Electro Controls, Inc.

National Labor Relations Board - Board Decisions

Oct 24, 1966

161 N.L.R.B. 307 (N.L.R.B. 1966)

ELECTRO CONTROLS, INC. 307
unit complement. The Hearing Officer's contrary finding with respect
to her unit placement is thus inconsistent with the parties' intention
and would constitute a departure for their stipulation which was
approved by the Regional Director.
We find, therefore, that WTilcher is not included in the appropriate
unit, and we sustain the challenge to her ballot.
However, as we have adopted the Hearing Officer's recommenda-
tions that we overrule the challenges to the ballots of Blades and
Willi, ms,2 we shall direct that their ballots be opened and counted
and that a revised tally of ballots be prepared.
[The Board directed that the Regional Director for Region 17
shall, within 10 days from the date of this Direction, open and count
the ballots of Eugene J. Blades and Louis Williams, and serve on
the parties a revised tally of ballots and take such steps as may be
necessary in accordance with Board Rules and Regulations, Series 8,
as amended.]
2 See Snap - Out Banding & Folding, Inc., 160 NLRB 161.
Electro Controls, Inc. and International Brotherhood of Electri-
cal Workers, Local No. 354, AFL-CIO. Cases 27-CA-1843 and
1904. October 24,1966
DECISION AND ORDER
On April 28, 1966, Trial 'Examiner Irving Rogosin issued, his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. The Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices and recommended that
such allegations of the complaint be dismissed. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
161 NLRB No. 26.
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete from the end of paragraph 1(c) of the Trial Examiner's
Recommended Order, and from the end of the second paragraph of
the Appendix the phrase beginning with "except to the extent ...."
[2. The telephone number for Region 27, appearing at the bottom
of the Appendix, is amended to read : Telephone 297-3551.]
[The Board dismissed the complaint insofar as it alleges violations
other than those found by the Trial Examiner.]
DECISION OF TRIAL EXAMINER
STATEMENT OF THE CASE
This proceeding is based upon a consolidated amended complaint , issued Octo-
ber 5, 1965 , alleging that Electro Controls , Inc.,' herein called Respondent, or the
Company, has engaged in unfair labor practices within the meaning of Sections
8(a)(1) and (3) and 2(6) and (7) of the National Labor Relations Act, as amended
(29 U S.C. Sec 151, et seq., 61 Stat 136) herein called the Act.2
Specifically, the consolidated amended complaint , hereinafter referred to as the
complaint , alleges that ( 1) since on or about April 8, 1965, Respondent has
engaged in specified acts of interference , restraint , and coercion , including threats
to close the plant, creating the impression that it was engaging in surveillance,
threats of loss of benefits , conditioning the recall of an employee on a promise to
refrain from engaging in concerted activities , and a demand for and inspection of
a copy of an affidavit by an employer to a Board agent; and (2) on or about speci-
fied dates, discharged or laid off, and failed and refused to reinstate certain employ-
ees because of their union or other protected concerted activities .3
Respondent 's amended answer admits the jurisdictional allegations of the com-
plaint, and the discharge of Michael Garside on June 4, 1965, but alleges that he
refused reinstatement on July 2, 1965, and denies generally and specifically all
other allegations.
Hearing was held befoie Trial Examiner Irving Rogosin from November 8 to
13, both inclusive at Salt Lake City, Utah. The General Counsel 4 and Respondent
were represented by counsel , afforded full opportunity to be heard , to examine and
cross-examine witnesses , to introduce oral and documentary evidence relevant and
material to the issues , to argue orally, and file briefs and proposed findings of fact
and conclusions of law. Respondent's motion to dismiss the complaint, in whole or
in part, at the close of the General Counsel's case-in-chief, was denied, with leave
to renew before the close of the hearing . When renewed, ruling was reserved for
disposition in this Decision . The motion is disposed of by the findings and conclu-
1 The corporate name as corrected at the hearing.
'The complaint , in Case 27-CA-1843, was issued July 27 , 1965, based on a charge filed
June 15 , 1965; the charge in Case 27-CA-1904, was filed September 9, 1965 , all duly
served on Respondent.
3 The employees and the respective dates the action was taken are :
Michael Garside--------------------------------------- On or about June 4, 1965
EiNora Greenhagen------------------------------------ On or about June 7, 1965
Warren H. Hoskings----------------------------------- On or about June 7, 1965
Marlys Boldon---------------------------------------- On or about June 7, 1965
* Unless otherwise specified , all references to the General Counsel are to trial counsel.
Likewise, all dates are in 1965.
ELECTRO CONTROLS, INC. 309
sions hereinafter made. The General Counsel's motion to amend the complaint,
made before the close of the hearing , to allege further incidents of interference,
restraint , and coercion developed in the testimony , was granted . The General
Counsel declined to argue orally , reserving the right to file a brief ; counsel for
Respondent availed himself of the opportunity to argue orally . Both parties have
filed briefs , the General Counsel , on December 23, counsel for Respondent, on
December 27, 1965.5 No proposed findings of fact or conclusions of law have been
received.
Upon the entire record in the case, including the observation of the witnesses,
and their attitude and demeanor on the stand , and the briefs of the parties, which
have received careful consideration , the following findings are made:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Electro Controls , Inc., a corporation duly organized under the laws of the State
of Utah, with its principal office and the place of business at Salt Lake City, Utah, is,
and at all times material herein has been , engaged in the manufacture , sale, and
distribution of specialty electrical products , including theatrical stage lighting
equipment.
During the 12-month period prior to the issuance of the complaint , a representa-
tive period , Respondent manufactured , sold, and shipped from its plant, finished
products valued in excess of $50,000 directly to points outside the State of Utah.
During the corresponding period, Respondent purchased goods, materials , and sup-
plies valued in excess of $50 , 000, which were transported to its plant directly from
points outside the State of Utah. During this period, Respondent also purchased
goods and materials valued in excess of $50,000, which were transported to its
plant from business concerns located in the State of Utah , which had received
said goods and materials directly from points outside the State of Utah.
Upon the basis of the foregoing , and the admitted allegations of the complaint,
it is found that Respondent is now, and at all times material, has been, an employer
engaged in commerce and in a business affecting commerce within the meaning of
Section 2 ( 6) and ( 7) of the Act.6
It. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local No. 354, AFL-CIO, is,
and at all times material herein has been, a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Respondent or its predecessor , which was founded by Ariel Davis, has been
engaged in the manufacture of laboratory electrical and stage lighting equipment.
The laboratory equipment , consisting of a variety of electrical components mounted
in small extruded aluminum housings , includes meters , variable voltage sources,
supplies, rectifiers , and voltage doublers, and is manufactured under the trade name
of AD - lab, derived from the initials of the founder 's name. The stage lighting
equipment , composed of lighting units, the housings of which are manufactured
from extruded aluminum, and the switchboards , requiring sheet metal , components,
wiring, and painting , are supplied to theaters , colleges, universities , and schools.
5 An unopposed motion by the General Counsel to correct the record , filed December 23,
1965 is hereby allowed
6According to Respondent ' s president , William N Jones prior to Novembei 1, 1964,
the Company was known as Ariel Davis Manufacturing Co , Inc, a stock company At about
that time , Electro Controls , Inc was organized and acquired the "operating business
assets," including the use of the name of the former company, the Company being piesently
known as Ariel Davis Manufacturing Co , Inc, a division of E lectro Controls, the latter
constituting the corporate entity This explains the refeience by various witnesses to
Respondent as "Ariel Davis " Jones, formerly general manager, has been associated with
Respondent or its predecessor for 6 yeais.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manufacturing operations are generally under the supervision of Robert A.
Greenwall, plant manager, since November 1, 1964, and prior to that, assistant to
the vice president of the predecessor. He has been employed a total of about 8
years.
Respondent or its predecessor has had collective-bargaining relations with the
Union for a number of years, at least since 1961, so far as the record discloses,
when Greenwall was first invited by the Company to participate in negotiations
with the, Union? ,The last collective-bargaining agreement, prior to the current
contract, was for a term of 2 years from July 1, 1963, and expired on June 30,
1965.8
Since one of the issues involves the question of seniority, it may be well to men-
tion the applicable provision, as it existed under this contract, and was presumably
carried over in the one which expired on June 30, 1965. It reads:
Sec. 19. SENIORITY. After sixty (60) days of cumulative service with the
Company, all employees shall be credited with Company Seniority from the
date they began work with the Company. All journeymen shall be credited
with Journeyman classification seniority equal to their Company, seniority.
Other employees shall be credited with classification seniority according to the
length of time they have served in each classification. During his term of office
the Shop Steward shall head the seniority list for the purpose of shift
assignment.
Sec. 20. LAY-OFFS AND RE-HIRES. When it becomes necessary for the
Tompany (sic) to reduce the working force, employees with the least Com-
pany seniority shall be laid off first. When it becomes necessary to increase
the working force, employees with the most Company seniority shall be the
first called back to work. In either case, the employee must be able to satis-
factorily perform the available work. [Emphasis supplied.] 9
B. Events during the 1965 contract negotiations
On about March 5, 1965, the Union, by its then Business Agent Darrel Tea, noti-
fied Respondent that it was reopening the collective-bargaining agreement under
the 60-day reopening provision.1e Thereafter, meetings were held between Respond-
ent and the Union during the next 4 months, one each in March, April, and May,
and several in June. Minutes of these meetings were maintained, but, although
copies were apparently in the possession of the General Counsel at the hearing they
were not introduced. Representing the Union at these bargaining conferences were
ElNora Greenhagen, who acted as secretary and kept the minutes, Patricia ("Pat")
7 Events occurring prior to November 1, 1904, relate, of couise, to Respondent's pred-
ecessor For consenience. however reference to Respondent is intended to include its
predecessor as to events which occurred prior to the change in ownership
8 This finding is based upon the combined testimony of Ex-Business Manager and Finan-
cial Secretary Darrel H. Tea and Plant Manager Greenwall. The printed form of contract,
between Ariel Davis Manufacturing Company and the Union, introduced in evidence, is
actually dated May 25, 1954 , and is of indefinite duration, subject to termination on
60 days' written notice prior to any anniversary date An appendix, effective July 1, 1963,
providing for new wage scales , with 2 percent wage increases on January 1 and July 1,
1964 , and the same increase on January 1, 1965, appears to establish the existence of a
2-year contract , expiring June 30, 1965.
6 As will presently be seen, under the current contract, entered July 1, 1965, these sec-
tions were changed by substituting classification seniority for company seniority at the
places underlined . The issue of which seniority governed in regard to the layoffs involved
is discussed later.
10 The finding as to the date of reopening is based on the recital in the Union's 30-day
notice, dated May 28, 1965, to the Federal Mediation and Conciliation Service, FRCS
herein, as required by the Act, copies of which were sent to President Jones, as a repre-
sentative of Ariel Davis Manufacturing Co., the local representative of the FMCS, and
the Industrial Commission, State Capital The notice specifies the date of reopening as
more than 60 days prior to May 25, 1965, apparently using the date of the underlying con-
tract (May 25, 1954 ), rather than July 1, 1963, the effective date of the renewal of the
contract, which was subject to reopening. The notice to the FMCS, after stating that
several meetings had been held since March 5, to no avail, sets forth that the notice was
being given in compliance with the Act, and stated that the Union intended to conduct
a strike ballot after July 1, 1965, unless a satisfactory contract was negotiated by that date.
ELECTRO CONTROLS, INC. 311
Landers, Dennis Daniels, Raymond W . ("Ray") Homer , and Michael Garside; rep-
resenting the Company were Jones and Greenwall . These negotiations ultimately
resulted in a contract by the end of June , effective for a 2-year term.
Among other modifications , section 19, dealing with "Seniority," and section 20,
covering "Lay-offs and Re-hires," were rewritten to substitute classification for
company seniority in the previously quoted sections.
According to Business Manager Tea, Garside , Greenhagen , and Daniels were the
most active members of the negotiating committee , Garside and Daniels engaging
in research at the State university library and by the use of newspapers , periodicals,
and journals and other union contracts , in preparation for the negotiations.
During this period, meetings of the employees were held at the union hall. In
the latter part of May or June, a meeting was held in a vacant lot south of the
Company's parking lot . The purpose of the meeting was to reassure the employees
that the contract negotiations had not been impaired , to "quell" problems which
had arisen in the plant following a previous meeting, to persuade the employees not
to "push the panic button ," as well as to take a strike vote." Tea and Garside
spoke at this meeting . Nearly all the employees , numbering about 48 , attended. A
strike vote was taken , all but one voting in favor of the strike action.
Tea was in frequent communication with the company representatives during the
period of negotiations . On this occasion , Greenwall crossed the parking lot and
engaged Tea in general conversation but discussed no labor matters . Several days
later, Tea sent the Company the copy of the 30-day notice to the FMCS.
Upon receipt of the notice , President Jones, who had never received such a
notice before , and mistakenly assumed that it was a strike notice , telephoned Tea
and questioned him as to the reason for the notice , and the number of employees
who supported the threatened strike. Jones asked whether the members of the
negotiating committee were responsible for "creating the problems " Tea was
vague about whether Jones mentioned Garside or any of the other members of the
committee specifically by name, but testified that he did not reveal the names of
any individuals.
While negotiations were in progress , Plant Manager Greenwall spoke to various
members of the negotiating committee at the plant . In May, after about the third
bargaining meeting, Greenwall spoke to Raymond W. Homer , production shop rep-
resentative of the negotiating committee , at his work station . Greenwall told him
that he was disappointed at the progress of the negotiations , and asked Homer to
use his influence with the members of the committee to achieve a reasonable settle-
ment. Greenwall said that the Company could not grant an excessive wage increase
because it might "go broke" if it did . He told Homer that Garside had been "push-
ing a little too hard ," and that he failed to understand Garside 's attitude in regard
to the negotiations . Just about then, Garside passed the two men, and Greenwall
remarked , "Well, he's not going to be with the company very long," without elabo-
rating further.
During the same period, according to committeeman Daniels, he had a conver-
sation with Greenwall in the latter's office . Greenwall told him that he had had a
discussion with Garside, presently related , and wanted to acquaint Daniels with the
points he had discussed with Garside . Greenwall spoke of the attitude of some
members of the committee , referring to Garside and Daniels, in particular, criti-
cising them for being too drastic-and having a "bull by the horns,"-and urging
that the committee consider the Company 's position , as well as their own. Green-
wall told Daniels that he regarded the wages then being paid as "fair," and that
management 's proposals were likewise "fair," especially as to the female employees,
who were receiving "what they were worth." Greenwall produced a list of employ-
ees, including Garside, Daniels himself, and Don Baldridge, who were slated for
merit wage increases, which, Greenwall said, could not then be granted because of
the pending negotiations . Daniels quoted Greenwall as saying that Daniels was too
deeply involved in the negotiations "because ( sic) my name was on the list and
11 There is some indication that the employees , especially Garside, had become disaffected
toward Tea because of what they regarded his dereliction in giving notice of intention to
reopen the contract , and his dilatoriness in notifying the appropriate agencies of the
possibility of a strike . Tea himself, a reluctant witness for the General Counsel, testified
that he had learned that Garside had consulted a representative of the Teamsters Union.
Tea was not reelected business manager , and all these factors may have accounted for his
hazy memory regarding some of the events about which he testified.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I would be getting a raise directly after negotiations." The merit increases, which
were in addition to the wages ultimately agreed on, were, in fact, granted after the
contract was signed.12
Also, in May, Greenwall assembled the employees of the SCR Department.i3
Deploring the state of negotiations, the consequent unrest in the plant, and his
concern over production, Greenwall said that he would be glad when it was all
over. He observed that management and the employees had been "a happy family"
until then, and expressed hope that this would continue after the dispute was set-
tled. He reminded them of favors management had granted them, such as issuing
paychecks to employees ahead of time, and, as in Greenhagen's case, permitting
repairs of personal automobiles on company property on their own time. Manage-
ment, he said, wanted to continue these favors. During this discussion , according
to Greenhagen, Gieenwall referred to committeeman Garside as "somewhat of an
agitator "
Greenhagen, as well as other employees who testified, conceded that Greenwall
did not on this, or similar occasions, explicitly threaten that the Company would
withdraw these benefits unless negotiations were satisfactorily concluded, although
other witnesses apparently inferred that this was what he meant.
During the second or third negotiation meeting, Jones summarized the Com-
pany's financial condition, observing that it had not been doing too well, and was
"in a bind." Garside grinned evincing skepticism, and Jones rejoined that he did not
think it was "at all funny," and that he did not like his attitude.
Derek Adams, a wiring department employee under Foreman John Miller, testi-
fied that in about mid-May, Greenwall also spoke to the employees in that depart-
ment in a group. Greenwall called upon them to regard the negotiations "with an
open mind," and "not to be swayed one way or the other." Adams quoted Green-
wall as saying that "if the union got tough the company could get tough." Adams
testified, at first, that he interpreted this to mean that privileges, such as those
already mentioned, would be discontinued. Later, he testified that Greenwall actu-
ally made such a statement. Adams testified that he was uncertain whether Green-
wall actually specified what benefits or privileges he was referring to but that he
indicated generally that the Company could withdraw such benefits.14
While it is undisputed that, in his various discussions with groups of employees
during this period, Greenwall reminded them of the privileges they enjoyed, the
evidence that he threatened that the Company would withdraw these privileges
unless the Union acceded to its terms, or agreed to a satisfactory settlement, is
not convincing. An employer's reminder of existing privileges, coupled with a plea
for restraint in the union's bargaining demands, falls far short, in light of the entire
bargaining history disclosed by the record, of an implicit threat to withdraw such
privileges unless negotiations were satisfactorily concluded.
I am not persuaded, in view of Greenwall's denial that he uttered such a threat,
and the conflicting and inconclusive evidence of the witnesses who testified as to
his statements, that Greenwall, either expressly or impliedly, threatened that
Respondent would withdraw these privileges.
12 There is no allegation or contention that the withholding of the merit increases pend-
ing negotiations constituted an unfair labor practice, nor that the disclosure was deiigned
to influence the attitude of these employees in derogation of their bargaining agent
13 There were five female employees, Connie White, Vivian Ellingsworth, "Pat" Landers.
"Jackie" Burton, Greenhagen, and Foreman Joseph Nelson The designation SCR stands
for Silicone Controlled Rectifier The foreman apparently left soon after Greenwall arrived
on the scene.
i4 Adams' testimony was generally corroborated by George Heltman and Daniel C.
Grundvig. The latter testified that, although lie had thought he was in this group, there
may have been two groups, the other, probably consisting of Steve Rleinlein, Eric Ohlson
and himself He, too, could not recall whether Greenwall specified the type of privileges
he meant. Grundvig, incidentally, had been an officer and member of the negotiating com-
mittee of another union for 7 years, and testified that he found the situation " amusing"
because he had been in similar "predicaments" before. Obviously, a sophisticated union-
man, Grundvig was not intimidated by Greenwall's remarks, although this, of course, is
not the criterion in deciding whether the remarks were coercive Grundvig admitted that
Greenwall began the discussion by urging the men to attend and participate in the union
meetings, though this could have been to persuade the employees to counsel a less in-
transigent attitude on the part of the negotiating committee Grundvig further testified
that Greenwall was not trying to undermine the Union, and, as far as Grundvig was
aware, had never done so.
ELECTRO CONTROLS, INC. 313
It is, therefore, found that these allegations have not been sustained by a pre-
ponderance of the credible and reliable testimony.
1. Creating an impression of surveillance
Committeewoman Greenhagen was elected to the negotiating and grievance
committees sometime in April. At an unspecified time before that,15 Assembly
Foreman James P Daniels questioned her in the silver plating department in
another building, in the presence of employee Ann Albenese, about what occurred
at the union meeting. She put him off with some inconsequential remark, and told
him that employees had been instructed not to divulge to anyone what occurred
"inside the union hall." Daniels rejoined that he "knew more about what went on
in that union meeting and he didn't need to go to those union meetings, that ten
minutes after he got to work he had the whole lowdown on everything that went
[on] in those union meetings." Although he did not reveal his source, he indicated
to her that someone had volunteered the information to him.
Daniels did not categorically deny this conversation, and admitted that he learned
what took place at union meetings from "talk throughout the shop," which he
"pieced together" from various conversations he overheard. It does not appear that
he actually eavesdropped on such conversations. 17
In view of Daniels' failure to deny the conversation with Greenhagen, and in
light of her credible testimony, it is found that Daniels did in fact question her
about what had taken place at the union meeting, and did make the remark which
she attributed to him. Such interrogation, without any legitimate purpose, in the
circumstances disclosed by the record, warrants a finding of interference, restraint,
and coercion within the meaning of Section 8(a)(1) of the Act. The evidence
offered in support of the allegation, that Respondent created the impression that it
was maintaining surveillance of the union activities of its employees, appears to
be little more than the idle boast of a relatively minor supervisor, probably
prompted by his chagrin at being rebuffed by the employee. At any rate, the evi-
dence is insufficient to support an affirmative finding that Respondent engaged in
such proscribed conduct.
2. The demand to inspect Greenhagen's affidavit to a Board agent
On about June 23, following Garside's discharge, and her own layoff as related
below, Greenhagen was interviewed at the plant by an employee of the Regional
Office of the Board, who obtained a sworn statement from her. The interview
took place in the front office of the plant, but no company representative was
present.
As she left the office after the interview, with a copy of the statement, Plant
Manager Greenwall engaged her in conversation in the reception room, and asked
her whether the document she had was a copy of her affidavit. She acknowledged
that it was, and he asked to read it. She refused, asserting that it was "confidential."
Greenwall tried to cajole her into letting him see it but she remained adamant. He
then told her that he had seen "Monty" Summers' statement, and had approved of
it, and wanted to know why he could not look at hers. Addressing him familiarly
as "Bob," she protested that she did not "particularly" want to let him see her
15 Greenhagen was unable to fix the date with any greater certainty , except to testify
that it occurred after a meeting of the employees at the union hall . She testified that she
was under a mental strain at the time of the hearing due to personal problems and that
this had affected her recollection as to certain details Her testimony in other respects did
not appear to be otherwise impaired.
11 Not to be confused with union negotiating committeeman Dennis Daniels
i' Daniels testified that he even commented about this to employee Kurt Dludrow , during
a rest period while the negotiations were under way. According to Daniels , Mudrow told
him that it looked as if the Union had Jones "over the barrel " Daniels said lie doubted
that , adding, "I don ' t like to move to Canada , but that's what will happen ," continuing,
"He'll just move all the assembly work up there, so I don't think you guys got him over
the barrel . . . [ because] they can do the same work up there as we're doing here."
Daniels testified that he had not been so advised by management but made the statement
on the spur of the moment to show this employee that the Union did not actually have
the advantage of the Company . This conversation is adverted to later, in a discussion of
the allegation of the complaint , that Jones threatened to close the plant if employees con-
tinued to press certain demands.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement. Greenwall persisted, repeating his request several times. While they were
walking toward the lunchroom in the plant, Greenhagen finally relented, observing
that although it contained "nothing but the truth," he probably would not like it.
She gave him the statement, which he read, and returned with the comment, "It's
all right."
Greenwall candidly admitted that he asked Greenhagen to let him read the copy
of her statement to the Board agent, without realizing that this was objectionable
and that he acted out of naivete. This, of course, is no justification for his action,
and Respondent's counsel concedes that this constituted a violation of the Act.
It is, therefore, found that, by Greenwall's request that Greenhagen permit him
to read her copy of the statement furnished to a Board agent, and by his reading
of the statement, Respondent interfered with, restrained, and coerced its employees
in the exercise of rights guaranteed in Section 7.10 It is, of course, immaterial that
the supervisor found nothing objectionable in the employee's statement.
3. The alleged threat to move the plant to Canada
During the course of the hearing, the General Counsel moved to amend the
complaint, by alleging, in substance, that President Jones had threatened to move
the plant to Canada because of the frustrations in attempting to reach agreement
with the Union. The motion was granted without objection. The circumstances on
which this allegation is based are substantially as follows. According to Jones,
Foreman Daniels had related to him the conversation in which Mudrow had
boasted that the Union had the Company "over a barrel." Jones told Daniels that
he would take up the subject when he met with the negotiating committee. During
the next meeting, Jones, referring to the fact that the strike notice was the first the
Company had ever received, told the committee that he had consulted counsel, and
that in the event of a strike, the Company would attempt to operate the plant
to the best of its ability. He stated, in effect, that the Company would utilize its
foremen and draftsmen, who were capable of "wir[ing] boards, and would con-
tinue manufacturing at its plant in Canada, and have the products shipped to its
customers in the United States, but that as far as moving the plant to Canada,
that was out of the question." 19 He pointed out, however, that in view of import
duties which shipments from Canada would entail, amounting to a 22-percent tax,
this course would not be economical, but would be resorted to in an extreme
emergency such as a strike.
Jones testified in a candid, forthright, and convincing manner, and his version of
the remarks attributed to him is more credible than that of those who quoted him
as categorically threatening to move the plant to Canada 20 Moreover, Jones'
remarks serve the additional purpose of clarifying, if not dissipating, the effect of
Daniels' remarks to Mudrow on the subject. Furthermore, in the context of bar-
gaining sessions with a union, especially one such as that under consideration,
following receipt of a strike notice, a statement by an employer that he would
make every effort to maintain production by utilizing supervisors or other nonunit
employees, and by resorting to other available plant facilities in order to continue
in operation, can scarcely be equated with a threat to close the plant or transfer
a portion of its operations as a means of retaliation against the Union. At most,
Jones' remarks amounted to no more than a prediction of the possible conse-
quences of a strike rather than a threat to resort to that expedient as a medium
for reprisal. The statement is more properly regarded as a tactical maneuver in
countering the Union's strike threats.
It is, therefore, found that Respondent did not, either by the statements of
President Jones or Foreman Daniels, threaten to close or move its plant to Canada,
because of the Union's bargaining demands, and has not in this regard engaged
in unfair labor practices within the meaning of Section 8(a)(1).
i8 Braswell Motor Freight Lines, Inc., 156 NLRB 671, and authorities cited.
19 It is not clear from Jones' testimony, whether the latter part of his remark was in-
cluded in his statement to the committee or was merely his own comment at the hearing.
20 As will later be seen, Respondent did, in fact, order aluminum extrusions through its
subsidiary in Canada when these products became unavailable due to a strike at a plant
of its regular supplier.
ELECTRO CONTROLS, INC. 315
C. Discrimination in regard to-hire and tenure of employment
1. Michael Raymond Garside
Garside was employed by Respondent on September 6, 1964,21 and discharged,
under circumstances presently related, on June 4, 1965.22 During the period of his
employment, he worked in the sheet metal department under the supervision of
Foreman Summers. In the latter part of February, or early in March, Garside was
elected union steward, succeeding Evan ("Red") Williams. He was also chairman
of the negotiating committee which bargained and reached agreement with the
Company following the contract reopening in March. He was probably the most
voluble, if not vociferous, member of the committee, participating in the bargain-
ing meetings with management over a period of several months, commencing in
the latter part of March, and culminating in the execution of the contract, the
latter part of June.
In May, Greenwall summoned Garside to his office, and, in a conversation last-
ing more than 2 hours, according to Garside, asked him why he was "pushing the
negotiations so hard," and why he was so dedicated to a union. Greenwall told him
that the Company had always taken care of its employees, and that if the Company
were treated fairly, the employees would be treated similarly. Questioning Garside
as to why he believed the wages were unfair, he showed him a sheet of paper
setting forth the wages of the employees, and discussed the wage rate of each
employee, commenting that he certainly considered their wages fair. According to
Garside, President Jones came in during the latter part of the conversation, and he,
too, asked Garside why he was "pushing so hard," remarking that he, Jones, had
played college football and he also knew how to "fight on the defensive." Garside
asked Greenwall if rumors he had heard in the plant, that Greenwall had referred
to him as an "agitator" were true. According to Garside, Greenwall acknowledged
that this was so. Garside also testified that he apologized to Jones on this occasion
for his cynicism about Jones' wage proposal at an earlier negotiation meeting, as
previously related.
Several days later, Garside testified, Greenwall approached him at his work sta-
tion and told him that some deserving employees would receive increases but that
he would not be able to grant them at the time because of the pending negotiations.
The Circumstances Culminating in Garside's Discharge
On June 3, an election was held for business manager of the Local Union.
Earlier that afternoon or the night before, Clark Cushing, a candidate for the
office, contacted Evan Williams, former union steward, to arrange to visit the plant
to solicit support for his candidacy as business manager. Cushing went to the plant
the afternoon of the day of the election, and asked the receptionist for Williams.
Williams was paged over the public address system, and appeared soon afterward.
According to Cushing, Williams invited him to the rear of the shop to meet the
employees. It is undisputed that neither of these men had obtained permission
from anyone in authority for Cushing to enter the working area. Williams accom-
panied Cushing about half way into the shop, where Cushing spoke to two or three
employees. Williams told Cushing that he was no longer shop steward, and, after
introducing him to a few of the employees, including Ohlson, excused himself and
went back to work.
According to Williams, Cushing had phoned him the night before the election,
and asked him if he could "come out to campaign." Williams told him that the
employees were entitled to "breaks" and a lunch period, and that "it would be all
right for him to come to the plant the next day." When Cushing arrived, Williams
testified, he escorted him into the shop, where he introduced him to Eric Ohlson,
unit chairman for the Union at the plant, and then left for the stockroom where
he worked. Admittedly, Williams did not request permission of anyone in authority
to bring Cushing into the plant.
21 The transcript of the proceedings inadvertently gives the year as 1965. The record
is hereby corrected accordingly.
22 It was stipulated at the hearing that Garside was offered unconditional reinstatement,
by letter dated June 30, and received July 2, 1965, which he refused . The charge, alleging
his discriminatory discharge , was formally filed on June 15, 1965.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohlson testified that he was with Cushing only long enough to "renew acquaint-
ance," accompany him from the wiring department to the metal fabricating depart-
ment, and introduce him to'Garside, the shop steward. Ohlson admitted that he did
not question Cushing's right to be there, although he knew that his purpose was
to campaign among Respondent's employees. According to Ohlson, he introduced
Cushing to Garside, and then left. He was not reprimanded by any management
representative for his part in the incident.
Garside, himself, testified that Ohlson escorted Cushing to Garside's work area,
and told him that Cushing was a candidate for business agent of the Union, and
wanted to talk to the employees who were union members. According to Garside,
Ohlson told him that he would have introduced Cushing to the employees himself,
but-that he did not have the time, and requested Garside to do so. Garside com-
plied, and introduced him to several of the employees over,a period lasting, accord-
ing to him, no more than 15 or 20 minutes. Garside testified that he asked Cushing
whether he had obtained permission to visit the employees in the plant, and Cush-
ing told him that he had "cleared with the front office."
According to Cushing, who generally corroborated Garside as to the length of
time they spent together-no longer than half an hour-no mention was made by
either of them about whether Cushing had been granted permission to go into the
shop and talk to the employees. Altogether, Cushing testified, he talked to between
15 and 20 employees, some of whom were working, others, just "standing around
talking."
His purpose accomplished, Cushing left the plant.
Later that afternoon, upon learning what had occurred, Jones went into the shop
to find out who "the stranger" was. When he spoke to Foreman Summers, the latter
raised the question of whether Cushing had been "cleared." After looking for Cush-
ing and Garside, who had apparently left the area, Jones returned to the front
office,. and, after making further inquiries, learned that Cushing had not identified
himself to anyone there. Later, discovering that Williams had been with Cushing,
Jones sent for him and questioned him about the identity of the man. Williams told
him that he was a "union fellow." Asked whether he had been "cleared," what he
had been doing "walking around our plant," and what Garside was doing, "walk-
ing him around the plant," Williams said he did not know. Jones told him, "Well,
you don't have any right to do that, you know that," reminding him that he was
not a supervisor, and had no authority to grant such permission. Williams agreed,
but said that he had not thought about it, that he should have known better and
ascertained whether Cushing had permission to be there. Jones warned, "Well, that
had better not happen again. We've just had a discussion about taking unauthor-
ized persons through our plant some few week before that with all of the people
in inventory and purchasing," as well as with Williams. Except for this reprimand,
Williams was not otherwise disciplined.
Jones then told Foreman Summers that this was "the last straw," as far as Gar-
side was concerned, that "floating around the plant" had been the subject of fre-
quent discussions, and that Garside's conduct constituted grounds for discharge. He
told him, however, that he would "double check it with the union business agent,"
testifying elsewhere that he realized he had "a hot potato" on his hands.
Jones telephoned Business Manager Tea, notified him of what had occurred, and
told him that he intended to terminate Garside because he had left his work area
with a union member, who had come to the plant, taking up his time, and causing
loss of production. Tea told him that, if the facts were as he represented, Jones
was justified in terminating Garside. According to Tea, Jones told him that his
primary objection to Garside's conduct was that he had been away from his work
area without permission.
Next day, June 4, Garside was discharged, to quote him, for "conducting union
business on company time without permission of the supervisor." About 4:15 p.m.
that day, Jones summoned him to his office, questioned Garside in some detail, and
elicited the facts already related. Garside testified that Jones asked him if the man,
identified as Cushing, had told him that he had permission to go through the
plant. According to Garside, Jones then "just made clear" the reason Garside was
being discharged, and offered him some gratuitous advise. He said that he wanted
to "tell [him] a few things that he thought would help [him] in . . . life." Garside
quoted to the effect that he thought, Garside was "pushing things too hard, that [he]
should try to get along with people better." Garside rejoined that he believed he
was "doing the right thing . . . and . . . would do it that way again" if the occa-
sion arose. According to Garside, Jones told him that he believed Garside had gen-
erated an atmosphere of "mob hysteria" throughout the plant, and that if matters
ELECTRO CONTROLS, INC. 317
between the Union and the Company continued in the same manner, he "could
close down the plant here and move his operations to Canada." 23 Finally, Garside
testified, Jones said that Garside "possibly was not the only . . . person that was
causing this discontent with the company, and that they were being watched
also." 24
Garside was thereupon discharged, and, although subsequently offered reinstate-
ment , declined the offer.
Contentions and Conclusions Concerning Garside's Discharge
As must be readily apparent, the General Counsel contends, in substance, that
Garside was discharged because of his aggressive and militant role as chairman of
the negotiating committee during the bargaining conferences which culminated in
the contract, which became effective July 1, 1965.
Aside from its contention that Garside was offered unconditional reinstatement,
which he declined, Respondent contends that he was discharged because (1) despite
repeated warnings about being away from his work area without permission, he
persisted in this conduct; and (2) on June 3, he left his work area without per-
mission in connection with Cushing's visit to the plant. As to the latter aspect of
its defense, Respondent concedes that its objection to Garside's conduct was based,
not on the fact that Cushing failed to obtain permission to enter the working area,
and, presumably, that Garside had not ascertained whether Cushing had obtained
such permission, but on the fact that Garside had not obtained permission to leave
his working area.
It is too well-established to require extended discussion or citation of authorities,
that mere union membership, or other protected concerted activities, however
aggressive or militant, will not insulate an employee against discharge for just
cause or legitimate reasons. By the same token, it is equally well established that,
valid grounds for discharge will not absolve an employer from a finding of dis-
crimination , if the discharge was actually motivated by a purpose to discourage
or encourage union or other protected concerted activities, and the ostensible
grounds are merely resorted to as a pretext for eliminating a militant union pro-
tagonist . Moreover , if an employee is discharged , in part, because of his union or
concerted activities , and, in part , because of some dereliction , the discharge is,
nevertheless, violative of the Act. Finally, if an employee is actually discharged,
or otherwise disciplined for valid and legitimate reasons , untainted by motives
proscribed by the Act , there is no violation merely because he was engaged in
union activity and "the employer sheds no tears at his loss." 25
The record generally establishes that , following his election as shop steward,
Garside frequently absented himself from his work area without the permission
of his supervisor, often to'go to other departments These absences were apart from
those arising out of his duties in the plant or his responsibilities as shop steward.26
With due allowance for routine requirements, such as drawing parts and supplies
from the stockroom, discussions with employees or supervisors regarding his work,
or restroom needs, it is evident that Garside was away from his work area without
n This alleged threat, discussed in another context elsewhere, was not categorically
denied. The qualified admission , to which the General Counsel refers, was made within
the context of the same discussion of what action might be taken in the event of a strike.
It is found that Jones did not actually threaten to move the plant, but made substantially
the same statement as lie made to the negotiating committee on his subject.
u The General Counsel relies, in part, on this alleged remark, as evidence that Respond-
ent created the impression that the union activities of the employees were being kept under
surveillance Since, as will later appear , even if Jones made the remark , it could be equally
attributed to Respondent 's dissatisfaction regarding the excessive time members of the
negotiating committee were devoting to union activities during working hours, the remark
is regarded as too vague and nebulous to support an affirmative finding of purported
surveillance.
i N L R.B. v. Park Edge Sheridan Meats, Inc ., 341 F.2d 725, 728 (C.A. 2), and cases cited
28 The existing union contract , as well as the current one, provided that a member of
the shop committee , designated as shop steward , and the members , "shall be allowed time
off to attend meetings with management and to confer with any employee in any depart-
ment at reasonable times in order to transact the legitimate business of the Committee,"
provided they first obtain permission of the department heads, in which case they shall
be paid at straight time for the time so spent during regular working hours , not to exceed
a total of 4 hours for the entire committee.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permission more frequently than other employees in the shop. Summers, his fore-
man, testified credibly that this conduct prompted him to warn Garside three or
four times not to leave the work area without his permission. The first warning,
according to Summers, occurred shortly after Garside became shop steward; the
last, about 3 weeks before his discharge. On one occasion, which fellow
employee Don Baldridge places as 2 weeks before Garside's discharge, Baldridge
heard Summers issue such a warning. Baldridge also tesitfied that he observed
Garside away from his work area more frequently than other employees. In his
direct testimony, Garside denied that he had ever been warned about these infrac-
tions, but, under rebuttal, admitted that Summers had warned him twice.
According to Summers, these warnings proved futile, and the unauthorized
absences continued. Summers took this up with Plant Manager Greenwall on two
occasions; the last, some 3 weeks before Garside's discharge, recommending
such action unless Garside's deportment improved.
Foreman Daniels, assembly department supervisor, at the opposite end of the
plant, also testified that he observed Garside in his department on a number of
occasions , and that finally, in May, he discussed this with Greenwall twice. Dennis
Daniels, a crating department employee, and member of the union negotiating
committee, testified that also during this month, while he was talking to Garside
in the crating department, Foreman Miller, of the wiring department, told them
to "clear with him," before engaging in any discussions, to "avoid any more con-
fusion or problems." Daniels testified that, over a period of 4 months prior to
Garside's discharge, he engaged in a half-dozen or dozen conversations with
Garside in the crating department. Although it was not shown whether any of
these conversations related to their work, on an occasion when Miller approached
them, Garside had a handtruck with him Daniels could not specifically recall
what was discussed in this conversation. Daniels did, however, testify that employ-
ees from the paint and sheet metal shops came to his department and engaged in
brief conversations with him, not always in connection with work, nearly as fre-
quently as Garside 2'r, On at least some of these occasions, the foreman came over
and asked what business they had in the department, or what they were talking
about, although Daniels could not recall Foreman Miller doing so on the occasion
of Daniels' conversation with Garside. Garside himself conceded, under rebuttal,
that on an occasion, the date of which he could not recall, Miller told him to
"clear with him before speaking to people in his department about union business,"
or words to that effect.
As a witness for the' General Counsel, Union Representative Tea testified, under
cross-examination, that in May, after Garside had become shop steward, both
Jones and Greenwall complained to him that Garside had been away from his
work area, and that, while they did not object to Garside's being away on union
business, they protested that he was spending too much time on those duties.
_ At a meeting in the early stages of the negotiations, according to Tea, Jones
reiterated this complaint, adding that Garside's union duties were consuming more
time than necessary.28 Greenwall, too, who participated in this discussion, reiterated
that employees were not to leave their working areas without permission from
their supervisors. According to Tea, Garside was not singled out for reprimand
during this meeting, but "the point was made clear." Tea, himself, advised the
committee, "if you've ever worked harder, you stay at your post, you work, you
leave union business out (sic) during the negotiations, . . . keep it right down, do
your work, behave yourself, don't use company time for union time (sic), et
cetera, . . . 1129
27 The flow of products is from the sheet metal department, in which Garside worked, to
the painting department, then to the wiring department, and on to the crating department.
According to Daniels , none of the products on which Garside worked was routed directly
to the crating department.
20 There appears to be some disagreement as to whether these remarks were directed
specifically at Garside or at the activities of the shop or negotiating committee in general.
It is unnecessary to resolve this conflict . The significant fact is that all witnesses agree
that the subject of employees leaving their work areas without permission was discussed,
and that the committee was put on notice that the Company objected to this practice.
20 Tea testified that prior to Garside's discharge, Jones had complained to him about
Garside's "spending *more time than allotted for union activities, and also . . . felt that
he was seeking grievances, and just [engaging in] general agitation with some of the
members."
ELECTRO CONTROLS, INC. 319
Regarding the Cushing incident on June 3, aptly described in Respondent's brief,
as "the capstone" to Garside's conduct, it is undisputed that none of the persons
involved in the incident had obtained permission to escort Cushing through the
shop, or-Respondent's principal objection-for Garside to leave his work station
to do so. While it is true that, of the others involved in this incident, only Williams
was disciplined, and he only by a reprimand, the fact remains that Garside was
the most serious offender in this respect, having spent between 15 and 30 minutes
of working time on this errand, to say nothing of the time of the employees to
whom Garside introduced Cushing.
It is no justification or mitigation of Garside's offense that Cushing assumed, iii
view of his earlier conversation with Williams, that he had permission to visit the
employees in his campaign for union office. For that matter, on the basis of Wil-
liams' testimony, it is reasonable to conclude that he had clearly implied that
Cushing confined his visit to rest and lunch periods. Neither Jones nor Garside
was present when Cushing arrived at the plant.30 The fact that a receptionist paged
Williams over the public address system, and undoubtedly observed Williams
escorting Cushing into the shop, does not establish that she had authority to grant
such permission, or that she did so. Nor for that matter, does the fact that Sum-
mers admittedly observed the two men together inside the shop, without question-
ing either Cushing's right to be there or Williams' right to leave his post, consti-
tute permission or condonation for this conduct. It is idle to speculate on the
reason for Summer's failure to challenge the men.
It should be borne in mind that Respondent is not relying, in justification for
Garside's discharge, on Cushing's failure to obtain permission to enter the plant
and campaign among the employees. Its sole ground for discharge, on this aspect,
is that, once again, and in flagrant disregard of company policy, Garside had
absented himself from his work area without permission.
It may be noted, however, that Garside admittedly did not ask Cushing whether
he had received permission to visit at the plant until after he began escorting him
on his tour. Cushing, on the other hand, testified that Garside did not ask him the
the question until just before he left the plant. The only possible relevance of this
fact to Garside's discharge lies in the fact that, if Cushing had actually obtained
such permission, this might have extended, by implication, to the right of the shop
steward to escort him through the shop, hence, to absent himself from his work
area. Admittedly, however, Cushing had not obtained such permission. Hence,
there is no basis for inferring that Garside had tacit permission to leave the plant
area.
The existence of a plant rule or policy prohibiting employees from leaving their
work areas without permission, except in the performance of their duties, is clearly
established. It is equally clear that Garside was aware of this policy. He was
warned on at least three occasions prior to his discharge by his immedaite foreman.
The policy was effectively brought to his attention, as well as to that of the
negotiating committee. This was corroborated by the business agent, who took
pains to stress the importance of complying with the company policy. Garside
himself testified that he was discharged for conducting union business on company
time31
Respondent's sincerity in regard to the reasons advanced for Garside's discharge
is attested by its action in notifying Union Representative Tea, in advance, after
outlining the events which had occurred, of its intention, and obtaining Tea's prior
approval. The fact that Respondent was fully cognizant of the risk of being sub-
jected to an unfair labor practice charge, in view of Garside's admitedly promi-
nent role in the negotiations, does not detract from this opinion.
For the purpose, of these deliberations, it has been assumed that Garside was
probably the leading union protagonist and the most aggressive and militant nego-
tiator.32 Various disparaging references about Garside, attributed to Jones or
80 Greenwall was actually out of town in Milwaukee on that date.
ai His exact testimony : "Yes, Mr. Jones discharged me on June 4th for participating
in union-conducting union business on company time without permission of the super-
visor." [Emphasis supplied ] Assuming Garside merely intended to quote Jones, it is
clear that Garside was not actually engaged in union business, in the sense contemplated
by the contract, on that occasion. The union business in which Garside engaged related
strictely to internal union affairs.
83 Though not exceptionally more so than committeeman Daniels (who was not dis-
charged or laid off) and Greenhagen (who was), in the opinion of some witnesses for the
General Counsel.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G-reenwall-such as "agitator"-resentment toward Garside for "pushing so hard"
in the negotiations, and metaphorical allusions to him by management as "a big
balloon floating up in the air and [wanting] everyone to look up at (to) him,"
have not been ignored in assaying Respondent's motNation.33
Since Respondent contends that it discharged Garside for leaving his'working
area without permission rather than because of Cushing's failure to obtain permis-
sion to enter the plant, the 'General Counsel's position, that the policy against
permitting strangers to go through the plant without permission was, in effect,
discriminatorily applied as regards Cushing's visit, is irrelevant. It may be noted, in
passing, however, that as to the General Counsel's contention that candidates for
political office were permitted to enter the plant and campaign among the employ-
ees, in the November 1964 national election, this was done with the permission of
management, and generally during rest and lunch periods. One such candidate was
a former general manager of the Company, who was accompanied by Jones on that
occasion. Another was his opponent who was granted equal time 34 It is, therefore,
obvious that these circumstances afford no basis for a claim of discriminatory
application of the company policy.
The record leaves no doubt that Garside had violated company policy against
leaving his work area without permission. It is clear that he did so to a greater
extent than the other employees. He was aware of the company policy, and had
been warned on a number of occasions by his immediate foreman, as well as by
management officials. The occasion when he escorted Cushing through the shop
was 'a flagrant example of this conduct. Admittedly, he made no effort to ascertain
whether Cushing had received permission for this errand. That Garside was well'
aware of the company policy is manifest not only from his own testimony, that it
was his practice to obtain permission before discussing union business with employ-
ees at the plant, but also from his admission that after Cushing left, Garside asked
Foreman Summers how Cushing had obtained permission to go through the plant.
The importance which the Company attached to observance of its policy is under-
scored by the fact that during a negotiation meeting, management officials took
occasion to raise the problem with the committee and business agent Moreover,
the business agent himself admonished the members of the committee to give strict
observance to company policy. Despite this, Garside took it upon himself to be
absent from his work area for nearly a half-hour to introduce the union candidate
to some 17 employees in various departments, with consequent loss of production
time.
Under these circumstances, it would require a preponderance of the credible and
reliable evidence to establish that Garside was discharged, not for a flagrant dis-
regard of a company rule or policy, but because of his avowedly vigorous, aggres-
sive, and militant attitude during negotiations, which, incidentally, culminated in
the execution of a contract35
Two further episodes should be mentioned in respect to Garside's discharge.
Committeeman Daniels, who, with Greenhagen, was described as one of the most
active members of the negotiating committee, testified that early in October (about
a month before the hearing in this proceeding), Foreman Miller told him that at
the time Garside was discharged, he, Daniels, was also being considered for dis-
charge "because of the negotiations," but that Miller was "instrumental" in having
Daniels retained. Although Miller testified on behalf of Respondent, he was not
questioned about, and, therefore, did not deny this conversation. The only explana-
tion offered by Daniels as to how the subject came up was that Miller was "curious"
88 Garside, a personable, well-spoken young man, testified forth-rightly and candidly,
and his credibility is not to any appreciable degree in issue. His manner was self-confident,
aggressive, militant, and, apparently, rigid, though admittedly not "obnoxious," during
the bargaining conferences This could well have led some, particularly those viewing him
as an adversary, to regard him as opinionated, dogmatic, and arbitrary, and perhaps in-
flated with his own sense of importance. Nevertheless, however much as Jones and Green-
wall might have resented Garside, and found bargaining with him as chairman of the
negotiating committee frustrating, these factors do not appear to have been a substantial
consideration in Respondent's ultimate decision to discharge him.
84 There had apparently been no previous instance of a candidate for union office visiting
the plant for the purpose of campaigning. According to foimer Shop Steward Williams'
undisputed testimony, during his tenure, when the business agent came to the plant to-
discuss union business , he was sent to Jones to obtain permission in advance.
86 That agreement was reached after a threatened strike is not extraordinary, and does
not detract from the fact that the Company ultimately concluded an agreement.
ELECTRO CONTROLS, INC. 321
about the hearing which ' had been scheduled in this proceeding , and questioned him
about it. After carefully • weighing Daniels' uncontradicted testimony about this
alleged conversation , in light of the realities of the situation , and the fact that,
despite his active role as committeeman , he was not discharged or otherwise dis-
criminated against, Daniels' testimony as to the conversation seems less than per-
suasive. It seems doubtful , if management had been determined to eliminate
Daniels, that it would have heeded its foreman's attempt to intercede on his behalf.
Moreover , the fact that Miller did not mention the subject to Daniels until a month
before the hearing raises suspicion as to the reliability of Miller 's alleged statement,
if not Daniels' testimony concerning it. The fact that Miller did not deny this testi-
mony does, of course, create misgivings about rejecting Daniels' testimony . It does
not, however, furnish a sufficient basis for concluding that Garside was actually dis-
criminatorily discharged even if Miller may have believed so himself.
Due consideration has also been given to the testimony of committeeman Homer
(who had been asked by Greenwall to use his influence to persuade the committee
to take a reasonable approach in the negotiations ), regarding Greenwall's remark
to the effect that Garside was not "going to be with the company very long." Since
the record establishes that this incident occurred during the period in which com-
plaints were being made about Garside's frequent unauthorized absences from his
work areas , Greenwall 's remark could have been directed as much to Garside's
derelictions in this regard as to his union activities.
There has also been considered in this connection Greenhagen 's testimony, dis-
cussed later , that, in a telephone conversation with Greenwall about her proposed
reinstatement , Greenwall questioned her about her sentiments toward Garside, and
presumably , his discharge . In view of the ultimate resolution of the issue of Gar-
side's discharge , these incidents are not regarded as having sufficient probative value
to overcome the more positive evidence concerning the actual reasons for the
discharge.
It remains to be decided whether Garside 's misconduct was the actual cause of
his discharge or whether a factor was in realty his aggressive espousal of the
Union's position and his excessive zeal in representing the employees ' economic
interests.
In evaluating Respondent 's motivation, it is appropriate to consider whether, at
the time of the discharge , it harbored a union animus or hostility toward the Union
or the organizational activities of its employees , which would have impelled it to
eliminate one of its most active advocates . In other words , whether, in discharging
Garside, Respondent was motivated by a purpose to discourage membership in, or
to undermine the Union . The objective evidence does not support such a conclusion.
Respondent ( or its predecessor ) had recognized the principle of collective bar-
gaining, at least, since 1954, when it executed a contract with the selfsame Union.
The first contract of which there is any evidence in this record , it appears to have
been renewed or extended , with successive wage increases , until July 1965, when
it was extended for a period of 2 years . While it is true that the negotiations which
culminated in the latest contract engendered some heat (chiefly, it might be
observed , on the part of the union advocates ), and was reached under threat of a
strike , this may be properly viewed as indicia of arms-length bargaining . There is
no intimation that Respondent resorted to such conduct to forestall agreement or
undermine the Union . The issues between the parties were almost entirely eco-
nomic. Moreover, there was no showing that the discharge *of_ Garside resulted in
impairing the effectiveness of the negotiating committee or the lessening of its bar-
gaining demands. Except for the relatively minor incidents, previously found, there
was no showing of other acts of interference , restraint, or coercion.
When Garside 's conduct in disregarding company policy and instructions , despite
repeated warnings, coupled with his conduct in the Cushing episode , is considered,
in light of the absence of anti-union background , the relatively insignificant inci-
dence of interference , and the history of harmonious contractual relations between
the parties , it becomes evident that Respondent 's motivation in discharging Garside
was not tainted by considerations of his union activities or his aggressive and mili-
tant attitude during bargaining negotations . The comment made in the Park Edge
Sheridan case,36 that , if an employee is disciplined for valid and legitimate reasons,
there is no violation of the Act merely because he was engaged in union activity
and "the employer sheds no tears at his loss," seems decidedly appropos.
80 See footnote 25.
264-188-67-vol. 161-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is, therefore , found , upon the basis of the foregoing , and upon the entire rec-
ord, that Respondent did not discharge Garside on June 4, 1965, because of his
union or other concerted activities, and has not thereby discriminated in regard
to his hire and tenure of employment, to discourage membership in a labor
organization in violation of Section 8(a) (3) of the Act.37
2. The alleged discriminatory layoffs of Greenhagen, Hoskings, and Boldon
On June 7, 1965, 3 days after the discharge of Garside, Respondent laid off
Edna ElNora Greenhagen, generally referred to in the record as ElNora Green-
hagen, a production employee, Warren H. Hoskings, a wireman, and Marlys Boldon,
an assembly worker. Of the three, only Greenhagen was an active member of the
Union and its negotiating committee, and she was reinstated on June 21, 1965.
The General Counsel contends that these employees were laid off because of
their union affiliation or adherence, and, in the case of Greenhagen, because of
her advocacy of the economic interests of the employees while a member of the
negotiating committee. Respondent maintains that these employees were laid off for
purely economic reasons without regard to their union status.
Specifically, Respondent asserts that their layoffs were caused by a shortage or
unavailability of Ward Leonard firing circuits, an integral part of a dimming sys-
tem, manufactured for theatrical stage lighting. Additionally, Respondent asserts,
the unavailability of aluminum extrusions required in the manufacture of lighting
equipment, resulting from a strike of its principal supplier, necessitated the layoffs.
This is not to say that there had not been layoffs in the past for lack of work, but in
this instance Respondent attributed the layoffs to shortages of critical materials.
Respondent had formerly manufactured its own firing circuits but because of engi-
neering problems decided to purchase them from the Ward Leonard Electric Com-
pany, another manufacturer in the East. On April 30, as shown by purchase orders
introduced in evidence, Respondent ordered 70 units, described in the order as "pre
amplier" kits. The record does not indicate how long this supply would normally
last. Anticipated deliveries were: 1 unit on May 14; 30 on June 10, and the remain-
ing 39 by June 28. Actual deliveries were made as follows: 4 on May 25; and
32 on June 22. The balance of 34 was presumably shipped on some later unspeci-
fied date, not shown in the record, presumably because subsequent to the critical
events involved.
With respect to aluminum extrusions essential to its production, Respondent has
purchased this commodity from Harvey Aluminum, Torrance, California.38 During
May and June, Respondent experienced a shortage of aluminum extrusions. On
May 11, according to pertinent purchasing documents received in evidence, Respond-
ent placed an order with Harvey for 250 units of top and bottom die aluminum
extrusions for estimated shipping date of July 23. It was not until August 17, how-
ever, that Respondent received its first shipment under this purchase order, consist-
ing of 19 pieces, the delay being attributed to a prolonged strike at the Harvey
plant, which terminated , according to a circular mailed to its customers, on about
August 23. An additional 47 pieces were shipped on September 30, and received
37 Although Garside was offered unconditional reinstatement on June 30, 1965, which he
refused, I have attributed no weight to this factor in evaluating Respondent 's conduct, in
view of the fact that the offer was made after the filing of the unfair labor practice charge
with respect to him. The General Counsel urges as a factor in establishing the discrimina-
tion against Garside that he was not given a 5-day written warning provided for in the
contract. President Jones testified that it was not his practice or his foremen's to issue
written warnings for misconduct, although in some instances written warnings had been
given. Admittedly, Garside was not given a written warning. The provision on which the
General Counsel apparently relies reads: "Sec. 31. WARNING TO EMPLOYEES FOR
INEFFICIENCY. In cases of inefficiency, the employee will be given by the Company, a
five (5) day written warning, with a copy to the Shop Steward. If employee is not dis-
charged, such warning will be invalid'after thirty (30) days" [Emphasis supplied ] This
provision is clearly inapplicable. There is no contention that Garside was discharged for
inefficiency. On the contrary, Jones conceded that during the discharge interview, he
acknowledged that Garside was a fine, capable worker, that he had no complaint about his
work, and would not hesitate to give him a reterence
38 This supplier 's California plant and general offices are located in Torrance ; its dis-
trict office, to which Respondent's purchase orders were directed, and which conducted the
correspondence with Respondent, is located in Berkeley.
ELECTRO CONTROLS, INC. 323
by Respondent on October 4; 47 pieces, shipped the same date, were received on
October 20, and a total of 66 pieces, shipped on October 26, was. received on
November 3.39
In view of the uncertainty of shipments from Harvey, Respondent made efforts
to obtain aluminum extrusions from other manufacturers, notably Alcoa Aluminum
and Reynolds Aluminum. This, however, would have entailed the manufacture by
those companies of special dies at Respondent's expense . Respondent, therefore,
with considerable reluctance because of the increased cost due to import duties,
placed an order with The Daymond Company, Ltd., Chatham, Ontario, Canada, on
May 25, for 350 pieces of aluminum extrusion 40 The first delivery from this source,
shipped on August 6, was made on August 13.
Unavailability of aluminum extrusions during May and June, according to Plant
Manager Greenwall, had its impact on the production department, where the
aluminum is cut, straightened, and fabricated. The impact, however, Greenwall
testified, was most acute in the assembly department, where all types of lighting
equipment requiring aluminum extrusions are produced. According to Assembly
Department Foreman Daniels, at the time of the layoffs, presently discussed, the
only supply of aluminum on hand was "what had already [been] cut ready for
assembly."
The shortage of Ward Leonard firing circuits and aluminum extrusions was a
subject of concern to management. In a weekly meeting with his foremen during
this period, Greenwall brought up the problem of these shortages. According to
SCR Department Foreman Nelson in May, and shortly before the layoffs in June,
the workload in his department was below normal, and had declined to the point
where Jackie Burton, one of his employees, was assigned to the mailroom. On
several occasions, Nelson sent some of his employees to the paint shop "to keep
them busy." At least twice, he discussed the problem of lack of work with Green-
wall, the last time, some 3 weeks before the layoff. Both agreed that something
would have to be done. Foreman Daniels, too, spoke to Greenwall about this twice,
the last time before the layoffs, and made recommendations for layoff of a specific
employee (Boldon, whose case is considered below). According to him, at the time
of the layoffs, there was about a week's work in the assembly department, and
"work was real light." Foreman Miller, of the wiring department, testified that the
workload in his department at the time had declined by 25 to 35 percent.
That the employees were not unaware of these conditions is manifested by the
testimony of Greenhagen, that work was slack, and that Foreman Nelson apprised
her and others in her department of that fact. Sharon Covington, whose work sta-
tion was adjacent to Boldon's, testified that about this time, "there wasn't a whole
lot to do, but there was enough to keep myself and [others] busy ... in the depart-
ment ," although "[T]here [were] days occasionally when we had to look for
something to do." Again, she testified, "I've . . . always just kept busy doing what
I was told, and I didn't pay a heck of a lot of attention, except I-you could see
that production was slowing down. I don't know whether it was because of lack of
parts or what." 41
Harvey Lloyd, whose job consisted primarily of cutting plastic by saw, also
-worked on aluminum, copper, and brass, and had the task of sawing the 20-foot
aluminum extrusions into required lengths. In March and April, he went to another
building of the Company several times to cut aluminum extrusions . During May,
Lloyd testified, the Company's supply began to dwindle. From June until about
October, when the Company received its only shipment from Canada, Lloyd did
not cut aluminum to any appreciable extent because no aluminum extrusions were
available.
3e The total shipments apparently fell short of the initial order. During this period, Plant
Manager Greenwali was in communication with Harvey 's sales manager in an effort to
- expedite deliveries , but was informed that shipments would be unavoidably delayed.
40 The actual purchase order was directed to Ariel Davis Manufacturing Company, Ltd.,
Calgary , Alberta, Canada , a subsidiary of Respondent , mentioned earlier in another con-
text , which had purchased merchandise from this manufacturer in the past , and arranged
for shipment of this order direct to Respondent . The record indicates that some 18 lengths
of this aluminum , amounting to 365 feet , proved defective . A report of damage inspection
by the carrier on August 23, concludes that these goods were not damaged in transit.
a Covington was no longer in the employ of Respondent at the time of the hearing, hav-
ing left voluntarily to accept other employment, and presumably would have no reason to
slant her testimony.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The situation confronting Respondent during this period of May and June was
somewhat akin to the adage , "for want of a nail." The Ward Leonard firing cir-
cuits are integral components of the modules, which are assembled to form the
SCR dimmers, which comprise 40 percent of Respondent's business. Since the SCR
Department, which consists of production and assembly employees, assembles the
modules for the dimmers, work in this department was materially affected. Inas-
much as the final phase in the production of the dimmer bank is the electrical
wiring, the inability to obtain the Ward Leonard firing circuits similarly affected
work in the wiring department.42
It is against this, background that the layoffs of the three employees were effected
on June 7.
The basis for the selection, namely, classification, rather than company seniority,
is the principal factor in Greenhagen's layoff, which will be considered first It will
be recalled that the actual language of the collective-bargaining agreement, in
force at the time, expressly provided that with respect to reductions in force, com-
pany seniority should prevail.
Respondent contends, and former Union Representative Tea, in effect, conceded,
that, despite the contract language, in actual practice, classification seniority has
been followed when layoffs became necessary. The record adequately establishes
that the Union (i e., both Business Agent Tea and his predecessor), acquiesced in
if it did not actually agree to the Company's basis for selection In any case, there
is no affirmative evidence that the Union protested this departure from the unam-
biguous terms of the contract, and, as Respondent obviously relied on the Union's
conduct, the Union is, at the very least, estopped from asserting that the language
of contract precluded Respondent from relying on classification seniority as a basis
for selection43 It is, however, unnecessary to invoke any such technical or legalistic
principles as modification by parol, or estoppel. The issue is not whether the
parties modified, or could have modified the written contract by oral agreement,
or whether the Company had a reasonable right to rely on the practice which was
at variance with the contract. In the final analysis, the issue is whether, in apply-
ing classification , rather than company seniority in Greenhagen's layoff, Respond-
ent was acting out of discriminatory motives based on union adherence or concerted
activity.
The evidence adequately establishes that Respondent (or its predecessor) had
experienced seasonal spring layoffs for business or economic reasons, each year
until about 1959. Since then, Respondent has effected two significant layoffs, one
in 1959, the other in 1963. In each instance, the selection was made on the basis
of classification seniority, without objection or protest by the Union.44 The layoffs
with which we are now concerned were in the classifications of production worker,
assembly worker, and wireman, the precise classifications which were affected in
the 1963 layoff. We turn then to the specific, layoffs involved in this proceeding.
a. Edna ElNora Greenhagen
Greenhagen was initially employed by Respondent from October 1960, to Sep-
tember 1962, when she left voluntarily for personal reasons. She returned to
"On June 3, Jones telephoned Greenwall in Milwaukee, that the Ward Leonard circuits
had not yet been shipped , and delivery of aluminum extrusions had been delayed by the
strike at Harvey. During this conversation , it was decided on the layoffs, the selection of
employees having been previously decided on in the event of this contingency.
is It is a familiar principle of law that a written contract may under certain circum-
stances be altered by an oral agreement , certainly when that oral agreement is executed.
"It Is also competent for the parties to a contract to vary its terms by a subsequent course
of dealing . A written contract may be modified by an oral agreement which has been
accepted and acted upon by the parties in such a manner as would work a fraud on either
party to refuse to enforce it." 17 Am. Jur. 2 S 466.
"s Although the reasonableness of Respondent 's policy in utilizing classification, rather
than company, seniority is not, of course, controlling, it is not inappropriate to 'note, in
judging whether the Union had consented to the company practice, that Respondent main-
tains that the nature of its operation requires that classification, rather than company or
plantwide, seniority prevail. Otherwise, it might necessitate the layoff of all employees in
a particular job classification , with the result that the overall operation could be brought
to a halt. The modification of the applicable provision in the current contract is a mani-
festation of the Union's recognition that the language of the previous contract was in-
consistent with the actual practice.
ELECTRO CONTROLS, INC. 325
Respondent's employ in March 1964, and worked until June 4, 1965, when she
was laid off under circumstances giving rise to these proceedings 45 As will later
appear, she was reinstated on June 21, and was still employed by Respondent as
of the date of the hearing.
Greenhagen was a member of the negotiating committee , acting as secretary
and recording minutes of the bargaining, meetings . She attended all but one of
these meetings, the one of June 18, following her layoff.
At a union meeting on about June 2, attended by some 28 employees, the
negotiating committee reported on management's offer, and canvassed the member-
ship to determine whether it would support the committee . Greenhagen took the
floor and, in a talk lasting , according to her, five minutes, exhorted the members
to "stand together" and "fight" to "get more money," mentioning , in passing that
she, too, "would like to have a new boat, even a car." The remark was prompted
by the fact that it had been rumored at the plant that President Jones had pur-
chased a boat costing $4,000-$50,000, according to some46 Greenhagen con-
trasted this with the Company's rejection of a demand for a 12-percent raise.
On about June 16 or 17, Plant Manager Greenwall phoned Business Agent Tea
to inquire whether Greenhagen wished to return to work. Later, the same day, Tea
relayed the message to Greenhagen. He told her that she would either hear from
Greenwall or could get in tough with him herself. According to her, Tea advised
her "not to go back with a chip on my shoulder and cause any more fuss."
Next day, in a telephone conversation, Greenwall asked her whether she would
like to return to work. When she said that she would, Greenwall said, according to
her, that she could do so "on a couple of conditions." Asked what they were, he
told her that the first, was that she call him on Friday (June 18) by 4 o'clock, to.
ascertain whether the circuit boards had arrived because they might be in by then.
She agreed to do so. As to the second condition, she testified, Greenwall began by
asking her how she felt about Garside, "-what's going on?" Greenhagen replied,
"I don't know very much about it, Bob. All I know is by hearsay that Mike was
supposed [to] be taking too much time for the union ." Then, according to Green-
hagen, Greenwall said "something to the effect that I wouldn't come back and-I guess
and start the same old trouble over- again or work the people up . He never
stated exactly what he meant, just that-the way I took it was that he didn't want
me to go . . . around telling everybody at the plant that Mike got a bad break
and this and that, ... I never intended to do this." 47 Under cross-examination, she
testified that when Greenwall asked her how she felt about the Garside situation,
46 The complaint alleges she was laid off on June 7 June 4, a Friday, would have been
her last regular working day before her layoff. Greenhagen testified that she was absent
due to illness on that day, and when she reported for work the following Monday, dis-
covered that her timecard had been removed
4e According to Jones, the boat was actually an outboard speed boat costing $1,900, a
fact which he had disclosed to an employee and a union member , who was interested in
acquiring a similar boat through the Company 's contacts It is evident that the purchase
of the boat had been the subject of comment among the employees Jones testified, how-
ever, that he did not learn of Greenhagen's reference to the boat at the union meeting
until at least a week after the layoff.
4' The General Counsel relies on this conversation in support of the allegation in the
complaint that Respondent "conditioned the recall of [Greenhagen ] on her promise to
refrain from any activity that would cause the Respondent any trouble because of
[Garside's] discharge . . " According to Greenwall, who corroborated her testimony
about the offer of reinstatement , Greenhagen asked him , "what about Mike Garside?"
He said he could not answer that. Whereupon, she said, "Well, gee, I don't want to get
involved in any more of this. I want to stay clear of it, don ' t want anything to do with
it" Greenwall replied, "E1Nora , that's entirely up to you " Greenwall and Greenhagen dis-
agreed in their testimony as to which of them first broached the subject of Garside. If, as
Greenwall testified , she first brought up the subject, possibly in the hope of accomplish-
ing his reinstatement , it seems doubtful that she would have dropped the subject so
abruptly . On the other hand , it is not unreasonable to believe that she might have wearied
of the contentiousness generated by the labor dispute, and , despite her concern over
Garside, decided that her first duty was to herself. Be that as it may, the evidence, even
based on Greenhagen ' s own version of the conversation , is too vague, indefinite , and un-
certain, amounting to no more than her subjective impression of his remarks,-to con-
stitute probative support for this allegation of the complaint. As has already been
indicated elsewhere , it is , for the same reasons , insufficient to substantiate a finding of
discriminatory motive with regard to Garside's discharge
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she told him that she did not know too much about Garside 's side of the case, that
all she knew was what she had heard about management 's complaints about his
leaving his work area, "so I would have no reason to give you any trouble on
Mike Garside 's case."
Greenhagen called Greenwall Friday , as directed, and was told that the circuit
boards had not yet arrived but that she could report for work the following Mon-
day, June 21. She returned to work on that day.
According to Greenhagen, on June 23 or 24, following her reinstatement, she
went to Greenwall's office "to have a talk with him about [her] layoff." She told
him that she wanted to be reclassified as an assembly worker. He said that it would
be "a little senseless " to do so at that time 4 8 Greenhagen replied that she realized
that, but wanted to be placed at "the bottom of the assembly line," adding, "I
don't want to be recalled out of my department ." He told her that he could not
reclassify her then but that as soon as the new contract was signed he would do so.
She said that that was what she wanted.
Greenhagen testified that she then volunteered, "I know perfectly well what hap-
pened that Mr. Jones got mad at me because it came back from the union that I
said something about the boat . . . He don't like me." Greenwall objected, "Don't
talk like that ElNora." She concluded, "If you don't know, he don't. He fired me
for just that reason." According to her, Greenwall made no denial or protest but
"shrugged his shoulders and turned red in the face" and nodded affirmatively.
Despite the fact that this testimony, elicited for the first time on rebuttal, was
not subsequently denied , no weight can be attributed to her self-serving statement
as to the reason for her termination, and, what Greenhagen sought to establish as,
.a tacit admission by Greenwall. Apart from the fact that it has no probative value,
the conduct which she ascribed to Greenwall in this conversation is wholly out of
character on the basis of observation of his attitude and demeanor on the witness
stand.
Contentions and Conclusions
When Greenhagen returned to work in March 1964, she was hired as an
assembler, at the rate of $1.25, less than the rate she was receiving when she left
in 1962. As assembler, her duties entailed "stacking" dimmers and studio lighting,
and assembling equipment , as well as some silver plating. She continued in this job
for 4 months under the supervision of Foreman Daniels receiving the production
rate, though not the classification.
At the end of the 4-month period, she was advanced to the classification of pro-
duction worker, with a 25-cent-an-hour increase to $1.50. Her duties remained
the same, only her classification being changed. In about March or April, as a
result of bidding successfully on a vacancy, she was transferred at her own request
from the assembly, to the SCR Department. Her classification as production worker
remained the same. Her job involved wiring, soldering , etching, and silk screening
printed circuits , and assembling modules to be installed in dimmer cabinets.
As a result of the Company's practice of applying classification, rather than
company seniority, Greenhagen's transfer from the assembly department to the
SCR Department placed her next to last on the seniority list in the latter depart-
ment. For reasons presently appearing , she was laid off instead of the employee
with the lowest classification seniority in that department. It was, in effect, conceded
by Jones that if Greenhagen had not previously requested , and been granted, a
change in classification from that of assembler to that of production worker in
the SCR Department, she would not have been laid off on June 7.
The business necessity for the layoffs occasioned by the shortages of firing cir-
cuits and aluminum extrusions has already been detailed and found.
When Foreman Nelson notified Greenhagen of her layoff on June 7, he gave as
the reason that "she was low in classification seniority." Under this basis for senior-
ity, Greenhagen was the most junior employee in the production worker classifica-
tion, with the exception of Florence Buckley, who had been hired on September 23,
as an engraver. The engraver has been regarded by Respondent as indispensable,
and has not been laid off, even during slack periods, but because of her special
skills, is assigned to other duties until work in her own field becomes available.
48 Greenhagen offered no further explanation of this cryptic remark,
ELECTRO CONTROLS, INC. 327
Admittedly, Greenhagen did not possess the requisite skills to perform this work 49
As to why, in contrast to other female employees, who were temporarily assigned
to the mailroom or paint shop, Greenhagen was laid off, it is evident that they
had more classification seniority than Greenhagen.
In a conversation with Greenwall outside the plant on June 11, Greenhagen
protested her layoff, and, complained because she had not been transferred back
to the assembly department rather than been laid off. She testified that Greenwall
said he had been out of town when the layoffs occurred, adding "let me see what
I can do, and we'll take care of everything." 50 That he actually fulfilled his prom-
ise is evident from the fact that he arranged for her reinstatement on June 21.
Greenhagen's union activity and militancy as a member of the negotiating com-
mittee (though perhaps no more so than Daniels), her exhortations to the employees
to stand firm; her support of the strike, her outspoken resentment at the Com-
pany's refusal to grant the employees a 12-percent wage increase (while its presi-
dent indulged himself in the purchase of an expensive boat)-all these facts may
be granted. They merely establish that Respondent may have had a motive for
eliminating an active and militant union adherent, if it were bent on doing so.
However, as has already been stated, there was no showing that Respondent was
opposed to union representation of its employees; (on the contrary, the parties
appear to have enjoyed a satisfactory and harmonious bargaining relationship for
more than 10 years); had manifested union animus; had engaged in conduct
calculated to undermine the Union; or had regarded the conduct of the union
negotiators so oppressive, unreasonable, or arbitrary as to impede or prevent a
mutually satisfactory agreement.
As to the layoffs, Respondent presented a well-documented case, substantiated
by the uncontradicted and credited testimony of its managing officials, for the
necessity for layoffs due to the unavailability of essential materials of production.
Equally convincing is the testimony relating to company policy in applying classi-
fication, rather than company seniority (despite contrary language in the contract),
with the acquiescence, if not express consent, of the Union.
The events culminating in the offer of reinstatement to Greenhagen furnish
further support for the conclusion that the reason for her layoff was actually busi-
ness necessity. If Respondent had, in fact, been bent on eliminating what it
regarded as an excessively zealous union advocate, it seems unreasonable to
believe that it would have offered her reinstatement within 2 weeks of her layoff,
especially since settlement of the contract dispute was not reached until some 10
days after her reinstatement.
On the basis of the foregoing, and upon the entire record, a finding that Green-
hagen was laid off because of her union activity, cannot be sustained. In reaching
this conclusion, Greenhagen's testimony that several months earlier Foreman
Daniels had questioned her about what went on at union meetings, and sought to
create the impression that the union activities of the employees were being kept
under surveillance, has not been overlooked. Nor, has her testimony, during her
reinstatement interview, that there was some discussion regarding Garside's dis-
charge, been disregarded. This evidence, even if true, is insufficient to overcome
the more credible and persuasive evidence that Greenhagen's layoff was due to
business necessity.
It is, therefore, found that Greenhagen was not laid off on June 7, because of
her union or concerted activities. It is further found that Respondent did not con-
dition her reinstatement on June 21, on her promise to refrain from any activity
as alleged in the complaint.
'° Buckley was hired to fill a vacancy in the job of engraver, after the job was posted.
None of the employees was qualified for the job, and no one bid on it. Buckley, incidentally,
according to Respondent, had been hired from another engraving firm in the area. The job
of engraver was classified as a production job because of the limited number of classifica-
tions under the contract.'
60 If Greenwall actually sought to evade responsibility for her layoff on the ground that
he had been out of town (he did not deny making the remark), it is probable that he did
so only to placate her. It is obvious, of course, that he had previously discussed the
layoffs with Jones by phone.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Warren S. Hoskings
Hoskings was hired on April 16, 1965, as a wireman, and worked in that job
under Foreman James Miller until the date of his layoff on June 7. At the time
of his layoff, he was still a probationary employee. The department in which he
worked built the cabinets and panels in which the firing circuits were installed.
On the Friday before his layoff, a regular payday, he had been absent due to ill-
ness, and his wife picked up his paycheck.
When he reported for work the following Monday, he discovered that his time-
card had been removed. He started working, and then decided to seek out his
supervisor. He encountered two men talking together, one of whom, Jess Elgan, a
salesman or engineer, told him "both bosses" were out of town, that he had been
instructed to give him his termination papers; and that there was nothing personal
involved but that the Company was "low on work." Elgan also advised Hoskings
to return in 2 months to see if work was available.
Foreman Miller appeared later, and when he saw Hoskings in the cafeteria told
him that there were no hard feelings. Hoskings asked him why Steve Kleinlein,
who had been hired after Hoskings, was being retained. Hoskings admitted that
Miller said that Hoskings had been "going good for a while but then slowed
down." When Hoskings asked him to be more specific, Miller replied, according
to Hoskings, that "maybe it was his [Miller's] fault for not being around to help
[him] get started." Hoskings testified that he had never received any complaints
from Miller about his work. Hoskings was not notified when work became avail-
able, did not communicate with Respondent, and was never recalled.
Hoskings was not a member of the Union at the time of his layoff, although he
had attended union meetings, and, according to him, the Company had started
making deductions for union dues from his wages. He admitted that Miller had
told him previous to his layoff that work had been slacking off and that there
would be another layoff in a couple of weeks.
According to Plant Manager Greenwall, although he had notified his foremen
several times during weekly meetings of a possible layoff due to the shortage of
aluminum extrusions resulting from the strike at their supplier, and the delay in
shipments of SCR firing circuits, this possibility was not communicated to employ-
ees because, as a matter of company policy, it was considered unwise to alarm
the employees. With regard to Hoskings, he testified that Foreman Miller had been
critical of Hoskings' work, and he was terminated because of the shortage of firing
circuits, as well as his probationary status. President Jones corroborated Greenwall,
testifying that, although Hoskings was not the lowest wireman in seniority, he was
terminated for the same reasons given by Greenwall.
Foreman Miller testified that the quality of Hosking's work was "poor;" that he
used power tools in "poor fashion;" and that he spoke to Hoskings about it twice,
the first time, about a month before the layoff. On June 3, according to Miller, he
recommended that Hoskings be dismissed. Although the wiring department does not
work directly on SCR modules, they are components of the panels or boards and
cabinets in which they are installed. Between the last week of May until at least
June 4, the workload had declined some 25 to 35 percent, and Hoskings was the
only wireman out of a complement of six or seven who was laid off.
According to Jones, Hoskings had been working only on manual dimmers, of
the "old fashioned" type, which did not require Ward Leonard firing circuits.
Hoskings had not performed work on dimmers requiring modules, but, Jones testi-
fied, a more competent wireman should be capable of performing work on both
types. Hoskings, according to Jones, was capable of performing work on only
one type.
According to Foreman Miller, Steve Kleinlein, the wireman with less seniority
than Hoskings, was a very satisfactory and efficient employee. Significantly, Ohlson,
a wireman, and, incidentally, former union steward who was often asked by his
foreman to give a new man a hand testified that he observed Hoskings ' work, and
that, in his opinion, although he was a capable worker, he did not appear to have
"an interest in his work," although he doubted that the quality of his work was
"reproachable." Ohlson testified that he had inquired once or twice of Foreman
Miller how Hoskings was "working out" and whether he was progressing satis-
factorily. Ohlson did not indicate Miller's response . According of Ohlson, Klein-
lein, who was a relatively new employee in the wiring department , demonstrated
an interest in his job and this was reflected in his work.
ELECTRO CONTROLS, INC. 329
On the basis of this showing, the General Counsel contends that Hoskings was
terminated because of his union or concerted activities.
There is nothing in the record to justify a finding that Hoskings distinguished
himself in any manner as a union adherent. On the contrary, the evidence estab-
lishes that he had not actually become a member of the Union, and that his dues
were checked off under the union security provisions of the contract. On the other
hand, Respondent has advanced reasonable and plausible grounds for his layoff.
The only possible basis for a claim of discrimination, urged by the General Coun-
sel, is that Hoskings was laid off to lend credence to the layoff of Greenhagen and
the other employees involved. No probative evidence was introduced to substantiate
this contention. Contrasted with the layoff of Greenhagen, which has been found
not to have been discriminatorily motivated, the evidence as to Hoskings does not
approach a scintilla.
It is found that Hoskings was terminated not because of his union membership
or adherence, but for valid and legitimate reasons, and that the allegations of
discrimination have not been sustained.
c. Marlys Boldon
Boldon was also hired on April 5, 1965, in the assembly department, where she
worked under the supervision of Foreman Daniels until June 7, when she was
laid off. Her job consisted of wiring lights and "plug-ins."
As in the case of Hoskings, when she reported for work on Monday, June 7,
her timecard had been removed. When she took this up with her foreman, he told
her to repot t to the front office. She returned with an envelope containing her
layoff notice According to her, she was not told the reason for her layoff, and her
foreman acted surprised. However, he told her to keep in touch with the girls. She
had never been warned, reprimanded, or criticized about her work. She had worked
on aluminum extrusions which had been painted black, but did not work with
firing circuits or on the firing boards. She had not been recalled. According to her,
even if aluminum extrusions were not available, there was wiring for her to do.
Although Boldon testified that she did not know and was not told the reason
for her layoff and that she believed that there was work for her to do at the time,
she admitted that her termination slip gave as the reason for her discharge reduc-
tion in force.
Respondent defends Boldon's layoff on the ground of necessity stemming from
the shortage of materials, and her lack of seniority, since she was the last employee
to be hired in her classification-assembly department.
Although four employees were hired in August and September 1965, Boldon was
not recalled, and there is no contention that her work was unsatisfactory or that
she was an undesirable employee. Respondent's principals testified, however, that
in the case of layoffs, the employees were told to keep in touch with the Company,
and that, although, in some instances, as in the case of Greenhagen, where the
employees possesses good skills and has otherwise performed satisfactorily, the
Company may endeavor to recall the employee, there is no established policy. It
is evident that, while Boldon was a satisfactory employee during the relatively short
duration of her employment, her job in assembly was fairly routine, and neither
the job nor her skills were exceptional. At any rate, Respondent did not recall her
and she made no attempt to ascertain whether an opening was available for which
she was qualified after the layoff. At the time of the hearing, she was employed
at a local restaurant, and this may have accounted for her failure to contact her
former employer.
Like Hoskings, Boldon was not a union member at the time of her layoff,
although she had attended union meetings, and half of her membership fee had
been deducted from her wages as of the time she left. She was not an active par-
ticipant in the union activities or contract negotiations, and, although she apparently
supported the strike action, did not in any way distinguish herself in the union
cause.
As in the case of Hoskings, the General Counsel rationalizes his contention of
discriminatory layoff on the basis that it was perpetrated to furnish greater credence
to the alleged discriminatory layoff of Greenhagen. For reasons already stated, it is
found that the evidence does not support this contention.
It is found that the layoff of Boldon was motivated by economic conditions, and
not reasons proscribed by the Act.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
It has been found that Respondent has engaged in certain unfair labor practices,
within the meaning of Section 8(a)(1), specifically , interfering with, restraining,
and coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act by interrogating employees concerning their union affairs and activities,
and demanding or requiring that employees permit Respondent's management repre-
sentatives to read copies of statements obtained from said employees by Board
agents. It will, therefore, be recommended that Respondent be ordered to cease
and desist therefrom,'and take certain affirmative action"designed to-,effectuate-the
policies 'of the Act.
It has also been found that Respondent has not discriminated in regard to the
hire and tenure of employment of named employees to discourage membership
in a labor organization. It will, therefore, be recommended that these allegations
of the complaint be dismissed.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Electro Controls, Inc., a Utah corporation, Respondent herein, is, and at all
times material has been, an employer within the meaning of Section 2(2), and is,
and has been, engaged in commerce and a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Local No. 354, AFL-CIO,
is, and at all times material herein has been, a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
the rights guaranteed in Section 7, as found above, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
5. Respondent has not discriminated in regard to the hire and tenure of employ-
ment of its employees to discourage membership in a labor organization, in viola-
tion of Section 8(a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record, it is hereby recommended that Electro Controls, Inc., its
officers, agents, successors, and assigns, shall.
1. Cease and desist from:
(a) Interrogating its employees concerning their union affairs and activities, or
other concerted activities, in any manner proscribed by the Act.
(b) Demanding or requiring that employees permit management representatives
to read copies of statements obtained from said employees by Board agents.
(c) In any like or similar manner, interfering with, restraining, or coercing
,employees in the right to 'self-organization, to form, join, or 'assist any -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, or to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized in Section
'8(a)(3) of the Act.
2. Take the following affirmative action which, it is found, will effectuate the
policies of the Act:
ELECTRO CONTROLS, INC. 331
(a) Post at its plant and place of business in Salt Lake City, Utah, copies of
the attached notice marked "Appendix A." 51 Copies of this notice , to be furnished
by the Regional Director for Region 27, after being duly signed by Respondent or
its duly authorized representative , shall be posted immediately upon receipt thereof,
and maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted . Reasonable
steps shall be taken by Respondent to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Notify said Regional , Director ,, in-writing , within 20 -days from the date of
this Decision , what steps Respondent has taken to comply therewith 52
IT IS FURTHER RECOMMENDED that the allegations of the complaint that Respond-
ent has discriminated in regard to the hire and tenure of named employees to dis-
courage membership in a labor organization , or has engaged in other unfair labor
practices not herein found , be dismissed.
IT IS FURTHER RECOMMENDED that , unless on or before 20 days from the date of
receipt of this Decision , Respondent notifies said Regional Director that it will
comply with the foregoing recommendations , the Board issue an order requiring
Respondent to, take the action ^,aforesaid.
51 In the event that 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 In the further event that the Board 's Order is enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
52 In the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read : "Notify the said Regional Director , in writing, within 10 days
from the date of this Order , what steps Respondent has taken to comply herewith."
APPENDIX A
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 our employees that:
WE WILL NOT interrogate our employees concerning their union affairs or
activities or other concerted activities ; demand or require that our employees
permit our representatives to read copies of statements obtained from said
employees by agents of the National Labor Relations Board.
WE WILL NOT, in any like or similar manner, interfere with, restrain, or
coerce our employees in-the right to self-organization , to ,form, join, or_ assist
International Brotherhood of Electrical Workers,'-Local No. 354, AFL-CIO,
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, or to refrain from
any or all such activities , except to the extent that such right may be affected
by an agreement requiring membership in it labor organization as a condition
of employment in conformity with Section 8(a)(3) of the Act.
All our employees are free to become or remain, or to refrain from becoming
or remaining , members of the above -named or any other labor organization.
ELECTRO CONTROLS, 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.
If employees have any question concerning this notice or complaince with its
provisions , they may communicate directly with the Board 's Regional Office, 609
Railway Exchange Building, 17th and Champa Streets, Denver, Colorado 80202,
Telephone 683-5850.