State agency, and the notice thereof sent to Respondents,
are not in the record, it is inferable from Vadasy's uncontradicted testimony that
she applied for and received such compensation as an employee involuntarily laid
off for lack of work, and that Respondents were apprised of that fact on June 22.
Under the law of Michigan, it is clear that if she had applied on the theory that
she had voluntarily quit her job, she would not have been entitled to any benefits,54
hence it is hardly likely that she would have applied on that basis. Nevertheless,
Respondents chose to ignore these facts and to treat her mere application for
benefits as evidence of a voluntary quitting. I think Respondents are not entitled
to do so, either as a matter of law or on the facts known to them, and particularly
in view of Richards' later suggestion that all employees apply for such benefits
during the shutdown. In addition, the contention of a voluntary quitting, or a
"mutual arrangement" of termination, is inconsistent with the allegation of a
discharge for proper cause 'set forth in their answer. For these reasons, I consider
the theory now advanced, and implied in the letter, as untenable. The , spurious
character of the letter is further demonstrated in another aspect. It conveys the
idea that Respondents were at that time still trying to arrange a new packing job
for Vadasy, but encountered "difficulties," in that someone pointed out that em-
ployees who performed both packing and machine operations would object strongly
to an exception in her case. This reason is clearly another pretext, for the record
is devoid of evidence of protest from any employees; at most, it shows that Schaller,
the supervisor directly concerned, did not "favor" the transfer, but refused to object
to it, leaving the decision to Richards; and Caughill raised no objection, but was
otherwise noncommittal. Top management resolved the question when Erikson"
approved the change of policy, and thus "settled the matter," long before the
letter was written. Finally, Richards admitted on cross-examination that he had
already made up his mind not to recall Vadasy before she filed the application
53 These facts also negate 'the inference of abandonment which Respondents seek to
create from the fact that Vadasy became pregnant in May 1956 and applied for un-
employment compensation in June. On this point, Vadasy denied that she'sought un-
employment compensation in preference to a packing job with Respondents, because of her
pregnancy She also testified credibly that she was not aware of her pregnancy until
August, when it was established by medical tests.
"See Michigan Unemployment Compensation Act, Sec 29, 12 Mich. Stat. Ann.,
See. 17-503.
DETROIT PLASTIC PRODUCTS COMPANY 481
for unemployment compensation , another indication that the matter had been
`.`settled',' before the letter was sent, although apparently contrary to Respondents'
initial decision. When this inconsistency was brought to his attention on cross-
examination , Richards changed his story, saying that Erikson "reserved the right
to discuss it further," and he quotes Erikson as saying, "It seems all right to me,
but I would like to go into it further and work out some details on it." Erikson
does not corroborate Richards on this point, nor do Respondents indicate what
"further details" had to be worked out. Hence, I do not credit Richards' testimony
in this respect, for it appears to be but another expedient change of story which
does not overcome his original admissions showing that the necessary conferences
with supervisors and procurement of Erikson's approval for the transfer all occurred
on June 1. I conclude and find that the reasons for discharge stated in the letter
of June 22 are all spurious, not supported by the facts and untenable in law.
Respondents claim that various aspects of Vadasy's prior work history, indicating
that she was an unsatisfactory worker, also entered into their decision to discharge
her. They point to her past record of absenteeism, which Erikson called "atrocious."
The record shows, and I find, that: Vadasy had a long record of frequent absences
from work for illness or other personal reasons. Many of them occurred on week-
ends, particularly on Sunday nights. Several absences of several days' duration were
approved by Respondents in advance, but one request for a weekend leave in April
1955 was denied on the ground that other employees had made earlier applications
for the same weekend, and Vadasy had already been granted more'time off than
they. In the late summer of 1955, Erikson verbally warned Vadasy that he would
have to let her go if her absences continued. When she was absent again for illness
on a Sunday night early in October 1955, Erikson wrote her ,on October 11, noting
her past record of illness and absences and suggesting she resign rather than have
Respondent discharge her. In November, Vadasy hurt her arm while at work and
was transferred to other work by her foreman, after she complained she could not
run a press. When Erikson learned this, he sent her home for several days to
recuperate, and on November 21 wrote her another letter, reciting Respondents' past
efforts to make allowance for her illnesses and absences, and suggesting she resign for
protection of her health, otherwise he would have to take action. Vadasy did not
answer either letter, but told Erikson in the shop she would not resign, and that he
would have to discharge her. It is clear from these facts that Vadasy had an un-
satisfactory attendance record, and for that reason Erikson tried unsuccessfully to
get her to resign late in 1955.55 However, even though Respondents may have
desired to get rid of Vadasy late in 1955, they did not follow up the threat of dis-
charge by actual discharge when she refused to resign, but on the contrary kept her
at work, gave her a 4-month leave of absence when she suffered the hand injury in
January 1956, and on her return made sincere efforts to, create a special job for her
which would enable her to work while still convalescing from her injury. I am of
the opinion, and find,' that by these actions Respondents condoned or waived her
prior record of absenteeism; and as Respondents did not cite that record in the dis-
charge letter, I further conclude and find that it was not a motive for the discharge,
and that their present reliance on it is merely another defense of expediency ad-
vanced at the hearing to support the discharge and conceal the true reason therefor.5a
s I do not credit Vadasy's testimony that most of her weekend absences were authorized
under an "agieement" made with Erikson in 1955 whereby she was required to work only
a 40-hour week, excluding Saturdays and Sundays, so that she could spend weekends
with her large family. Vadasy could not recall when the agreement was made, testifying
to a variety of times and dates for it. Erikson flatly denied making any such agreement
with her. I credit his denial, because it is clear from other admissions of Erikson and
Richards and credible testimony of May and other witnesses that many of Respondents'
women workers have always been working mothers with large families, like Vadasy, 'and'
that Respondents have been continuously plagued with high weekend absenteeism on the
afternoon and midnight shifts, which Erikson has been unable to eliminate even after
conferences with the shift representatives . Substantial absenteeism on weekends is
costly to Respondents because they must cool down and shut off molding machines if
there are not sufficient workers to run them, and it is costly and takes time to reheat
and start them up again . In addition , Respondents ' plant was often required to work
6- and 7-day weeks around the , clock to meet delivery requirements of their customers.
In view of these facts , it is unlikely that Respondents would favor Vadasy with a special
agreement relieving her of all weekend work.
ee This' conclusion makes it unnecessary, to consider or make any finding on General
Counsel's argument that Respondents' attempts to get rid of Vadasy in 1955 were moti'
vated by her prounion activity before and at the , 1955 union election.
487926-59-vol. 121-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents also claim Vadasy's tendency to disobey orders was another facet of
her work history which was considered in the discharge decision, and they point to
the fact that her serious injury in January 1956 was caused by her violation of a
plant safety rule or practice which prohibited press operators from inserting their
hands into a press to remove plastic obstructions, and required them to' call their
foreman for that purpose. The record shows, and I find: The safety rule was a
legitimate one, designed both to protect workers from injury and to protect the fac-
ings of costly dies from scratches which might occur when operators used pliers,or ,
other metal tools inexpertly to remove plastic obstructions, such as stuck sprues,57
from a die. On the night of Vadasy's injury, the sprue solidified in the bushing,
preventing molten plastic from entering the die in normal course and thus requiring
its removal before production could continue. Instead of calling the foreman to re-
move the sprue, as the rule required, Vadasy tried to remove it herself, and her hand
was burned in the process. However, I am convinced that Vadasy's violation of the
rule on this occasion was not a factor in her discharge, for several reasons. In the
first place, I find from Superintendent Caughill's uncontradicted testimony that the
rule was "honored more in the breach than the observance," in that a girl would
usually try to remove a stuck sprue herself, if a foreman was not handy, in order to
keep her production going. In the case of Vadasy, Respondents made no attempt to
warn or discipline her for the violation after she returned to work, nor did they
mention it in the discharge letter. In fact, Richards' testimony indicates that, in his
discussions with Vadasy, Erikson, and others around June 1 which culminated in the
decision to transfer her to packing work, he felt sorry for Vadasy and wanted to do
everything he possibly could for her. His attitude then was clearly one of sym-
pathetic cooperation, not of criticism for past shortcomings.
At the hearing, Respondents advanced'other reasons for the`termination which on
close analysis appear as devoid of substance as those discussed above. Thus, while
Richards at one point said he wanted to do everything possible for Vadasy, which
was clearly his attitude on June 1 when discussing her placement with Erikson and
others, he says he "thought it out" and decided, "I might even be doing her an injus-
tice to put her on, thinking maybe she wouldn't be able to keep up, maybe she would
feel all the worse. I decided, then, of course, based on the recommendations that
I discussed, that the best plan would be to see that she got her Michigan Unemploy-
ment, and terminate her employment." At another point, he says he decided to
terminate her because he felt she could not do the "work," which he bases on the
facts of her foreman's offer to let her run any machine on the shift, and her rejection
of that offer. This latter reason is another subterfuge, because it relates to her
operation of a press, which he recognized she could not handle when he arranged
a packing job for her. The "recommendations" he mentions, obviously those of
Caughill and Schaller, were in fact none at all, as found above, so that this support
for his later decision falls. The doubt and possible "injustice" of putting her in a
job she might not be able to handle is also a later product of his own mind, for
he had no such doubt when he first recommended her placement, Vadasy gave him
no reason for it, since she agreed to take the packing job on day shift, and there,are,
no substantial facts to indicate she could not handle it; on the contrary, he must
have,known on June 1, or could easily have learned from Caughill or Vadasy herself,
as she testified, that before her injury Vadasy had performed most of the packing
operations, some while running her press and others when her press was idle, and
had also done grinding when required; the grinding operation could be done with one
hand, while some of the packing operations did not require full use of both hands. In
any event, the question whether she could handle the packing job appears to have been
a pure speculation, with the only difference of opinion arising later from Richards'
mental doubt. But that could not have been sincere, as it had already been resolved in
her favor by Respondents' decision of June 1. It is hard to believe that it rose again in
Richards' mind, after Vadasy herself, an experienced employee, was confident of her
own ability to hand'e a packing job, and was willing to take a chance on it on day shift,
which was a decided personal inconvenience to her. If Richards had been sincere
about it, he could easily have stated the doubt in the letter of termination and indi-
cated that her old job on a press was the best for her, as he testified. His silence in this
respect supports the inference that the motive for discharge 'was' other than 'a real'
doubt as to her ability to handle packing. These considerations, in the light of
Respondents' initial decision to make an exception to their normal policy for Vadasy,
B'+ A sprue is the tube of moving, molten plastic which travels during an early portion
of a machine cycle from the reservoir of molten plastic through a'hole in one part of the
die, known as the sprue bushing, into the various cavities in the other portion of the die,
where it hardens into shape after the die faces are brought together.
DETROIT PLASTIC PRODUCTS COMPANY 483
also discredit Erikson's testimony that she was terminated because packing required
use of both hands, and the job would involve "complete favoritism of the girl on
the shift."
Having found that all of the reasons advanced by Respondents, both in writing and
by testimony, are without merit, I am compelled to the conclusion that the only
substantial and credible reasons for discharge appearing in the record which could
have induced Respondents to change their recall decision of June 1 to a discharge
decision on June 22 were Vadasy's-open prounion activities which occurred and
became known to Respondents between those dates. Considering her activity in the
light of Respondents' longstanding antiunion animus, which was manifested by
their coercive conduct toward employees before and during the campaign found
above, by their discriminatory discharge of Elkins the day before Vadasy, and
Erikson's clear threat in the week of June 1 l to discharge Vadasy, among other' active
union adherents, I am convinced and find that Respondents discharged Vadasy on ,
June 22, 1956, because of her union activity, in order to discourage further union
activities among their employees, and thereby violated Section 8 (a) (3) of the Act.
F. The discharge of Janice Witherite
Janice Witherite was hired by Respondents on May 30, 1955, and worked on the
midnight shift until June 30, 1956. She was discharged on July 9, 1956, during the
shutdown. During most of her employment and at the time of discharge, she
worked on a molding press.
The record clearly shows that Witherite joined the Union early in the campaign,
was on the plant organizing committee, attended all union meetings , and openly
talked about the Union and its advantages with other employees on her shift in the
plant during. nonworking hours. Much of this discussion took place in the presence
of Foreman Orahoske, and on frequent occasions Witherite had discussions with
him in which she favored unionization of the plant. I have found above that Erik-
son announced to other employees during the week of June 11, 1956, that he intended
to discharge Witherite and other known union adherents. I find on all these facts
that Respondents were aware of Witherite's prounion sympathies and activities from
the outset of the campaign, and desired to get rid of her for that reason.
Around May 1, 1956, Respondents began production of a plastic assembly kit
for a miniature model of a 1956 Mercury automobile. Witherite and employee Alice
DeCook were assigned to the press making the kit. After some alternating on the
operating and packing jobs involved, DeCook became the press operator, while
Witherite handling the packing of the parts, as which arrangement continued through-
out their production of the kit. After a leave of absence at the end of May, With-
erite was assigned on June 4 to the same press which was turning out another product,
and worked at this through June 15. On Monday, June 18, she was assigned to
another machine, packing assembly kits for a 1956 Chrysler model automobile. The
steps in packing this kit were the same as she had followed in packing the Mercury
kit, except that she was required here to allow about 14 plastic bags full of parts
to line up on a table, unsealed, for cooling, before she could seal the .first of the
line and box it as noted above. At the time Orahoske assigned Witherite to this
job, he told her he had received word from the plant office that many axles were
missing from kits in prior production, and that he wanted her to handle the packing
for a while. Witherite continued at this work through June 29, 1956. On June
30, she did not attend the mass meeting of employees addressed by Richards, but
received a telegram from Respondents that day, advising her not to report for work
until further notice. On July 10, 1956, she received a letter from Respondents,
signed by Richards and dated July 9, which reads as follows:
ra In the Mercury kit operation , the press operator handles the actual operation of the
press itself. When it opens to eject plastic molded parts from the die cavities through
a metal chute into a plastic bag, she throws Into the chute at the same time a plastic
figurine and a cluster of chrome -plated accessories , such as bumpers , insignia , taillight
assemblies, etc., which she picks out of nearby boxes . The packer places a. plastic bag
beneath the chute' In time to catch the group , or "shot," of plastic parts coming from
the press , plus the figurine and chrome - cluster , throws in two metal axles,. sets the bag
aside to cool while placing the next bag in position , and then shakes down the parts in
the cooled bag, seals it, places it in a kit box with an assembly, instruction sheet , places
the lid on the box , and inserts it in a large shipping carton of 24 kits, and then repeats
the operation on the next machine cycle . As she fills each master carton, the packer also
inserts in it a packing or, "0. K." slip, containing her clock. number and that of the
press operator , the part " or product number, the, quantity of kits In, the box , 'and the date
of production.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 29, 1956 we received a disturbing letter from one of our customers
concerning a rejected shipment. We asked our customer to inspect the ship-
ment and send us the results of his findings.
Your number was on the packing list which was found inside the boxes
inspected. We feel that we had given all of our personnel adequate warning
by posting the notice on the bulletin board concerning returned shipments
and by indicating that inspection standards would be stressed.
As you undoubtedly know, we were asked to ship the Mercury Kit Mold to
another molder because of the poor quality of production. We have now,
as a result of your extremely poor production, been warned on the Chrysler
Kit.
One of the reasons we were forced to close our plant recently, was because
of returned merchandise. We are taking all necessary measures to prevent
this condition from re-occurring when we open again.
We sincerely feel that you were not doing your job to the best of your
ability when you produced the production mentioned above. In discussing
this matter with your foreman, he mentioned that he had warned you about
this and other matters before this incident occurred.
You may consider this letter as notification that you are dismissed from this
company on the basis of the above mentioned action.
Respondents contend that Witherite was discharged for bad production on the
Chrysler kits, after receipt of a rejection notice from the customer, Revell-AMT,
on June 29, 1956, which indicated that axles were found missing in a substantial
number of kits in 2 master cartons (of 24 kits each) of a shipment recently
received by the customer. The record clearly establishes the following background
facts which support certain statements in the discharge letter.
In January or February 1956, Revell-AMT, a corporation composed ' of Revell,
Inc., a California plastic toy manufacturer, and Aluminum Model Toys, herein
called AMT, a Detroit model toy maker, gave a prime contract for production of a
half million 1956 Chrysler model car assembly kits to Wolverine Plastics, Inc., of
Milan, Michigan, another plastic toy manufacturer. Wolverine produced about
15,000 kits in its own plant and then subcontracted the remaining production to
Respondents in March or April. Respondents started shipments in April to
Wolverine, AMT, and other destinations, as directed by the prime contractor.
During production, officials of AMT, acting for the prime contractor, dealt directly
with Respondents on all production problems 59 Sometime in April, Revell dis-
covered that a substantial number of kits already delivered were defective, and
so advised AMT officials early in May. AMT made an intensive inspection of
completed kits at its plant, and at the plants-of Wolverine and Respondents, which
took about 2 weeks in the middle and latter part of May. The inspectors, on
instructions from Revell-AMT, used an AQL "rigid" or 4 percent quality standard
devised by Revell-AMT, 60 and on the basis thereof rejected about 100,000 kits
awaiting shipment in the 3 plants. Thereafter, starting about May 25,,1956, AMT
and Wolverine began shipping rejected kits back to Respondents' plant. During
the inspection, Erikson was advised of its results, and saw samples of the defective
kits. At the close of the inspection, in the latter part of May or early in June,
AMT directed Respondents to institute the rigid 4 percent AQL inspection for all
current and future production of kits in its plant, advising that all kits not meeting
that standard would be rejected. At the same time, AMT officials observed pro-
duction of the Chrysler kit at Respondents' plant for about a day, suggesting
changes in production methods and procedures to eliminate defects and assisting
Respondents' foremen in installation of the new AQL inspection procedure. Re-
50 In the combine , AMT was responsible for procurement and production , while Revell
was the marketing outlet.
10 AQL means "acceptable quality level" and is a term describing a random selection
method of inspection. As applied by Revell-AMT, it involved three levels of rigidity of
inspection . The most rigid, the 4 -percent level, involved selection of 50 kits at random
out of 10 boxes of 24 kits each in a large batch or shipment. If the inspector finds
3 kits with defective parts out of the 50, he rejects the entire batch. If be does not find
3 bad kits out of 50, he inspects the, next 10 boxes in the same way' on a 5-percent level,
called the "reduced level ," under which 'a finding-of 4 bad kits out of.50 samples means
rejection . If 10 boxes appear to be good at that level , he inspects the next 10 at a
"standard" or 10 -percent level, which allows 5 bad kits out of 50. If at any less rigid
level he finds a sampling of 10 boxes does not meet that requirement, he inspects the
next 10 at the next more rigid level , until the shipment is either accepted or rejected
in its entirety.
DETROIT PLASTIC PRODUCTS COMPANY 485
spondents' inspectors began using a new AQL inspection report form as part of
this procedure on June 12, 1956.
On June 4, 1956, Respondents posted on the plant bulletin board a notice to
employees reading as follows:
On Friday, June 1st. our company received it's Annual Report from our
Accountant. This report disclosed that our company has been operating at
a loss during the last four month period.
This loss has been analyzed by a group of industrial accountants and the
report indicated that our losses are due to returned merchandise which, in
turn, was caused by our customer's rejection of parts we had molded. This
notice will announce that from this date we will stress quality and inspection.
The notice remained posted for over a month, and all production employees were
aware of its contents. The circumstances of its posting have been discussed above.
During the week of June 18, 1956, George Toteff, general manager of AMT, re-
ported to Richards by telephone that AMT had discovered another "bad batch" of
kits during its own AQL inspection of kits produced by Respondents. He said the
main defect was missing axles. Richards asked Toteff to send him a letter about it,
and to include packing slips from the master boxes inspected, "to give me something
to go on." On June 25, Richards sent Toteff a letter confirming their conversation,
which reads as follows:
It is imperative that we have a more accurate picture, and full details of the
exact findings of your AQL on this shipment. At the present writing, it is hard
to conceive that so many parts were missing in this particular shipment.
Before accepting the returned merchandise for credit, we will run our own
AQL and in the event our findings coincide with your inspection reports, we will
issue full credit on this shipment.
At this time I would like to go on record, as I have stated so many times in
previous conversations with you personally, and over the telephone, that we are
doing everything that is humanly possible to correct these discrepancies, and
where we find it is a repeat performance by an employee, that employee has been
removed. Therefore, we should not have a reoccurrence.
On June 29, 1956, Respondents received a letter from AMT dated June 27, which
reads as follows:
We are complying with your letter dated June 25th requesting our inspection
report of the 1956 Chrysler kits which we rejected yesterday.
We are attaching the packing slips found in the boxes containing the kits
which we used as an A. Q. L. to inspect the complete batch of kits received.
These slips read as follows:
Box No. Date Inspector
9 - 6-18-56 35 and 97
19 6-21-56 35 and 97
As we discussed in our telephone conversation, these parts were rejected for
missing axles. In the No. 9 box we found seven out of twenty-four kits with
missing axles. As a consequence, we are returning the complete shipment for
your disposition.
We strongly suggest that this condition be corrected immediately.
Two packing or "0. K." slips were enclosed with the letter, indicating that they
came from master boxes Nos. 9 and 19, which had been apparently produced and
shipped on June 18 and 21 respectively. Each slip had the notation."Inspected by 35
and 97." No. 35 was DeCook, the press operator, and No. 97 was Witherite, her
packer. On receipt of the letter, and during the 10-day shutdown of the plant,
Respondents had their foremen reinspect the whole shipment, which had been sent
back to Respondents, including the boxes indicated by the packing slip, and found
various defects besides missing axles mentioned by AMT. After discussing the find-
ings with Orahoske, Richards sent Witherite the discharge letter of July 9 set forth
above. The above facts bear out the statements in the first two paragraphs of that
letter, except the assertion that the June 4 notice was an "adequate warning" to em-
ployees, a point which will be discussed below.
The remainder of the letter builds a picture of increasing production troubles,
which included loss of the Mercury contract due to poor quality of production, shut-
down of the plant in part due to returned merchandise, and culminated in a warning
to Respondents from the buyer of the Chrysler kit "as a result of your extremely poor
production," the latter circumstance leading Respondents to.conclude that Witherite
had not done her best on the Chrysler job, despite warnings from her foreman about
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it and other prior "matters"; hence the decision to discharge her. However, the
record does not support this black picture in all respects.
I have found above that early in 1956, Respondents began to experience more
than usual trouble with quality of production, which became very disturbing in the
production of the Chrysler kit, with large rejections of that product by. the customer,
all of which caused and justified the general warning notice of June 4, 1956. To this
extent the letter accords with the facts. However, the record tells a different story
with respect to the Mercury contract. I find from credible and mutually corrobora-
tive testimony of Toteff, Davidowski, Witherite; England, and Wuestewald, and ad-
mission of Erikson and Richards, that: In January or February 1956, Revell-AMT
gave Respondents a direct contract for manufacture of between 300,000 and 400,000
1956 Mercury model car assembly kits. Respondents started production about
March, and completed the contract in or about June. Production of the kit through-
but was very good; only about 1,000 kits all told were rejected and had to be
scrapped, which Erikson and Richards considered "trivial." During most of the pro-
duction AMT conducted its inspection of delivered kits at the "reduced," or most
lenient AQL level, which was used only when the product had a sustained high
quality. At the same time, Respondent ran only a minimal inspection in its own
plant, consisting of a spot-check every hour by the foreman or a relief girl, who,
would examine one kit at random from the press, counting the parts and checking
them for warpage and other defects. Defects encountered most often were missing
pins and warped parts which were quickly overcome by adjustment of machines and'
changes in packing procedures. When rejected kits were examined and scrapped, no,
verbal or written warnings, or other discipline, were meted out to Witherite or other
employees who worked on that kit. As against these facts, which clearly contradict
the discharge letter, Richards stated on cross-examination that the Mercury die was
shipped to another molder at the request of the customer "as far as I know," but he
was very vague and could not say whether it was due to Respondents' poor produc-
tion; and Orahoske testified that the Mercury order was not completed at the press
because, as he heard "from somewhere," of poor production. However, I do not
credit this testimony, for Orahoske's statements are contradicted by Richards and are-
in part hearsay, and Richards gives no clear reason for shipment of the mold' to an-
other manufacturer, nor the circumstances thereof. Richards tries to justify his.
statement in the discharge letter by saying Revell-AMT had always complained to
Respondent about poor quality, even during later production of the Chrysler kit.
But this story is not credible, because it is not only contradicted by his own testimony
and that of Erikson and Toteff showing the Mercury production was very good, but
by his own admission that after Revell-AMT split up early in June, Revell allowed'
Respondents to continue production of Chrysler kits through August and September,
which Revell would not likely have done if it had terminated the Mercury contract
for Respondents' poor production. On all of the pertinent facts, I am satisfied and
find that the statement in the discharge letter relating to the Mercury contract is false,
and obviously Richards must have known it to be such when he wrote it.
The statement that the plant was shut down in part because of returned merchan-
dise must also be rejected as false, in view of my finding above that the shutdown had'
a discriminatory motivation and was not due to economic necessities or reasons 81
As to the reason for discharge stated in the letter, Richards testified that Witherite
was discharged (1) mainly because of the missing axles noted in the two letters
quoted above, (2) also because of her bad production on- a scraper job, and (3) be-
cause of her failure to do satisfactory work in other respects, despite previous warn-
ings from her foreman to improve her production. Regarding the latter two short-
comings, Richards had no personal knowledge, relying solely on reports from Fore-
63 In reaching this conclusion, I have considered testimony of Richards to the effect
that during the shutdown he kept four men at work for a full week In a detailed
Inspection of rejected Chrysler kits In an effort to discover the reasons for the substantial
rejections and trace the defects to the employees responsible so that they could be dis-
ciplined. During the inspection, good products were set aside for shipment, while bad
batches were stored elsewhere for scrapping and salvage operations, which began during
the shutdown and continued after the plant resumed full operations. But this was not
unusual, for it is clear from credible admissions of Caughill that Respondents conducted
salvage operations more or less continually during all types of production. In addition,
although detailed Inspection records were kept during the shutdown, Respondents did not
produce them, or any other clear proof, to show the extent of the defective work. Hence,
I can only conclude that Respondents utilized the shutdown period mainly to trace and
fix responsibility for the defective Chrysler production, and not with the idea of con-
ducting salvage operations to alleviate Respondents' financial situation. Salvage was an
outgrowth of the inspection, not the reason for `the shutdown.
DETROIT PLASTIC PRODUCTS COMPANY 487
man Orahoske. However, the latter cites only one instance in his uncontradicted
testimony, from which I find that: Witherite worked on a press making windshield
scrapers for 1 or 2 nights before he put her on the Chrysler job. The first night,
he told her several times to allow three "shots" to cool on the table before clipping
off rough edges and packing the scraper, but she did not heed the order, continuing
to finish and pack scrapers as they came warm from the press, with the result that
all scrapers made by her that night were found the next day stuck together in the
packing boxes and otherwise marred so that they could not be imprinted with
advertising slogans; for which they had been designed. He warned Witherite about
this the second night, but she did not heed the order. He did not give her any written
warning slips or impose any other discipline for this shortcoming, as he was new
on the job, and preferred to "feel his way," correcting employees by verbal sugges-
tions and warnings only, and using written warnings only when verbal ones failed.
Orahoske later complained to Richards about Witherite's indifference to his sug-
gestions, citing the scraper job. However, although Witherite was apparently not
wholly satisfactory in this instance, I cannot conclude that Respondents discharged
her in part for this shortcoming. While Orahoske complained to Richards about
her indifferent attitude, he never bothered to get to the root of it, for he admitted he
did not know whether she was trying to "goof off" with a new foreman, or did not
have the ability to take orders, or could not hear well. That her attitude was not
unusual or a real problem is indicated by his admission that all the girls had their
peculiarities: thus, Margaret England got emotional and nervous when corrected
or warned, Patricia Elenko tended to be stubborn (which appears to be similar
to Witherite's "indifference" to suggestions), and plastic work often made some
girls nervous and irritable; however, he admits he got along with all of them.
Witherite's attitude apparently was not considered serious enough for top management
to direct that she be given a written warning slip, and it was not mentioned specifi-
cally in the discharge letter. Furthermore, Orahoske himself did not consider
her alleged "indifference" a serious shortcoming thereafter, for he admits that
he chose Witherite to handle the Chrysler packing job, after he had received advice
from the office that Chrysler kits were being shipped minus axles, and had tried
three other employees on that job and found them unsatisfactory. - He admits he
finally settled on Witherite because she had experience in packing the Mercury kit,
on which job her work had been satisfactory, and in making a written report to
Richards later on the reasons for missing and broken parts in the Chrysler kits,
he explained he had tried several operators on the job to correct the situation,
"until I could find one that could do the job favorably, now I think I can continue
to operate this operation to your satisfaction." He admits that when he wrote this,
he was referring to his final choice of Witherite. These facts convince me, and I
find, that Witherite's performance prior to the Chrysler job had been satisfactory
in the main and regarded as such by management; that her shortcomings, if any,
had been so insignificant that they never warranted imposition of real discipline,
such as written warning slips or worse, nor prevented her choice for a packing job
which three other workers had failed to handle to the satisfaction of a meticulous
foreman. Hence, I must conclude that Respondents brought up these shortcomings
in the discharge letter, and tried to magnify them, so that they would afford Respond-
ents an ostensible nondiscriminatory basis for the discharge.
With respect to the main cause of discharge alleged-missing axles-Witherite
testified that she never had any trouble with the Chrysler packing operation, that
she always made sure that she dropped 2 axles in every kit, that the 2 AQL in-
spectors who checked her production, Pat Stoup and Margaret England, often
kidded her about having too many axles in her kits, when they found 3 or 4 instead
of the requisite 2 in a kit, and that Orahoske never objected to this practice, but
once told her jokingly that if he ever found a kit of hers with less than 3 axles in it,
he would bring it back and tell her to drop in another. This testimony is not denied
by Orahoske or England; 82 it is corroborated in part by DeCook's testimony that
neither she nor Witherite had any trouble with the Chrysler job, and that Witherite
appeared to be turning out good work on her operation. As against this testimony,
Orahoske testified only that, while he had Witherite on that job from June 18 to 30,
she was not his most satisfactory worker; but he does not state which packer was
more satisfactory. I do not credit this vague testimony, for I find, from his ad-
missions and credible testimony of Witherite and DeCook that, before he put
Witherite on packing, he tried Margaret England at it for 3 days, but she could
not keep up with it because of some back trouble, and when he warned her to do,
better work in order to eliminate the problem of missing parts which appeared on
O 'Stoup did not testify.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inspection of her production, she became quite upset, so he tried her as press
operator, and then transferred her to inspection He also tried Patricia Elenko, but
took her off the job because she was too slow and he found missing parts in her
kits He then tried Juanita Fox for a short while, but discovered she was too slow,
did not have the ability to keep up with the rhythm and pace of the operation,
and became very nervous He then tried Withente, but the only complaint he
could make about her was that, on a prior job, she had been slow or reluctant to
stake suggestions about her work He makes no specific complaint about her work
on the Chrysler kit In fact, taking the plant AQL inspection reports as an index
of her performance, it is clear that Witherite's work improved steadily after the
first day Thus, on June 18, Withente had 4 or 5 boxes rejected out of a total of
about 25 or 26 produced by her, 63 one of her defects was an extra wheel in 1 kit,
which AMT did not consider ground for rejection of kits, only i box was rejected
for a missing wheel in 1 kit, her last 18 boxes passed inspection On the 19th, she
had only 2 boxes rejected out of 33, for a single defect in i kit in each, her first
box that day was rejected for a part missing in 1 kit On the 20th, 1 box out of
39 was rejected for a wheel missing in i kit On the 21st, 2 boxes were rejected for
an extra part in 1 kit each On the 22d, and during the last 5 days of her em-
ployment, June 25 through 29, none of her work was rejected I am satisfied from
this testimony, and find, that of the four packers tried on the job, Witherite was
the only one who could, and did, handle the job satisfactorily, so far as Orahoske
was concerned and according to the new, rigid inspection standards This con-
clusion is further borne out by Richards' admission that, when he talked to Orahoske
during the shutdown about the AMT rejection of Withente's work, Orahoske
appeared surprised, professed ignorance of how the defects could have occurred,
and could only say that Witherite had not been doing a particularly good job,64
and that he had warned her "all along " I do not credit the claim that Witherite
had been warned "all along," for she denies receiving any verbal warnings about
her work, at most, it appears from testimony of Orahoske and DeCook that, when
large shipments of rejected kits began to come back to the plant late in May, and
Orahoske was told about it, he told all employees then working on that kit to watch
their work, and do better work, but this did not include Witherite and DeCook, for
they did not start on that job until June 18, and when they took over the job, he
told them about the original rejections of kits and cautioned them to watch- their
work I am satisfied and find that at that time Orahoske was merely bringing the
past rejection problem to their attention as part of a general caution to watch
their work closely and avoid similar defects , and that he was not giving them
specific warnings to correct their own defective production 65 From all of the
above testimony, I am satisfied and find that while Witherite worked on the
Chrysler kit, her work was satisfactory to Respondents, and she never received
any specific criticisms or warnings for unsatisfactory production, must less "ex-
tremely poor production" as charged by Richards In this respect, the record
fails to support the claims he made in the discharge letter
I turn to the specific defects charged in the AMT rejection letter, which Richards
states was the direct cause of the discharge The letter states that, on an AQL in-
spection of a shipment, AMT found 7 out of 24 kits in box No 9 with axles missing
This, of course, was sufficient to warrant rejection of the entire shipment, at the 4
percent, or rigid, AQL inspection level then being used Box No 9 was one of the
first produced by Witherite on the 18th, her first night on that job Company AQL
inspection records for that shift, which were made by Inspector Margaret England,
indicate that she rejected 6 boxes out of 33 produced by Fox and Witherite, but none
for missing axles She rejected box No 9 only because she found a "tab broken on
63 According to Witherite's testimony, Fox handled the packing the first hour and a
half that night, before Witherite took over and completed the shift There is no proof
showing the number of the last box produced by Fox before the change, but on a pro rata
basis it is probable, and I find, that in the total production of 33 boxes, Fox produced
the first 5 or 6, and No 9 was one of the earliest boxes produced by and chargeable
to Witherite
es The record shows that, while Witherite was packing, Orahoske continued his normal
hourly spot check of production If her production had been as poor as Respondents
claim, presumably he would have discovered some evidence of it in his spot check before
the kits went to the AQL inspectors for examination Hence, his failure to point out
any general or specific defects in Witherite's production on the Chrysler fob is strong
support for the conclusion that hdr production was satisfactory in the main
15 I find from credible testimony of Jachimowicz that the day-shift foreman gave similar
general instructions to workers on his shift about the same time '
DETROIT PLASTIC PRODUCTS COMPANY 489
hood" in 1 kit. However, as she checked 2 kits, and found only 1 bad, the bad kit
was apparently replaced with a perfect one, and the box was shipped out 66 As to
box No. 19, produced on sane 21, the AMT letter does not specify how many kits
had axles missing. England's records show that she inspected two kits from that box,
found no defects, and passed the whole box. However, since Respondents' inspec-
tors chose kits at random for close inspection under the AQL system, and defective
kits were replaced to the extent noted above, the company records do not conclu-
sively eliminate the possibility of discovery of missing axles during the subsequent
AQL inspection by AMT, when its inspectors checked 6 kits out of every box of 24,
for those inspectors may well have chosen kits other than those opened by Respond-
ents' inspectors. Hence, I credit the testimony of Toteff which, coupled with the
AMT rejection letter, indicates that AMT inspectors on June 26, 1956, inspected 6
kits out of each box in a shipment that included production of the previous week,
and found missing axles in 2 boxes containing Witherite's packing slips, as indicated
in the letter. General Counsel in effect concedes the force of this testimony when
he argues that the missing axles could have been caused by relief operators, and that
other circumstances indicate Respondents made a deliberate search for such defects in
an effort to find a pretext for the discharge of Witherite. A careful consideration of
other circumstances disclosed by the record convinces me that there is merit in some
of these contentions.
In the first place, the mere fact that the 2 boxes in question contained Witherite's
packing slips does not prove conclusively that she in fact caused the defect. It is
equally possible that it was the fault of her relief girls, for the record shows that
while working on that job, she was relieved by 1 of 2 relief girls, Ann Wendt and
Martha Paga, 3 times a shift, during a 20-minute lunch period and two 10-minute rest
periods, amounting to 40 minutes a shift in all. During these periods, the relief girl
continued the packing, putting Witherite's packing slip in any boxes completed by her.
According to Richards, the average production cycle of a molding press runs from 30
to 40 seconds per "shot," hence it is possible that a relief girl would complete and
pack between 15 and 20 kits in each rest period, and 1 to 1 i ' boxes of 24 kits each
during the lunch period. It follows that a relief girl could have been respon-
sible for as many as 7 defective kits in 1 box on June 18, none of which might have
been spotted by the inspector. Richards admitted this possibility on cross-examina-
tion, but tried to offset it by resorting to probabilities. He testified that, when talking
to Orahoske about Witherite, he discussed the possibility that the relief girls omitted
the axles in question, but concluded they were probably not at fault, because both
were among the oldest employees in the plant, and each had about 3 years' experi-
ence in operating presses. Orahoske also told him that he had had no trouble with
their production. Richards' testimony on this point stands alone, for Orahoske did
not testify about this conversation. Richards exonerates the relief girls solely on an
inference based on their length of service and experience, and the report of Orahoske.
But the foreman's report meant little, for he had opportunity to observe their work
only since about May 7, 1956, when he started work for Respondents, and since that
time he probably never observed Wendt or Paga for any appreciable length of time
on any one operation, as they moved continually from machine to machine during a
shift. In addition, the credibility of his vague report is overcome by my finding
herein, based on specific, credible testimony of England, that during her inspection
of Chrysler kits late in May and early in June, she on several occasions found axles
missing from kits packed by both relief girls. Richards' conclusions find some sup-
port in the fact, clearly established in the record, that relief girls are usually chosen
for their flexibility and broad ability to handle all types of jobs, which requires
extensive experience. However, it is also clear from credible testimony of England,
mentioned above, and of May, that even relief girls had trouble with the difficult
Chrysler job and committed errors, despite their ability and experience. As for
Witherite's service and experience, Richards must have known that Witherite had
been both operator and packer on molding presses since she was hired more than
a year before, and had performed the Mercury packing operation satisfactorily
before she worked on the Chrysler; and according to, his story, Orahoske was totally
unaware of any bad work by her on the latter kit when Richards talked to him.
Hence, on the face of things, Witherite's past experience and performance on pack-
ing was at least on a par with that of the relief girls. Finally, the Company's own
inspection records, which were based on a more rigid system of inspection than Re-
spondents had previously used on the Mercury or Chrysler kits, and were thus the
66 In his application of the AQL procedure, Orahoske required his inspectors to inspect
at least 2 kits out of every box of 24. If the inspector found not more than 2 kits bad,
they would be replaced with perfect kits, and the whole box would be shipped.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
most reliable index of her performance, would have disclosed to Richards that her
work improved steadily until she had no rejections in the last 6 days of her employ-
ment, as I have found above If Richards had conducted an even-handed, impartial
investigation to fix liability for the missing axles , these factors , particularly the inspec-
tion records, would have militated strongly against the probability that Withente was
at fault. Since Richards was weighing probabilities in coming to the conclusion of
her guilt, the Trial Examiner and the Board are entitled to do likewise , and I am
satisfied and find that the above factors, particularly the company inspection records,
leave the probabilities of guilt, as between Witherite and the relief girls, weighted in
her favor and against them Richards also tries to exonerate the relief girls by
claiming that if their work was defective , Witherite could have insisted that it not be
Tacked or shipped , which he says was the practice on the day shift, hence , failure to
do so makes her responsible for the defects I do not credit this excuse, for he
admits he does not know if this alleged "right" of the packers obtained on the mid-
night shift , and Respondents produce no credible supporting testimony that it was
the practice on any shift The facts that Richards was quick to exonerate the relief
girls purely on an inference , and to place the guilt on Witherite , without even looking
at available records showing apparent satisfactory performance , when considered in
the light of Respondents ' antiunion animus and announced intention of getting rid of
Witherite for her union activities , furnish strong support for the conclusion that
Richards was deliberately searching for defects in her work which could be used to
support a discharge for cause and conceal the true motive therefor
Assuming, however , that Withente in fact omitted axles from 7 kits in 1 box, as
found by AMT, General Counsel argues that her discharge was still an arbitrary
and discrunmatory act because ( 1) The manner in which Richards solicited the
rejection notice from AMT indicates that he was deliberately searching for defects
in her work on which to base the discharge , (2) she was discharged summarily
without two prior written warnings, in violation of Respondents ' alleged disciplinary
system of long standing, for an offense which was in fact trivial , and (3 ) for similar
and more serious offenses occurring previously other employees had received neither
reprimand, warning nor discharge
As to the solicitation of the rejection notice, I have found that Respondents had
unusual difficulty with production of the Chrysler kit from the start, they received
many complaints from the customer about defects, some of their early production
was rejected, and they had numerous conferences with AMT officials about the
problem as a result of which they were compelled to make changes in machinery,
,manufacturing processes , and inspection procedures in efforts to eliminate defects,
but notwithstanding these corrective measures , they had much of their later produc-
tion rejected The record also shows that one of the main problems encountered
was missing parts, and Respondents took steps to eliminate that defect early in pro-
duction by making mechanical changes in the cutting fixture attached to the presses
which cut the parts from the "tree" before they fell into the plastic bags These
troubles were bound to make Respondents sensitive to subsequent complaints about
their production , particularly missing parts Hence, it seems natural that, when
Toteff registered a strong complaint about missing axles in the week of June 18,
1956 , 67 Richards would be disturbed enough to request a detailed report about
the missing parts, so that he could trace the source and reasons for the defects,
-and, Toteff ' reply of June 27 appears to be a normal compliance withnthat , request -
It must also be noted that the discussions and correspondence between Toteff and
Richards do not mention or refer to Witherite specifically, except for the rejection
letter which contains her clock number These circumstances militate against a
finding that Richards initiated the AMT inspection of kits produced after June
18 for the purpose of procuring specific evidence of defects in Witherite's work
On the other hand , there are circumstances which support the inference of a delib-
erate search for evidence First, Richards' request for a letter from AMT, and
Toteff's reply, is the first occasion in a long period of discussions with AMT about
car kits that Respondents had requested the customer to submit a complaint in
writing with evidence to support it, in the past all similar complaints and production
problems had been handled by telephone or personal conferences between the parties
The sudden variance in procedure , which is not explained away by Respondents, is
in itself a suspicious circumstance The next circumstance is that, while Toteff told
Richards he had found another "bad batch" of kits, the only defect he mentioned
was missing axles, and the only evidence he sent involved Withente He did not
;report, or send proof of, defects in production of operators on other shifts, although
w I credit Richards' testimony that Toteff , in telling him about the defects found,
-commented that Respondents' AQL inspection system was apparently not woiking, and
,questioned whether Respondents were capable of producing good kits
DETROIT PLASTIC PRODUCTS COMPANY 491
it would be reasonable to expect that the rigid AQL inspection which AMT was
conducting on Chrysler kits would have shown similar and other defects of the
type and frequency found by Respondents' own AQL inspectors between June 12
and 29.68 Toteff admits that other defects could have been found in the batch
of kits in question, which could have caused rejection of the entire shipment, but
neither he nor Davidowski, his chief inspector, could recall any of them; and Toteff
could not produce any of his written 1956 inspection records on the Chrysler kit, as
they were destroyed following rejection and return of the shipments to Respondents.
In the absence of these records, I infer and find from Respondents' own inspection
records and Toteff's admissions that in this period instances of missing axles occurred
in production of other shifts which, under the law of averages; were probably dis-
closed during the close AMT inspection. The fact that Toteff, after talking to
Richards, reported only defects in Witherite's production, impels the inference
that he was only looking for defects in her work, not that of other packers. The
next suspicious circumstance is that, as soon as Toteff mentioned missing axles,
Richards did not start a close inspection, either by personal observation of the produc-
tion line or examination of the AQL inspection reports, of production and work of
the packers on all shifts, for he knew that they alone (or relief girls when handling
that operation) were responsible for inserting axles in the kit. His failure to do so
until after he received Toteff's letter of June 27, and his alleged investigation of
Witherite's work during the shutdown on the basis thereof, further indicates that he
was building a record only against her.
Richards admitted that Witherite was 'summarily dismissed without any specific
warning notice, contrary to Respondents' past practice of giving two written warnings
to employees before dismissal. He justifies the summary action here by arguing
that omission of axles from kits was an "extremely serious" offense, similar to
coming to work drunk, which required summary dismissal. He also points to the
posted notice of June 4, 1956, and calls her bad production in the face of that notice
a form of "insubordination," claiming the notice annouced a rigid enforcement of
the warning slip system. In addition, he relies in his discharge letter on alleged
warnings from her foreman. I consider the last contention untenable, for I have
already found that Orahoske had given only general cautions to Witherite and all
other employees after large Chrysler shipments were rejected, but never gave her
specific warning about her actual production of that item. As to the seriousness of
her offense, Richards' contention is weakened by credible testimony (1) of Toteff
that missing axles was not a serious matter, compared to other defects found in
thousands of kits inspected, and (2) of Davidowski, the AMT foreman, to the
effect that when his concern found axles missing from a kit, AMT would supply
the axles themselves and ship the kit out, so that the kit was not in effect rejected.
Furthermore, assuming that the 2 boxes in question had been found totally defective
on inspection, and were not acceptable to the customer even with replacement of
missing axles, the total financial loss to Respondents was about $8.64,69 which is
trivial compared to the total contract figure of about $90,000. Respondents offer
no credible proof that Witherite's poor production went beyond the two boxes ex-
amined by AMT. If there were such proof, it lies solely in Respondents' possession,
for Richards' testimony shows that • ,d4iring the shutdown Respondents made a
thorough inspection of returned shipments to find the nature and extent of the
defects, and the foremen who made the inspection kept detailed tally reports of it.
Respondents do not produce those records. Richards testified they have "probably"
been destroyed, but at any rate Respondents do not produce any credible testimony
from foremen or others engaged in the actual inspection, to show how bad Witherite's
production was 70 The failure to produce such testimony warrants the inference
68 Company AQL records show that inspectors on day and afternoon shifts found miss-
ing parts in one or more boxes on every day in this period, except June 29. It is note-
worthy that while the work of Witherite, who inserted both the "lady" and 2 metal
axles in each kit, was apparently without defect in her last 6 working days, 1 box from
day shift was rejected on June 26 for omission of those parts, and the same defect was
found on the 28th, though the box was apparently not rejected for it.
60 Respondents charged Revell -AMT 18 cents for a Chrysler kit, and 48 kits at that
price would amount to $8.64.
'+" With regard to the whole inspection, Richards testified they found "quite a bit, I
wouldn't say a lot," and then "An awful lot," of kits bad, "more than should have been
in that condition," but aside from an estimate that 2,000 kits out of between 30,000 and
40,000 kits were actually torn open for examination, he cannot say how many were finally
found good, and how many bad. Hence, his testimony on this point is far too nebulous to
support a finding about the defectiveness of the whole shipment or of Witherite's
production.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, if such testimony and records were produced, they would not support the
claim that Witherite was guilty of "extremely poor production " In addition, any
loss which can be chargeable to her, whether it be $8 64 or some larger amount,
would clearly be subject to some reduction as a result of the extensive salvage
operations Respondents initiated during the shutdown On this point, I find from
credible and mutually corroborative testimony of Richards, Orahoske, Erikson,
Adams, England, and Wuestewald that during and after the shutdown, Respondents
tried to salvage all usable metal and plastic parts as well as kit boxes and instruction
sheets, from the large Chrysler and some Mercury rejects, in order to make up
complete kits for sale and shipment, the remaining plastic parts were grouted
up and reused in Respondents' business 71 Here, again, the true facts and figures
are in Respondents' possession, and their failure to produce them warrants the
inference that, if produced, they would not support Richards' testimony
As to the June 4 notice, in the face of which Respondents claim Withente's
alleged bad production was "insubordination," the paper itself falls far short of
an announcement of "rigid enforcement" of the warning system, as Richards con-
tends It does not mention any form of disciplinary action, nor does it specify
defective Chrysler kits or other products as the reason for the notice In this
respect, it is far less specific than earlier notices posted by Respondents which
had called employees' attention to specific products and defects therein apparently
caused by employees and requested them to use more care in their manufacture 72
The instructions which Richards gave foremen on this subject about the same time
were no more specific I find from credible testimony of Richards, Caughill and
Orahoske that Sometime in June, Richards called a foremen's meeting at which
he told them to "get tough" about quality of production, as there had been con-
tinual complaints from customers about it, and Respondents could not long stay
in business if they could not produce better quality products He said there seemed
to be a condition of overall laxity among the employees, and reminded the foremen
it was their responsibility to get out good production, and that he wanted them to
"tighten down on the girls, see that they do a better job," and warned that he would
take drastic action against all concerned if bad production continued However,
he did not give the foremen any specific orders to hand out warning notices for
bad work, telling them merely to "use all the instruments they had to get good
production," and saying "let's get the place cleaned up, sharpened up " It is clear
that Richards was merely giving a form of "pep" talk to the foremen, with orders
to clamp down on the employees and get better production, but there was no
specific order to apply the warning notice system to employees in the process, he
apparently left that to the discretion of the foremen These facts belie Richards'
claim that Respondents were instituting a rigid enforcement of the warning system
on June 4, 1956, and convince me that the notice itself was no more than a general
warning that Respondents would in some manner place more emphasis on quality
and inspection It reasonably indicated that employees guilty of bad production
could expect some corrective action such as verbal warnings, but in the light of
Respondents' past limited use of the warning slip system, as found above, there
was nothing to mdicate to them that that system, or anything as drastic as summary
discharge would be unposed for bad production in the future Nor did employees
on Withente's shift receive any inkling of imposition of drastic discipline, let alone
summary dismissal, from their foreman's implimentation of the notice and Richards'
instructions, for Orahoske admitted that after the foremen's meeting, he continued
his usual practice of giving only verbal instructions and warnings about the work,
he testified that he would give 3 or 4 verbal warnings before issuing a written
warning slip The record shows that the first slip he ever handed out was given
on July 10, 1956, after Withente's discharge, to Margaret England, under circum-
stances which I have found above to be discrimmatory In view of all of the
above facts, I reject the contention that Withente's alleged poor production on
June 18 and 21 was tantamount to "insubordination," or can fairly be compared
with a serious offense, such as coming to work drunk Lacking these justifications
for summary action, it would appear that, if Witherite had proven unresponsive
n Superintendent Caughill admitted at one point that, even during normal kit produc-
tion, salvage operations were carried on in that if two kits in a box were found defective,
the box was usually set aside for examination by the foreman, who would substitute
missing or defective parts if he had time to do so, and then put the box back in the
production line for shipment When defects became more numerous , and the foreman
had no time to perfect the defective kits, the box would be set aside, and the kit boxes,
metal parts, and instruction sheets would be salvaged, and the plastic items ground up
for reuse
72 See footnote 23, above
DETROIT PLASTIC PRODUCTS COMPANY 493
in the past to verbal warnings from her foreman, as he testified, and assuming that
Respondents were in good faith extending their written warning system to pro-
duction problems as part of their "get tough" policy, an excellent time to "tighten
down" on Witherite with written warning slips came when Respondents received
the complaint from AMT and had a chance to verify it. Issuance of a warning
slip then would have accorded with their alleged new enforcement policy and
Orahoske's own application of it. Respondents' resort to the ultimate penalty of
discharge, instead, against a prominent union adherent, without giving her that
fair chance to mend her ways which was implicit in the written warning system,
is a strong indication that they seized upon this opportunity to get rid of her
under pretext of bad production and thus carry out Erikson's prior threat to discharge
her for union activity.
' Another circumstance supporting this conclusion is the fact that other workers
who had been guilty of the same or similar offenses, notably England, Elenko, and
Fox, received lesser or no punishment. As found above, England received a warning
slip from Orahoske, and then a transfer to another job; she was a union member,
but was not active in the campaign and never advertised her union affiliation.
Elenko and Fox apparently received no warnings but were transferred when their
production was found defective; the record does not show that they were union
members or adherents, much less active union organizers in the campaign. This
disparate treatment of a prominent union organizer is one of the circumstances
which the Board has often found to be a reliable indicator of discrimination. In
this connection, it should also be noted from Richards' and Davidowski's testimony
that: Respondents made a detailed inspection of the rejected kits to discover the
nature, extent and reasons for the bad production, and Richards told the foremen
who made the inspection that he wanted disciplinary action, in the nature of firm
warnings, given to employees responsible for the bad work. The foremen had a
ready-made guide to assist them in the inspection, in the form of markings on
kit boxes made by AMT inspectors previously, which showed the specific defect
in each kit, as well as the date of production and shift on which made; the AMT
inspectors had looked specifically for missing parts, among other defects. In addi-
tion , during the "tightening up" period after June 4, Richards ordered shipping clerk
John Lesniack to make an inspection of products before shipment by breaking open
about 1 box or carton of products out of every 10 and examining the contents, and
to report any defects he found personally to Richards, so that he could see to it
that "pressure was brought to bear on the people responsible." However, while
Richards vaguely testifies that many defects were found, and the company records
show that between June 12 and 30 plant inspectors on day and afternoon shifts found
missing parts, as well as other defects, in one or more boxes, and rejected them
accordingly, on every day except June 29, it is significant that Respondents were
unable to produce any records or other credible proof showing that discipline was
imposed on the Chrysler kit workers on those shifts, with the exception of Angeline
Romesburg, who received warning slips and was discharged for discriminatory
reasons as discussed hereafter. The mere fact that company AQL inspectors rejected
boxes on those shifts almost daily for missing parts and other defects warrants the
inference that Respondents' detailed inspection of rejected shipments during the
"tightening up" period must have revealed the same and many more similar defects
on those shifts. Respondents' apparent failure to impose discipline on the workers
on those shifts (except for Romesburg), while discharging Witherite summarily
on evidence of comparatively trivial defects found in the early days of the AQL
record of her production, which defects Respondents' own inspectors apparently
failed to catch, is further substantial proof of the disparate treatment accorded her,
which impels the inference that they were not interested in disciplining all employees
involved in the poor production, but were searching for any pretext to discharge
Witherite.
In summary, the circumstances that: (1) Respondents announced early in the
union campaign their intention of getting rid of Witherite, a prominent union
organizer; (2) they discharged her summarily for comparatively minor deficiencies
in her production, which were more likely than not actually the fault of a relief
operator, and which had little or no effect on the business; (3) their patent attempts
to magnify these deficiencies into major offenses, by false statements in the discharge
letter and testimony at the hearing; (4) their failure to give her the benefit of prior
written warnings, despite her prior satisfactory performance record and contrary
to their professed disciplinary policy; and (5) their disparate treatment of Witherite
in this regard, all considered in the light of Respondents' prior and ensuing unfair
labor practices in the campaign,' compel me to the conclusion, and I therefore
find, that Respondents discharged Witherite on July 9, 1956, not for the cause,
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged, but because of her union activity and affiliation, in violation of Section 8 (a)
(3) and (1) of the Act 73
G The discharge of Angeline Romesburg
Angeline Romesburg started work for Respondents in October 1952 At the time
of her discharge on July 17, 1956, she was No 5 in point of length of service in
the plant On that day, she was receiving $1 35 an hour, the top normal pay for
an employee with 3 years of service Romesburg signed up with the Union the
first day of the campaign and thereafter, as a member of the plant organizing
committee, was the most prominent and active union organizer in the plant I
have found above that she had actively promoted unionism in the plant since she
started there, that Respondents were well aware of it, and of her activity in the
1956 campaign, that they subjected her to coercive and illegal threats from the
outset of that campaign, and tried illegally and unsuccessfully to use her as an
instrument for the formation of a labor organization to combat the campaign of
the Union
Romesburg went on a 2-week vacation starting June 18, 1956 She received a
telegram, like many others, on June 30, advising her not to report for work until
further notice On July 10, she reported for work in response to a phone call from
the office Prior to her vacation, Romesburg had been making nylon rollers on the
No I press on day shift for about 10 months When she came in on July 10,
that machine was idle for replacement of a broken die, and Foreman Al Van Nuck
assigned Romesburg to packing Chrysler car kits, in place of the regular packer,
Christine Jachimowicz, whom he assigned to work as a relief operator
Romesburg had had no experience on the Chrysler packing operation, except for
a 4-hour relief stint one Saturday afternoon shortly after Chrysler production began
Hence, Jachimowicz helped her "break in" on the operation, showing her how to
handle it and assisting her from time to time whenever she fell behind Romesburg
worked on this job for 32 days On July 10, she saw Richards frequently standing
in the aisle near her machine and talking to Foreman Van Nuck Twice that day
the foreman checked her work, in addition to his hourly inspection, and once, after
talking to Richards, he told Romesburg they had found warped parts in her kits
She asked what caused it, and he told her to shake down the parts in each kit, and
demonstrated how to do it, saying that otherwise they would warp 7& Romesburg
shook down parts in a few kits in his presence on his next hourly inspection rounds,
to make sure she did it correctly, and asked him if she was doing it right, and he said
she was On July 11, Romesburg noticed Richards frequently walking past her ma-
chine, and on that day the foreman told her axles were missing from her kits, which
had to be scrapped Romesburg replied that she was being very careful about the
axles, but promised "I will do better " At the end of the shift, about 3 p in, Van
Nuck came to her, said, "Angie, I have got to give you this," and without looking at
her, handed her a written warning slip which charged her with "defective work" and
"carelessness," explaining it as "Production not up to standards, 7-10-56, 7-11-56 "
After he gave it to her, Van Nuck squeezed her hand, saying, "Keep your chin up,
kid " The record shows that this was the first warning slip Romesburg had received
in over 3 years of service with Respondents
On July 12, Romesburg began to get used to the packing operation, and the fore-
man said nothing to her about her work that day On July 13, Romesburg continued
packing all morning without incident About 12 20 p in, she and Frances Tola, the
press operator, went to lunch, and were relieved by the relief girls as usual, the relief
packer, Jachimowicz, put Romesburg's packing slip in boxes she packed, as usual
As they left, Romesburg and Tola asked Jachimowicz to find out from the inspector
how they were doing, when they returned, Jaclumowicz said their work was "A-1 "
Tola told Romesburg that meant they had no scrap at all On returning from lunch,
Romesburg worked about a half-hour, until sometime after 1 p in, when she noticed
Richards talking to the foreman behind her After the two talked for a while, Van
78 See Solo Cup Oompany, 114 NLRB 121, 132, enfd 237 F 2d 521 (C A 8)
74 Warping of parts occurs when a "shot" of plastic pieces is too hot when ejected from
the mold The excessive heat is caused when the press operator holds the safety door of
the press open' too long, thus interrupting the cycle of the machine and allowing excess
beat to build up in the molten plastic so that when the cycle is resumed, it enters the
mold too hot and is ejected in a warm and pliable state Actual warpage occurs when
parts in such state, after insertion in the plastic bag, are pressed against each other when
the packer, or a relief girl, fails to shake the bag to make the pieces lie flat, and then
forces the lid of the kit box down on the bag, or the weight of other kit boxes presses it
down when that box is placed with others in a master shipping box
DETROIT PLASTIC PRODUCTS COMPANY 495
Nuck came to Romesburg and told her that they had found scrap in her work, and
he had to take her off the kit job. She replied that she was sorry. Van Nuck trans-
ferred Jachimowicz back to the packing job, and sent Romesburg to work on a
machine grinding up scrap for the remainder of the day. At the end of the shift,
Van Nuck gave her a second warning notice which charged her with the same viola-
tions as the first, and stated, "Production not up to inspection standards. 7-12-56,
7-13-56." When giving it to her, Van Nuck said that Romesburg "just did not do-
well on that job." Romesburg asked if he expected perfection on that job in 3 days.
Van Nuck replied, "Well ." and muttered something else she did not catch. She
then asked if he was "going to show me the door when I come in on Monday," and
he again started to speak "Well ... ," and then walked away.
On Monday, July 16, 1956, Romesburg came to work wearing a large red, white,,
and blue union button, containing the initials of the Union's name, "CIO" and
"Committee" on it, which she had received from Organizer Watson the day before.
At first Van Nuck sent her to paste labels on plastic shakers in the packing depart-
ment for about 45 minutes. He then recalled and assigned her to run the No. 6.
press, making large plastic 2-bladed propellers, called "whirlie girlies." After Van,
Nuck showed her how to run the machine, she operated it the rest of that day with-
out incident or comment from the foreman. On July 17, 1956, Romesburg con-
tinued to run the propeller job, but soon found she had spare time, so she offered to,
help Julia Schaller, head of the packing department, with packing. Schaller brought
plastic shakers to her, and Romesburg pasted labels on them, while running the press,
from about 10 a. in. to about 1:30 p. in. At that time, Virginia, an employee from
the packing department, came to relieve her, saying that Van Nuck wanted her to,
run the No. 3 press, on which he had just changed the die. Romesburg entered her
propeller production on the weekly work sheet and then went over to the No. 3
press, on which the foreman had been making 1/4-pound plastic butter dishes. She
noticed that he had already turned out about 60 dishes, which were packed 12 to a•
small box. He told her he had done 60, and that she had to turn out another 12, in
order to fill a large packing carton. He packed the 5 boxes of 60 dishes in the
carton to show her how it was done, and said that would be her No. 1 box. When
she made the last 12 dishes, her packing slip went into the carton. She ran the
machine about an hour, until her 2:30 p. in. rest period, with Van Nuck watching
her work a good part of the time. She told him it was running "0. K." and he
agreed. At 2:30 p. in., Vi St. Lewis, a relief girl, came to relieve her, but Romesburg
had to show her how to do the whole operation, as St. Lewis had never run this
product on a press before. When Romesburg returned from her rest period about
2:40 p. in., she saw a lot of dishes on her packing table which had been made by
St. Lewis. At that moment, Van Nuck came up with shipping clerk Lesniack, bring-
ing several opened cartons of dishes with him. Van Nuck took some dishes out of a
carton, and told Romesburg, "Look what you have done, look at these big short
pieces you have passed." Romesburg noticed that the dishes in his hand had large
holes in the side, and she protested that she did not pass them, and he knew it. She
said that the machine had been running well, as he had seen, and that she had made
similar products and would never pass anything like that. Van Nuck started to
speak, "Well, Well . ," and then went to the office, returned to her in a few
moments, and said, "I've got to let you go, you passed all this scrap," and handed
her a paycheck and a typewritten discharge notice, signed by Richards, which gave as
the reason, "Your excessive nervousness has effected (sic) your recent production to
the point where it jeopardizes our products and your welfare. We have transferred
you to three separate operations, and issued two warnings in our effort to retain you
in good standing and we have found the condition becoming worse." Romesburg
told him not to bother to explain, she knew why she was being fired. After she
cleaned out her locked, she gave him a pair of cutters she had used, saying, "Al, we
are still friends," and he replied, "Yes, Yes, son-of-a- .... . Romesburg then left
the plant. She has never been recalled.75
Respondents' contention that Romesburg was discharged for cause after receiv-
ing two warnings is obviously based on their AQL inspection records mentioned
above. Considered by themselves, the records afford a technical basis for the
warnings and discharge. They show rejections of her work as follows: On July
10, 11 out of 36 boxes; on the 11th, 7 out of 40; on the 12th, 6 out of 41; and
on the 13th, 5 out of 40. However, close analysis of the rejections indicates that
Romesburg's deficiencies were not as extensive or serious as they seem at first
glance. On the 10th , the inspector rejected box No. 2 for an extra rear spring.
75 The findings above are based on credible and uncontradicted testimony of Romesburg,
which is corroborated in part by documentary evidence and testimony of Lesniack and
Caughill . Van Nuck did not testify.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superintendent Caughill admitted it should not have been rejected, as an extra
part does not spoil the kit or warrant rejection; and the inspection sheet shows
the inspector passed box No. 11, in which she found an extra "lady," or figurine,
in one kit, and on succeeding days passed boxes with similar "defects." This
accorded with the practice of the customer, AMT, of not rejecting. kits for having
extra parts, as shown by credible testimony of Davidowski. Hence, it appears
that boxes Nos. 2, 15, 17 and 18, each with an extra part in one kit, should not
have been rejected. This reduces the total of proper rejections , for warped, cracked,
or missing parts, to 7. In addition, Caughill admitted that when only a single de-
fect is found in two kits inspected from a master •box, the box is "set aside,"
not necessarily rejected. This testimony is in line with that of AMT officials, noted
above, that missing axles was not considered a serious defect, but one that was
easily remedied. Furthermore, credible testimony of Richards and Orahoske in-
dicates that during and after the shutdown, Respondents salvaged many returned
kits, using good parts from one to complete defects in another, for purposes of
selling the kits. Thus, it is inferable that the boxes here rejected were set aside
for completion by addition of salvaged parts. Hence, despite technical "rejection"
of seven boxes on the 10th, it is more likely than not that Respondents attempted
to correct the defects after inspection in order to sell the entire production of the
shift. Respondents produce no proof to indicate otherwise.76 For the same reasons,
it appears that 3 boxes rejected on the llth.for missing axles or figurine should
be eliminated, reducing the proper rejections to 4; and the 6 rejections of the
12th must be reduced to 5 by eliminating the box rejected for extra parts. The
records for the 13th show most of Romesburg' s morning production passed inspec-
tion, but starting with box No. 20, she had 5 rejected, 1 (No. 24) for a missing
instruction sheet, until she was transferred while working on box No. 30 or 31.77
Eliminating No. 24 for reasons given above, she had 4 boxes with serious defects,
out of an actual production of about 30, or a potential total of 40 if she had been
permitted to finish out the shift.
However, other circumstances indicate that her poor production in these 4 days
was not the reason, but the excuse or pretext, for the warnings and subsequent
discharge. Romesburg admitted that she had difficulty in learning and keeping up
with the packing operation the first 2 days, and often fell behind, particularly on pack-
ing the sealed kits, because it was a fast operation which was new to her 78 When
she fell behind, she called upon Jachimowicz, and at times Inspector Lillian Adams,
and 2 other employees, Vida St. Lewis and Edith Mason, to help her catch up; they
usually assisted by boxing sealed kits and filling the master packing boxes with the
individual kit boxes. Romesburg's trouble in mastering the operation was not un-
usual , for the record shows that other workers, such as Jachimowicz, May, Witherite,
England, and Wuestewald, had required anywhere from several days to several weeks
to master the Chrysler, or similar Mercury, packing to the point where they could
"keep up with it," and most of them also required assistance from relief girls, while
learning, in order to keep pace with the press. The difficulties inherent in the job
were well known to Respondents, for Erikson admitted, and the record shows, that
the cycling of the packing operation required concentrated attention , with consid-
erable agility and an ability to work continuously on various different steps in
rotation.79 In addition, Superintendent Caughill admitted that management could
79 Even if the plastic parts in a rejected kit or whole box were warped and twisted so
as to be unusable, I find from testimony of Erikson, Adams, and Wuestewald that after
the layoff Respondents salvaged as many undamaged parts of the kit as possible, including
the cardboard box, instruction sheets, metal axles; and plastic figurines, and then ground
up and reused the remaining plastic parts.
77 With the press running continuously during an 8-hour shift, and 960 kits produced
that shift, it follows that Romesburg and the relief girls were packing at the rate of 2 kits
a minute. As she began her shift at 7 a m., in the 320 minutes up to 12: 20 p. m.,
when she went to lunch, Romesburg packed 26 boxes and had 16 kits packed in No. 27.
Assuming the relief girl finished that box and packed 40 more kits in the 20-minute lunch
period, the relief girl probably completed Nos 27 and 28 and part of No. 29. Romesburg
finished that box and probably packed Nos. 30 and 31 before her transfer. Thus, all the
rejects were probably Romesburg's production.
'78 The sequence of steps In the Chrysler packing operation has been described above in
the findings as to the discharge of Witherite., Romesburg followed the. same sequence,
but in addition' picked the plastic figurine and two metal axles from 'separate supply
boxes, and dropped them into the bag of parts at the same time.
79 The description of the kit-packing operation given above, and other testimony • of
Erikson, England, Witherite, Wuestewald, and Adams,- indicates, and I find, that the,
Chrysler kit packing required the packer to perform 11 or 12 specific steps in rotation
DETROIT PLASTIC PRODUCTS COMPANY 497
expect errors on this job the first few days an employee worked on it, as on any
job, and that Romesburg's errors occurred because employees on the packing job
had difficulty keeping up with the sealing and packing of the kit bags. He also
admitted that, if relief girls had been required to help Romesburg, it was possible
that warped parts appearing in her production were caused by failure of the relief
girls to shake down the parts in the plastic bag or carefully put the lid on the box
to avoid crushing the parts. As to the incidence of missing parts specifically, May
also testified credibly that she had often worked on packing of both car kits as relief
girl, but never became proficient at it, and that while handling the operation on
relief, she probably made mistakes, as it was easy to "miss" by failing to drop parts
in the kit. I also find from credible testimony of Romesburg, Lesniack, Orahoske,
Richards, and Caughill that, due to the speed and recurrent cyclical nature of the
Chrysler operation, the packers had no time to count or make a detailed inspection
of the parts that went into the kit, and management did not require them to do so,
relying upon the foreman's routine machine inspection, hourly spot check of pro-
duction, the subsequent AQL inspection, and the final spot check by the shipping
clerk, to catch any defects; if a recurrent defect was discovered at any of these
inspection stages, notice of it was at once given to the foreman whose duty it was
to take necessary steps to eliminate the defect. It is clear from the above facts
and testimony that Romesburg's troubles during the first few days on the-operation
were not unusual , that the errors in her work were of the type to be expected and
usually encountered under those circumstances, and that it is equally as probable
that some of them were caused by the relief girls as that they were her fault. Hence,
the fact that Respondents were quick to use those errors as the basis of the first
warning slip supports the inference that they were deliberately ignoring the ordinary
problems 'and characteristics of the operation, and searching for any technical
reasons to discipline Romesburg. Other circumstances pointing to the same con-
clusion are •(1) the fact that Richards, who was busy with a variety of responsibilities
in the business,80 spent much time the first 2 days observing her work personally,
and Superintendent Caughill watched her closely the entire 31/2 days, which was
unusual because- that was the normal function of the foreman when a worker
breaks in on a new operation; 81 (2) the fact that the foreman once gave her specific
verbal warnings about defects, immediately after talking to Richards; and (3)
Van Nuck's rather shame-faced attitude when handing her the first slip, and his
remarks indicating that he was giving it to her under compulsion, but exhorting her
to keep up her courage, all of which indicates that he was not in accord with what
he, had to do. With regard to the source of the warning slip, I do not credit testi-
mony of Caughill that he suggested the slip be given to "try to wake her up," so
that she would not pass so much bad stuff. Caughill was vague about his talk with
Van Nuck, could not recall who brought up the subject of her production; and on
cross-examination, he was not sure he suggested the slip. Although he admitted
that when the work of an employee with long seniority, like Romesburg, is bad, he
wants to know the reason, and that he observed her work closely and examined
inspection records of her production, he cannot recall if he talked to Romesburg
himself. I do not credit the excuse that he was trying to "wake her up," for Romes-
burg's testimony makes it clear that she was striving to learn a new, difficult job and
using her best efforts to keep up with the operation, in that she asked Van Nuck
about her work the first day, received and followed instructions from him about
shaking down the kit bags, and on the second day she promised to do better, when
cautioned about missing parts. That she was alert to her troubles, and tried to
do something about them, is clear from the fact that she called for help both
days when she fell behind; it is questionable whether she would have done so if
she had been indifferent to her work.
within about 30 seconds, using both feet and hands and eyes constantly at the same time ;
the rotation cycle was easily disrupted if the plastic kit bags stuck together, or the seal-
ing device did not work right, or a bag bottom opened up due to a defect and allowed
the contents to scatter over the table and floor, all of which required extra work and
effort by the packer, and often assistance from other workers, to correct the situation and
keep up. with the machine cycle.
80 He is general manager of the plant, production manager, purchasing agent, and
personnel manager, and also handled sales and customer relations.
811 find from credible testimony of Orahoske and Caughill that when employees begin
a new operation, the foremen watch their work more closely the first few days, showing
them the procedure, making suggestions and corrections , and otherwise helping them to
learn the job.
487926-59-vol. 121--33
i
Ogg DECISIONS OF NATIONAL LABOR RELATIONS BOARD
i
O
There is also some indication in the record that, although management was
watching Romesburg's ' work closely while she was on the packing job, and was
quick to warn her verbally and in writing about her errors, it deliberately refrained
from taking any steps to alleviate her situation when she had trouble and asked
for help. Caughill admits he knew that Romesburg had had no experience on that
job, and that on one occasion when he was at her machine observing the work,
she asked him to take her off that job, and he replied he could not do it, that she
would have to see the foreman. There is no proof that he talked to Van Nuck about
her request. I find from testimony of Romesburg and Adams that, after Adams
had helped Romesburg a few times at the latter's request, Adams' foreman told
her to get back to her inspection work, that it was not her place to help Romesburg.
Adams' testimony indicates she had been trying in good faith to help Romesburg
keep up with her job, for she knew from her inspection that Romesburg's pro-
duction was defective, and had told her so seriously. In addition, I find from
credible testimony of Jachimowicz and Adams that: While helping Romesburg the
first day or so, they noticed Romesburg was very nervous, upset, and cross. Once,
when Jachimowicz reminded her about parts lying on her packing table, and gave
them to her, Romesburg did nothing with them, but said angrily that she did not
care whether or not she passed scrap, that she was going to quit; and when Adams
told her once that her production was bad, Romesburg replied that she did not
give a damn, that she was going to quit. I am convinced that her nervousness
and irritation was not unusual, but was brought about by her difficulties with
the job, for Adams testified that she was likewise nervous when first learning the
packing job, and Oiahoske admitted that plastic molding operations made some
girls nervous and irritated. I am also satisfied that Respondents were well aware
of her condition, from the fact that Richards and Caughill observed her closely for
nearly 4 days, in addition to the foreman's normal observance of it, including
hourly checks. In this situation, it is significant that Caughill, who knew she was
a novice on this job, and who professed that he was concerned whenever an older,
experienced worker had trouble with an operation, evaded action on her direct
appeal to him for a transfer, by shunting the responsibility to the foreman, although
it is inferable that, as plant superintendent, he could have suggested, or even
ordered, that Van Nuck transfer her, just as easily as he says he "suggested" the
foreman give her the first warning slip. It is also noteworthy that, although
management did nothing to relieve her difficulties and the nervous tension under
which she worked, other workers, such as England and Fox, were readily trans-
ferred, without discipline , when they had trouble with the packing job. Romes-
burg's difficulties at the outset of the job, which were normal, the fact that
management refused to do anything to alleviate her plight when requested except
impose discipline for normal errors, and the disparity in the treatment accorded
her in this regard, are additional circumstances which convince me that Respondents
were deliberately watching and waiting for an accumulation of normal errors in
her work on which they intended to base disciplinary action, and thus prepare a
paper record for discharge for ostensible cause.
The circumstances of issuance of the second warning slip indicates that it was
the next step in their plan leading to discharge. Being the second written warning,
it was the last disciplinary step before a discharge. However, it had less justifi-
cation than the first warning, for it was given for alleged bad production on her
third and fourth days, although her production improved on those days, as the
inspection records and Romesburg's own testimony shows, and Caughill himself
admits. Caughill's testimony indicates he had nothing to do with the issuance
of this warning, and since the record shows that Van Nuck took Romesburg off the
job and gave her the slip after talking with Richards, and that he gave out at least
the first slip and made the transfer reluctantly and under orders, I am satisfied
and find that Richards initiated both warnings. One indication that his motive
was discriminatory is the fact that he caused the issuance of unjustified warning
slips in the case of the most prominent union organizer in the plant, just as he
issued similar warnings thereafter to other union adherents, which I have found
to be violative of the Act. In addition, Romesburg's transfer without justification
to another job on July 16, and the prompt return of the former packer to the
Chrysler job, warrants the inference that Respondents were not interested in per-
mitting Romesburg to continue an operation she had almost mastered, which would
appear to be the normal and most efficient procedure, but desired to prevent her
from establishing a record of improvement in that work which might lessen the
DETROIT PLASTIC PRODUCTS COMPANY 499
importance of the warning slips as grounds for a discharge.82 The same inference
is compelled by the fact that Romesburg was allowed to work only 11/2 days on
the propeller job, with which she had no difficulty, before she was transferred
to the butter dish operation, for Respondents give no business reason whatever
for this transfer.
The facts relating to the butter dish operation and the defects found in it indicate
that this was the next, and as it proved the last, step in the chain of events which
Respondents built up in preparation for the discharge. Romesburg's own produc-
tion of dishes on July 17 was satisfactory, for Van Nuck watched her work a good
part of the hour that she ran the press, and agreed that the operation was running
o. k: The defective production which triggered the discharge was found by shipping
clerk Lesniack who testified that, while spot checking boxes of dishes in the shipping
room that afternoon, he broke open cartons in about the third box and found a "few
dirty" dishes, and "one short" with a small hole in it, and brought the entire box to
Van Nuck, who looked at the packing slip in it, and then confronted Romesburg
with defective items from the box. However, Lesniack does not say that the box
he gave Van Nuck was the third box in the sequence of Romesburg's own production„
and since her production of an hour had been satisfactory, and she strongly protested
to Van Nuck, and also testified without contradiction, that she did not turn out any
"short" items that day, the weight of credible evidence compels the finding that the
dishes shown to her, which contained large holes in contrast with the single small
hole which Lesniack found, were not her production. On the other hand, a positive
inference that they were part of the foreman's own production is justified by (1) the
fact that Van Nuck ran the press long enough to turn out 60 dishes, nearly a packing
box full, before he put Romesburg on it, and (2) her uncontradicted testimony, from
which I find that when a foreman changes a die he normally runs the press only
long enough to make sure it is operating smoothly, and then puts an operator on it.
As there is no proof in the record clearly showing the cycling time of the press on
this product, or the length of time it takes to test a new die in a press, I must accept
Romesburg's testimony indicating that he ran the press longer than was customary,
which supports the positive inference noted above. Considering all of the above
facts, and the permissible inferences therefrom, I conclude that Respondents have
not produced evidence showing the defective dishes were Romesburg's production,
sufficient to overcome her clear and uncontradicted testimony to the contrary. An-
other factor strongly supporting her story and detracting from Respondents' conten-
tion is the fact that Van Nuck, who gave out both warnings and the dismissal notice,
and was in the best position to know and testify about Romesburg's performance,
was not called by Respondents to testify on the vital issue here involved, although at
the time of the hearings he still worked for Respondent Corporation, and presumably
was available to testify. His failure to testify warrants the inference that, if called,
he could not truthfully deny Romesburg's story and that his testimony would not
support Respondents' contentions.83 This inference is particularly strong with
respect to the nature of Romesburg's production on the 17th, because Lesniack
admitted that he did not know whose packing slip was in the box of dishes he showed
Van Nuck, and that he did not hear the conversation between Romesburg and Van
Nuck at her machine, for while they talked he was examining dishes stacked on her
table preparatory to packing; 84 hence, Van Nuck is the only one who could have
contradicted her on the events of that day. Having found that Romesburg did not
produce the defective items shown to her on the 17th, it follows that the discharge
notice, insofar as it is based on such defects, was not based on fact, was undeserved,
and obviously a pretext.
The same conclusion is warranted with respect to the charge in the notice that
Romesburg's "excessive nervousness" had affected her production so as to "jeopardize
our products and your welfare," and that despite transfers to 3 separate jobs and 2
warnings "the condition is becoming worse." I have found Romesburg's nervous-
82 Although the record clearly shows that during 1956 workers were often transferred
between machines, and from machines to packing or grinding or nonproduction work, and
vice versa, from time to time as business requirements changed, Respondents offer no
business reason for Romesburg's removal from the packing work, other than the alleged
record of bad work which I have found to he a pretext.
81 See Whitin Machine Works, 100 NLRB 279, 285, enfd. 204 F. 2d 883 (C. A. 1) ;
N. L R. B. v. Ohio Calcium Company, 133 F 2d 721, 727 (C. A. 6).
84 Lesniack also testified that during the talk he found two dirty dishes, told Romesburg
about them, and she threw them in the scrap barrel. However, he admits he does not
know if Romesburg made them, and I find from her credible and uncontradicted testimony
that they were part of the production of the relief girl, which Romesburg found lying on
the table when she returned from her rest period.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ness and irritation on her first 2 days at the Chrysler packing operation , and the
errors that appeared, were not unusual on that job. It is also inferable that her
nervousness disappeared the third and fourth days when her production began to
improve, as there is no substantial proof that she was nervous during her satisfactory
handling of the propeller and butter dish operations on the 16th and 17th. If she
was upset at all on the 17th, it was when she protested vigorously against the un-
justified charge that she had turned out bad work. Hence, the record fails to support
the charge of "the condition becoming worse." Another circumstance which shows
the spurious nature of the discharge notice is that, when transferring Romesburg in
a professed effort to alleviate her "condition," they failed to move her back to her
old job on the No. 1 press, where they knew she had worked satisfactorily for about
10 months straight. The credible testimony of Alexandria Pappas, who was trained
on that press during Romesburg's vacation, shows that she was not running it, but
was doing another job in the warehouse, on July 10. She does not state when she
went back to work on the No 1 press, but Romesburg testified without contradiction,
and I find, that it was started up about noon on July 12, with Pappas running it.
Hence, it is inferable that that press was idle from July 10 to 12. If Romesburg's
production on the Chrysler job, and her mental condition on those 3 days, presented
a serious problem, as Respondents contend , it seems to me that plain common sense
and a sincere desire to solve that problem and at the same time restore an old, experi-
enced worker to efficient production, would have suggested the transfer of Romes-
burg on the 12th back to the No. 1 press, rather than the imposition of swift and
serious discipline on her twice within 4 days and then quick transfers to short stints
on 2 other operations. The failure to take the former course, which seems to present
an obvious solution to the problem of her "condition" and poor production, and pur-
suit of the latter, involving 2 written warnings and discharge within 6 consecutive
working days, indicates that they were not really concerned about her welfare or
interested in keeping her at work , but in finding means of getting rid of her quickly
on any pretext.
Considering all of the above facts and circumstances in their sequence, in the
light of Respondents ' antiunion animus, other coercive practices and discriminatory
discharge of other active union adherents found herein , I am satisfied and find
that after Respondents had tried by illegal methods to restrain Romesburg, the
most prominent and active union organizer , from continuing her union activities,
and had failed to persuade her by illegal means to set up a rival labor organiza-
tion to combat the Union's drive, they determined to get rid of her on any pretext.
The opportunity presented itself after the shutdown when she was placed on the
difficult Chrysler packing job, an operation which was new to her.85 Top manage-
ment watched her closely on that job , and when she had trouble in mastering it,
like other employees before her , and defects inevitably showed up in her early
production , Respondents were quick to utilize them as the basis for two warning
slips in quick succession . Issuance of the slips in those circumstances was as
unjustified as the undeserved warning slips issued in the same period to other
union adherents for discriminatory reasons, as found above, and I am satisfied
that they had the same motivation. When Romesburg began to master the Chrys-
ler job, Respondents quickly moved her to two other jobs, but although she handled
them satisfactorily, they charged her with defective production on the last which
was clearly not hers, and discharged her. As the three disciplinary actions were
lacking in real justification , and their concern for Romesburg 's welfare stated in
the discharge notice is patently spurious for reasons stated above, the only other
motive for discharge shown by the record is her union activity. I therefore con-
clude and find , on the preponderance of credible evidence in the record con-
sidered as a whole, that Respondents discharged Romesburg on July 17, 1956,
because of her prominent union activity , and not for the reasons stated in their
disciplinary records, and that such discharge was a violation of Section 8 (a) (3)
and (1 ) of the Act.
85I find no substantial evidence of discrimination in Respondents ' initial assignment of
Romesburg to the Chrysler job on July 10 I have found above that when she came in
that day, her regular machine was idle for replacement of a broken die, and that the
foreman placed her on the Chrysler operation. The record indicates that assignment to
other work in such circumstances was normal plant practice. Her assignment to the
fast, difficult Chrysler packing operation does not appear suspicious or discriminatory,
in itself, for Romesburg admitted that during her long experience in the plant she had
worked on most of the operations performed there, and Caughill testified that for this
reason Romesburg could be expected to handle any operation to which she was assigned.
DETROIT PLASTIC PRODUCTS COMPANY 501
H. The discharge of Mary Louise Wuestewald
Mary Louise Wuestewald started to work for Respondents on October 11, 1955.
She was assigned by Richards to the day shift at her request after she explained
to him that she had to be at home at other hours to care for her handicapped son.
Wuestewald joined the Union early in the campaign, and was an active member
of its organizing committee in the plant up to her termination on September 4, 1956.
For reasons stated above, I find that Respondents were aware of her union sym-
pathies and activities in the plant.
Wuestewald worked up to June 29, 1956, when she was given leave of absence
to take care of her son during the school vacation in July and August. In her
application for leave, she advised Respondents that she would be "available for
re-instatement" on September 3, 1956. The leave was approved July 2, 1956,
during the shutdown. On August 29, she sent Respondents notice by registered
mail, which they received Friday, August 31, that she would return to work on
September 4, the day after Labor Day. When she reported at the plant that day,
she found her timecard missing from the rack. She told Foreman Van Nuck
about it, but he put her to work on the No. 4 press. She worked on it about 3'/2
hours, when Van Nuck brought her a layoff slip, signed by Richards and stating
that she was laid off for "lack of work." When she questioned the reason, Van
Nuck sent her to the office, where Erikson explained to her that Respondents did
not allow "bumping," hence he would have to lay her off. When she complained
that other girls had been hired on day shift during her absence, Erikson admitted
it but repeated that Respondents' policy did not allow "bumping" of girls already
at work. He told her that he would try to call her back to work in a few days
for the afternoon or midnight shifts. Wuestewald punched out her timecard at
10:30 a.m. and went to the State Unemployment Compensation office. Since this
layoff, Wuestewald has never been recalled to work by Respondents.
About 1 or 2 p. m. on September 4, Wuestewald received a phone call at home
from Lawrence R. Morrison, father-in-law of Erikson and half-owner with the
latter of Jones Plastics Company (hereafter called Jones), a concern which rents
space in Respondents' plant and whose operations will be described more fully below.
Morrison told her that he had learned about her layoff from Erikson, that he knew
she was a good worker, and asked her if she wanted to work for him. She replied
that she would talk to Richards first, because she had to work for Respondents
only 2 more weeks to become entitled to a wage raise to $1.25 an hour, but she
would have to start at $1.15 an hour, with no fringe benefits like insurance, and
would lose Michigan unemployment compensation payments , if she worked for
Morrison. Morrison said Richards was riot in, but he would have Richards call
her later. However, there were apparently no discussions between Richards and
Wuestewald that day, and Wuestewald started to work for Jones the next morning,
September 5, and worked steadily until December 14, 1956, when she was laid
off by Morrison for lack of work.
General Counsel contends that Respondents ' discrimination in her case is evidenced
by (1) their layoff of , a satisfactory employee, who was an active union organizer,
contrary to its established seniority policy, and (2) their failure to recall her there-
after, when hiring new employees on day shift, in violation of its policy of recalling
laid-off employees , especially since she was readily available each day until Decem-
ber 14, 1956, while working for Jones with and alongside Respondents' employees,
and was obviously available after her layoff by that concern . Respondents contend,
on the other hand, that ( 1) Wuestewald was laid off bona fide as part of an economic
layoff, and (2) Respondents never recalled her because she took a job with Jones
and never indicated a desire to return to work for them.
The record affords some support for Respondents' contentions. As to the first,
it shows that they laid off Peggy Keller and Elsa Nyland for lack of work on the
same date as Wuestewald. Richards testified that the three were laid off, with
another unidentified employee, that day for lack of work in the packing department.
There is no contention that the layoffs of Keller and Nyland were without economic
justification or had discriminatory motivation. Richards also testified that the de-
cision to lay off Wuestewald had been made before she reported, that he had tried
unsuccessfully to contact her by telephone at her home before the 4th to prevent her
from reporting, hence, he caused her timecard to be pulled on that day, to prevent
her from starting work.
However, there are other facts which convince me that Respondents' claims are
not tenable. At the outset, the record shows that Wuestewald was apparently a
satisfactory employee during her employment with Respondents , for she never
received any warning slips or other discipline , her foreman promptly put her to work
when she reported in on the 4th, Erikson told her the same day , after her layoff,
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he would try to recall her shortly, and Morrison's testimony indicates that he
knew her record, was anxious to procure her services, and offered her a job as soon
as he learned from Respondents that she was available. Next, the record shows
that her foreman assigned her to work on the 4th on the same press on which she
had worked before she took her December leave of absence for reasons of health,
and also on return from that leave in April 1956; and he made the assignment
although he knew her timecard was not in the rack. The third fact is that Van Nuck
gave her the layoff slip, signed by Richards, while she was on that press, and then
sent her to the office for an explanation, not offering any himself.86 The clear
inference from these facts is that Wuestewald was a desirable employee whom
Van Nuck put to work in the normal course, and that the layoff decision, and the
reasons for it, were not of his making, but that of top management alone, and the
reason given was contrary to the fact. Another fact which discredits the claim is
that Richards claimed at the hearing the layoff was due solely to lack of work
in the packing department, although it is clear from Wuestewald's testimony that
she had last worked in that department in April, having worked thereafter at packing
Mercury kits for about a month and then on salvage of rejected Chrysler kits during
most of June; 87 Richards says nothing about the availability of other work, as on
Chrysler salvage or her old No. 4 press. The salient fact is that Van Nuck had
work for Wuestewald that day, and gave it to her. There is nothing to indicate
that he violated company policy in so doing, unless we speculate that he displaced or
"bumped" a newer girl from that machine to make a place for her; there is no clear
proof indicating what employee, if any, had run that machine the week before.
This brings up for consideration the "no-bumping" policy stated by Erikson to
Wuestewald as the reason for her layoff.
With regard to that policy and Respondents' practice on leave of absence, Erikson
and Richards testified that: If an employee takes leave of absence before she has
worked for 90 days continuously, the leave of absence terminates her employment,
and upon her return, she is rehired only if there is work available for her. If the
absence is due to health or other personal reasons, the employee does not accumulate
seniority -during the period of absence. Wuestewald had never worked for 90 con-
secutive days prior to September 4, 1956,88 hence, under the policy she had not on
that date accumulated enough seniority to entitle her to retention in event of a layoff.
However, other records and testimony discredit their story. Both officers admitted
that Respondents have a seniority system in the plant, under which seniority is
applied within each shift on shift assignments and in event of a layoff; there is no
overall plant seniority which would permit an employee laid off on one shift to
displace or "bump" an employee of less seniority on another shift. The rules as to
accumulation of leave, and limitations thereon, are set forth in a written statement
of policy evolved by Respondents after negotiations with the ERG representatives
sometime prior to 1955. The statement lists four types of approved leave, as follows:
1. Health or personal reasons 6 months.
2. Male personnel inducted in the armed services for a period of service
plus 90 days.
3. Female personnel leaving because of husband being inducted into the
armed service. This leave is approved for a period of 12,months.
4. Maternity leave-12 months. No seniority accumulation under this type
of leave, but a reinstatement when the opportunity avails.89
In -this statement the only specific prohibition against accumulation of seniority
occurs in the case of maternity leave, and General Counsel argues therefrom that
seniority accumulates under all other types of leave, and that since Wuestewald's
leave of December 1955 was for "health or personal reasons," her seniority con-
86 There is no proof that Van Nuck was consulted about work available on his shift, or
the placement of Wuestewald, before the layoff was made.
87 It is clear from the record that Richards must have been referring to packing work
performed under Julia Schaller, as distinguished from the packing operation on the
Chrysler or Mercury kits described above The record shows Wuestewald had done both
types of packing during April and May 1956.
88 Company payroll records show that Wuestewald began work October 11, 1955, and
worked until December 25, 1955, when she was given leave of absence to undergo hos-
pitalization for surgery. She accumulated 81 days of service in this period She re-
turned to work April 9, 1956, and worked steadily until June 29, when she took leave to
care for her son during the summer months, as found above. Her second period of
employment also covered less than 90 consecutive days.
81 See General Counsel's Exhibit No. 51.
DETROIT PLASTIC PRODUCTS COMPANY 503
tinned to accumulate during that leave, so that at the time of layoff she had
more than 90 days of continuous service. Richards admitted that this was a
permissible interpretation of the quoted provisions, and he could not explain why
the specific prohibition against accumulation of seniority was stated in case of
maternity leave, but not for the other types. He testified that "seniority remains
at status quo when leave is granted," indicating seniority accrued is not lost, but
does not enlarge, during leave. Payroll records show that when Wuestewald
received her first leave of absence in December 1955, her length of service was
81 days, and she was receiving the starting rate of $1.15 per hour. This was in
accordance with the pay rate schedule for day shift set forth on page 2 of General
Counsel's Exhibit No. 51. Upon her return on April 9, 1956, she worked 2 weeks
(through April 21) at $1.15 an hour, but beginning the next week, she was raised
to $1.20 an hour, payable under company policy to employees having more than
90 days of continuous work. The grant of the raise at that time would indicate
in itself that her seniority had continued to accumulate after return from sick
leave, which is consistent with Richards' testimony as quoted above. The same
inference is supported by Wuestewald's testimony on rebuttal that, when she came
back in April, and worked in the packing department, Schaller, head of that
department, told her she was entitled to 2 raises, as she had accumulated 6 months
of seniority shortly after she returned; when she did not receive 2 raises, bringing
her up to $1.25 an hour, she talked to Richards and Lucille, the office clerk, who
told her that she could not accumulate seniority during sick leave, but she did
not lose what she had already accumulated before the leave, so that she was
entitled to 1 raise. These facts make it clear and I find, that under Respondents'
actual practice Wuestewald did not lose the benefit of any seniority accumulated
when she took her first sick leave; however, seniority did not continue to accumulate
during that leave, but only after she returned to work 90 Hence, it follows that
when she took her second leave in June, and upon her return on September 4,
she had accumulated well over 90 days of seniority. I must conclude, therefore,
that under Erikson's own statement of the company policy, Wuestewald was
entitled to consideration of her accumulated seniority when she reported for work,
and worked, on September 4, before her layoff. Credible testimony of Wuestewald
and admissions of Richards make it clear that Respondents had hired new employees
on day shift during her absence, hence she had more seniority on September 4,
than those hired in that period. Under the circumstances, while Wuestewald was
laid off at the same time that other employees were laid off for apparently bona
fide economic reasons, her selection for layoff was a clear departure from Re-
spondents' normal policy of applying shift seniority on layoff. Lacking a reasonable
and credible explanation, such variance from normal policy is evidential of illegal
discrimination with regard to her tenure of employment, similar to that practiced
against other union organizers as found above. I therefore reject Respondents'
first contention.
With respect to the failure to recall Wuestewald after September 4, Richards
admitted he hired new employees on day shift after that date, but never recalled
Wuestewald. He also admitted that Respondents customarily recall laid-off em-
ployees when jobs become available. Richards explained his failure to recall
Wuestewald by testifying that she went to work for Jones and has never since
indicated a desire to return to work for Respondents, although she saw him daily
in the plant while she worked for Jones. He is very vague about whether he
ever talked to her during this period, but "seems" to recall a "firm understanding
that Mary left the company to work for" Jones. On these facts, Respondents
argue, in effect, that Wuestewald terminated her employment and was satisfied to
work for Jones and did not desire reemployment with Respondents. While the
record shows that Wuestewald worked for Jones in Respondents' plant for over
3 months, and daily saw Richards and many employees of Respondent, yet never
spoke to any of them about reemployment, I consider this argument without
merit for several reasons. In the first place, I am convinced there was never any
"understanding," or even discussion, between Richards or Wuestewald from which
Richards could conclude that she never intended to work again for Respondents.
Wuestewald specifically denied that she ever made any statement to that effect to
Richards, and, as will appear hereafter, the record shows she made inquiries through
901 do not credit Erikson's testimony, when confronted with the payroll record, that
he "imagined" Wuestewald was not entitled to the raise in April, and owed Respondents
some money, and that the office clerk had paid her too much thereafter. Lucille was not
called by Respondents to explain the error, and under the circumstances, I am con-
vinced that Erikson's testimony was an expedient opinion of the moment.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morrison later about Richards' failure to recall her.91 These facts discredit Richards'
vague testimony to the contrary. In the second place, Respondents' admitted
policy of recalling laid-off employees when work became available, and Erikson's
promise on September 4 to recall Wuestewald in a few days for work on afternoon
or midnight shifts, clearly indicate that when she returned on September 4 she
was still considered an employee of Respondents, and not a terminated worker
who had to seek new employment. From Erikson's promise, alone, she was entitled
to conclude that she would be recalled, without further application on her part.
This conclusion is further supported by Richards' testimony that when Wuestewald
returned in September, her employment was not terminated, that there was an
opening for her on afternoon or midnight shift which he knew she could not accept
for personal reasons, and that it was Respondents' practice in such cases to "ask
people to wait until there was an opening." In those circumstances, there was no
obligation upon Wuestewald to seek reinstatement, even though she could easily
have done so at any time in the next 3 months while working for Jones. Hence,
I cannot consider her failure to make a direct application for reinstatement to
Richards or any other officer of Respondents, or even through her. former ERG
representative, as evidential of a voluntary termination of her employment. Nor
can I consider her acceptance of employment with Jones while waiting for recall
by Respondents as support for Respondents' contention, for Richards admitted on,
cross-examination that a laid-off employee is not prohibited from taking interim
employment elsewhere, that is of no concern to him, as he considers it is up to
the employee to "make the decision" when he calls her back; obviously, the "de-
cision" he has in mind is a choice between the two jobs.
Even if I assume that Wuestewald was under some obligation to seek reinstate-
ment with Respondents, while working for, Jones, the record shows that she did
evince an interest, and, in effect, made some effort in that direction through Mor-
rison. I find from, credible testimony of Wuestewald that: Within a week after she
started work for Jones, Wuestewald noticed a new employee named Betty 92 working
for Respondents on day shift, so she asked Morrison why Respondents did not recall
her, and whether it was because they considered her a "union girl." Morrison
replied he had nothing to do with Respondents, but would talk to Erikson about it.
Later that day, he told her he had spoken to Erikson, and had learned that while
Richards was on vacation, Erikson had hired the new girl, so Respondents "felt
obliged to have her come in." 93 These facts indicate that Wuestewald was still
interested in reemployment with Respondents, and that Respondents knew it. Their
failure to recall a satisfactory employee, despite this knowledge, at any time during
her employment by Jones and even after her layoff by Morrison in December, further
impels the inference that the omission to recall her was deliberate, and since it can-
not be justified on the theory of voluntary termination or lack of desire for reem-
ployment, the conclusion is inescapable that they failed to recall her because of her
prominent union affiliation and activity. It is further supported by the fact that
they hired new, untried employees after her layoff, without calling back an experi-
enced employee.
Respondents argue, however, that if they had desired to get rid of Wuestewald for
discriminatory reasons, so that she could, not influence other employees before the
election, they would not have made it possible for her to continue to work in the
same plant where she could still mingle with their own employees, while working
for another employer. There is some force to this argument, for I find from credible
testimony of Morrison that he had had trouble during the summer in finding com-
petent employees, and needed a good worker badly, hence had asked Richards to let
him know if he found any likely prospects for Jones' type of work (which was quite
exacting and did not permit of errors), that Richards or Erikson had told him that
Wuestewald had reported for work after leave of absence, but they could only offer
her a job she could not take, and asked Morrison if he was interested in her, and
that as Morrison knew her work, he interviewed her at once and hired her. These
facts afford some indication that Respondents were trying in good faith to arrange
911 do not credit testimony of Morrison that Wuestewald told him, sometime before her
layoff by Jones, that she would not go back to Respondents if they "paid me to go back."
He was very vague as to the date of this remark, and Wuestewald denied it categorically.
I credit her denial, in view of her earlier remarks to Morrison about the reasons for
Respondents' failure to recall her, as found hereafter.
91 The last name does not appear in the record.
93 I do not credit Morrison's denial of this conversation, for at another point he ad-
mitted it could have occurred, that he had no memory or recollection of it. Erikson did
not deny that Morrison made such inquiry of him. -
DETROIT PLASTIC PRODUCTS COMPANY 505
for continued employment of a valuable worker they were being compelled to lay off
due to economic necessity.
General Counsel argues, per contra, that at the time of the layoff the union cam-
paign was well advanced , the election of October 9 was impending , and the Union
had already filed unfair labor practice charges with the Board, in which situation
Respondents did not discharge Wuestewald directly, but arranged to have her taken
on by Jones, with the two-fold objective of making her ineligible to vote in the
stipulated bargaining unit, while at the same time avoiding the appearance and con-
sequences of a discriminatory act. I conclude that there is merit to this contention,'
for several reasons. When Wuestewald was laid off, Respondents were already on
notice that the Union had filed charges, alleging that Respondents had illegally dis-
charged Elkins, Vadasy, Witherite, Pappas, and Romesburg, which were under
investigation 94 That Respondents were already in the midst of a campaign to thwart
the Union's organizational drive by discriminatory discharges of union organizers,
and other coercive conduct, is clear from the unfair labor practices I have found
above . In this context the suspicion naturally arises that Respondents would con-
tinue their campaign by ridding themselves of another union adherent under cover of
normal economic practice , as they did in the cases of Romesburg , Witherite, and
Pappas. Certain aspects of Morrison 's personal and business relations with Respond-
ents, and his conduct toward Wuestewald before and after the election, indicate that
they were following this course in her case, even after her unjustified layoff.
I find some credible testimony of Wuestewald that, while she was working for
Jones, sometime before the 1956 election, Morrison told her and Iva Lecomb, the
other Jones employee, "not to get mixed in with the union whatsoever" because it was
giving Erikson "a rough time," and that if the Union did get in, Erikson would close
shop, and Morrison would have to move his business to another plant.95 I also find
from credible testimony of Wuestewald and admissions of Morrison that a day or
two before the election, Morrison told both employees that they were not eligible to
vote in the election, and "had no part" in it, and he did not want them around, hence,
he told them to stay at home on the day of the election, so that they would not
"interfere" with it. On the eve of the election, Wuestewald received advice from
someone by telephone 96 that she and Lecomb were entitled to vote because 2 other
employees of Respondents who had done work for Jones were going to vote, and 1
was in a laid-off status. Wuestewald tried to vote the next morning, but was chal-
lenged by an agent of Respondents who said she was not on the payroll; Wuestewald
argued she was in a laid-off status. That afternoon, she returned and voted, but
her vote was challenged by Respondents. Lecomb's vote was challenged in like
manner.97 A day or two later, Morrison asked Wuestewald in the plant why she
had voted, and she related to him the advice she had received the night before the
election. Morrison then prepared typed statements of the telephone incident and of
the experiences of both girls at the polls, and had them sign their respective state-
ments. General Counsel argues that Morrison 's attempts to dissuade them from
voting were coercive attempts to interfere with rights guaranteed them by the Act,
which are imputable to Respondents because Morrison's close personal and business
relationships with Respondents make him in effect a managerial employee of Re-
spondents for whose actions they are responsible. '
The record shows that at the time of the events described herein, Jones Plastic
Company was in the business of marketing plastic advertising products and special-
ties to jobbers and national advertising concerns. Jones was, and is now, owned
jointly by Erikson and Morrison , his father-in-law . 98 Morrison manages Jones
94 Respondents received the initial charge naming Elkins- and Vadasy on June 26, 1956,
with Morrison signing the return mail receipt for it, and the first amended charge, naming
all these employees, on July 24, 1956
es I do not credit Morrison's categorical denial of these statements, because his argu-
mentative and evasive testimony on other facts, together with his close marital and busi-
ness relationships with Erikson found hereafter, convince me that his testimony was
largely governed by partiality in favor of his son-in-law and joint business partner in the
Jones venture : hence, I have credited his story only to the extent that it amounts to
admissions against interest or, is corroborated by other credible testimony.
98 It is inferable from her statement, later given to `Morrison, that Organizer Watson
was the caller
9 ,'It is clear from testimony of Wuestewald and Morrison that Lecomb had never
worked for Respondents, but the Union nevertheless claimed to the Board that Respond-
ents and Jones were a single employer, and all employees in the plant, including those of
Jones, should be in the unit and allowed to vote
ea The record shows that Jones was registered with the State of Michigan in September
1955 as a business owned and operated by Erikson under the assumed name of Jones
a
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the benefit of both. • Up to a short time before the hearing, Morrison was on
Respondents' payroll at $100 per week, from which social-security payments and
withholding tax payments were deducted. The amounts of Morrison's checks are
charged against payments Respondents make to Jones for labor furnished by Jones'
employees to Respondents. Up to about the middle of 1956, all of the items sold
by Jones were procured from Respondents; since that time, the figure has been
about 90 percent. During Respondents' production of items for Jones, Morrison
often observes the production and gives Respondents' employees direct orders about
manufacture and assembly of products, which they obey. Jones' only production
work in its business is the packaging and labeling for mailing purposes of the
items it sells to its customers. This work is done by Jones employees in a small
portion of Respondents' plant rented for the purpose, but not physically walled
off or separated from Respondents' operations. Jones also rents a portion of
Respondents' plant office in which Morrison maintains one office and clerical em-
ployee, Marjorie Thomas, who often assists Respondents' office staff in their work
on a reciprocal basis. There, is a frequent interchange of production employees
between Respondents and Jones. At times, Morrison sends, or Erikson calls upon,
Jones employees to assist Respondents in assembly and packing of items being made
for Jones, and in other work of Respondents, and on frequent occasions Respondents
send their employees into the Jones area to assist Jones in its packaging and labeling
operations, particularly during its busy season from July to the end of the year.
The labor charges on interchange of employees is handled by proper debits and
credits in the normal merchandise account maintained between the two concerns.
During 1955 and until the Union filed its petition in the 1956 representation pro-
ceeding, Morrison usually arranged to have Respondents employ girls that he laid
off in slack season, with the idea that he might recall them when Jones' business
picked up. However, Morrison ceased this practice after the Union claimed in
that proceeding that Jones and Respondents were a single employer, and that
employees of Jones were in the appropriate unit and entitled to vote in the election,
and a Board agent questioned him about Jones' relations to Respondents during
investigation of the claim. Morrison also testified that, for this reason, he told
his employees thereafter that he would not ask Respondents to hire them when
he laid them off. I am satisfied, and find, from these facts that there is a close
business and working relationship between Jones and Respondents which, coupled
with the facts of Erikson's half-interest in each enterprise and his close marital
relationship with Morrison, establishes a close community of interest between the
two concerns and warrants the conclusion that Morrison's activities in the plant
were such as to create the impression that be was acting in a managerial capacity
for Respondents, that the employees of Respondents were justified in regarding him
as such, and that his remarks to the two Jones employees before the election, as
found above, are imputable to Respondents 99 This conclusion is also supported
by Morrison's inordinate interest after the election in the reasons why his two girls
voted, and his procurement of signed statements from both, one of which (Wueste-
wald's) was produced and put in evidence by Respondents, for this activity tends
to prove the opposite of the claimed separation of Jones from Respondents, or
Morrison's claimed indifference to Respondents' labor 'problems and desire to
remain apart from their "politics." Hence, I find and conclude on all the above
facts that Morrison's coercive remarks to Wuestewald before the election, as found
above, are chargeable to Respondents, and that Respondents thereby further violated
Section 8 (a) (1) of the Act.ioo
Plastic Company ; however, Morrison and Erikson had taken steps to incorporate the
business under Michigan law, but at the time of the hearing no charter or certificate of
incorporation had been issued.
09 Cf Mansbach Metal Company, 104 NLRB 797, 802, enfd. April 30, 1954 (C. A 6),
34 LRRM 2143.
100 In reaching this conclusion, I have taken judicial notice of the fact that in Case
No 7-RC-3227, Respondents and the Union entered into a consent agreement for a Board-
conducted election, in which they stipulated a bargaining unit comprised only of produc-
tion employees of Respondents,, which did not include any Jones' employees. After
investigation which included discussions with Morrison on the subject, the Regional
Director approved the stipulation on August 22, 1956, despite the Union' s contention
that Jones' employees should be allowed to vote. However, I do not consider the approval
of the stipulation as an official Board determination that Jones and Respondents were
so separate and distinct as that Morrison could not be considered a managerial agent of
Respondents. At most, the approval was an acceptance by the Board of the composition
of the unit, absent any conflict with law or Board policy. (The Eavey Company, 115
NLRB 1779, 1780.) No question of agency or managerial status was involved. Hence, the
4
DETROIT PLASTIC PRODUCTS COMPANY 507
Considering all of the above facts and circumstances, particularly Respondents'
palpable failure to follow their normal layoff and recall practice in her case, and
the inadequacy of the reasons assigned for the layoff and their failure to recall her
during her employment, or even after her layoff, by Jones, which latter event must
have been clearly apparent to them from the close daily association of workers and
officials of both concerns, in the light of Respondents' prior unfair labor practices
during the campaign, I am convinced that in the case of Wuestewald, Respondents
contrived to conceal their discriminatory discharge of another prominent union
organizer by the device of including her in an economic layoff, having her taken
on at once by a closely allied concern in which Respondent Erikson had a half-
interest, which on its face looks like a bona fide and nondiscriminatory attempt
to find employment for her until Respondents could recall her, and then allowing
her to be laid off in the normal course by the second employer, over whose work
Respondents had no direct or ostensible control, but whose manager, closely related
to Respondents, made palpable attempts to prevent Wuestewald from continuing
her union activity. By this device, Respondents at once removed her from the
appropriate unit and precluded her from voting in the election, thereby curtailing
her union activity and effectiveness of her assistance to the Union in the campaign,
and at the same time tried to create a situation which would relieve themselves of
any future responsibility for her recall or future employment.
On the basis of all the above facts and circumstances, and a preponderance of
the credible, pertinent evidence in the record considered as a whole, I conclude and
find that Respondents laid off Wuestewald on September 4, 1956, and thereafter
failed and refused to recall or reinstate her, because of her union activity and affilia-
tion, and that Respondents thereby discriminated in regard to her tenure of employ-
ment in order to discourage membership in a labor organization, and the free
exercise by employees of rights guaranteed to them by the Act, in violation of
Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents, set forth above in section III, occurring in con-
nection with the operations of Respondents, described above in section I, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Although Respondent Corporation did not engage in any of the unfair labor
practices found herein, I conclude that, since it is owned by Respondent partners and
Erik E. Erikson is its president, and, as employer, it has taken over the entire assets,
name, plant, work force, supervisory staff, and business of the dissolved Partnership,
it is an alter ego of the Partnership and equally responsible with the individual
partners for remedying such unfair labor practices.ioi I shall, therefore, recommend
that Respondents Hilma H. Erikson and Erik E. Erikson, as individuals, Erin
Plastic Products Company, a corporation, and Detroit Plastic Products Company,
a corporation, jointly and severally cease and desist from the unfair labor practices
found herein, and take certain affirmative action designed to effectuate the policies
of the Act.102
Having found that Respondents partners and the Partnership discriminatorily
discharged Catherine Elkins, Bessie Pappas, Julia Vadasy, Janice Witherite, Angeline
Romesburg, and Mary Louise Wuestewald on the respective dates found above in
discussion of their discharges, I shall recommend that, for reasons stated above,
Respondent Corporation be ordered to offer each of said employees immediate and
full reinstatement to her former or substantially equivalent position without prejudice
Regional Director's action in the representation case has no bearing, and cannot preclude
an independent decision here, upon the issue of Morrison's status vis-a-vis Respondents,
and whether their employees were entitled to consider him as a managerial agent of
Respondents. Hardware Engineering Company, Inc., 117 NLRB 896, 904, 905.
101J W. Rex Company, 115 NLRB 775, 776, enfd 243 F. 2d 356 (C. A 3).
102 Respondent Partnership, being legally dissolved, is not included as such in the
recommended order but the partners must be responsible for the remedy of its unfair
labor practices. N. L. R. B. v. Cotten, 105 F. 2d 179 (C. A. 6). Respondent Erin,
although no longer operating the business, is still apparently in existence and owned and
controlled by the partners ; hence, although It may be dormant, It should be included In
the order, as it is a ready vehicle which the Eriksons could use again In running the
business.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to her seniority and other rights and privileges , and that all four Respondents named
in the preceding paragraph be ordered , jointly and severally, to make whole each
of said employees for any loss of pay she may have suffered by reason of the
discrimination against her by payment to her of a sum of money equal to the amount
she normally would have earned as wages from the date of the discrimination against
her to the date of the offer of reinstatement , less her net earnings in said period,
the back pay to be computed on a quarterly basis in the manner established by the
Board in F . W. Woolworth Company, 90 NLRB 289.
Having found that the partners and the Partnership discriminatorily shut down
the plant and locked out their employees in the period between June 30 and July 10,
1956, I shall recommend that all the Respondents aforesaid be ordered , jointly and
severally, to make whole each of the employees involved in the lockout for any
loss of pay such employee may have suffered by reason of said discrimination, in
the manner set forth in the preceding paragraph.
I shall also recommend that said Respondents preserve and make available to the
Board and its agents all documents and records necessary to compute the amounts
of back pay due under the terms of the Board's order.
In view of the nature and variety of unfair labor practices committed , the com-
mission of similar and other unfair labor practices by any or all of said Respondents
reasonably may be anticipated . I shall therefore recommend that Respondents be
ordered to cease and desist from in any manner infringing upon rights guaranteed to
their employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. United Rubber , Cork, Linoleum and Plastic Workers of America , AFL-CIO,
and Employees Representative Group are labor organizations within the meaning
of Section 2 (5) of the Act.
2. Respondents Corporation and Erin are the successors to Respondent Partner-
ship , and, together with Hilma H. Erikson and Erik E . Erikson , the individual
partners , are responsible jointly and severally for remedying the unfair labor prac-
tices engaged in by said Partnership.
3. By discriminating with respect to the hire and tenure of employment of
Catherine Elkins, Bessie Pappas, Julia Vadasy, Janice Witherite , Angeline Romes-
burg, and Mary Louise Wuestewald, thereby discouraging membership in said United
Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, the partners
and Partnership aforesaid have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (3) of the Act.
4. By the conduct aforesaid , by their discriminatory lockout of employees, and
by other conduct found above, thereby interfering with, restraining , and coercing
their employees in the exercise of rights guaranteed in Section 7 of the Act, the
Respondents aforesaid have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
6. Respondents have not engaged in actual surveillance of union meetings or
concerted or other protected activities of their employees.
[Recommendations omitted from publication.]
liod Carriers , Building and Common Laborers Union of America,
Local No. 324 , AFL-CIO, and R. Wright, business agent, Local
No. 324 [Roy Price Inc.] and Merle Estes , Cecil Hawkins, Jasper
Hawkins, and Merlin L. Shamo. Cases Nos. 20-CB-507,20-CB-
508) 20-CB-509, and 920-CB-510. August 14, 1958
DECISION AND ORDER
On June 11, 1957, Trial Examiner David F. Doyle issued his Inter-
mediate Report in this case, finding that the Respondents had en-
gaged in and were engaging in certain unfair labor practices within
121 NLRB No. 55.