Electric Motors and Specialties, Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1964

149 N.L.R.B. 131 (N.L.R.B. 1964)

ELECTRIC MOTORS AND SPECIALTIES, INC. 131
tor, in writing , that it will comply with the foregoing recommendations , the National
Labor Relation Board issue an order requiring the Respondent to take the action
aforesaid.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in Amalgamated Clothing Workers of
America, AFL-CIO, or any other labor organization , by discharging or refusing
to reinstate any of our employees , or in any manner discriminating in regard to
their hire or tenure of employment , or any term or condition of employment.
WE WILL NOT interrogate employees concerning their interest in, and inten-
tions with respect to , joining the above-named or any other labor organization,
in a manner constituting interference , restraint, or coercion violative of Sec-
tion 8 (a)(1) of the Act.
WE WILL NOT threaten discharge of employees who are identified with the
above-named Union, or any other labor organization.
WE WILL NOT promise economic benefits to employees for refraining from
union activities.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations , to join or assist the above-named or any other labor organization,
to bargain collectively through representatives of their own choosing , to engage
in concerted activities for the purpose of collective bargaining or other mutual
aid or protection , and to refrain from any and all such activities.
WE WILL offer to Steve Harden immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to seniority and
other rights and privileges , and make him whole for any loss of pay suffered as
a result of the discrimination against him.
All our employees are free to become , remain , or refrain from becoming or re-
maining, members of the above-named Union, or any other labor organization.
MANGEL STORES CORPORATION AND SHOPPER'S
FAIR OF COLUMBIANA, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana , Telephone No. Melrose 3-
8921 , if they have any question concerning this notice or compliance with its
provisions.
Electric Motors and Specialties , Inc. and International Union
of Electrical , Radio & Machine Workers, AFL-CIO, and its
Local 997. Cases Nos. 13-CA-5692 and 13-CA-5838. October 26,
1964
DECISION AND ORDER
On April 8, 1964, Trial Examiner Benjamin B. Lipton issued his
Decision in the above case, finding that the Respondent had engaged
in and was engaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
149 NLRB No. 16.
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He also found that Respondent had not engaged in other unfair labor
practices alleged in the complaint and recommended that those alle-
gations of the complaint be dismissed. Thereafter, the Respondent
filed exceptions to the Decision and a supporting brief and the Gen-
eral Counsel filed a reply brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner, except as modified herein.2
We find merit in the Respondent's exceptions to the Trial Ex-
aminer's finding that Respondent discriminatorily reduced employee
Hirschbiel's rate of pay from her premium pay on another job from
which she was transferred. In so finding, the Trial Examiner relied
particularly upon the Respondent's hostility toward Hirschbiel's un-
ion militancy and her vigorous presentation of grievances in her role
as the Union's chief steward, and concluded that the reasons ad-
vanced by the Respondent for the wage reduction were fallacious and
discredited.
From January 1951 to November 1962, Hirschbiel worked in the
machine shop. She received premium pay of $1.671/2 for her classi-
fication in wage group IV and was 1 of only 5 women of some 100 to
150 women in the plant who received this top pay. In November
1962 she was transferred to the punch press department into a classi-
fication in wage group VI for which the standard rate is $1.50 and
the premium rate is $1.57. At that time she was told that her rate
would remain at $1.671/2.
'The Respondent has excepted to the credibility findings made by the Trial Examiner.
It Is the Board ' s established policy, however , not to overrule a Trial Examiner 's resolu-
tions with respect to credibility unless, as is not the case here , the clear preponderance of
all the relevant evidence convinces us that the resolutions were incorrect . Standard Dry
Wall Prodacts , Inc., 91 NLRB 544, enfd 188 F 2d 352 (C.A. 3)
In the absence of exceptions by the General Counsel to the Trial Examiner 's findings
that Respondent did not violate the Act with respect to the issuance of a reprimand to
Grace Baker , we shall adopt such findings , pro forma, and shall dismiss that allegation
of the complaint.
2 Member Brown would not reach the merits of the case at this time The charges filed
by the complainants herein alleged discriminatory treatment by Respondent . But, the
complainants had previously filed grievances about the very same conduct under a
contractual grievance procedure available to them and then, without exhausting that
grievance procedure, filed these charges. For reasons stated by him in Thor Power Tool
Company, 148 NLRB 1379 , he agrees with Respondent that the "purposes of the Act
will be better served by leaving the parties to the remedies " of their grievance procedure
and would defer a decision on the merits of this case until the complainants process their
grievances through the grievance -arbitration procedures of the contract.
ELECTRIC MOTORS AND SPECIALTIES, INC. 133
A formal grievance on this transfer was processed through final
arbitration and the arbitrator held that the transfer of Hirschbiel in
November 1962 was not discriminatory.
Hirschbiel was unable to make the standard of production on this
job, and she was transferred to another job in another department on
June 24, 1963. At that time she was informed that, although her
rate of pay was over the standard rate for the job to which she was
assigned, her pay would be kept at the same rate subject to reconsid-
eration at a later date. After 1 month on this job, during which she
had not met the production standards, on August 22 Hirschbiel's rate
was reduced to $1.50, the standard rate for the classification in which
she had been working since November 1962.
It is clear that, as found by the Trial Examiner, Hirschbiel was a
very active and vigorous spokesman for the Union, and we have
affirmed the Trial Examiner's conclusion that the Respondent had
discriminated against her in violation of the Act by its written repri-
mand of September 11, 1962, which was prejudicial to her job se-
curity. These facts, at most, may raise suspicions that the Respond-
ent was unlawfully motivated, but suspicion will not support a find-
ing that the Act has been violated.
The initial transfer in November 1962 from a job in a higher wage
classification to one in a lower wage group has been held by an arbi-
trator, under the procedures provided for by the contract, not to have
been discriminatory, and it is not alleged in this proceeding to have
been so. The record, therefore, shows that Hirschbiel was lawfully
transferred to lower paying jobs, that for approximately 9 months
she was continued at a rate of pay higher than that allocated to the
jobs despite her inability to attain the standard of production, and
that finally the Respondent reduced her rate of pay to the rate of the
job she was performing. On these facts, we find that the General
Counsel has not sustained his burden of proving that the reduction
was discriminatorily motivated and shall dismiss this allegation of
the complaint.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts, as its
Order, the Order recommended by the Trial Examiner and orders
that the Respondent, Electric Motors and Specialties, Inc., its of-
3 In adopting the Trial Examiner 's finding that Respondent issued an Unwarranted
reprimand to Betty Gaff which under Respondent ' s rules might detrimentally affect her
employment status, we do not pass on or adopt his finding that even if Respondent had a
good -faith belief that Gaff violated a valid published rule of Respondent , it would still
have violated the Act. Inasmuch as we agree with the Trial Examiner 's finding that
Respondent had granted Gaff permission to leave the plant and therefore did not have a
good-faith belief that she had violated the rule , we deem it unnecessary to consider such
a hypothetical matter.
134 DECISIONS OR NATIONAL LABOR RELATIONS BOARD
ficers, agents, successors , and assigns , shall take the action set forth
in the Trial Examiner 's Recommended Order, with the following
modifications :
1. Delete in paragraph 1(a), on the fourth line thereof , the fol-
lowing : "by reducing their wages,".
2. Delete paragraph 2(a) in its entirety and renumber the remain-
ing paragraphs accordingly.
3. Delete from the first, substantive paragraph of the notice, on the
third line thereof, the following : "reducing their wages, or".
4. Delete paragraph 5 of the notice.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
A hearing was held before Trial Examiner Benjamin B . Lipton on December 3,
1963,' in Garrett, Indiana, involving allegations by the General Counsel that Re-
spondent violated Section 8(a)(1), (3 ), and (4 ) of the Act.' All parties partici-
pated in the hearing , waived opportunity to argue orally on the record, and filed
briefs with me which have been duly considered.
Upon the entire record in the cases , and from my observation of the witnesses,
including their demeanor on the stand , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is engaged in the manufacture of electric motors and specialties in
Garrett , Indiana. During the year preceding issuance of the complaint , Respondent
sold and shipped directly in interstate commerce materials valued in excess of $50,-
000. Respondent admits, and I find , that it is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party, International Union of Electrical , Radio & Machine Work
ers, AFL-CIO, and its Local 997 , herein jointly called the Union , is a labor organi-
zation within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Issues; contentions; prefatory findings
In substance , three instances of unlawful discrimination are alleged : ( 1) the issu-
ance of a written reprimand to Betty Gaff because she left the plant during working
hours to attend and give testimony , under subpena, at a prior Board unfair labor
practice hearing, "and/or" because of her union activities ; (2) the issuance of a
written reprimand to Grace Baker because she assisted in locating Gaff during
working hours at the plant when Gaff was being summoned to testify , "and/or"
because of Respondent 's "belief" that Baker was engaged in union activities; and
(3) the reduction of the pay rate of Virginia Hirschbiel because she gave testimony
at the prior Board hearing , "and/or" because of her union activities . In addition,
a written warning to Hirschbiel because she engaged in union "and/or" protected
concerted activity is alleged independently as an act of restraint and coercion.
' All dates are in 1963 , unless otherwise indicated.
2 In Case No 13-CA-5692 , the charge was filed on June 18 and served on June 21; in
Case No. 13-CA-5838 , the charge was filed on August 26 and served on August 29. The
consolidated complaint herein was issued by the General Counsel on October 22. Re-
spondent's objection , In its answer, to the consolidation of the cases is denied as without
merit.
ELECTRIC MOTORS AND SPECIALTIES, INC. 135
The significance of a formal reprimand or warning is reflected in the schedule of
plant "regulations" posted by Respondent. The following excerpts illustrate the
degrees of discipline provided for specific offenses:
Regulations 1st offense 2d offense 3d offense
2. Insubordination. --- - - - - - - - - - - - - - - - - - - - - - - - - - -
• • r
10 Fighting on premises--------------------------
Discharge
1 week off to discharge.
11. Use of abusive, threatening, or profane lan-
guage to superior.
12 Leaving plant during working hours without
permission.
13 Leaving place of work during working hours
3 days off-----------------
Reprimand---------------
Reprimand---------------
Discharge
Discharge.
Reprimand- ischarge
except for reasonable time spent in going to
restrooms and clunking facilities
14. Loitering ni,estrooni or in plant during work- Reprimand --------------- 3 days off--- Discharge.
ing hours
♦
19. Rest period regulation violations-------------- Reprimand --------------- Warning---- Discharge.
• • r
22. Habitual tardiness-reporting late for wort:---
r ♦
Warning------------------ Reprimand- Discharge.
• ♦ r
24 Individual who is unable to meet production
standards and quotas.
r •
Warning------------------
Discharge
As reflected in its pleading and in its brief, Respondent denies that it committed
any unlawful conduct and affirmatively defends, as follows: Gaff and Baker were
reprimanded for violation of specific plant rules, numbered 12 and 13, respectively,
supra. Hirschbiel was given a written warning for cause (i.e., allegedly for loud
talking and disrespect to a supervisor while discussing a grievance as the Union's
chief steward). Her wages were reduced to the proper pay rate on the job to which
she had been transferred, and the transfer itself is not alleged by the General Coun-
sel as a discrimination. All these matters, involved in the present case, were formally
presented as grievances and finally disposed of as provided in the grievance-arbitra-
tion procedure of the existing contract with the Union. Respondent further asserts
that the Union filed these charges with the Board deliberately to harass Respondent,
to avoid trial of these matters before "the impartial tribunal selected by the par-
ties" under the contract, and "to avoid an election to determine the wishes of" Re-
spondent's employees as to the identity of their bargaining representative under the
Act.'
The Union (certitfied by the Board on October 31, 1961) executed with Respond-
ent on March 9, 1962, a collective-bargaining contract which expired on Febru-
uary 26, 1963, but which the parties thereafter continued in force on a day-to-day
3 The parties requested that notice be taken of a Trial Examiner's Decision involving
Respondent (issued August 23, 1963, in Case No 13-CA-5368 [149 NLRB No. 1251) follow-
ing an unfair labor practice hearing held May 15 through 17, 1963. That case involves
in part alleged violations of Section 8(a) (1) in connection with warnings and reprimands
to employees, including Hirschbiel and Gaff. (The Trial Examiner's Decision states that
five of these disciplinary actions were made the subject of grievances and processed pur-
suant to the contract procedure.) Also involved in the prior case are allegations of inter-
rogation, surveillance, threats, and company sponsorship of a decertification petition , dis-
criminatory discharge of two employees ; and a refusal to bargain by Respondent. The
Trial Examiner found violations only as to the company sponsorship of the decertifica-
tion petition and the refusal to bargain, and recommended dismissal of all other allega-
tions. Exceptions were filed by all parties and the case is presently pending before the
Board (The formal (and public) files of the Board reveal that a decertification petition
in Case No. 13-RD-533 was filed on December 16, 1962, and dismissed by the Regional
Director on March 15, 1963, on the ground of inappropriate unit ; and on October 14, 1963,
a certification petition was filed in Case No. 13-RC-9728 by the International Union ) I
am, of course, not bound by the findings of the Trial Examiner in the earlier case, and
take notice only of formal and undisputed facts in that proceeding and matters of public
record as are relevant to the issues herein.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
basis. The contract in substance provides, inter alia , that the Company shall not
discriminate against any employee because of his union membership or activity
(article II) or for any reason (article III , section 3 ), and that employees shall
comply with the posted rules ( article III, section 2.) The pertinent portions of the
detailed grievance procedure under article IV may be summarized, viz:
Section 1 . "Should any grievance arise between the Company and any employee
in the bargaining unit , in regard to the meaning or application of the provisions of
this agreement , there shall be no lockout , strike , . or other interference with
operations . . .; but such grievance shall be settled in accordance with the
following procedure...."
Under step 1 , the employee presents his grievance to his immediate supervisor for
adjustment . Under step 2, the grievance is reduced to writing by the employee and
referred to the local union president or vice president who presents the grievance to
the plant superintendent or assistant superintendent for decision . Under step 3,
the grievance is referred to an International representative of the union who pre-
sents it for decision at a meeting with management representatives . Under step 4,
if the grievance "is not settled during the first three ( 3) steps," then the matter in
dispute "shall, at the request of any interested party ," be submitted to final and
binding arbitration , as described in detail.
Specific time limitations , varying from 2 to 10 days , are provided between each
step of the procedure from the occurrence of the grievance to the appointment of
an impartial arbitrator . Section 2 provides that-"Any claim , difference or dispute
not presented or prosecuted within the time allowed at any step shall be deemed
abandoned and shall not thereafter be the basis of any claim , or grievance. Any
grievance not appealed from the decision made by the company representative at
any one step of the foregoing grievance procedure to the following step within the
time provided shall be deemed to have been abandoned and to have been conclu-
sively settled upon the basis of the last decision of the company representative. If
the Company does not answer a written grievance within the time provided the
grievance shall be treated as allowed ." Section 3 provides that-"... no claim or
grievance of any party under this contract , including all employees in the bargain-
ing unit , shall be recognized or given any consideration unless it is presented and
prosecuted in accordance with the grievance procedure provided in this Article."
Section 4 provides that-"All settlements of grievances shall be reduced to writing
and shall be signed by a representative of each party ." Section 7 provides that-
"No employee shall pursue any remedy at law against the Company or the Union
under any provision of this contract , until as a condition precedent to such action,
he shall have first exhausted his remedies under the grievance procedure hereinabove
provided."
Pursuant to the contract , grievances (on the Union 's "Grievance Form") were
filed by Gaff, Baker , and Hirschbiel concerning the reprimands , warning and wage
reduction , the same as are in issue herein . The Gaff and Baker grievances pro-
gressed to step 3 , under which an inconclusive meeting was held between manage-
ment and union representatives . As to both Hirschbiel grievances , documents in
evidence reflect actions taken under step 2 . It is clear that all four grievances were
denied by Respondent , that no actual solution or settlement (pursuant to article IV,
section 4) was effected , and that no party submitted a request for arbitration under
provisions in step 4.
Board and court decisions , particularly those of more recent vintage,' have placed
increasing emphasis upon congressional policy indicating the desirability 5 of resolv-
ing grievance disputes through media devised by the parties themselves in the col-
lective-bargaining process, such as in the form of contract grievance procedures
leading to binding arbitration . This policy, however , was nowhere held to detract
from the exclusive authority given the Board to adjudicate unfair labor practice
charges, as expressed in Section 10(a) of the Act' In those cases in which the
Board has declined to proceed and has instead deferred to the grievance -arbitration
A E g., Steelworkers V. Warrier f Gulf Co , 363 U . S. 574 ; Carey v. Westinghouse Electric
Corp ., 375 U . S. 261 ; Smith v. Evening News, 371 U.S. 195; and Board cases cited , infra.
51n Title II of the Act ( the Board 's authority is embraced in Title I ), Section 203(d)
provides that "Final adjustment by a method agreed upon by the parties is hereby de-
clared to be the desirable method for settlement of grievance disputes arising over the
application or interpretation of an existing collective -bargaining agreement "
0 In Section 10(a) it is provided that the Board ' s power to prevent unfair labor prac-
tices "shall not be affected by any other means of adjustment or prevention that has been
or may be established by agreement , law or otherwise."
ELECTRIC MOTORS AND SPECIALTIES, INC. 137
machinery of a contract , it has done so on the basis of its "considerable discretion"
to give effect to broad congressional objectives and to fundamental purposes of the
National Labor Relations Act.
Such Board decisions appear to fall generally into three groups: (1) Refusal-to-
bargain issues: For example, where a party sought to avoid the grievance provisions
in a contract and filed charges to have the Board intervene in the matter, the party
was held to have violated its statutory bargaining obligation and required to pro-
ceed under the contract.' And where a party insisted that the dispute be settled
within the framework of the contract's grievance machinery, which specifically
covered the subject and had been properly invoked, the Board dismissed the refusal-
to-bargain allegation against such party, and required that "full play" be given to
the procedures of the contract.' (2) Honoring an arbitration award, to which the
parties were bound, rendered on the same subject matter as that before the Board,
where the arbitration procedures were fair and regular and the result was not clearly
repugnant to the policies of the Act.' (3) Withholding Board decision to permit
exhaustion of grievance-arbitration procedures in a contract."
Respondent's position " is that the four grievances involved were "finally dis-
posed of," i.e., "conclusively settled" by default of the employees in failing to press
their cases further within the grievance machinery. There is thus no situation here
for deferring decision on the merits to permit "full play" or exhaustion of the
contract procedures. The actual question presented, therefore, is whether the
asserted "settlement" of the grievances on the basis of an imputed abandonment
by the grievants, or the operation of a contractual waiver, may be honored under
Board doctrine." It would appear not. As shown, the Board's discretionary ac-
ceptance of an arbitration award in certain cases was dependent upon the ex-
istence of procedural regularity and fairness in the arbitration proceeding. Thus
implicit is a precondition that the matter had been litigated before the arbitrator
and impartially resolved. Here, there was no arbitration nor anything equiva-
lent. In effect, no more was involved than a direct approach by the com-
plainants to the Respondent in an effort to have the disciplines rescinded and a
refusal by the Respondent to do so. In an analogous case," because it was "hardly
a substitute for an arbitration proceeding," the Board 14 refused to accord deference
to a negotiated settlement between the employer and the union at step 2 of the
contract grievance procedure, reducing a disciplinary discharge to a 30-day layoff,
but which was unacceptable to the employee." My conclusion here, consistent with
existing precedents , is that Respondent 's contention must be rejected.
B. Gaff and Baker
On May 17, at 3:30 p.m., toward the close of the hearing in the prior unfair labor
practice case, supra, the General Counsel's attorney requested Dorothy Carter, field
representative for the International Union, to pick up Betty Gaff at Respondent's
7 Purex Corporation, Limited, 123 NLRB 1507.
8 E g., Montgomery War d R Co, Incorporated, 137 NLRB 418; Hercules Motor Corpora-
tion, 136 NLRB 1648; McDonnell Aircraft Corporation, 109 NLRB 930, 935; Consoli-
dated Aircraft Corporation, 47 NLRB 694, 704 (concerning the Section 8(a) (5) issue).
9 E.g., Spielberg Manufacturing Company, 112 NLRB 1080 (the lead case) ;International
Harvester Company, 138 NLRB 923, enfd. sub nom . Thomas D. Ramsey v N.L.R B., 327
F. 2d 784 (C.A. 7) ; Raleys, Ino. d/b/a Raley's Supermarkets, 143 NLRB 256 (applied
in Board representation cases). And see The Youngstown Cartage Company, 146 NLRB
305, footnote 4
10 E.g , Dube Manufacturing Corporation, 142 NLRB 431; Pacific Tile and Porcelain
Company, 137 NLRB 1358, 1365 (involving a representation case issue) ; Consolidated
Aircraft Corporation, 47 NLRB 694, 704 (dismissal without prejudice of the Section
8(a) (3) issue).
"It does not appear that the same contention was advanced by Respondent or ruled
upon by the Trial Examiner in the prior proceeding, supra, as to the issues there of the
reprimands and warnings to employees which were also the subject of grievances under
the contract.
111 do not find a clear and unequivocal waiver in the contract of the right to file charges
with the Board. It is unnecessary to pass upon whether such an express waiver, if made,
would be binding upon all parties.
13 Pontiac Motors Division, General Motors Corporation, 132 NLRB 413.
14 Member Leedom dissenting.
15 See also Greenwood Farms, Inc., 140 NLRB 649, footnote 1.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
plant for testimony to be given on rebuttal . Carter drove a few blocks to the plant
and went in through the employees ' entrance at Hamsher Street ." No one ap-
peared to be in the offices near the entrance and, from the threshold , Carter called
out and beckoned to an employee, Grace Baker, at work about 12 feet away.
(Baker, who was not a union member, did not know Carter or Gaff , nor did they
know her. ) Baker walked over. Carter said that she wanted to speak to someone
in charge . Baker took Carter a few steps to the office of Jon Buckles , a tool de-
signer, explaining to him that "this lady" wanted someone with authority . Carter
told Buckles she came to get Betty Gaff and had a car waiting . Baker , as she testi-
fied, thought there was a personal emergency , and immediately undertook herself 17
to seek out Betty Gaff." Proceeding through several departments in the plant and
making inquiries along the way, Baker found Gaff, and told her-"There is a lady
in the office that has a car waiting for you." Baker then returned to her work
station, having been gone about 3 to 5 minutes . Gaff, on receiving the information,
took her coat and promptly came to where Carter was waiting.
In the meantime , Buckles had gone through the plant looking for one of the
executives and returned to tell Carter that he could not find anyone just then."
Shortly thereafter , Plant Superintendent Noel Muhn returned to his office located
near the entrance where Carter was standing . Carter approached him and related
that she had come to take Gaff to the hearing. At the moment he could observe
Gaff walking toward the door holding her coat . Carter testified that after stating
her purpose to Muhn , she asked , "Do I have your permission "; and Muhn replied,
"Well, I suppose so, if you need her, take her." Gaff testified that as she came by
she saw Carter and Muhn at his office door, that when Carter came over to her
she asked if it was all right for her to go, and that Carter said, "Yes, I have per-
mission ." i" They then left the plant "l Gaff was brought to the hearing , learned
that she was no longer needed , and was returned to the plant . She had been away
from her work about 45 minutes Later in the day , she approached Muhn and
told him she had forgotten to check out. Muhn said that it was all right and that
her supervisor had taken care of her timecard . Also that day, Muhn questioned
Baker whether Carter had come over to talk to her . Baker indicated that her at-
tention had been called by "that lady" and that she had walked over to Carter.
Bearing the date of May 21, Carter received from William J. Morrill (called
"Jerry"), an official of Respondent , and son of the company president , a letter
which stated in part:
Mrs. Carter : On Friday May 17, 1963 , Mrs. Carter while assisting in the
Union's presentation at a NLRB hearing ... left the building in a great hurry
at approximately 4 P.M. It should be noted in exiting the building that she
passed most of the members of management who were attending the hearing.
A few moments later she presented herself at the employees ' entrance of the
plant. From this entry way she summoned an employee from the floor
who escorted Mrs. Carter to the entrance of Mr. Jon Buckles ' office who is a
tool designer in our employment . Mr. Buckles left his office to contact our
Personnel Office and returned to tell Mrs. Carter that he didn 't know the lo-
10 Carter testified this was the only entrance she knew (although the main entrance to
the plant was on King Street) ; that she had entered the same way that morning to call
for another witness; that upon entering then she had seen Personnel Manager Chester
Ludwig in a nearby office, related her mission, and asked him if she was in the right
place ; and that Ludwig had said it was all right, left, and returned with the witness
she sought
17 Without stopping to consult her supervisor who was available in her department.
1" Carter testified that upon first speaking to Baker, she indicated that she had been sent
by the Board to pick up Betty Gaff and take her back to the hearing. While this appears
to conflict with Baker's testimony, it is not of material import. I credit Carter and also
believe that Baker was confused and honestly gave the impression she received.
19 Many of the plant officials were at the Board hearing.
=0 Malin testified that in talking to Carter he merely remark, "Oh," and that he as-
sumed Gaff had received permission from her immediate supervisor to leave the plant It
is fully corroborated that from the outset Carter was seeking permission from someone in
authority to secure Gaff for the Board hearing. It is also shown that Gaff herself in-
quired and was told by Carter that permission was obtained. In all the circumstances,
I find Carter's version the more plausible, and credit her as against Muhn.
21 Buckles testified, inaccurately, that Carter and Gaff had left the plant before Muhn
had returned to his office.
ELECTRIC MOTORS AND SPECIALTIES, INC. 139
cation of the management personnel. . . . [H]owever, at this time Betty Gaff
escorted by the aforementioned employee appeared at the door and Mrs. Carter
left immediately with Betty.
It should be noted that henceforth we wish International Representatives
who have business in our plant to make their entry to our plant from the King
Street entrance and to present their request to the secretary in the Personnel
Office who will contact the proper authority to approve or disapprove the
Union Representative's request.
We feel that the Union's individual Representative had some cause to be
agitated, however, even common courtesy would be expected to allow sufficient
time for Mr. Buckles to secure the highest authority in the plant, Mr. Muhn.
Untortunately as a result of this incident, management is forced to repri-
mand Grace Baker and Betty Gaff under the posted plant regulations 13 and
12 respectively.
Gaff, on May 21, received a formal notice of reprimand, which stated: "Viola-
tion of Company Regulation No. 12 leaving plant during working hours without
peimission on Friday, May 17, 1963." Thereafter, she filed a written grievance,
to which Superintendent Muhn sent the following reply:
TO: Betty Gaff
SUBJECT: Grievance of Reprimand
You failed to check out with your supervisor Mr. Joe Severin, and also
neglected to punch your timecard out before leaving the plant. Leaving the
plant during working hours without permission is in violation of Company
regulation No. 12 and wariants as first offense, a reprimand.
The writer did not grant permission to Betty Gaff for purpose of leaving the
plant. Relief denied.
On May 16, before leaving the plant to testify, Gaff showed her subpena from the
Board to her supervisor, Cramer, who made no comment, and she left.22 On May 17,
when notified by Baker, she left her department without attempting to speak to
her immediate supervisor. However, as I find, it was perfectly reasonable for Gaff
to assume that she was permitted to leave. A company employee, Baker, whom
she did not know, had come to summon her. Muhn later saw her and knew she
was going to testify. She inquired and was told by Carter that she had permis-
sion , presumably of Muhn with whom she had seen Carter talking. And she had
specifically obtained approval to respond to the subpena from her foreman the day
before. While Respondent's reply to her grievance states that she failed to check
out with her supervisor, Joe Severin, it may be noted that there was apparently no
supervisor present in the department at the time." Also mentioned in the grievance
reply was Gaff's "neglect to punch her timecard out," although Muhn had told her
the same day that it was "all right."
Gaff has 10 years' service with Respondent. Her job security would obviously
be affected by the reprimand. It is evident, under any view of the facts, that Re-
spondent was applying its plant rule to Gaff in a highly technical manner and with-
out regard to ordinary fairness from the employee's standpoint. However, as I
have found, Gaff did have permission to leave from "the highest authority in the
plant," Muhn, so that the reason given for the reprimand, in company regulation
12, was unwarranted.
Gaff was an officer in the Local Union. She was directly involved in the com-
plaint and had testified against Respondent the day before her alleged misconduct
on May 17. As revealed in its May 21 letter to Carter and similarly reflected in
its brief, Respondent was resentful of the manner in which this union agent entered
the plant and undertook to secure Gaff for the Board hearing. It stated that "as
a result of this incident, management is forced to reprimand Grace Baker and Betty
Gaff under posted plant regulation 13 and 12 respectively." The criticism of Car-
ter that she did not allow sufficient time "to secure the highest authority in the
plant , Mr. Muhn" is without foundation and plainly contrary to the evidence. But
even under Respondent's version of the facts, there is no reasonable ground to
attribute to Gaff any degree of responsibility for Carter's conduct.
21Prior to that hearing, she had been permitted, upon request, to take time off to dis-
cuss her testimony with the General Counsel's attorney.
23 Crnmer was not there, and her other supervisor, Severin, was out of the department
and was told when lie returned that Gaff had already left.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In responding to the subpena and the General Counsel's request to appear and
testify at the Board hearing in the afternoon on May 17, Gaff was unquestionably
engaging in an activity within the protection of Section 7 of the Act" Yet it can-
not be said that she had an absolute right to leave the plant at will for such pur-
pose during working hours. The problem, as recently stated by the Board," is one
of "accommodating the rights of employees in exercising rights guaranteed in the
Act . . . with rights of an employer to regulate his production requirements and
maintain discipline over his employees.". Here there is no contention or evidence
that Gaff's presence in the plant was then required for production or other reasons.
And the fact that Gaff did have Respondent's permission to leave also eliminated
any question of a disciplinary ground. In the circumstances, it is clear that Gaff's
right to attend the Board's hearing must prevail and be accorded the statutory pro-
tection" However, even assuming, for argument's sake, that Respondent had a
good-faith but mistaken belief that Gaff had left the plant without permission and
had infringed the plant rule, the result would be the same. Such a good-faith be-
lief would not be an adequate defense where, as here, it affirmatively appears that
Gaff's asserted infraction of the plant rule did not in fact occur. Consequently, the
effect of the reprimand was to penalize Gaff for engaging in a protected activity.
Respondent thereby violated Section 8(a)(1) of the Act.'
However, I cannot find that, in reprimanding Gaff, Respondent had such a good-
faith belief or that it was legitimately concerned with the alleged breach of a plant
rule. On all the evidence, the inference is reasonable that the reprimand would
not have been issued but for Gaff's direct participation and testimony in the Board
proceeding against Respondent, her leadership in the Union,28 and her involvement
with Union Representative Carter, of whose actions on May 17 Respondent was
sharply critical. Accordingly, I conclude that Respondent also violated Section 8
(a)(3) and (4) of the Act"
Baker received a formal reprimand on May 27,30 as follows: "Violation of Com-
pany regulation No. 13 leaving place of work during working hours 91 on Friday,
May 17, 1963, to summon Betty Gaff from the Punch Press Department." She
testified she was "very upset" about it, and spoke to Buckles, the tool designer, with
whom she was personally acquainted. Buckles said, "Oh, if I were you I would
just forget it. If it had been anybody besides the Union, they would never have
said a word about it."
She declined to accept a union steward's offer "to take care of the reprimand,"
stating that she wished to talk first to Superintendent Muhn. She approached
Muhn, told him she had turned down the Union's offer, and explained that she had
had no knowledge of the plant rule and had acted as she did because she thought
there was an emergency. Muhn said he would see what he could do, and would
talk to Jerry Morrill. Muhn later told Baker that it was "too late to do anything
about it," that "the Union's lawyer had already contacted our lawyer," and that if
he, Muhn, "said anything now it would make him look this tall" (gesturing the
size of about a half inch).
Thereafter, the Union filed a grievance for Baker, which Respondent rejected with
the following reply:
TO: Grace Baker
SUBJECT: Grievance No. 96-Reprimand for Violation of Company Regula-
tion No. 13
Infraction of Company regulation No. 13 for reason of escorting Mrs. Carter
to someone of Management might have been considered excusable. However,
the second infraction of the same regulation by calling from -the floor at a
24 Eugene Pederson (Modern Linen & Laundry Service, Inc.) v. N.L R B., 234 F. 2d 417
(C.A 2) ; English Mica Company, 92 NLRB 766, enfd 195 F 2d 986 ( C.A 4) ; Chautauqua
Hardware Corporation, 103 NLRB 723, enfd. 208 F . 2d 750 ( C A. 2) ; Pearson Corpora-
tion, X138 NLRB 910, 918.
25 Standard Packaging Corporation , Royal Lace Paper Division, 140 NLRB 628, 629.
20 E g., Duralite Co., Inc., 128 NLRB 648
n Id.; Burnup and Sims , Inc., 137 NLRB 766, 772.
28 It appears that the relations then .between Respondent and the Union were in a state
of contention , as shown by the existence of the prior proceeding and the nature of the
issues therein , and by Respondent ' s assertions in its answer to the present complaint.
29 See, a g., Pacemaker Corporation, 120 NLRB 987, enfd 260 F. 2d 880 (C.A. 7).
30 From May 17 to 27 she had been away on a planned vacation in Florida.
32 As quoted supra, the regulation continues by stating-"except for reasonable time
spent in going to restroom and drinking facilities."
ELECTRIC MOTORS AND SPECIALTIES, INC. 141
great distance from your own work station an employee of Electric Motors and
Specialties Inc., without approval to do so from someone in Management is
not excusable.
Relief denied.
The testimony adduced by the General Counsel that employees frequently left
their work stations for up to 15 minutes to go the restroom to smoke falls short of
establishing that Respondent condoned breaches of the plant rule or applied it
disparately.
Baker was not a member or adherent of the Union, and General Counsel's con-
tention that Respondent "believed" she engaged in union activities is devoid of any
support. She was in no way directly involved with the Board proceeding. By her
account, she was unaware that Gaff was being called to testify at the Board hear-
ing, or that she was assisting in this purpose when she undertook to find Gaff for
Carter. While she undoubtedly felt justified that, because of the personal emer-
gency she imagined, she was performing a kind and considerate act, her unusual
errand through various departments across the plant was in fact unauthorized and
contrary to a plant rule. Buckles was not shown to be a supervisor or manage-
ment agent in this connection. His remark to Baker to the effect that she would
not have been reprimanded but for the fact that the Union, i.e., Carter, was in-
volved, can be taken as no more than an expression of his own opinion and not
attributable to Respondent. Nor was Baker's unknowing involvement with a union
agent, Carter, sufficient to establish an unlawful motive by Respondent. In sum, I
find the evidence fails to sustain the General Counsel on this issue, and shall dismiss
the complaint as to Baker.
C. The warning to Hirschbiel
Hirschbiel had held the elected office of chief steward in the plant since the com-
mencement of contract relations with the Union in March 1962. During this
period, she personally processed about half of the 100 grievances filed under the
contract. About September 3, she approached the foreman of her department,
Gene Berghorn, concerning a possible contract violation by Respondent, allegedly
in assigning certain work to a new, probationary employee instead of recalling
regular employees on layoff status. On Berghorn's apparent explanation that the
assignment was experimental and would not continue, Hirschbiel decided not to file
a grievance. On September 10 it appeared that the probationer was still being used
in the same work. Hirschbiel again broached the subject with Berghorn on the
plant floor. She gave the following credible account of the discussion in sub-
stance: Berghorn became angry and ordered her to leave the floor. She replied that
she was "trying to take the first step grievance with him" and asked if he was "go-
ing along." He directed her to the front office, where both proceeded and the
conversation continued. Superintendent Muhn and Foreman Cramer were then oc-
cupied in the front office listening to an interplant radio; at one point they told
Hirschbiel not to talk so loudly. In the office, among other things, Berghorn chal-
lenged her, "Are you the Union?" He also remarked that-"Everything went along
out here all right until you started throwing your weight around." Finally, Berg-
horn agreed to look into the matter and let her know. Later in the day he in-
formed her, after quoting from the contract, that the complaint was rejected. The
same day, September 10, Hirschbiel filed for the Union a written grievance (step
2), indicating that Foreman Berghorn had denied the oral complaint. She had
not raised her voice on the plant floor; and in the front office she was only trying
to talk above the noise of the radio. The former conversation lasted 3 minutes,
and the latter 3 to 5 minutes.
Berghorn's version was not materially in conflict with that of Hirschbiel. Essen-
tially, he indicated that they were both "a little belligerent," "getting riled" and
talking loudly, that on the plant floor about six employees were within hearing
range, 10 to 15 feet 3' and that he ordered her off the floor because "it was embar-
rassing to him to have someone tell him how to run [his] line," especially a sub-
ordinate employee.
Jerry Morrill became acquainted with the incident "within several hours after it
occurred" when he heard Muhn, Cramer, and Lester Prifogle talking about it "in
a humorous vein ." Morrill then decided to investigate "to find out what hap-
32 None of these employees was called to testify ; there is no evidence that they actually
heard the conversation or were disturbed.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pened." He questioned Muhn, Cramer, and Berghorn, but not Hirschbiel. On
September 11 he sent a "written warning" to Hirschbiel, a copy of which was placed
in her personnel file, as follows:
Subject: Written warning with regard to your discussion on floor with supervisor
I do not know what provoked your ire yesterday, regarding Gene Berghorn,
however, I cto feel it was not evidence of the proper respect an employee
should exeicise with regard to a supervisor. This is doubly so when it can be
shown that it was necessary to request that you leave the production area
because the discussion was, to say the least, a disruption of the attention of the
other employees to the respective jobs on the production line.
It is with some regret that I view the action of our supervisor in becoming
equally belligerent, and for that I want to offer my apologies, however, tem-
pering this with my belief, that you did provoke this action on his part.
This is to be considered as a written warning in this matter and as such has
been placed in your personnel file. It would be wise if you would control
your temper because I believe that we do not have to tolerate such actions on
your part indefinately [sic].
Mori ill gave testimony as to the "basic reason" for the "reprimand" of Hirschbiel:
Well, the insubordination of the employee to the supervisor, the fact that
they had interrupted the department and ... I wasn't going to tolerate condi-
tions which bordered on anarchy in our plant.... There was no respect for the
supervisor.
Morrill also gave Berghorn a copy of the written warning to Hirschbiel and told
him "to understand" that it was a reprimand to him."
On September 13, Hirschbiel filed a formal grievance protesting the warning she
received "for performing her duties as Chief Steward of Local 997." On the same
date, Morrill replied to the grievance, viz:
SUBJECT: Grievance No. 104 in regard to written warning
Your waining was not unwarranted and had you been the least bit apologetic
about your conduct, I would have considered removing it.
I absolutely do not believe that your action in the matter upon which I wrote
the waining could be considered as proper decorum of a person filling the office
of Union Steward much less her "duty."
Grievance denied.
There is no dispute, and it is plain, that Hirschbiel's conduct in question on Sep-
tember 10 involved the presentation of a grievance for the Union, as specifically
provided under steps 1 and 2 of the contract procedures, supra. It is basic in the
law that she was thus directly engaged in a protected activity "
As described, the evidence fails to substantiate any of Respondent's charges
against her of insubordination, "bordering on anarchy," disrespect for a supervisor,
or disruption of pioduction." Even accepting Berghorn's testimony in its entirety,
e.g., that both were "a little belligerent" and spoke in loud tones, there is scarce
justification for the serious criticisms of Hirschbiel, and no ground for depriving
her of statutory protection in her grievance activity. Berghorn did not complain
of disrespect or insubordination by Hirschbiel, and himself undertook no action
against her. Nor did Muhn or Cramer, who were exposed to part of the conver-
sation. In the investigation, by Morrill, a report from Hirschbiel was not sought.
The record reveals, inter alia, that Respondent resented generally the number of
grievances filed and the manner of their presentation by Hirschbiel. It was not in
Respondent's sphere to regulate her "proper decorum" in filling her office of chief
steward for the Union, apart from flagrant abuses of conduct not present here.
Indeed, if the prosecution of grievances or other representative functions of the
Union were subjected to the peril of discipline for such conduct as raising voices or
"improper decorum" in the judgment of an employer, it should be obvious that the
essential process of collective bargaining would be measurably frustrated. In any
case, I find that Morrill seized upon the incident between Hirschbiel and Berghorn
on September 10 as a vehicle for hampering Hirschbiel's legitimate activities as a
union steward. The formal warning issued to her, including the language "that we
do not have to tolerate such activities on your part indefinitely," was clearly preju-
•13 Nothing was placed In Berghorn's personnel file on the matter.
3' E.g., Farmers Union Cooperative Marketing Ass'n., 145 NLRB 1; Ryder Tank, Lines,
Ine, 135 NLRB 936; Monsanto Chemical Company, 130 NLRB 1097.
ELECTRIC MOTORS AND SPECIALTIES , INC .. 143
dicial to her job security . I conclude that Respondent thus discriminated against
Hirschbiel for engaging in conduct protected under Section 7, and that it thereby
violated Section 8(a)(1), as alleged."
D. The reduction - of Hirschbiel's wage rate
From January 1951 until November 1952, Hirschbiel worked for Respondent in
the department called the SP-25 line. Thereafter, for a period of 10 years, she was
a turret lathe operator in the machine shop. She was rated by Respondent as a
"good worker" and one who "did a pretty good job" in most jobs.' She received
the premium pay under the contract of $1.671/2 an hour for her classification in
wage group IV; only 5 of some 100 to 150 women in the plant were given such
top pay. In November 1962, she was involuntarily transferred out of the machine
shop to the punch press department because of her alleged incompatibility with the
supervisor and other people in the department . 37 However , she was expressly in-
formed that she would continue to receive the same pay of $1 .67/, although her
classification in the punch press department was lower rated , in wage group VI,
under the contract . She was also told that she would not ever be transferred back
to the machine shop.
A formal grievance relating to the transfer was,processed through final arbitra-
tion , heard on June 22, 1963. The arbitrator , noting specifically that Hirschbiel
was transferred "with the same rate of pay," found "no tangible evidence that the
said action was discriminatory ." 33 In addition , although Hirschbiel 's seniority status
in light of the transfer was not formally made an issue before him, the arbitrator
specially held that Respondent "shall maintain . . . Hirschbiel's full seniority as
heretofore required in the machine department."
Thereafter , for about 8 months, Hirschbiel worked in the punch press department,
and no question was raised as to her $1 .671/2 rate , even though she was unable to
make production on this job . On June 24 , she was transferred to the SP-25 de-
partment and assigned to hub turning . In a written memorandum , she was told
that her "wages will be kept at the same rate as at present- which is over the stand-
ard rate for the hub turning job . This is subject to reconsideration later." On
August 22, Hirschbiel 's wage rate was reduced from $1.671/2 to $1 .50," for the
assigned reason, as stated in Respondent 's letter to her:
Since you are now demonstrating that you are capable of exceeding the min-
imum requirements on your present job and while not up to the standard for
that job - we now consider you to be qualified in your present job assignment.
As you well know you have carried ' a rate substantially above those of the
jobs in which we have allowed you to attempt to qualify. The reason we did
this is that we did not consider any of these to be more than temporary assign-
ments until you could qualify on one of them . Now that you have qualified
we do not consider your old rate to be proper and are forced to reduce your
rate to that of the standard for the job which you are now performing.
Since the beginning of her employment , Hirschbiel has been a member of the
Union and a participant in organizational campaigns at Respondent 's plant. She
was active in the campaign which resulted in the Union 's certification in October
1961 , was elected to chief steward in March 1963 , and thereafter processed nu-
merous ' grievances , as previously noted. In connection with the prior proceeding
against Respondent , she was named in- the complaint and gave testimony at the
hearing.
3' Ibid And see N L.IL B. v. Symons Mannifacturing Co., 328 - F. 2d 835 (,CA. 7), enfg.
141 NLRB 558.
36 As late as June 24 , 1963, in ,a letter to Hirschblel , Respondent stated that "obviously"
she is "a skilled machinist."
37 The underlying reason for the friction is not clearly shown. Respondent 's brief herein
asserts that Hirschbiel ' s "conduct and attitude " then made it "impossible to keep her
longer" in that department As noted, her functions as chief steward began in March 1962.
38 In the earlier stages of the grievance procedure , Respondent defended the tiansfer on
the basis , inter alas, that the "problem was resolved , with fairness and to the best interests
of all involved , especially since there was no action taken with regard to lowering Vir-
ginia ' s rate to be in line with her new job ." And also, significantly , it stated. "It was
with regard to the long service that Virginia was transferred to the lower rated job with-
out a reduction in pay "
11 The standard rate in wage group VI is $ 1.50 and the premium rate $1 57.
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel alleges in violation only the wage reduction, and not any
of the transfers . Respondent 's position is that since the original transfer had been
finally resolved by the arbitrator as nondiscriminatory, Hirschbiel was entitled only
to the standard pay rate under the contract in her present job for which she quali-
fied. More specifically, it explains that Hirschbiel continued to receive the $1.671/2
wage on lower rated jobs during the 10 months since her transfer from the machine
shop only because she -had not until August 22 qualified on a different job.
I do not find as conclusive on either side of the question the evidence taken of
Respondent's practices concerning other employees who were transferred from
higher to lower rated wage groups. It has not been convincingly shown that Re-
spondent was in any way precluded, by reason of the contract or demonstrated past
practices , from continuing to pay Hirschbiel the $1 . 671/2 rate in lower rated jobs `°
The reason advanced by Respondent for the rate reduction, that this was the first
occasion since the original transfer that Hirschbiel qualified on a particular job, is
rejected as wholly implausible and artificial. Hirschbiel was virtually promised
upon being transferred that her pay rate would remain the same. Indeed, as a good
and skilled worker, she was concededly capable of earning this wage in the machine
shop where she had spent 10 years. Following the original transfer, for a period
of some 10 months, she was in fact paid such rate, even though for the time she
was unable to "make production." She was never told that the $1.671/2 wage was
temporary or would be reduced when she qualified on a new (lower rated) job-
which, conceivably, could have been accomplished within days of the first transfer.
Nor was there any inkling of such purpose indicated by Respondent to the Union
or the arbitrator while her grievance on the transfer was being processed through
the successive steps of the contract procedures. As shown, the information Re-
spondent gave out was much to the contrary." It is seriously questionable whether
the arbitrator's decision would have been the same had the factor of a wage re-
duction been present before him."
In light of the entire record, and in particular view of the fallacious and dis-
credited ground Respondent advanced for Hirschbiel's pay reduction, its demon-
strated hostility toward the zealous manner in which Hirschbiel fulfilled her office
as chief steward in presenting and prosecuting grievances , and in general her mili-
tancy on behalf of the Union, I find and conclude that Respondent, in reducing her
pay, discriminated against her because of her union and protected activities , in vio-
lation of Section 8(a)(3) and (1) of the Act" While I have considered as part
of Respondent 's motivation Hirschbiel 's participation in the prior proceeding in the
posture of a strong proponent of the Union, I cannot find on the evidence pre-
sented" that Respondent was also particularly motivated by reason of Hirschbiel's
40 The $1 673/2 wage was in excess even of the premium rate for wage group VI (see
footnote 39), which classification she carried since her original transfer in November 1962.
41 These parties may have been deliberately misled by Respondent. For example, on
cross-examination, Personnel Director Ludwig admitted that Respondent "held up doing
anything about permanent transfer and wages until such time as this matter had been
completely settled." To the same effect, Jerry Morrill testified that Respondent did not
wish "to muddy the water in this area when we went through grievance procedures " In
any event, this testimony clearly contradicts Respondent's essential defense that Hirsch-
biel's pay rate was not reduced prior to August 22 because until then she had not qualified
on a new job
42 The validity of the arbitrator's decision Is not directly in issue, and therefore no
determination need be made whether in the circumstances revealed herein it would be
honored under Board doctrine , as discussed supra.
43 Evidence was adduced concerning the subject of Hirschbiel's eyesight which, I find,
need not be'discussed at any length A single item of testimony is recorded in which
Personnel Director Ludwig appears to state that a doctor's report, solicited and received
by Respondent, played a part in the decision to reduce Hirschblel's pay. The docu-
mented fact is that the doctor's report was not given until September, after the wage
reduction on August 22. Considering the context, the wording of the question to which
Ludwig replied, and other evidence on the subject, I am of the opinion that Ludwig was
confused and this testimony was not intended While it was shown that, allegedly be-
cause of her poor eyesight, Hirschbiel was again reassigned on the SP-25 line from hub
turning to insulating stators, a job involving no moving machinery, there is no issue
here concerning that transfer. It is undisputed that the condition of Hirschbiel's eyes, as
she testified, has been the same during all the years since 1951 in which she had been
employed on moving machinery, e g., the turret lathe
44 As the hearing took place in May and the wage reduction in late August, the alleged
element of timing is not established.
ELECTRIC MOTORS AND SPECIALTIES, INC. 145
attendance and giving testimony at the hearing . In any event , the remedy would
be the same I shall therefore dismiss the allegation of a Section 8(a)(4) violation
as to her.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above , occurring in con-
nection with the operations of Respondent described in section I, above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It has been found that Respondent unlawfully issued a formal reprimand to
Betty Gaff for attending a Board hearing to give testimony, and a written warning
to Virginia Hirschbiel for her activity in presenting a grievance as chief steward, in
both instances substantially affecting their future job security. It will therefore be
recommended that Respondent fully rescind such actions, expunge from their per-
sonnel files any adverse matter relating thereto, and directly notify these employees
accordingly. It has also been found that Respondent discriminatorily reduced the
wage rate of Hirschbiel (from $1.671/2 to $1.50 per hour). It will therefore be
recommended that Respondent restore Hirschbiel to the wage rate she received
prior to the discrimination, and make her whole for any loss of earnings she suf-
fered by reason of the discrimination by payment to her of a sum of money equal
to that which she normally would have earned, absent the discrimination. Such
pay loss shall be computed with interest at the rate of 6 percent per annum, in the
manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact, and upon the entire record in the cases, I
make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating against Betty Gaff and Virginia Hirschbiel in regard to their
hire and tenure of employment , thereby discouraging membership in the Union,
Respondent has engaged in and is engaging in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(3) of the Act.
4. By discriminating against Betty Gaff because she appeared at a Board hearing
to give testimony under the Act, Respondent engaged in and is engaging in unfair
labor practices affecting commerce within the meaning of Section 8(a) (4) of the
Act.
5. By the foregoing conduct , and by issuing a written warning to Virginia Hirsch-
biel because she was engaging in a protected activity of presenting a grievance,
Respondent interfered with, restrained , and coerced employees in the exercise of
rights guaranteed in Section 7 of the Act, and thereby has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 ( a)(1) of the Act.
6. fhe aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in the cases , I recommend that Respondent , Electric Motors
and Specialties , Inc., Garrett , Indiana , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
ta) Discouraging membership in International Union of Electrical , Radio &
Machine Workers , AFL-CIO , and its Local 997 , or in any other labor organiza-
tion , by issuing reprimands or warnings to employees affecting their job security,
by reducing their wages, or in any other manner discriminating in regard to their
hire or tenure of employment or any term of condition of employment.
770-07G--65- -vol 149 11
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discriminating against employees because they have filed charges , appeared
at a Board hearing to testify , or have given testimony under the Act.
(c) Issuing reprimands or warnings to employees affecting their job security be-
cause they engaged in protected activities under the Act.
(d) In any like or related manner interfering with , restraining , or coercing em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Restore Virginia Hirschbiel to the wage rate she received prior to the dis-
crimination against her , without prejudice to her seniority or other rights or privi-
leges, and make her whole for any loss of earnings , in the manner set forth in the
section entitled "The Remedy."
(b) Rescind the reprimand issued to Betty Gaff and the warning issued to Vir-
ginia Hirschbiel , expunge from their personnel files any matter relating thereto ad-
versely affecting their job security, and directly notify these employees that such
actions have been taken by Respondent.
(c) Post at its Gariett, Indiana, plant, copies of the attached notice marked
"Appendix." ''G Copies of said notice, to be furnished by the Regional Director for
Region 13, shall, atter being duly signed by Respondent, be posted immediately
upon receipt thereof, and be maintained for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken to insure that said notices are
not alteied, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 13, in writing, within 20 days from
the receipt of this Trial Examiner's Decision , what steps Respondent has taken to
comply herewith .'
It is further recommended that the complaint be dismissed insofar as it alleges
violations of the Act not specifically found herein.
96 If this Recommended Order Is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the Recommended Order of a Trial Examiner"
In the notice If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice will be further amended by the substitution of the words "a decree of
the United States Court of Appeals, enforcing an Order" for the words "a Decision
and Order "
16 If this Recommended Order is adopted by the Board, this provision shall be modified
to read. "Notify the Regional Director for Ilegion 13, in writing within 10 days from the
date of this Order, what step,, the Respondent hab taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT discourage membership in International Union of Electrical,
Radio & Machine Workers, AFL-CIO, and its Local 997, or in any other labor
organization , by reducing wages, or issuing reprimands or warnings affecting
the job security of employees, or in any other manner discriminating in regard to
their hire of tenure of employment or any term or condition of employment.
WE WILL NOT discriminate against employees because they have filed
charges, appeared at a Board hearing to testify, or have given testimony under
the Act.
WE WILL NOT issue reprimands or warnings affecting the job security of em-
ployees because they engaged in protected activities under the Act.
WI: WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of the right to self-organization, to form
labor organizations , to join or assist the above-named or any other labor or-
ganization , to bargain collectively through representatives of their own choos-
ing, and to engage in any other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection , or to refrain from any or all
such activities.
WE WILL restore Virginia Hirschbiel to her former wage rate prior to the
discrimination against her , and make her whole for any loss of earnings she
may have suffered by reason of the discrimination against her.
SARKES TARZIAN, INC. 147
WE WILL rescind the reprimand issued to Betty Gaff for appearing at a
Board hearing to testify, and the warning issued to Virginia Hirschbiel for
presenting a grievance, expunge from their personnel files any matter relating
thereto adversely affecting their job security, and directly notify these employ-
ees that we have taken such action.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of International Union of Electrical, Radio & Machine Work-
ers, AFL-CIO, and its Local 997, or of any other labor organization.
ELECTRIC MOTORS AND SPECIALTIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 176 West
Adams Street, Chicago, Illinois, Telephone No. Central 6-9660, if they have any
question concerning this notice or compliance with its provisions.
Sarkes Tarzian , Inc. and International Brotherhood of Electri-
cal Workers, AFL-CIO, Local Union 1424 . Case No. 25-CA-
1875. October 26, 1964
DECISION AND ORDER
On July 30, 1964, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the Act, and recommending that it cease
and desist therefrom and take certain affirmative action, as set forth
in the attached Trial Examiner's Decision. Thereafter, the Respond-
ent filed exceptions to the Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the. modifications hereinafter
noted.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that Respondent, Sarkes
149 NLRB No. 17.