Elano Corp.

National Labor Relations Board - Board Decisions

Feb 21, 1975

216 N.L.R.B. 691 (N.L.R.B. 1975)

ELANO CORPORATION
Elano Corporation and District Lodge 82 of the
International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 9-CA-8087
February 21, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On July 26, 1974, Administrative Law Judge
Milton Janus issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and General Counsel filed a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order, as modified
herein.
We agree with the Administrative Law Judge's
findings that Respondent violated Section 8(a)(1) of
the Act by its various actions including surveillance,
interrogation concerning employees' union activities,
and conveying to employees the futility of selecting a
bargaining representative. However, we do not agree
with his further findings that Respondent discrimina-
torily discharged employees Dorothy Moessinger,
George Smith, and Helen Childers in violation of
Section 8(a)(3).
At the time of the discharge of these three
employees there were union organizational activities
taking place at Respondent's plant. The Carpenters
had attempted to organize the employees on Septem-
ber 13 and 18, 1973, but had received only 4 signed
authorization cards from a unit of over 200 employ-
ees. On September 26, the Machinists handed out
literature and authorization cards to the employees
outside the plant, and were also there on October 8
and sometime after October 16. Their efforts resulted
in 11 employees signing cards, including the 3 alleged
discriminatees.
Smith had worked in Respondent's welding depart-
ment since his hire in October 1968, and Childers,
employed by Respondent in January 1969, had also
worked in the welding department for some time just
prior to October 12, 1973, the date on which both
were discharged, assertedly for excessive talking and
low productivity.
Childers had accepted literature and cards from the
691
Machinists organizers on September 26, and returned
her card to the Union by mail. She had also spoken
to numerous employees at the plant about the Union.
There is, however, no evidence that Respondent
knew of any of this activity.
Smith also accepted a card from the Machinists on
September 26, and mailed it in to the Union. His
only other union activity consisted of occasional
conversations with Childers, and perhaps some other
employees, at breaks and at lunch, or outside the
plant.
There is no evidence that Respondent was aware of
Smith's union activity save for Smith's testimony of
an event which took place shortly after the Carpen-
ters conducted its short-lived campaign in September
1973. According to Smith, he was talking to fellow
employees in the cafeteria about the Carpenters
Union when his supervisor, Siders, entered the
cafeteria. At that time employee Tolle said to Siders,
"Hey Jim, George is thinking of becoming a
Carpenter." Siders replied that that was all right, just
so he didn't box himself out.
According to Respondent, the decision to dis-
charge Smith and Childers was made by Siders and
Vice Presidents Grice and Sisler, following Sisler's
October 11 memo to Siders which noted that Sisler
had seen Smith and Childers talking away from their
work stations, and that Siders should do whatever
necessary to keep equipment operating at full
capacity.
In support of its contention that Smith and
Childers were discharged for good cause, Respon-
dent introduced evidence that it has a rule prohibit-
ing employees from talking during worktime if it
takes them away from their jobs, interferes with
production, or creates a morale problem, although
employees working side by side can converse if it
does not affect their productivity. It also has a rule
against eating food at any place except the cafeteria.
Both Smith and Childers had been warned about
violating the no-eating rule, Smith in March 1973,
and Childers in June of that year. Similarly, both had
received warnings about excessive talking. In Febru-
ary 1973, Smith had been warned, and a written
warning had been placed in his personnel file. In July
and again on October 11, 1973, both Smith and
Childers had received warnings, with written warn-
ings placed in their files. The written warnings
attributed loss of productivity to their excessive
talking. Further, Respondent's records show that on
their semiannual evaluations, the quantity and
quality of these two employees' work was rated at
various levels from "fair" to "good," but contained
notations concerning Smith's excessive talking, and
the fact that Childers' wage increase would have
216 NLRB No. 126
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been more if the quantity of her work had not been
low.
Siders denied that he had any knowledge that
Smith and Childers engaged in any union activity.
The Administrative Law Judge rejected the conten-
tion of Respondent that Smith and Childers were
discharged for excessive talking and low productivi-
ty. In support of this finding, he noted that, despite
the notations on the semiannual evalutions of Smith
and Childers, and the warnings each had been given,
they had received wage increases which were not
substantially lower than those given to other employ-
ees. Further, he regarded Respondent's assessment of
the low productivity of the two employees as
somewhat exaggerated.
The real reason for these two discharges, according
to the Administrative Law Judge, was Respondent's
attempt to curb unionization in its plant by dischar-
ging those it believed were in favor of having the
Union.
Although he found that both Smith's and Childers'
union activities were quite limited and meant to be
kept secret from management, he also found that,
given Respondent President Nutter's confirmed
antiunion bias which is evidenced by the activities
found to be violations of Section 8(a)(1), Siders most
likely noted Tolle's remark concerning Smith, and
passed it on to his superiors. He found this to be the
motivating element behind the decision to discharge
Smith.
As for Childers, the Administrative Law Judge
found that because Smith and Childers engaged in
"excessive talking," Respondent must have suspected
that both were interested in the same thing, unioniza-
tion , and decided to get rid of Childers because of
this suspicion.
We do not agree with the Administrative Law
Judge that the foregoing evidence preponderates in
favor of a finding that Smith and Childers were
discharged for suspected union activities, rather than
for the reasons given by Respondent. Even given
Nutter's strong antiunion bias, which is clearly
evidenced in the record, we do not believe that the
evidence concerning Smith's and Childers' union
activities and, more importantly, Respondent's
knowledge of such activities, is sufficient to find that
Respondent discriminatorily discharged them for
such activity. The mere showing from Smith's
testimony that Siders was told by another employee
that Smith was thinking of becoming a Carpenter
(and apparently in a jocular vein), some weeks before
he was discharged, is not sufficient evidence to lead
to the conclusion that Respondent suspected that
Smith was supporting the Machinists Union which
was organizing at the time of the discharge , or that
Smith was in favor of seeing the plant become
unionized. Since we find that the evidence is
insufficient to conclude that Respondent knew or
suspected that Smith was engaged in union activity,
it necessarily follows that the evidence of Respon-
dent's knowledge of Childers' union activities, which
is based on the mere showing that Smith and
Childers conversed often, is likewise insufficient.
Dorothy Moessinger worked for Respondent from
November 1972 to the day of her discharge, October
16, 1973. Just prior to her discharge, she worked at
different jobs under both Supervisor Eldridge and
Supervisor Siders.
The extent of Moessinger's union activity consisted
of signing an authorization card for the Carpenters
during its September 1973 organizing drive, and later
signing a card for the Machinists.
Although Moessinger received a raise of 20 cents in
February 1973, and a 10-cent raise in September
1973, she was discharged by Respondent on October
16 assertedly because she was guilty of excessive
talking during worktime, for causing morale prob-
lems among the employees, and for spending too
much time in the restroom. On September 7, prior to
any union activity, Eldridge noted on her employee
rating sheet that she was causing morale problems by
complaining about the Company to other workers.
Thereafter, both her supervisors reprimanded her a
number of times for excessive talking, excessive trips
to the restroom, and interfering with the production
of other employees.
On October 15, Moessinger approached Siders
concerning an incident she had observed when the
Machinists representatives were handbilling on
September 26; an employee had pinned an organizer
against a rail with his pickup truck, and had sprayed
gravel on the organizer by spinning his wheels. She
appeared to equate this incident with Nutter's
October 10 letter, his remarks about the violence
attendant upon union organizing, and his remark
that he would kill the union sons-of-bitches. When
she told Siders that she had sent a letter to her lawyer
in case something happened to her or her family,
Siders attempted to allay her fears and convince her
that Nutter was not capable of such violence.
Finding this futile, he told her there was no need to
discuss it further.
Later that same day, when employee Fields
complained to Siders that Moessinger was bothering
him with her excessive talking, Siders made a memo
of Fields' complaint and sent it to the personnel
office. The following day, Fields complained again
that Moessinger was bothering him with talk of the
Nutter letter. Siders then consulted with Grice and
Sisler, and decided to terminate Moessinger.
Although the Administrative Law Judge found that
there was no evidence that company officials knew
ELANO CORPORATION
that Moessinger had signed cards for either Union,
or that she might have indicated her sympathies
toward unionization by talk with other employees, he
found that Respondent fired her because it suspected
she was sympathetic toward the Union. This finding
was partially based on the interrogation of Moessing-
er by Eldridge found herein to be in violation of
Section 8(a)(1). That incident concerned Eldridge's
having asked Moessinger if she had signed her union
card, to which she answered that she had not, and
asked him if he had signed his. In that same
conversation, Eldridge asked her if she knew what
happens to those who sign union cards , and stated
that Nutter didn't approve of unions. Moessinger
told him she knew that.
In addition to this interrogation, which the Admin-
istrative Law Judge found showed that Eldridge
suspected Moessinger 's union affiliation , he found
that Moessinger's rejection of Nutter's claims that
unions were prone to violence , and her fear about
Nutter 's threats against union organizers , led them to
believe that Moessinger had been swayed by union
propaganda, and that she could no longer be trusted
to accept Nutter's counterpropaganda.
We do not believe that this evidence is sufficient to
permit the inference that Moessinger was discharged
by Respondent because of suspected union sympa-
thies. As earlier noted, there is no evidence of
knowledge by Respondent that Moessinger had
signed cards or expressed thoughts concerning the
Union to other employees. Further, when interrogat-
ed by Eldridge some weeks prior to her discharge,
she stated -that she had not signed a card . Although
Respondent's officials might have suspected that she
was prounion because of her stated fears regarding
the Nutter letter, this is not necessarily so, and does
not constitute sufficient grounds upon which to base
a finding that Respondent discharged her for this
reason.
Although there is much evidence that Respondent
was antiunion , the record does not support a finding
that Respondent violated Section 8(a)(3), in our view.
Rather , the record does show that Moessinger had
been reprimanded for talking and interfering with
the production of other employees on several
occasions , and that a fellow employee had com-
plained of her bothering him with her talk on both
the day of her discharge and the previous day.
Based on the foregoing evidence , we find that
Respondent's discharge of Moessinger was not
discriminatory , and we will dismiss that allegation of
the complaint along with the allegations concerning
the discharges of Smith and Childers.
ORDER
693
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Elano Corporation, Xenia, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order, as herein
modified.
1. Delete paragraphs 1(a), 2(a), and 2(b), and
reletter the remaining paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act protects employ-
ees in their right to form, join, or assist labor unions
or to refrain from such activity.
WE WILL NOT keep under observation the
handbilling of our employees by union organiz-
ers.
WE WILL NOT require our supervisors to eat in
the plant cafeteria in order to keep the union
activities of employees under surveillance or to
inhibit open discussion about unions.
WE WILL NOT coercively interrogate our em-
ployees about whether they have signed union
authorization cards.
WE WILL NOT emphasize to our employees that
it would be futile for them to select a bargaining
representative because we would not bargain with
it in good faith.
WE WILL NOT in any other manner interfere
with , restrain, or coerce our employees in the
exercise of rights guaranteed by Section 7 of the
National Labor Relations Act.
DECISION
STATEMENT OF THE CASE
MILTON JANus, Administrative Law Judge: The General
Counsel issued a complaint in this case on December 5,
1973, based on charges filed by the Charging Union
(Machinists) on October 23, 1973. The complaint alleges
that Respondent discharged two employees on October 12,
and another on October 16, 1973, because they had joined
the Machinists , and to discourage membership in it, and
that it had also engaged in certain acts of interference,
restraint, and coercion in the exercise of rights guaranteed
by Section 7 of the Act. These acts are alleged to be in
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violation of Section 8(a)(3) and (1). A hearing was held in
this matter on January 15-18, 1974, at Xenia, Ohio, at
which all parties were represented . At the hearing, I
granted the General Counsel 's motions to amend the
complaint to add other alleged violations of Section
8(a)(1).
After the hearing, the General Counsel and the Respon-
dent filed briefs with me which I have duly considered.
Upon the entire record in the case, and my observation of
the witnesses and their demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation with its principal
office and place of business at Xenia , Ohio, where it is
engaged in the manufacture of tubular products . During a
recent 12-month period, which is representative of its
operations , Respondent had a direct outflow of products
valued in excess of $50,000 which it sold and caused to be
shipped in interstate commerce directly to customers
outside the State of Ohio from its plant in Xenia, Ohio.
Respondent admits, and I find , that it is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge 82 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent manufactures metal parts , such as fuel and
exhaust systems for use in the railroad and aircraft
industries . Although organized as a corporation, all its
stock is owned by its founder and president, E. J. Nutter,
who is also its operating head . The Company employs
approximately 240 employees, of whom about 200 are
production and maintenance workers on the first, or day,
shift.
The events described below took place from mid-
September to mid-October 1973, and involved efforts to
organize the employees. A representative of the Carpenters
International Union was first in the field, placing enve-
lopes with organizing literature and authorization cards on
cars of employees parked outside the plant, on September
13 and 18. Four employees mailed in authorization cards in
response to these efforts . On September 26, four represent-
atives of the Machinists began to distribute union material
and authorization cards on the road (Dayton-Xenia
Highway), on which the plant fronts . Machinists , represent-
atives were also at the plant on October 8, and on one day
after the 16th, when they were joined by the three alleged
discriminatees , Helen Childers, George Smith, and Doro-
thy Moessinger. Eleven employees all told signed cards for
the Machinists , among them the three who had been
discharged in mid-October.
B. The 8(a)(1) Allegations
The incidents on which the 8(a)(1) allegations of the
complaint , as amended , are based , fall into two main
categories : ( 1) surveillance of Respondent's employees and
of union representatives at the first distribution by the
Machinists on September 26; and (2) three speeches by E.
J. Nutter to the assembled employees on September 14 and
27 and October 15. Other incidents of alleged surveillance
or intimation of surveillance occurred at the Union's
second distribution on October 8, and in the plant cafeteria
during lunchtime . There is also an allegation of coercive
interrogation of one employee by a supervisor.
Surveillance of handbilling: The plant is bounded on two
sides by the Dayton-Xenia Highway and a driveway. The
driveway ends at the highway , and it was at this
intersection that the union organizers placed themselves.
Employees who drive use either a reserved parking lot
adjacent to the plant building from which they exit onto
the driveway , or the unreserved parking lot which is across
the highway. Those who park in that lot walk out of the
plant's exit into the driveway, and then cross the highway,
at the point where the organizers had stationed themselves.
Most of the employees on the day shift left at 3:30 p.m.
Sometime between 3 and 3:15 the afternoon of September
26, the organizers arrived , prepared to handbill the
employees as they left the plant . Their presence was noted
by plant officials before 3 : 30, and the first of them to
appear outside was Stulpin , the personnel manager. He
wheeled out two oil drums, placing one at the mouth of the
driveway, adjacent to the organizers, and the other in the
parking lot across the highway . On each he taped a sign,
reading "Union Trash ." Two other officials were also in
the area just about the time the employees began to leave
the plant . These were Sam Grice , a vice president, and
Stanley Nolte , an office employee, one of whose jobs was
to act as the Company 's official photographer . Nolte took
at least six pictures between the time Stulpin wheeled out
the oil drums and the moment when the employees began
to walk down the driveway toward the point where the
organizers were waiting for them . (Resp . Exh. 10-1 to
10-6.)
Since Grice and Stulpin are both visible in one of these
pictures (Resp. Exh. 10-3) and since Nolte took it, it is
apparent that all three were in a position to observe the
employees as they approached the intersection where the
organizers were waiting . I therefore find that Grice was
mistaken in his testimony that he had left the area and had
returned to the plant by 3:30.
Stulpin testified that after positioning the two barrels he
walked back up the driveway toward the plant and on the
way told the employees walking toward him not to litter.
However, the three organizers who testified , Vaughan,
Boggs, and Dunlap, all testified that Stulpin remained near
them during the entire shift change of 10 to 15 minutes, as
they passed out their literature . Vaughan also testified that
Nolte took pictures of the handbilling , while Boggs said he
observed Nolte telling employees not to accept the union
literature. Nolte testified that he took only the six pictures
introduced in evidence , none of which show the employees
close enough to the organizers to engage them in
conversation.
ELANO CORPORATION
No employees who left at 3:30 testified on what they
saw, or which management officials , if any, were outside
the plant at the time . I am satisfied, from the credited
testimony of the organizers and the evidence of the
pictures, that Grice was in the driveway for at least a few
minutes after the first employees reached the mouth of the
driveway , where the organizers were standing, and that
Stulpin and Nolte were close by for most or all of the shift
change period . I am less certain that Nolte took pictures of
the handbilling, but since he was well known to the
employees as the company photographer, and was un-
doubtedly still carrying his camera equipment while at or
near the intersection , it would be natural for the employees
to assume that he was there to take pictures of the
organizational activities , whether or not he did in fact do
so.
I find therefore that Stulpin and Nolte , agents of the
Respondent , were present at the 3 : 30 handbilling , and kept
the employees under surveillance . It is clear, and I find,
that such open observation of contacts between union
organizers and employees is a violation of Section 8(a)(l).
After the 3:30 shift change was over, Vaughan and
Dunlap left for a while , while Boggs remained . About this
time , Nutter and others came out of the plant in a group to
watch and exchange remarks with Boggs . No employees
were present at the time . I credit Boggs' recollection over
that of Vaughan, who had testified that Nutter and his
group were present at the 3:30 handbilling . Later that
afternoon , Supervisor Comer and others stood in a
doorway of the plant and observed the organizational
activities then going on. The distance from the doorway to
the mouth of the driveway is about 80 yards, too far, it
seems to me, for them to see or to be seen by employees
who may have been at the point where the organizers were.
I find that neither Nutter's nor Comer's observations that
afternoon 'constitute improper surveillance.
I also find , based on the credited testimony of Boggs,
that no management officials kept under observation the
handbilling which took place on October 8.
Other surveillance: The Company provides a lunchroom
in the plant , and no eating is permitted on the premises
except there . Although the lunchroom is also referred to as
the cafeteria , food is not prepared or served there.
Employees either bring their lunch or purchase food from
vending machines in the lunchroom. The place seats about
80 employees . In mid-September, after the first union
organizing efforts began , the foremen were directed to eat
in the lunchroom, whereas previously they had been
allowed to eat their meal in a control room overlooking the
plant floor.
Based on the testimony of Dorothy Moessinger, one of
the alleged discriminatees , that the foremen started to eat
their meals in the lunchroom after the inception of union
organization , the General Counsel argues in his brief that
Respondent 's purpose was to learn which employees
supported the Union, or at least to inhibit discussion about
it during employees ' free time . Vice President Grice
testified that he had first issued an order early that summer
I In fact , there is a coffee machine in the control room, and the
supervisors continued to have coffee and doughnuts whenever they were
there.
695
to the supervisors that they were not to eat lunch in the
control room, but that by September his order was being
ignored. He said he then went to Nutter, who immediately
reinstituted the order against supervisors eating anywhere
but in the lunchroom. Grice's stated reason for his order
was that the control room was to be used by the foremen
solely for scheduling the work and for other official
purposes.'
On September 27, the day after the first appearance of
the Machinists organizers outside the plant, Nutter gave
the second of his three speeches to the assembled
employees. One of the items he touched on was a report he
had gotten that someone considered the management
people in the lunchroom to be spies. He denied it, saying
that he had specifically directed that management people
eat with the other employees in the cafeteria (1) to make
sure that the supervisors ate the same food that was
available to the factory help, on the premise that what was
good enough for the latter group was also good for the
former; and (2) to give the employees a chance to mingle
and talk on an informal basis with their supervisors. I note,
as to the credibility of these two reasons, that Grice
testified that he had issued his order some months before
only to keep the control room free from eating, and not for
Nutter's stated purposes. I also suspect that Nutter's
purported concern that the food available in the lunch-
room be the same for the supervisors as for the nonsupervi-
sory employees was something less than what he had in
mind. Employees and supervisors could bring their lunch,
and thereby avoid having to eat vending machine food, so
that forcing the supervisors to eat with the production
employees did not ensure that they would be eating the
same food. More likely, it was Nutter's purpose to have the
supervisors present on the only occasion when the
employees could discuss the Union on their free time if
they were so minded to.
I find that the newly instituted requirement that
supervisors be present when the employees ate their lunch
was to keep the latter's union activities under observation
or to inhibit open discussion about the Union.2 Although
this matter was not alleged in the complaint nor added by
amendment at the hearing, I find that Respondent chose to
litigate the effect of Moessinger's testimony about the
presence of supervisors during employees' mealtime after
union activities began, by Grice's testimony as to his
reason for ordering them to eat in the lunchroom.
Interrogation: At the opening of the hearing, I granted
the General Counsel's motion to add a further allegation to
the complaint, over the Respondent's objection, regarding
interrogation of an employee by a supervisor as to the
employee's union activities . The evidence in support of the
allegation was given by employee Dorothy Moessinger
who testified that John Eldridge, a supervisor in the burr
room, had asked her if she had signed her union card. She
said she had not, and then asked him if he had signed his.
Later in the same conversation, Eldridge asked her if she
knew what happens to those who sign union cards, and
referring back to an earlier mention of Nutter , said that
2 Hawthorn Company, 166 NLRB 251 (1967), enfd . on this point
N L R.B. v. Hawthorn Company, 404 F.2d 1205, 1208-9 (C.A. 8, 1969).
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nutter didn't approve of unions. Moessinger told him she
knew that.
Eldridge testified later on behalf of Respondent, as to the
circumstances of Moessinger's discharge, but was not
asked about a conversation with Moessinger in which the
matter of her signing a card, and what might happen to
those who do, came up. Moessinger's report as to what
Eldridge said to her is therefore undenied, and I credit it. I
find it clearly coercive for a supervisor to ask an employee
if she has signed a union card when it is coupled with an
admonition that the company president does not like
unions, and that she should bear in mind what happens to
those who sign the union cards.
Nutter's remarks: Paragraph 5(a) of the complaint alleges
that Respondent violated Section 8(a)(1) by the following
conduct of president Nutter:
(1) On or about September 26, 1973, in threatening its
employees with reprisals by telling them that if they signed
authorization cards of the Union they knew what would
happen to them.
(2) On or about September 26, 1973, in telling its
employees that he could find out who signed the
authorization cards, implying that their union activity
would be under surveillance.
(3) On or about October 2, 1973, in making veiled threats
to its employees by making profane and disparaging
remarks about representatives of the Union in their
presence.
The only evidence proffered by the General Counsel in
support of these allegations came from the three discrirtii-
natees. Moessinger said that in a speech to the employees,
at a time when the Union was outside, Nutter held up a
union card and said, "You may sign this card if you want
to. You know how I feel about unions. And you all know
how I feel about the union and you know what will happen
to you if you do." Smith testified that Nutter spoke to the
employees on September 26, that he referred to the
Machinists, held up a card, and said, "You can fill these
cards out if you like, but you know what will happen if you
do. There are no stockholders in this company, I'm the
owner and I'm the only one." Childers testified that in a
speech on September 26, Nutter said he had called them to
let them know the union boys from the IAM were out
there, and that he held up a card, saying "It's up to you
employees if you want to sign it. It's okay with me." He
then said, according to Childers, that he did not like the
Union, and he knew what would happen, he'd find out
who signed these cards and sent them in. He then went on
to say that he would not talk to the union people - that
he'd either have a heart attack or he would go to jail for
killing the sons-of-bitches. Childers testified that she left
the plant at 4:30 that day and accepted literature from the
organizers, while Smith said he left at 5:30 and did the
same.
As part of its case, Respondent offered in evidence
transcripts of three speeches Nutter had made to the
assembled employees on September 14 and 27 and October
15, which had been taped by Nolte, the plant photographer
and audiovisual expert. I received the transcripts, marked
3 Thus, he pointed out that Nutter had said in his October 15 speech that
he had already spoken for an hour and 10 minutes , even though the tape
as Respondent's Exhibits 11, 12, and 13, respectively, over
the General Counsel's objections, subject to checking them
against the tapes. At a recess during the hearing, represent-
atives of the parties and I listened to the tapes and checked
them against the transcripts. There were no differences
between the two, and I am satisfied that the typed
transcripts of Nutter's three speeches to the employees
accurately record what we heard on the tapes. I then also
accepted the tapes into evidence as Respondent's Exhibits
30 (the speeches of September 14 and 27) and 31 (the
October 15 speech). The General Counsel continued to
urge the possibility that part of what Nutter actually spoke
in one or more of the speeches might have been omitted or
deleted from the tapes, or that they might have been
tampered with in some way.3
The parties then agreed to make mutual arrangements to
have the tapes examined by two acoustics experts to be
selected by them, with the tapes to remain in my possession
until the examination could be arranged. On April 5, when
the two-man panel had been selected, I mailed the tapes to
it. On June 11, the report of the panel was submitted to me
and the parties, and I reopened the record to receive it. The
report is hereby designated Joint Exhibit 1, and will be
discussed later . I also granted the parties until July 1 to
submit comments on the panel's report. These have been
received and have been considered in reaching my
conclusions as to the authenticity of the tapes.
At the close of the hearing, with the transcripts of
Nutter's three speeches now in evidence, the General
Counsel moved to amend the complaint based on what
Nutter admitted he had said . This was done by adding a
new paragraph (f) to section 5, alleging that in one or more
of his talks, Nutter had told the employees that (1)
Respondent would refuse to bargain in good faith with a
Union, thereby implying that their organization efforts
would be futile; (2) he had threatened the employees for
engaging in union activities; (3) he promised benefits to
them if they refrained from engaging in union activities;
(4) he solicited employee grievances in order to discourage
union activities; and (5) he encouraged employees to report
on the union activities of other employees.
Paragraph 5(a) is thus based on the recollections of
Smith, Childers, and Moessinger as to what Nutter said to
the assembled employees, while paragraph 5(f) is based on
the transcriptions of the tapes (Resp. Exhs. 11, 12, and 13).
There is nothing in the transcribed speeches which would
even remotely show that Nutter had mentioned anything to
the employees that something might happen to them if they
signed union cards, or that he would find out who had
signed and sent in union cards. The basis for the
allegations of paragraph 5(a) collapses unless it can
otherwise be shown that Nutter made the remarks
attributed to him by Smith, Childers, and Moessinger in
another speech which was not taped or transcribed, or that
the three transcriptions we have are inaccurate or incom-
plete.
As to the first alternative, that Nutter spoke to the
employees in an unrecorded speech, it is true that Nutter
admitted speaking to them on occasions when his remarks
cassette has a nominal playing time of 60 minutes per side, and the entire
speech was recorded on only one side
ELANO CORPORATION
had not been taped . However, I am satisfied that the
General Counsel has not shown that the testinibny of
Smith , Childers , and Moessinger relates to anything other
than one of the transcribed speeches, most probably that of
September 27. Thus, Childers and Smith gave the date of
the speech as September 26, which is the date on which the
IAM organizers first appeared outside the plant, while
Moessinger , although uncertain as to the exact date , placed
it as the time when the Union was outside the plant. This
almost certainly would also be the 27th, since the
Carpenters, who were there on the September 13 and 18,
made no open distribution of campaign material to the
employees , but only left its literature on cars in the parking
lot. Further, it is extremely unlikely that Nutter spoke to
the employees on the 26th as well as on the 27th. It will be
recalled that the IAM organizers made their first appear-
ance at the plant , with no prior notice, between 3 and 3:15
on September 26, so that if Nutter had wanted to reach the
majority of the employees, whose shift ended at 3:30, he
would have had to call them together as soon as he became
aware of the union presence outside, yet none of the
General Counsel's witnesses recalled or remarked that the
speech had been given on such short notice. I find that
Childers and Smith were in error in their testimony that
Nutter spoke on September 26 (when his remarks, if taped,
were not transcribed) but that he spoke on the 27th, so that
the transcription of that speech accurately presents what he
said, unless something was omitted from the taped record
or the tape itself was altered . That brings me to the Report
of the technical consultants.
The consultants have impressive credentials , and their
report is a model of clarity, attention to detail and
completeness . The following quotation from their "Conclu-
sions" is persuasive and convinces me that the tapes
themselves were not altered in any manner:
In the full light of the events of interest noted in the
foregoing logs it appears that these cassettes are
straightforward recordings of the events that occurred
while the recorder was turned on. Both panel members
agree completely that there is no evidence of any
attempt to delete, edit, alter or obscure the material
originally recorded on these tapes whether by physical
editing, electronic erasure, or the introduction of
spurious signals to obscure original content.
These conclusions are based not only upon the rigorous
examination already described, but also upon consider-
ation of the proceedings recorded on the tape. At no
point is there any evidence of a break in the continuity
of events such as would likely be apparent if a portion
of the proceedings had been deleted. Except for the
interruptions specifically noted there are none of the
abrupt changes in the character of background noise or
anomalies in the texture of the recording that would
suggest a physical or electronic alteration.
Now it is perfectly true that, if sufficient sophisticated
techniques are used , magnetic tape recordings can be
a Respondent submitted with its supplemental brief on the report, a
motion to reopen record to take the testimony of a witness who had not
previously testified , to explain the circumstances of the two "pauses" in the
697
dramatically altered in ways that will defy detection by
even the most expert examiners. As a matter of fact,
given the intention of making such alterations, the
introduction of high level background noise is an
extremely useful device for masking other changes. But
again, there is nothing to suggest that such techniques
have been employed in this instance. And given the
general character of the proceeding it seems unlikely
that such sophisticated techniques would be called into
play to alter or obscure the contents of the tapes.
There were, however, according to the report, four points
during the three speeches when the recorder was apparent-
ly stopped and restarted, and it is possible that during these
periods of nonrecording Nutter could have said something
on which the testimony of Smith, Childers, and Moessinger
might possibly have been based. The most significant of
these interruptions occurred in the October 15 speech,
when after 14 minutes of recording, the machine was
apparently placed in the "pause" mode for some indetermi-
nate period. This occurred at the time when the recipients
of a bonus were named and called up to receive their $100
bills. The speech was then interrupted, probably while the
distribution was going on. At the end of his recorded
speech, which lasted about 61 minutes, Nutter stated that
he had been speaking for an hour and 10 minutes, and it is
this discrepancy which the General Counsel points to in
arguing that Nutter must have said something more, which
was not recorded. He also attacks Nolte's general credibili-
ty, since Nolte, who did the taping, testified that he had
never once stopped the machine?
I do not think much can be made of the interruption
after 14 minutes in the October 15 speech. I am satisfied
that the recorder was in fact placed in the "pause" mode
(which means that the electronics is in a state of
operational readiness, but with the motion of the tape
suspended) while the winners came up front, and that
Nutter would not and did not suddenly and in complete
indifference to what was then going on, launch into an
attack on the Union. There is, moreover, an even more
fatal flaw in the General Counsel's contention that Smith
and Childers have accurately reported matter spoken by
Nutter on October 15, which was not recorded. It is that
Smith and Childers could not have been present at that
speech, since both had been discharged on October 12. It is
true that Moessinger could have been present then, as she
was not discharged until the next day, but I am satisfied
that her recollections of what Nutter said are based on his
two recorded speeches in September.
There was another interruption in the October 15
recording, at the very close of the speech, when the
recorder was stopped as it seemed that Nutter had
concluded, and was then restarted when Nutter appeared
to want to say something more. Again, it lends no support
to the General Counsel's surmises, particularly since Smith
and Childers were not in attendance and could not know
what Nutter had said then.
In the tape of the September 14 speech, there were two
recording of the October 15 speech. I deny the motion since at this point in
time litigation must finally have an end, no matter how instructive further
inquiries would be
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the tape of the September 14 speech, there were two
quick successive interruptions of less than a second each,
occurring 20 seconds after the tape started. Although there
is no way of determining how long the recorder was
stopped in each instance or what transpired while it was
off, the comment of the consultants seems eminently
reasonable. The report offers this explanation: "Each
interruption is a small interval of silence in the background
noise . This could have resulted from starting the recorder
too soon, stopping it when it was realized that the meeting
was not yet ready to begin and then restarting when it
appeared that things were about to get underway."
Finally, to cap it all, the tape for the September 27
speech, which in my opinion is the one on which the
testimony of Smith, Childers, and Moessinger was based,
contains no stops or interruptions of any sort. I find that
Nutter said nothing more or differently on that occasion
than the transcript for the speech (Resp. Exh. 12) reveals
and to conclude, I find that there is no credible evidence to
support the allegation of paragraph 5(a). I shall recom-
mend that it be dismissed.
I turn now to paragraph 5(f) which was added at the
close of the hearing, and which is based solely on the
transcriptions of Nutter's three speeches. It alleges that
Nutter violated Section 8(a)(l) by implying that the
employees' organizational efforts would be futile since he
would not bargain with the Union in good faith; that he
both threatened the employees and promised them benefits
in order to interfere with their right to organize; and that
he solicited employee grievances and encouraged employ-
ees to report on the activities of other employees in order to
discourage their union activities.
Reference to union matters occupied only a portion of
the speeches, most of them being devoted to plant matters,
a contest to increase production, prizes in the contest,
politics, and personal reminiscences.5 To give the flavor of
his remarks on unions, I quote them in full from his first
speech, that on September 14, the day after the Carpenters
first began to distribute campaign literature. The following
quotation from that speech is also representative of his
remarks on September 27. After beginning, on September
14, by referring to the efforts to exceed past production
quotas, Nutter referred to the appearance of the Carpen-
ters the day before by saying:
Let's see what else I have. Oh yeah. Before I get into
all this. . . . How many of you have seen the union
card? You knew darn well that I had to say something.
I'm sorry it had to come up today. Our friends are out
there passing them out. If you haven't gotten one they'll
be sure to get you one if you want one. It says "Be
union, sign union, talk union, and think union." I want
to advertise for them. Let there be no doubt in your
mind what I think about them. I think they're a bunch
of S.B.s. You have a perfect right to do whatever you
want to do with them, except we are in a strange
position in this Company. We don't have any outside
stockholders. Unfortunately, or fortunately, I don't
know which for you guys, only one guy owns the
Company. And I don't like the bastards, and I have no
intentions of ever working with them. So it's your
choice on what you want to do. If it comes to this. I
don't know whether there's anything to it or not. But
just because I've gotten a little older . . . . for some of
you younger people, I haven't changed my mind a bit.
If I ain't scared of elephants, I ain't scared of unions.
But the main point is, this Company, the type of
business we're in, can't work under a situation of that
kind and our customers don't want us under a situation
of that kind, and they don't give business to people who
are under those situations because they can't afford to
have work stoppages and that sort of thing. So I just
want to let you know that I know all about it and you
have a perfect right to do what you want to do with it,
but you also must consider how I feel about it and what
my reactions might be. I have to be very careful what I
say so I don't intimidate anybody. Somebody asked me
what would happen if I talked to a union leader. I told
them in the first place I have no intentions of talking to
them, but if I did, either two things would happen, one
of two things, I'd die of apoplexy and heart failure,
cause I'd get so mad or I'd kill the son-of-a-bitch. One
of the two. Then I'd get tried for murder. So that's the
way I feel about it and you may quote me any place
you want to. I've been threatened before and that don't
bother me either. Those guys don't have near as much
nerve as elephants, I'll tell ya'. OK Want me to say
anymore about that? OK, if I say much more then I get
mad. I'll stick that one [union card] in my pocket.
Incidentally, I don't think I'll send it in.
In his October 15 speech, Nutter spoke about the
production contest which had just been successfully
completed, announced the bonus winners, and then spoke
about the Union for what I would estimate from the
number of transcript pages, to be 15 to 20 minutes. He
began by saying that he would not deny anyone there the
right to join a union or sign a card, but would deny them
the right to force it on someone else or on him. He said that
in his past talks he had mentioned the Union in a jesting
way, but he was sincere about how he felt. He then
adverted again, as he had in the other speeches, to the fact
that the Company had no other stockholders but him, that
he owned everything there, that he considered everyone
there as his family, and as long as it stayed that way he
enjoyed it and loved to run the Company; but if it wasn't
to be that way, he didn't and he wouldn't. He said it wasn't
easy for him to say, but he was the only person in the
Company with the power to give or to take away, so he
wanted them to know exactly how he felt. He would not be
licked at his own game, that union leaders are in a
business, which is to collect dues, and that they love
employees only because they can make a contribution to
their till. "Unions sell you out and unions sell their
members out same as they would sell me out . . . . They're
always fighting about it, they tear up things, they cause
great fears, they murder, and I won't have any part of that
kind of an organization or anybody connected with that
type of organization in my plant. Nobody says I have to
5 Nutter is a big-game hunter and references to his hunting experiences are used illustratively.
ELANO CORPORATION
and I have a choice. But you also have a choice - I want
to keep reminding you of that."
He then said that unions are also part of the manage-
ment tool in places like General Motors, where the
president can't go down and talk to their employees and
visit with them as he did, so that in big Plants unions are
used to manage their employees . He could make a good
deal for himself with the Union, but he wouldn't do that
because he would not sell out to anybody. Then, without
specifically attributing it to a union , he told about his
young son having received a telephone call at home a year
or so ago in which the unidentified caller had threatened to
kill him (Nutter) if he didn't stop this fight.
He asked what the Union could do for them in benefits,
said that he and the employees were a team or a family,
that they needed each other, and enumerated benefits
which the Company was then giving. He urged any
employees who were union organizers to insist on getting
paid for their work because the Union people who pass out
leaflets are well paid. "They know how to cuss you out, and
they know how to beat you over the head, and they know
how to do a few other things. Now if you've been suckered
into doing something and without getting a good compen-
sation on the side, this is your chance to draw Elano pay, at
least for awhile , as well as union pay, you can get paid
double."
Turning to the matter of union cards, Nutter said that
the rules about not seeing them had changed in the past
few years. "Now the favorite way a union has of getting in
the place is to get you to sign up some cards and when you
sign up the cards they like to come in our front door and
they'd like to find me if they could, which they can't, and
lay them on the table," thereby revealing the employees'
names.
Nutter next mentioned plant shutdowns as a result of
union problems and troubles , mentioning a specific plant
which he had bought in Pennsylvania after a union had
come in, and that he had moved the equipment to his own
plant, so that his employees now had the jobs that the
employees in the other plant had once had. He then
mentioned the names of other employers whom, he said,
the unions had run out of town.
The next topic was negotiations with a union:
Now, the union said to you, "Don't worry about
negotiating." I said I 'd never negotiate with the union, I
won't! Well the laws say the Company has to negotiate
with the union, fine, I can find plenty of people to
negotiate with the union and they can negotiate till hell
freezes over and they gotta ask me whether it's good or
bad and if I decide I don't like it, then what can
happen? Well, then you can strike and what's that
going to gain you?
If there was a strike and the plant shut down, Nutter said
he would put his negotiators back to work while he might
go to Africa and hunt, or he might open the plant and
replace the strikers.
6 John Wanamaker, Philadelphia, Inc, 199 NLRB 1266 (1972)
7 Similar sentiments were also expressed by Nutter in a letter sent to all
699
Finally, Nutter said many employees had asked him for
things, and if he could do it for them he would but he had
to divide up his dollars as he got them, "and you can't go
out and get somebody else to come in to beat me over the
head and get anything out of me - you'll never get
anything out of me, it just won't come." The Union was
asking them to choose up sides, and he urged them to do
so. The choice was not "love me and leave me"; it was
"love me OR leave me." He urged everyone who didn't like
the Company not to stay. He estimated that there were
about 1,600 persons (employees and their families) who
depended on the Company, and those employees who
choose the union side can go its way. "You know if you
can get into a battle you want to do something about it and
you are either on one side or the other, so we either get in
this thing or get out and that's exactly the way I feel about
it."
Certain allegations in paragraph 5(f) of the complaint
based on Nutter's speeches can be disposed of without
extended discussion. They are that Respondent (1) prom-
ised the employees benefits if they refrained from union
activity; (2) solicited employee grievances; and (3) encour-
aged employees to report to it on the union activities of
other employees.
(1) In his October 15 speech, Nutter named certain
benefits, such as college tuition payments, which the
Company was then giving. There is no expression or hint in
any of the three speeches that he was prepared to do more
if the employees rejected the Union.
(2) In the same speech, Nutter did point out that if
employees wanted something, they could ask for it directly
and did not need a union's intervention. I do not consider
this to be an invitation to employees to open new channels
of discussion or negotiation with management for adjust-
ment of grievances, but rather a reiteration of the
Company policy that its president was always available to
then t.6
(3) The only possible support for this allegation is from
the October 15 speech, in which Nutter told the employees
that they could write letters to the Union saying they didn't
want any part of it, or they could write him that they didn't
want the Union. There is no suggestion that those who
wrote him should reveal the names of fellow employees
who supported the Union.
I find, based on the above, that these allegations of
paragraph 5(f) have not been proved.
(4) The General Counsel contends that Nutter's remarks
in his October 15 speech that the secrecy of the union cards
could not be maintained are a violation of Section 8(a)(1).7
In these two communications, Nutter denied the Union's
assertion that the Company would never know who had
signed its cards. He said that if a union demands
recognition on the basis of signed cards, it will give the
employer a chance to examine them, while if it petitions
the Board for an election, "or there is NLRB litigation
involving the union and the company, it is possible that
your signed card will be made a matter of public record."
(G.C. Exh. 4.)
the employees about October 10
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I consider the proper test for deciding whether these
remarks are a violation of the Act , to be that set out in
Forenta, Inc., 165 NLRB 641, (1967), cited to me by the
Respondent. There, the Board reversed the finding of a
Trial Examiner that the employer's statement as to the lack
of secrecy of union authorization cards conveyed an
implicit threat that employees who signed such cards might
anticipate employment reprisals or discrimination. The
Board said that it would not find such a statement to be a
violation of Section 8(a)(1) unless there was language
suggesting reprisal or other accompanying unfair labor
practices from which an implied threat of reprisal might
fairly be inferred. Neither Nutter's speech nor letter
threatens employees with reprisal in their employment if
they signed cards, and although I have found that the
Company has committed other unfair labor practices in its
surveillance and intimations of surveillance , these are
violations of another type, and unrelated to the specific
charge here . I shall , therefore, with some doubts, recom-
mend dismissal of the allegation that Respondent violated
Section 8(a)(1) by stating that under some circumstances
the names of those who signed cards might be revealed.
(5) The General Counsel argues that Nutter's disparag-
ing and profane remarks about unions in his speeches are
in effect threats to the employees and therefore in violation
of Section 8(a)(1). Nutter did not attempt to conceal his
contempt and hatred for unions ; he accused them of being
capable of violence and even murder, of selling out
employees and having no interest in them beyond
collecting their dues, and he called them crooks and other
defamatory names . The Respondent admits that Nutter
defamed and cursed unions but argues that his remarks are
protected by Section 8(c) as free speech . I agree with
Respondent . I find that Nutter's expression of his opinion
of unions and their representatives and his exhortation to
employees to take a stand either for or against him are
privileged as free speech and legitimate argument .8
(6) Finally, it is the General Counsel's contention that
the effect of Nutter's speeches was to impress on the
employees the futility of attempting to exercise their
organizational rights under Section 7. Respondent, on the
other hand , argues that, at most , Nutter was saying that he
would not personally meet or participate in the negotia-
tions , but that since he would send authorized representa-
tives to deal with the Union , he was not engaging in an
anticipatory refusal to bargain . It further argues that
Nutter's acknowledgement that the employees had a
legitimate right to join and support the Union, disposes of
any further contentions that he was expressing the futility
of organizing.
A consistent theme in all three speeches is Nutter's
assertions that he is the Company - that there are no
stockholders but him , and that he is answerable to no one
in his conduct of the Company's affairs . In the first speech,
he said, "Unfortunately, or fortunately, I don't know which
for you guys, only one guy owns the Company. And I don't
like the bastards , and I have no intentions of ever working
with them ." In his second speech the same thought is
expressed as follows : "So . . . the only thing those guys
" Olney Motels, Inc, 176 NLRB 903, fn . 2 (1969); Amerace Corporation,
162 NLRB 338, 346 (1966); and S . & H. Grossinger's, Inc., 156 NLRB 233,
haven't figured on, is the fact they can't get a durned thing
for you that I don't give 'em. And if they can't get it out of
me nobody can, and I personally have no intentions of ever
talking to one of those fellows , like I said the last time, so,
I'll be pretty hard to get." And again, in his third speech:
"So, in that light [that he owns the Company ] and it's not
easy for me to say, and I don't hold myself up on a
pedestal by saying it, but I'm the only person in the
Company who has the power 'to give' or the power to `take
away,' or the 'authority,' . . . . So it is rather important to
me how I feel and you don't have to agree with me, but I
want you to know without a doubt, exactly how I feel."
Thus, there is continued emphasis on the fact that he will
make the ultimate decisions even though he selects others
to meet with the Union in the first instance, and that after
his "negotiators" negotiate "till hell freezes over" (Resp.
Exh. 13) and a strike has ensued , and the plant has been
shut down, he might decide to go hunting in Africa. This is
the very antithesis of an intention to meet with and discuss
the proposals of an authorized bargaining representative in
good faith, either personally or through negotiators with
full authority. Nutter was most bluntly conveying to the
employees the futility of selecting a bargaining representa-
tive, since he would neither meet with it nor delegate to his
"negotiators" the power to discuss its proposals with an eye
to reaching an agreement . I find Nutter's speeches , in this
regard , to be in violation of Section 8(a)(1).
C. The 8(a)(3) Allegations
George Smith and Helen Childers: Smith had worked in
the welding department since he was first hired in October
1968, while Childers' last job was also in the same
department. She had been employed by Respondent since
January 1969. Smith worked at the automatic welding
machines and also did simple setup and repair work on
them. Childers did spot and seam welding, cut parts in the
Erie department, replaced shop rags and gloves for other
employees , and did other miscellaneous jobs.
Respondent claims that their supervisor, Jim Siders,
discharged them at the end of their shift on Friday,
October 12, for repeated violations of company rules,
particularly for excessive talking and low productivity.
Respondent has a rule prohibiting employees from talking
during working time if it takes them away from their jobs,
interferes with production , or creates a morale problem.
Employees are permitted to talk to each other if they are
working side by side so long as their productivity is not
affected. The Company also has a rule against employees
eating anything during worktime or on breaks except in the
cafeteria. Smith had been warned about violating the no-
eating rule in March 1973, while Childers had received a
similar warning in June 1973.
In February 1973, Smith had been warned about
excessive talking during working hours , and both he and
Childers had been similarly observed in July and again on
October 11, the day before their discharge. Warnings had
been placed in their files about these offenses , and Smith
admitted he had been verbally warned three or four times,
242(1965).
ELANO CORPORATION 701
while Childers could recall only one such warning from her
supervisor. The written warnings placed in their files
attribute a loss of productivity to their excessive talking.
How much these violations may have contributed to
lower productivity is in dispute. In his latest semi-annual
evaluation of Smith's work, about a month before his
discharge, supervisor Siders marked the quality and
quantity of his work as "Good" but only marked him
"Fair" for "Co-operation," commenting that he was being
given only a token increase because of his continued
excessive talking. In the earlier evaluation, 6 months
before, Siders had also commented that Smith's quantity of
work was only fair, being affected by his excessive talking,
although "Quality" was marked Good. In September,
Childers had been marked as Fair on "Quantity" with the
comment that she would have had a larger wage increase if
her quantity had been low.
Despite this concern over their production, Childers had
been given a 10-cent-per-hour increase, and Smith 15
cents. Although Siders testified that these were only
nominal raises, I am satisfied that they were not substan-
tially below the amounts given to other employees for the
same period. Siders also testified that their replacements,
after they were discharged, had "shipped out" 15.2 percent
more parts than Smith and Childers in a comparable
period. I regard this exact figure as undoubtedly exaggerat-
ed, since the parts produced by Smith and Childers were
not "shipped out" but were simply components in an
integrated production process. In any event, it seems likely
that the production record of Smith and Childers left
something to be desired, and that their talking may have
contributed somewhat to their performance, which I gauge
to have been somewhat less than they could have attained.
Siders testified that the decision to terminate Smith and
Childers was reached on October 11 by himself, Grice and
Sisler, two of Respondent's vice presidents, after Sisler sent
Siders a memo that he had observed them talking away
from their work stations, also noting in the memo that
Siders should take necessary steps to keep equipment
operating at full capacity. Siders denied that he had any
knowledge that Smith and Childers had been engaging in
any union activity, and asserted that his only reason for
discharging them was their violation of the Company rules
against talking, and their low productivity.
It is true that the activities of Smith and Childers for the
Union were meant to be kept secret from management.
Both had accepted literature and cards from the Machin-
ists organizers on September 26, and had mailed their
cards in after taking them home. Childers said that she was
unaware that any supervisor had seen her accept a card
that day, although she thought that supervisors had been
standing at the plant entrance and might have seen her. If
it were in fact so, it cannot be proved. Other than that,
Childers said she had spoken to 40 or 50 employees at the
plant about the Union. I suspect her estimate is an
exaggeration but, in any event, there is no evidence that
any of the employees she spoke to informed on her. Thus,
as to Childers, there is no evidence that the Company knew
of her sympathy for the unions, except as it may have made
an educated guess that she and Smith had a common
purpose since they worked and talked together.
The evidence as to company knowledge of Smith's union
activities is sparse. It depends wholly on Smith's testimony
that one day in the cafeteria, after the Carpenters' short-
lived organizing campaign had begun, he was talking to
fellow employees on behalf of the union when Siders
approached. According to Smith, Harley Tolle, a fellow
employee seated at the next table, said to Siders, "Hey,
Jim, George is thinking of becoming a Carpenter." Siders
replied, still according to Smith, that that was all right, just
so he didn't box himself out. Tolle was not called as a
witness, either to confirm or deny Smith's report as to what
he had said, while Siders who testified at length as to his
reasons for firing Smith and Childers, was not asked what,
if anything, Tolle might have said to him about Smith
wanting to become a Carpenter.
Given President Nutter's confirmed antiunion bias, and
his opinion that there was no room in the Company for
both himself and a Union, it is very likely that manage-
ment was concerned to learn who the union adherents were
in the plant. Granted that the only evidence of Company
knowledge of Smith's interest in unionization is Sider's
hearing from Tolle that Smith was thinking of joining the
Carpenters Union, I am convinced, given the climate of
opinion at the plant, that Siders noted the remark and
passed it on to his superiors, and that it was the motivating
element in the decision to discharge Smith. Furthermore, it
must have seemed to the Company, and I so find, that with
Smith and Childers engaged together in "excessive talking"
that they must both be interested in the same matter, and
that it was better to get rid of Childers, even on suspicion,
than to risk her retention. I find that Respondent regarded
Smith and Childers as an expendable pair of employees
against whom it had a colorable basis for discharge, but
that in fact it did so because of its well-founded suspicion
that they were interested in seeing the plant become
unionized. Discharge of employees for such a reason is, of
course, discriminatory, and I find that Respondent violated
Section 8(a)(3) thereby.
Dorothy Moessinger: She had been hired in November
1972, and was discharged October 16, 1973. In the last few
months of her employment she was assigned to the weld
shop under foreman Siders, but when her boom welder was
not operating, she would work in the burr room under
assistant foreman Eldridge. In February 1973, she had
received a 20-cent-per-hour increase, and in September, a
few weeks before her discharge, she got a 10-cent raise.
Moessinger was I of the 7 employees who had signed an
authorization card for the Carpenters, and 1 of the 11 who
had signed a similar card for the Machinists.
Despite the company rule against talking, Moessinger
spoke to other employees during worktime, and they spoke
with her. Moessinger also went to the restroom and
engaged in general conversation with other female employ-
ees there. Presumably this was not against company rules,
although the Company now claims that she went more
often and stayed longer than others. If so, no warning slip
was placed in her file about it from November to the
following September.
On September 7, before the first appearance of the
Carpenters, Eldridge noted on her employee rating sheet
that she was causing morale problems by complaining
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about the Company to other workers. Thereafter, she was
warned and reprimanded a number of times by both her
supervisors for excessive talking, spending too much time
in the restroom, and interfering with other employees'
production.
Moessinger seemed to be a nervous and fearful woman
who took Nutter's remarks about the violence attendant on
union organizational efforts seriously. She seemed to be
particularly concerned about his letter to the employees of
October 10 (G.C. Exh. 4) in which he again referred to the
violence and property damage which employees and their
families might suffer during a strike. The following
Monday, October 15, Moessinger asked Siders if she could
talk to him about the violence that was being done by the
Company, and related to him an incident she had observed
on the day of the Machinists first handbilling, when a
company employee had pinned one of the organizers
against a guardrail with his pickup truck, and had then
spun his wheels while leaving, spraying gravel on the
organizer. She then told Siders that she had sent a letter to
her lawyer in case something happened to her or her
family. Siders asked her if she thought Nutter was capable
of violence. She said she did not know, but that he had
threatened to kill the union sons-of-bitches. Siders tried to
allay her fears but finally decided it was futile and told her
there was no need to discuss it further.
Later that day, employee Fields told Siders that
Moessinger was bothering him with her excessive talking.
Siders made a memo of Fields' complaint and sent it to the
personnel office. The next day, Fields again complained to
Siders that Moessinger was continuing to bother him by
talking about the Nutter letter, at which Siders, after first
consulting with Vice Presidents Sisler and Grice, decided
to terminate her.
There is no evidence that company officials knew that
Moessinger had signed cards for either or both of the
Unions which had instituted organizing campaigns, or that
she might have indicated her sympathies toward unioniza-
tion by talk with other employees. I have, however, found
that Supervisor Eldridge had asked her if she had signed a
union card and if she knew what happens to those who do.
It indicates at the very least that Eldridge had some reason
to suspect that she had signed a card, and was warning her
as to its possible consequences. Later, the company's
suspicions were confirmed that Moessinger was sympathet-
ic towards the Union by her rejection of Nutter's claims
that unions were prone to violence, and her fearful belief
that Nutter was serious about his threats against union
organizers . To Siders, Grice, and Sisler, Moessinger was
acting disloyally to the Company by equating union
violence with company violence. It is immaterial that
Moessinger 's expressed fears about what Nutter might do
seem irrational, since it was Nutter's own virulent remarks
which had prompted her fears. I find that Siders, Grice,
and Sisler were motivated in terminating her by their belief
that Moessinger had been swayed by the union propagan-
da and promises, and that she could no longer be trusted to
9 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
accept Nutter's counter propaganda. I therefore find that
Moessinger's discharge was a violation of Section 8(a)(3).
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. District Lodge 82 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. By discriminatorily discharging George Smith, Helen
Childers , and Dorothy Moessinger , the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
4. By keeping under observation the handbilling of its
employees by union organizers ; requiring its supervisors to
eat in the plant cafeteria in order to keep the union
activities of employees under surveillance or to inhibit
open discussion about unions ; coercively interrogating
employees about whether they had signed union authoriza-
tion cards ; and by emphasizing to its employees that it
would be futile to select a bargaining representative
because it would not bargain with it in good faith,
Respondent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed them in
Section 7 of the Act, and in violation of Section 8(a)(1) of
the Act.
The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has committed certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and take certain affirmative action
designed to effectuate the policies of the Act.
Having discriminatorily discharged George Smith, Helen
Childers and Dorothy Moessinger , I find it necessary to
order the Respondent to offer them reinstatement, with
backpay computed on a quarterly basis from the dates of
their terminations to the date of the offer of reinstatement,
as prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), plus interest at 6 percent per annum. I shall also
order it to post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDERS
Respondent, Elano Corporation, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in District Lodge 82 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO, or in any other labor organization of
its employees, by discriminatorily discharging, or in any
other manner discriminating against any employee in
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
ELANO CORPORATION
regard to hire , tenure, or any other term or condition of
employment.
(b) Keeping under observation the handbilling of its
employees by union organizers ; requiring its supervisors to
eat in the plant cafeteria in order to keep the union
activities of its employees under surveillance or to inhibit
open discussion about the Union; coercively interrogating
its employees about whether they had signed union
authorization cards; or emphasizing to its employees the
futility of selecting a bargaining representative because it
would not bargain with it in good faith.
(c) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization , to join or assist the above-named labor
organization , or any other labor organization, to bargain
collectively through representatives of their own choosing,
to engage in other concerted activities for the purpose of
mutual aid or protection as guaranteed in Section 7 of the
National Labor Relations Act, or to refrain from any or all
such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Offer George Smith, Helen Childers, and Dorothy
Wessinger immediate and full reinstatement to their
10 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
703
former jobs, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
earnings each may have suffered by reason of the
discrimination against them, in the manner set forth in
"The Remedy."
(b) Preserve and , upon request, make available to the
Board or its agents for examination and copying, all
records necessary to analyze the amount of backpay due,
and the right of reinstatement.
(c) Post at its plant and office at Xenia, Ohio, copies of
the attached notice marked "Appendix." 10 Copies of the
notice , on forms provided by the Regional Director for
Region 9 , after being duly signed by an authorized
representative of the Respondent, shall be posted immedi-
ately upon receipt thereof, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
ensure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 9, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."