Famet, Inc.

National Labor Relations Board - Board Decisions

Mar 15, 1973

202 N.L.R.B. 409 (N.L.R.B. 1973)

FAMET, INC. 409
Famet, Inc. and International Association of Machin-
ists and Aerospace Workers, AFL-CIO, Local
Lodge No . 1327. Case 20-CA-7242
March 15, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On May 23, 1972, Administrative Law Judge'
Herman Marx issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief and the Respon-
dent filed a brief in opposition to General Counsel's
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order only to the
extent consistent herewith.
Contrary to the Administrative Law Judge, we find
that the Respondent wrongfully discharged employee
Rutledge in violation of Section 8(a)(3) of the Act. In
reaching this conclusion, we are persuaded by the
General Counsel's principal contention that the
Administrative Law Judge failed to consider and
properly apply all of the material evidence relative to
the issue of Rutledge's discharge by Plant Manager
B. Katshen (erroneously shown as Katchen in the
attached Decision).
As found by the Administrative Law Judge,
employee Rutledge was by far the most active union
protaganist among the production and maintenance
workers in Respondent's plant. Indeed, it appears
that Rutledge was the only employee affirmatively
engaged in organizational activity. Thus, early in
November 1971, on his own initiative, Rutledge
visited the Union's headquarters and inquired about
the procedures incidental to organizing his cowork-
ers. He was furnished with basic information relating
to the mechanics of union organization and given a
supply of union authorization cards which he was
instructed to distribute among the employees for
1 The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972
2 Rutledge made no attempt to proselyte employee Beardslee who, from
the record , is a personal friend of Respondent 's plant manager and officer,
Katshen, and who testified for the Respondent at the hearing herein
3 Subsequently, on February 1, 1972, following a Board election, the
Union was duly certified as the statutory bargaining agent for these
employees
4 In the plant production area there are separate work benches provided
their acceptance and execution. Immediately there-
after, and while on Respondent's premises, Rutledge
personally disseminated these cards among the
employees in the prospective bargaining unit so that
in a day or two he had contacted 10 of the 11
employees concerned.2 Some of them signed the
cards forthwith; others took them and promised to
give further consideration to the matter.3 In this
context, we note the comparative smallness of
Respondent's plant and the fact that all three of
Respondent's managers or supervisors were almost
continually among and around the other employees
because they all performed regular production work
at various times.4 Thus, by virtue of circumstances,
Respondent was obviously capable of exercising very
close observation of all aspects of its employees'
work and behavior throughout each workday.
Employee Rutledge was discharged on November
12, 1971, a few days after the foregoing activity
occurred. Late in the morning of that day, Plant
Manager Katshen was distributing paychecks to the
employees and when he approached Rutledge's work
station he observed Rutledge engrossed in conversa-
tion with employee Aiello. Katshen handed them
their paychecks and said nothing to them, but,
according to his testimony, was secretly annoyed
because Rutledge was not devoting full time and
attention to the work on his bench. A short time
thereafter, Katshen ordered Foreman Staudt to
notify Rutledge that he had been seen chatting
instead of working during company time and to
admonish the latter to discontinue such conduct.
Consequently, when Rutledge returned from his
lunch break, he was accosted by the foreman who
conveyed Katshen's message to him. During the
ensuing colloquy, Rutledge told Staudt, inter alfa,
"the cat is out of the bag," that Staudt should take a
neutral posture because "they had enough on Bernie
[Katshen]," and "they were going to get him." 5
Immediately following this episode, Stuadt returned
to the office and reported Rutledge's remarks to
Katshen. Staudt also told Katshen that employees
Stahl and Chasco were involved. Katshen reacted by
stating that he would not wait "for anybody to get
him" but that he would "get such a person first."
Thereupon, he instructed his secretary to prepare
for Plant Manager Katshen, Assistant Manager L Poore, and Foreman G
Staudt
5 Just prior to this encounter with Staudt, Rutledge had been warned by
employee Salinas that he had heard that Katshen knew all about the union
activities in the plant While we agree with the Administrative Law Judge
that this hearsay evidence standing alone furnishes inadequate legal basis
per se for a finding that Respondent was aware of Rutledge 's prounion
efforts at the time of the discharge, it does serve to illuminate the meaning
of Rutledge's phrase that " the cat is out of the bag."
202 NLRB No. 52
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
checks for Rutledge's wages and his accrued vacation
pays Katshen and Assistant Manager L. Poore then
proceeded to Rutledge's work area where Katshen
asked Rutledge, "What's this I hear that you are
going to get me?" Rutledge denied making the
statement and Foreman Staudt was summoned to
repeat what he had previously reported to Katshen.
Thereupon, the plant manager discharged Rutledge
and gave him his two paychecks. Before Rutledge
departed, Katshen searched through Rutledge's
toolbox for company property and while doing so
came across a quantity of blank union authorization
cards whereupon he asked Rutledge "if he was trying
to organize a union at the plant." 7
Our careful assessment of all of the evidence
pertaining to Rutledge's comprehensive and vigorous
union activity leads us to reject the Administrative
Law Judge's finding that the Respondent was not
cognizant of this discriminatee's leading role in the
Union's organizational undertaking. Consequently,
we find that the General Counsel has sustained his
burden of adducing preponderating evidence in this
regard so as to satisfy the requirements of the Act. It
is well settled by the Board and the courts that proof
of knowledge of union or concerted activity may be
shown by circumstantial as well as by direct
evidence.8 Hence, we infer that at the time Rutledge
was terminated the Respondent possessed knowledge
of his union activities. We are particularly persuaded
as to the validity of this finding by the following
evidence, inter alia: the small number of employees
at the plant (11 during relevant times) and the very
close day-to-day contact the managers and supervi-
sors maintained with the employees in the pro-
duction areas by virtue of their personal involvement
in the fabrication of the plant's products; the timing
of the discharge in its close relationship to Rutledge's
authorization card distribution and his attendant
discussions with the employees; the circumstance
that even on the day of the discharge employees were
discussing the "pros and cons" of union affiliation as
shown by the conversations between Beardslee,
Salinas , and- others; the peremptory nature of this
personnel action whereby a valued employee who
6 We note that when Rutledge began to work for Respondent in April
1969 his pay was $3.25 per hour . Between that time and the date of his
firing, Rutledge was given several wage raises so that he was receiving $4.95
per hour at the later date.
r Although the evidence is conflicting, this version is a synthesis of the
testimony relating to the exit interview and generally reflects the pertinent
findings of the Administrative Law Judge.
B See Long Island Airport Limousine Service Corp., 191 NLRB No. 16;
Wiese Plow Welding Co., Inc., 123 NLRB 616, 618.
9 The Administrative Law Judge took note of this circumstance by
observing , "Perhaps another person in Katshen 's position would have asked
Rutledge , before deciding to discharge him, by what means he intended to
carry out the threat "to get" him and , depending upon the response, would
have taken a more tolerant view of Rutledge 's rhetoric , but the course
Katshen took was not so excessive as to point to an ulterior motive for the
had been granted substantial pay raises during his 2-
1/2 year tenure at Respondent's plant was selected
for firing by having his paychecks readied even
before the plant manager would accord him any
opportunity to explain his utterances to Foreman
Staudt.9 Accordingly, we conclude that there is
ample evidence upon which to predicate the infer-
ence that the plant manager was aware of employee
Rutledge's prounion efforts when he decided to
discharge him.
Nevertheless, there remains for our consideration
the matter of Rutledge's remarks to Foreman Staudt
when he was admonished against talking on the job.
While we do not condone employee misconduct in
general, we do not feel that the imprecise and
ambiguous nature of Rutledge's statements in the
circumstances of this case are tantamount to a threat
against Katshen, nor need they, in reason, have been
so understood by him.10 In any event, the plant
manager obviously was not predisposed to grant
Rutledge the benefit of any doubts which may have
arisen in his mind about the meaning of Rutledge's
rhetoric as it was reported to him. Instead, Katshen
precipitately ordered his secretary to prepare Rut-
ledge's paychecks purely on the strength of Staudt's
report. However, we consider in this context a
significant fact not mentioned by the Administrative
Law Judge; namely, that Staudt reported that
employees Stahl and Chasco were also involved in
the affair. Yet, Katshen did not order the immediate
preparation of their paychecks, nor did he even
approach them about the incident until some time
after Rutledge had been expelled from the plant.11
There is further evidence of disparate treatment
being meted out to Rutledge in connection with the
original "talking on the job" incident which triggered
Katshen's admonition, via the foreman, to this
employee. As mentioned, supra, Rutledge was ob-
served by Katshen to have been engaged in this
conversation with employee Aiello, but there is no
evidence that Respondent even mentioned the
impropriety of this conduct to Aiello, to say nothing
of the fact that Respondent never gave him a
disciplinary warning for being equally involved in
dismissal ." Manifestly , we disagree with the conclusion contained in this
excerpt.
tO In our view, Rutledge's remarks to Staudt that they had "enough" on
Katshen and were going "to get" him occurred in the context of the Union's
organizational effort and , providing the plant manager had been interested
in learning their import, could have been understood to relate only to
Rutledge 's hope that the campaign would succeed and that Katshen would
ultimately be forced to engage in collective bargaining . To us, this
construction is much more reasonable than Katshen 's self-professed view
that Rutledge had , in fact , threatened him with bodily harm.
II When eventually asked by Katshen about the matter , both Stahl and
Chasco denied their complicity with Rutledge and dissociated themselves
from the incident . For all that appears, their denials were accepted and no
reprisals were visited on them.
FAMET, INC.
this purported breach of company rules. As for the
Respondent's antiunion motivation, we think it is
sufficiently established during relevant times by:
Katshen's remarks to Rutledge at the time he was
discharged concerning the authorization cards he
found in the latter's toolbox; the antiunion views
enunciated by Katshen at a meeting of employees
called by Respondent prior to the Board election
held herein,12 and similar opinions subsequently
expressed by Katshen to employees Salinas and
Beardslee; and our adoption of the Administrative
Law Judge's finding that the Respondent violated
Section 8(a)(1) of the Act by Plant Manager
Katshen's interrogation of employee Cordova and
threat of curtailed production, should the plant be
unionized, made to him not long after Rutledge was
discharged. In view of the foregoing, and particularly
considering Respondent's discriminatory treatment
of employee Rutledge, we find that the essentially
ambiguous statements made by him, which he was
not given a fair opportunity to explain, were seized
upon by the Respondent as a pretext to justify his
discharge. Accordingly, we conclude that Rutledge
was discharged in violation of Section 8(a)(3) and (1)
of the Act.13
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Famet, Inc.,
Redwood City, California, its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating any of its employees concerning
any activity of any employee in, with, or on behalf of
any labor organization, or the choice of such
organization as a bargaining representative, in a
manner constituting interference, restraint, or coer-
cion within the meaning of Section 8(a)(1) of the Act.
(b) Discouraging membership in, or activities on
behalf of, the above-named Union or any other labor
organization by discharging employees or otherwise
discriminating against them in any manner with
12 These remarks of the plant manager are not alleged in the complaint
as violative of the Act.
13 See Great Lakes Carbon Corp, 175 NLRB 1050, 1055-56
Contrary to our dissenting colleague , we are not reversing or taking issue
with those credibility resolutions of the Administrative Law Judge which
underlay his recommendation with respect to the dismissal of the 8(a)(3)
allegation pertaining to the discharge of Rutledge . As indicated above in In.
7, we have, in fact, adopted substantially all of the recited evidence,
including the credibility resolutions , relied on by the Administrative Law
Judge in his treatment of Rutledge 's discharge . Moreover , it should be
noted that the Administrative Law Judge , himself, in In 12 and related text
of his Recommended Decision , expressed serious reservations concerning
Katshen's credibility Accordingly, unlike our colleague , we do not
understand the Administrative Law Judge to have decided this matter
essentially on the basis of his credibility resolutions , but rather upon his
conclusion that the General Counsel failed to meet his burden of proof as to
411
regard to their hire and tenure of employment or any
term or condition of employment because of their
union activities.
(c) Directly or indirectly or expressly or by
implication threatening or in any other manner
informing any such employee that he may or will be
discharged, or otherwise denied work or employ-
ment , because he has engaged, or if he engages, in
any activity in, with, or on behalf of any labor
organization, or has 'designated, or if he designates,
any such organization as his bargaining representa-
tive.
(d) In any other like or related manner interfering
with, restraining, or coercing any employee in the
exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which, I
find, will effectuate the policies of the Act:
(a) Offer Ronald Rutledge immediate and full
reinstatement to his former position or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights
previously enjoyed, and make him whole for any loss
of pay due to the violation against him in accord with
the Board's decisions in F. W. Woolworth Company,
90 NLRB 289, and Isis Plumbing & Heating Co., 138
NLRB 716.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(c) Post at the Company's place of business in
Redwood City, California, copies of the attached
notice marked "Appendix." 14 Copies of said notice,
on forms provided by the Regional Director for
Region 20, after being duly signed by the Company's
authorized representative, shall be posted by it
immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to
employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said
Rutledge We, of course, for the reasons previously enunciated , disagree
with this conclusion While it is true that our reversal of the Administrative
Law Judge 's recommended dismissal of the 8(aX3) violation with respect to
Rutledge is in part grounded on circumstantial evidence , it must be realized
that direct evidence of an intention to violate the Act is seldom obtainable
by the Board and, consequently , it is incumbent upon the Board to have
such reasonable recourse to circumstantial evidence as will necessaniy
comport with a careful and prudent effort fairly and effectively to
administer the Act, Medo Photo Supply Corporation, 43 NLRB 989, enfd. 135
F 2d 279 (C A. 2), affd. 321 U.S 678.
14 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
CHAIRMAN MILLER, dissenting:
Contrary to the majority I would adopt the
credibility resolutions of the Administrative Law
Judge, and his conclusions therefrom, and dismiss
the 8(a)(3) allegation based on the discharge of
Rutledge.
From the evidence before us, either as recited by
the majority or by the Administrative Law Judge, I
am unable to find and unwilling to infer, without
evidentiary base, that Respondent was aware that
Rutledge was engaged in union or concerted activity
at the time of his discharge.
Furthermore, on the issue of whether the discharge
was discriminatory or for cause, I am persuaded, as
was the Administrative Law Judge, that it was for
cause. The dischargee admittedly engaged in miscon-
duct immediately prior to the discharge. Thus, the
facts show that when Rutledge was being admon-
ished for talking instead of working, he threatened
"to get" Respondent's manager and, in response to
that threat, Respondent's manager replied that he
would not wait, but would "get such a person first."
The Administrative Law Judge credited testimony
that Respondent discharged Rutledge because he
made this threat. The majority finds that this was not
the real reason for Respondent's action, relying
instead on the assumption that Respondent acted
because of its knowledge, of Rutledge's union
activity. Thus the majority rejects the credited
testimony and substitutes an inference of pretext
which in turn rests on an unwarranted inference of
knowledge of union activity.
Because I would prefer not to reverse credibility
resolutions on the basis of such pyramided and
unsupported inferences, I dissent.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, and
has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through represent-
atives of their own choosing
To engage in activities together for the
purposes of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL offer Ronald Rutledge immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent job,
without prejudice to his seniority or other rights,
and make him whole for any loss of pay suffered
by reason of the unlawful conduct against him.
WE WILL NOT interrogate any of our employees
concerning any activity of any employee in, with,
or on behalf of any union, or any employee's
choice of a union as his bargaining representative,
in a manner constituting interference with,
restraint, or coercion of any employee in the
exercise of any of the foregoing rights.
WE WILL NOT directly or indirectly or expressly
or by implication threaten or in any manner
inform any such employee that he may or will be
discharged, or otherwise denied work or employ-
ment because he has engaged, or if he engages, in
any activity in, with, or on behalf of any union, or
has chosen, or if he chooses, any union as his
bargaining representative.
WE WILL NOT in any other like or related
manner interfere with, restrain, or coerce any of
our employees in the exercise of any of the rights
set forth above.
FAMET, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named indi-
vidual, if presently serving in the Armed Forces of
the United States, of the right to full reinstatement,
upon application after discharge from the Armed
Forces, in accordance with the Selective Service Act,
and the Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 13018 Federal Building, 450 Golden
Gate Avenue, Box 36047, San Francisco, California
94102, Telephone 415-556-3197.
FAMET, INC. 413
DECISION II. THE LABOR ORGANIZATION INVOLVED
STATEMENT OF THE CASE
HERMAN MARx, Trial Examiner: The complaint, as
amended, alleges that an employer, Famet, Inc. (herein the
Company or Respondent), has violated Section 8(a)(1) and
(3) of the National Labor Relations Act, Series 8, as
amended' (herein the Act), by discharging an employee,
Ronald Rutledge, because he engaged in union or other
concerted activities protected by the Act; and, in violation
of said Section 8(a)(1) has interrogated employees regard-
ing union or other protected activities, and threatened
employees with discharge and reductions in work because
they engaged in such activities.2
The Respondent has filed an answer which, inter alia,
denies the commission of the unfair labor practices
imputed to it in the complaint.
Pursuant to notice duly served by the Board's General
Counsel upon all other parties, a hearing on the issues was
held before me, as duly designated Trial Examiner, on
March 29 and 30, 1972, at San Francisco, California. The
General Counsel and Respondent appeared through
respective counsel, and all parties were afforded a full
opportunity to adduce evidence, examine and cross-exam-
ine witnesses , and submit oral arguments and briefs.3
Upon the entire record, and my observation of the
demeanor of the witnesses, and having read and consid-
ered the briefs filed with me, I make the following:
FINDINGS OF FACT
1. NATURE OF THE COMPANY'S BUSINESS AND
JURISDICTION OF THE BOARD
Famet, Inc., is a California corporation ; maintains its
principal place of business , including a plant , in Redwood
City, California , where it is engaged in the business of
manufacturing marine equipment ; employes individuals in
its operations ; and is , and has been at all material times, an
employer within the meaning of Section 2(2) of the Act.
In the course and conduct of its business during the 12
months immediately preceding the issuance of the com-
plaint, the Company received goods and supplies valued in
excess of $50,000 directly from suppliers located outside
the State of California , and sold goods and products
valued in excess of that sum directly to customers located
outside the said State . By reason of such transactions, the
Company is, and has been at all material times , engaged in
interstate commerce , and in operations affecting such
commerce , within the meaning of Section 2 (6) and (7) of
the Act. Accordingly, the Board has jurisdiction of the
subject matter of this proceeding.
1 29 U.S.C. § 158 (a)(1) and (3).
2 The complaint was issued on March 6, 1972 , was amended at the
hearing in this proceeding, and is based upon a charge filed with the
National Labor Relations Board (herein the Board) on January 24, 1972.
Copies of the charge and complaint have been duly served upon the
Respondent.
3 The General Counsel has submitted with his brief a motion to amend
the transcript, together with proof of service of the motion on all other
International Association of Machinists and Aerospace
Workers , AFL-CIO, Local Lodge No. 1327, filed the
charge upon which this proceeding is based, and is, and
has been at all material times, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory Statement
The Company normally employs some 10 or 11 pro-
duction and maintenance employees at its plant in Redwood
City. These work under the supervision of a foreman, Gerd
Staudt (also Gary and Stout in the record), who is subject,
in turn, to direction by the plant manager, Bernie Katchen,
who owns a majority of the Company's corporate shares
and is its corporate vice president .4
The production force formerly included Ronald Rut-
ledge, who entered the Company's employ on April 1,
1969, and worked for it, apparently as a machinist, until
November 12, 1971, when he was discharged by Katchen
under circumstances that will be described later. Rutledge
received several wage increases during his employment, but
the record does not establish whether these were based on
individual merit or were part of general upward wage
adjustments in the plant attributable to inflation.
About the beginning of November 1971,5 Rugledge went
to see a representative of the Union at its headquarters and
asked him what steps should be taken to have the
organization represent the Company's employees. The
Union's agent replied that it would be necessary to have a
specified percentage of the employees sign authorization
cards designating the Union as the signatories' bargaining
representative, and that the cards would then be used to
secure a Board-conducted election; and gave Rutledge a
quantity of such cards for execution. Shortly thereafter,
Rutledge passed out cards to most of the employees at the
plant before or after work or during lunch periods,
soliciting their signatures. Some signed and returned the
cards to Rutledge; others took the request under advise-
ment.
On or about November 15 the Union filed a charge
(Case 20-CA-7124) with the Regional Office of Region 20,
alleging that Rutledge's discharge several days earlier
stemmed from his union activities; and on November 18
the Union filed a petition with the Regional Office, seeking
certification as the representative of a bargaining unit
consisting of the Company's production and maintenance
employees (with some exclusions not material here).
The petition led to a Board-conducted election, by
agreement of the Union and Company, which was held on
December 22. Of the 10 ballots cast, 5 were in favor of the
Union, 4 against it, and 1, cast by Rutledge, which could, if
parties . These have been given an opportunity to respond to the motion, but
have submitted no opposition. The motion is hereby granted and the
transcript is amended in the particulars requested.
4 Both Staudt and Katchen are, and have been at all material times,
supervisors within the meaning of Section 2(11) of the Act.
5 Unless otherwise indicated , all dates mentioned below occurred in
1971.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
counted, possibly affect the election results, was challenged
on the ground that he was no longer an employee.
On January 3, 1972, by letter bearing that date, the
Acting Regional Director for Region 20 notified the Union
and Company that an investigation of the charge had
failed to establish that Rutledge had been discharged
because of union activities; and that she was therefore
declining to issue a complaint. The Union took no appeal
from this action to the General Counsel, as permitted by
Section 101.6 of the Board's Statements of Procedure.
On January 13, 1972, the Regional Director issued a
report on the challenged ballot, stating that the charge had
been "dismissed . . . after investigation failed to establish
that Rutledge was terminated for union activities,"
concluding, therefore, that Rutledge had been ineligible to
vote, and recommending that the challenge be sustained
and that "an appropriate certification issue."6
Thereafter, on January 24, 1972, the Union filed another
charge-the one on which this proceeding is based-con-
taining substantially the same allegations as those of the
charge previously dismissed.
On February 1, 1972, the Board issued a decision on the
Regional Director's report, noting the absence of any
exceptions thereto, adopting his recommendation, and
certifying the Union as the bargaining representative of the
employees in the relevant unit.
As reflected in its answer and brief, the Respondent
takes the position that the first charge "[was] dismissed so
that certification of the results of the election may be
issued"; that to secure an adjudication of the allegations of
misconduct, the Union's proper remedy upon dismissal of
the first charge was to follow the appellate route prescribed
by Section 101.6 of the Board's Statements of Procedure;
and that because of the Union' s omission to follow that
course, and of the purpose of the dismissal, with the
resulting certification. the second charge, so the argument
runs, constitutes "an abuse of the ... Board' s processes,"
and should be barred, with a consequent dismissal of the
complaint.
The road by which the Respondent would arrive at that
result is far from clear. The thesis vaguely implies some
procedural impropriety in the certification, but the point, if
it is intended, is not demonstrated, and, in any case, the
legality of the certification is not properly in issue here,
although it may be noted, too, that the Respondent filed no
exceptions to the Regional Director's recommendation that
the certification issue.
Nor does it appear in what respect the filing and
processing of the second charge "abused" the Board's
processes. A charge is merely the means for setting in
motion the machinery of an inquiry, and "[w]hen a
complaint issues, the question is only the truth of its
accusations."7 Obviously, then, the disposition of the first
charge was not an adjudication. The Respondent cites no
authority for a requirement that would bar the Union from
filing the second charge because it had failed to appeal
6 The report treats the Acting Regional Director's refusal to issue a
complaint as a dismissal of the charge Actually, the Union withdrew the
charge (the record does not specify the date) "without prejudice," and with
the approval of the Regional Director, as he informed the Company in a
letter dated January 17, 1972 The General Counsel and the Respondent
appear, like the report, to treat the Acting Regional Director's action as
from the Acting Regional Director's disposition of the first,
nor is there any indication that the course followed has in
any way prejudiced the opportunities of the Respondent to
defend against the allegations of unfair labor practice. In
short, I find no merit in the claim that there has been an
"abuse" of the Board's processes, nor in the position that
the failure to appeal from the disposition of the first charge
forecloses the filing of the second and the issuance of a
complaint thereon.
B. The Legality of the Discharge
As support for his claim that Rutledge was discharged
because of his union activities, the General Counsel offered
testimony by a former employee of the Company named
Chasco to the effect that about the end of October or the
beginning of November, while still in the Company's
employ, he had occasion to be at a drinking fountain on
the ground floor of the plant some 8 or 9 feet from
Katchen's work bench; and that while thus situated, he
heard Katchen tell an employee named Beardslee that "the
way things were going in the shop" he "would have to let
the leadman upstairs go because he didn't want no union
in the shop." 8 Actually, Rutledge was not a "leadman,"
but he worked "upstairs" (on the second floor of the plant),
was one of a group of employees who were called
"leadmen" by the management (because, according to
Katchen, they were regarded as "key employees"), and was
the only such "leadman" who worked "upstairs." Thus, by
inference, if Chasco's testimony may be credited, the
reference to the "leadman upstairs" was to Rutledge.
Both Katchen and Beardslee deny, in substance, that
Katchen made the remarks imputed to him by Chasco, or
ever told Beardslee that he intended to discharge either
Rutledge or any other "leadman." The credibility issue
presented will be resolved at a later point.
Shortly before noon on November 12, which was a
regular payday, Katchen, who distributed the paychecks to
the employees that day, while approaching Rutledge's
work area to give him his check, observed that Rutledge
was talking to another employee, Vince Aiello, during
working time, and, according to Katchen, who describes
Rutledge as "waving his hands" while talking, it appeared
to him that Rutledge was not working. Katchen gave
Rutledge his check and said nothing regarding the talking
to either Rutledge or Aiello, but during the noon lunch
period, directed Foreman Staudt, in substance, to tell
Rutledge that the latter had been observed wasting
working time by talking, and to admonish him not to
engage in such conduct.
Shortly thereafter, according to Rutledge's testimony, as
he was returning from lunch, he encountered another
employee, Salinas, at the plant entrance, and Salinas
advised him to have the "union people" attend a so-called
dismissal of the charge. To avoid confusion, I shall similarly refer to her
disposition of the charge as a dismissal thereof
7 N L R B v Indiana & Michigan Electric Co, 318 U S. 9, 18.
S The excerpt from Chasco's testimony reflects the substitution of
"leadman" for ` leadmen" accomplished by the amendment of the transcript
previously noted
FAMET, INC.
"leadmen's meeting" scheduled by the management to be
held later that day,9 because another employee, Beardslee,
had quoted Katchen as telling Beardslee earlier that day
that Katchen knew about the union activities and had said
that "all hell was going to break loose" at the meeting.'°
Proceeding toward his work station, Rutledge encoun-
tered Staudt, and there is no dispute that Staudt told
Rutledge that Katchen had seen him talking when he
should have been working, and admonished Rutledge not
to do so in the future. There is, however, substantial
conflict as to other aspects of the conversation.
According to Rutledge, following the admonition, he
told Staudt that "we know that Bernie [Katchen] knows,
and if he's going to get nasty like this right now, this could
turn into a real battle"; and urged Staudt to be "neutral."
Then, in Rutledge's version, the foreman said that he had
heard that Rutledge was "going to sue Bernie," and
Rutledge replied that he had no such intention, although
he knew that Katchen had "broken a couple of laws," and
that doing "anything" about that would cause much
"trouble for everybody." According to Rutledge's account,
after some added exchange (unnecessary to recite here) he
proceeded to his work station.
Denying that any reference was made to suing, Staudt
gave testimony to the effect that following the admonition
about talking, Rutledge told him that "the cat is out of the
bag," and that Staudt should stay "neutral, because they
had . . . enough on Bernie and they were going to get
him"; and that following some additional remarks [unnec-
essary to describe here], he proceeded to Katchen's office,
and reported the conversation to Katchen, who then,
remarking that he would not wait for anybody to "get him"
but would "get" such a person first, instructed his secretary
to prepare checks for Rutledge's accrued vacation pay and
wages.
Katchen describes Staudt's report in substantially the
same vein as the latter, and pictures himself as then
deciding to discharge Rutledge because of the reported
threat "to get" him, and as instructing his secretary to
prepare the checks.
There is no reason to doubt that Staudt made a report of
his conversation with Rutledge to Katchen, and that the
secretary then prepared the terminal checks, for, as the
testimony of both Katchen and Rutledge establishes,
Katchen came to Rutledge's work area shortly after the
lunch period on November 12; referred, in the ensuing
discussion with Rutledge, to a report by Staudt regarding
his earlier conversation with Rutledge; and discharged
Rutledge, giving him two checks, one for vacation pay and
the other for accrued wages. It is undisputed, too, that after
the words of discharge were spoken, Katchen, with
Rutledge's consent, opened the latter's toolbox to ascertain
whether it contained any of the Company's tools; and that
9 The Company periodically holds such meetings of "key employees,"
most of whom are not, in fact, leadmen, although called such until recently
by the management.
10 Beardslee denies that he told Salinas that Katchen was aware of the
union activities, claiming that what he told Salinas was that if Katchen
knew of the activities there would "probably" be trouble at the meeting. In
any case, Rutledge's testimony and that of Salinas to much the same effect
(both given without objection) purportedly quoting Salinas quoting
Beardslee allegedly quoting Katchen as to the latter 's awareness of union
415
in the course of the inspection, Katchen saw some blank
union authorization cards in the box and had some
discussion with Rutledge concerning them; but there is
substantial conflict on the question whether Katchen
alluded to Rutledge's union organization activity before
discharging him, and over the content of the discussion of
Staudt's report.
According to Rutledge, Katchen opened the conversa-
tion by saying, "Ron, I understand you are trying to
organize this place," to which Rutledge replied that he
would not "answer that." Then, Rutledge testified, Katch-
en gave him the terminal paychecks, telling Rutledge that
he was discharged, whereupon, according to Rutledge, he
asked for the reason for his dismissal, and Katchen replied
that the reason was Staudt's report that Rutledge had
"threatened to sue" Katchen. Rutledge also gave testimony
to the effect that Katchen summoned Staudt and told him
to repeat his report (Rutledge does not say what response,
if any Staudt made); that Katchen, having received
permission to go through the toolbox, did so, and in the
process lifted the union authorization cards out of the box
and gave them to Rutledge, rejecting an offer by Rutledge
that he (Katchen) keep them; that upon completion of the
toolbox inspection, Katchen asked Rutledge what was
"wrong" in the plant, and why "you people think you need
a union"; and that Rutledge replied that Katchen was
"happy" when business was good, but when it slackens he
has work done at other shops and reduces hours of work,
and that there was a rumor that Katchen intended to cut
wages.
The substance of Katchen's relevant testimony is that he
was accompanied, at his request, to Rutledge's work area
by the assistant plant manager, Larry Poore; that his
opening remark to Rutledge was, "Ron, what's this I hear
that you are going to get me"; that Rutledge denied
making such a threat; that Katchen summoned Staudt,
sending Poore to fetch the foreman, and, upon the latter's
arrival several minutes later, asked him to repeat his
report; that Staudt replied that Rutledge "had threatened
to get" Katchen, and had said that "they had enough on
[Katchen] . . . to get [him]"; that Katchen then dis-
charged Rutledge, and then went through Rutledge's
toolbox; that, while doing so, he noticed the authorization
cards, and asked Rutledge whether he was trying to
"organize a union here"; and that Rutledge said he had no
comment on the question, and then offered the cards to
Katchen who declined to accept them.
In material respects, Poore gives much the same version
of the episode as Katchen, and Staudt substantially
corroborates Katchen's account of what took place after he
appeared on the scene."
For proof that Katchen was aware, prior to the
discharge, that Rutledge was a union activist and dis-
activities is hearsay thrice removed and, obviously, provides no basis for a
finding that Katchen was aware of union activities prior to Rutledge's
discharge . I have set out Rutledge 's account of Salinas ' remarks as
background for evidence of two conversations Rutledge had shortly after
his encounter with Salinas , the first with Staudt , and the second with
Katchen when the latter discharged Rutledge.
II According to Rutledge, Poore arrived in the area about a minute after
Katchen , but Katchen plausibly explains his reason for asking Poore to
accompany him, and I am satisfied that Poore arrived with Katchen.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charged him for that reason, the General Counsel relies
heavily on Chasco's testimony which amounts, in sub-
stance, to a claim that about 2 weeks before the discharge
he overheard Katchen tell Beardslee that he was going to
discharge Rutledge to avoid unionization; and on Rut-
ledge's version of his November 12 discussion with Katchen,
depicting the latter as prefacing the language of dismissal
with a reference to Rutledge's effort "to organize this
place."
The resolution of the material credibility issues presented
is complicated by the fact that the reliability of the
testimony on both sides is questionable. On the General
Counsel's side, Rutledge is obviously an interested witness,
with some shortcomings in plausibility, as will presently
appear; and, as will shortly be demonstrated, there is much
in Chasco's testimony that detracts from the weight of his
claim. On the Respondent's side, Katchen, Poore, and
Staudt are interested witnesses, and, moreover, there is
good reason to question the reliability of Katchen's
testimony on other subjects.12 Nor does Beardslee, who
was called by the Respondent, appear to me to be a wholly
disinterested witness. He has worked for the Company for
more than 6 years, is still in its employ, regards Katchen as
a friend, has visited the latter at his home for "personal
reasons," and testified in a tentative and evasive vein at
various points.13
But the burden of proof regarding the two episodes rests
with the General Counsel, and the question is whether his
relevant evidence is of preponderant weight, and not
whether that of the Respondent is of questionable
reliability. With that in mind, I find Chasco's testimony of
insufficient qualitative weight to overcome the Katchen
and Beardslee denials that the episode Chasco descnbes
occurred.
To begin with, Chasco's testimony demonstrably reflects
some looseness of expression in describing events. Thus at
one point, refemng to the end of his employment, he
testified that he "quit"; later, that he "got fired or quit";
and still later, that he was "dismissed." For another matter,
the possibility that the episode in question could have
occurred in October is reduced by the fact that Katchen
spent only a negligible amount of time in the plant that
month, having left on a trip abroad in August, returning
home on October 22, and, except for a brief visit to the
plant on the following day, a Saturday, when it was not in
operation, spending about 2 hours in the plant on Monday,
October 25, in preparation for a trip out of town, which
necessitated his absence until November 1.
To be sure, Chasco gives the "start of November" as an
alternative period for the alleged incident, but his claim
nevertheless has an aura of unreliability. According to
Chasco, he was at the water fountain for some 2 to 4
minutes while Katchen and Beardslee were talking, yet
substantially all that he could relate of the alleged
12 For example , Katchen denies that there was a strike at the plant in the
period between July 1971 and the hearing in this proceeding, although, in
apparent conflict with this testimony , a "help wanted" advertisement he
placed for the Company in a local newspaper in January 1972 noted that
"strike conditions [were] prevailing " Also, for reasons that will appear
later, I do not credit Katchen 's version of a conversation he had with an
employee, Manuel Cordova , regarding the consequences of unionization
13 For instance , testifying to an investigative interview by a representa-
conversation, apart from a vague generalization that
Katchen and Beardslee were "discussing shop matters,"
amounts to a claim that Katchen expressed an intention to
discharge Rutledge to avoid unionization. Moreover,
Chasco contradicted himself as to the extent of the
conversation he claims he overheard, stating at one point
that he heard all that was said while he was at the fountain,
but, subsequently, that he did not hear all of the
conversation while thus stationed.
It is also worth noting that according to Chasco, he has
said nothing to Rutledge about the episode, although they
have known each other for about 2 years; and it was not
until some point in February 1972, during the pendency of
the second charge, that he gave an investigator on the staff
of the General Counsel the information to which he
testified. There is some indication in Chasco's testimony
that he was aware in December, while the first charge was
pending, that the investigator had some interest in
Rutledge's discharge,14 and bearing in mind that Chasco
was well acquainted with Rutledge and had no reason to
fear for his job after December 18 or 19 when his
employment by the Company ended, one would think that
if the episode in question had occurred, Chasco would
have said something about it to Rutledge at least during
the pendency of the first charge. There may be a good
explanation why Chasco did not supply the information to
a representative of the General Counsel until after
dismissal of that charge, but if there is the record,does not
reflect it.
I am unpersuaded, in sum, that Katchen made the
remarks to Beardslee described by Chasco, and do not
credit the latter's testimony in that regard.
Rutledge's depiction of Katchen as prefacing the
discharge with a reference to Rutledge's organizational
effort would, if credited, point to an unlawful motive for
the dismissal, but, as with Chasco's claim, it appears to me
that Rutledge's testimony somewhat too patty meets the
Union's need to establish that there was a connection
between Rutledge's union activity and his discharge.
Katchen has a history of substantial experience with
unions, both as an employer and as a union representative
(having been at one time a union shop steward), and I find
it difficult to believe that with such a background, Katchen
would so openly compromise himself as to preface the
dismissal with a remark to the effect that he understood
that Rutledge had been "trying to organize" the plant-a
comment that in context comes close to an admission that
the discharge was linked to Rutledge's organizational
activity. There is no dispute that Katchen came upon the
blank authorization cards in the course of inspecting the
toolbox after the discharge, and I think it more plausible,
in the context of circumstances, that, as Katchen, Poore
and Staudt testified, Katchen asked Rutledge at that point
whether he was trying to organize the plant; and that, as
tive of the General Counsel, Beardslee stated at one point that "perhaps"
the investigator had asked him questions about matters involved in this
proceeding, and then that he "would say" that that had been done.
14 Chasco testified that he tried unsuccessfully to reach the investigator
by telephone in December , but it is evident from Chasco himself that he did
not call to supply the information, but, according to him , "to find out if
[Rutledge ] had gotten unemployment [ compensation] "
FAMET, INC.
Katchen claims, that was his first reference in the
discussion to Rutledge's organizational activity.
Moreover, Rutledge's testimony reflects other implausi-
bilities. In his version of his discussion with Staudt,
Rutledge quotes Staudt as saying that he had heard that
Rutledge was going "to sue" Katchen, but there is nothing
in the record to show that Rutledge had any intention of
suing Katchen (or the Company), or that information of
such an intention had reached Staudt, and the point of the
matter is that Staudt's denial that he made any reference to
a lawsuit in his discussion with Rutledge is given credible
support by the fact that the record reflects no rational basis
for such a comment . And as a corollary of that, I think it
unlikely that in his report to Katchen, Staudt related any
threat by Rutledge "to sue" Katchen, and see no reason
why Katchen, as Rutledge claims, would tell Rutledge that
the latter was being discharged because Staudt had
reported that Rutledge had "threatened to sue" Katchen.
There is no doubt, however, that following Staudt's
admonition, Rutledge spoke in a threatening vein to
Staudt. Both versions establish as much. Rutledge pictures
himself as responding to Staudt's admonition with the
remark that "we know that Bernie [Katchen ] knows," and
that if Katchen is "going to get nasty like this [the
admonition] . . . this could turn into a real battle"; and
Staudt quotes Rutledge as saying after the admonition that
"the cat is out of the bag, and there is no more secret," and
that Staudt should maintain neutrality "because they had
got enough on Bernie and they were going to get him."
Rutledge had heard a rumor, through Salinas, only a few
minutes earlier, that Katchen was aware of the union
organizational campaign, and each version reflects a veiled
reference by Rutledge ("we know that Bernie knows" and
"the cat is out of the bag") to the information (although it
would be something of a guess to say that Staudt got the
meaning of the reference). And upon close examination,
there is no large gulf, in the context of circumstances,
between threatening Katchen with "a real battle" if he got
"nasty" and warning him that employees had "enough" on
him and were "going to get him." But put to a choice
between the two versions, both given by interested
witnesses , I see no reason to reject Staudt's account,
whereas Rutledge's testimony is flawed by implausibilities
that have been previously described. Moreover, in his
account of what occurred after Katchen summoned Staudt
to repeat for Rutledge his report of what Rutledge had said
to Staudt, Rutledge appeared to me to slur over the matter,
testifying in that regard merely that Katchen told Staudt
"to repeat what he had told him [Katchen]," and not
stating what response Staudt made. In contrast, Katchen,
Poore, and Staudt describe Staudt as repeating for
Rutledge his report to Katchen to the effect that Rutledge
had threatened "to get" Katchen, and Katchen and Staudt
testified, without dispute, that when thus confronted,
Rutledge made no reply to Staudt's repetition of his report.
For the reasons stated, I credit Staudt's account of his
conversation with Rutledge, and find that he reported that
15 There is no issue here whether the inquiry violated the Act, and I do
not pass on the matter.
16 As previously indicated, I accord no probative value to the hearsay
testimony that upon Rutledge 's return from lunch on November 12, Salinas
told him that he had heard from Beardslee that Katchen had said that he
417
conversation substantially as it occurred to Katchen; that
Katchen then had Rutledge's terminal paychecks prepared,
proceeding with them to Rutledge's work area to discharge
Rutledge; that the conversation between Katchen and
Rutledge that followed took substantially the course
described by Katchen; and that, in that discussion,
Katchen made no reference to unionization until he came
on the authorization cards in the course of inspecting
Rutledge's toolbox following the discharge, the reference
taking the form of an inquiry by Katchen whether
Rutledge was endeavoring "to organize a union here." 15
In view of the credited evidence, an inference that
Katchen was aware, prior to the discharge, of any
organizational activity by Rutledge must rest, if at all, on
the fact that the labor force was relatively small, and/or an
assumption that Katchen, upon receiving Staudt's report,
inferred that "the cat" that was "out of the bag," and the
related threat "to get" him, referred to the effort to
organize the plant. Katchen denies that he placed such an
interpretation on Staudt's report, maintaining, too, that he
was then unaware of any effort to organize the shop. While
I have some doubt of Katchen's credibility in this area,
bearing in mind the General Counsel's burden of proof, it
appears to me that the size of the labor force and Staudt's
report, whether in combination or separately, fall short of
establishing that the management knew at any time prior
to the discharge of any union activity by Rutledge.16
But even if one draws a contrary conclusion, the
question remains whether Rutledge was discharged be-
cause of his organizational activity, and, on that score, the
evidence will not sustain a finding that such a motive
underlay the dismissal. The record fairly yields an
inference that when he saw Rutledge talking to Aiello and
waving his hands, Katchen genuinely believed that
Rutledge was wasting time. To be sure, Katchen did not
reprimand Aiello; the record does not establish the reason
for the omission; and it is possible that Katchen singled
out Rutledge for admonition because of his union activity;
but there is no evidence that Katchen had any knowledge
of such activity at the time he directed Staudt to reprimand
Rutledge, and to read an antiunion purpose into the
admonition would be to substitute speculation for factfind-
ing.17
And more to the point, it would be a venture in surmise
to conclude that the discharge was rooted in an unlawful
motivation. The fact is that Rutledge responded to Staudt's
admonition with a threat against Katchen. Perhaps another
person in Katchen's position would have asked Rutledge,
before deciding to discharge him, by what means he
intended to carry out the threat "to get" him, and,
depending upon the response, would have taken a more
tolerant view of Rutledge's rhetoric, but the course
Katchen took was not so excessive as to point to an ulterior
motive for the dismissal. Katchen told Rutledge that the
threat was the reason for the discharge, and testified that
that was the reason; and, in the face of the credible
evidence as a whole, to accept the General Counsel's thesis
was aware of union activities in the plant.
17 Rutledge makes no claim that his conversation with Aiello related to
work. Whether or not Rutledge was working while talking , as he claims, I
am satisfied from the credible evidence of events that followed that Katchen
believed that Rutledge was wasting time by talking to Aiello.
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the reason was a pretext to discharge Rutledge for
union activity would be to exalt suspicion over the
requirement that the General Counsel sustain his burden of
proving his allegations by evidence of preponderant
weight.
The sum of the matter is that the General Counsel has
not met that burden, and thus I shall recommend dismissal
of the allegations of the complaint pertaining to Rutledge's
discharge.18
C. The Alleged Interrogation and Threats
The General Counsel's claim of unlawful interrogation
and threat of discharge or work reduction rests on
testimony of an employee, Manuel Cordova.19 The latter
testified that on an occasion late in November when he
was doing some personal work for Katchen at the latter's
home, Katchen asked him if he had signed a union card;
that he at first denied that he had done so, but then, asked
by Katchen to tell "the truth," admitted signing a card;
and that after some expression of criticism of "the union"
as not "all that great" and as seeking only dues from the
employees, Katchen said that the shop was his and he
would run it as he chose, that "when the union comes in"
he would not be able to pay "the high wages they want,"
and continue manufacturing "hydroshears" (hydraulic
marine cable cutters), and that he was thinking of
discontinuing the production of hydroshears in any event
because he "wasn't making that much money on them."
Katchen's version of the episode is, in substance, that he
did ask Cordova whether he had signed a card for the
Union; that Cordova at first denied doing so; that then
Katchen, stating that Cordova did not have to answer, told
Cordova that if he did so, he should tell "the truth" and not
"lie," and Cordova admitted signing a card; that Katchen
said that that was Cordova's prerogative, and made "no
difference" to him; and that Katchen then told Cordova
that if the plant were unionized and the Union reclassified
Cordova "strictly" as a journeyman welder, there would
not be enough work for him in that capacity to warrant his
retention.
18 The General Counsel makes a point of testimony by Rutledge that as
he was leaving the plant on his way to lunch on November 12, about a half
hour before Staudt conveyed Katchen's admonition against wasting time
talking on the job, Staudt said "Goodbye, Ron" to him and "waved his
arm", and the thrust of the point appears to be that Katchen had already
decided to discharge Rutledge, well before the admonition and any threat
by Rutledge, and for an unlawful reason This, in my view, is a strained
interpretation The ulterior meaning the Respondent would give the episode
is diluted by shifting descriptions of Staudt's manner by Rutledge who
initially testified that it "seemed . indifferent," then that it "seemed
sarcastic," and then that he could not say "for sure that it was sarcastic or
not" Rutledge waved back at Staudt, and, conceivably, the "Goodbye,
Ron" and the hand-waving were no more than an exchange of amenities
That view of the incident takes on added weight when it is borne in mind
that there is no probative evidence that the management had any knowledge
of Rutledge's organizational activity as of the time of the episode At most,
the incident adds but another suspicious circumstance to the General
Counsel's case, without tipping the evidentiary scale in his favor I also see
no effective aid for his case in testimony by an employee, Percy Bass, to the
effect that almost 4 years ago , Katchen , apparently believing that Bass was
endeavoring "to start a union" in the plant, told Bass that there would be no
unionization there and that if Bass disapproved of that, he could "get out
the door now" Katchen, in substance, denies making statements to that
effect, but I see no need to resolve the credibility issue, for the alleged
episode is too remote in time to give effective weight to the General
Upon examination, the two versions are not significantly
far apart. Each reflects a prodding interrogation of
Cordova by Katchen regarding the former's execution of a
card, without prior assurance against reprisal; and, in
substance, a prediction by Katchen that a loss of work or
employment would result if the employees chose union
representation. However, a choice between the two is
appropriate, and, choosing, I find greater reason to credit
Cordova than Katchen.
For one thing, there is no indication that Cordova has
any interest in the results in this proceeding, and he seemed
an objective witness. In contrast, Katchen, whose interest
is obvious, appeared to me to be putting a self-exonerating
gloss on his interrogation of Cordova regarding the
employee's execution of a union card, depicting himself as
assuring Cordova that he did not have to answer, and as
expressing indifference to the answer. Such professed
neutrality sounds an implausible note in the light of
Katchen's expressions of hostility toward unionization on
other occasions, as at a meeting of employees held a few
days before the election. For another matter , Katchen
admittedly discussed the possible discontinuance of the
hydroshear production with several employees (other than
Cordova), telling them, so he testified, that if the plant
were unionized "and the union raised the wages so high
that we can't afford to continue operating this operation, I
would' have to give it up." While this differs somewhat
from the terms in which Cordova quotes Katchen on the
subject of cessation of hydroshear production as a
consequence of unionization, the fact that he discussed the
topic with others, adds some weight to Cordova' s version. I
credit his account.
An employer's prediction to his employees that their
choice of union representation will result in economic
disadvantage for them, such as, for example, a curtailment
of work, is privileged if the language used is, as the
Supreme Court has put it, "carefully phrased on the basis
of objective fact to convey [the] employer's belief as to
Counsel 's claim that an antiunion purpose underlay Rutledge's dismissal
Nor is such a motive established by privileged expressions of antiunion views
by Katchen after the discharge at a preelection meeting of management and
employees , and in a subsequent conversation with Salinas and Beardslee;
nor by evidence that about 2 weeks after the discharge, Katchen told an
employee, Manuel Cordova, that in the event of unionization he would have
to discontinue the manufacture of "hydroshears" because he would be
unable to pay "high" union wages . Whether or not this remark violated
Section 8(axl) -a matter to be determined later-it falls short of tipping the
evidentiary balance in favor of the General Counsel on the issue of the
motive for the discharge
19 At the hearing, the General Counsel expressed a position , based on
testimony by Salinas, that at a meeting of employees held a few days before
the election , and in a subsequent conversation with Salinas and Beardslee,
Katchen "implicitly" threatened to discharge employees if they favored
union representation The claim appears to have been abandoned , for in his
brief the General Counsel states that the allegations of unlawful interroga-
tion and threat rest on Cordova's description of a conversation between
himself and Katchen in the latter part of November In any event, I find no
threat of discharge, implied or otherwise , at the preelection meeting or in the
later discussion Katchen had with Salinas and Beardslee . Katchen's remarks
on both these occasions need not be detailed here , and it will suffice to say
that they summed up to positions of opposition to, or dislike of, unions, and
were privileged expressions of "views, argument , or opinion ," protected by
Section 8(c) of the Act
FAMET, INC.
demonstrable consequences [of unionization] beyond his
control." 20 Applying that test, I find coercive meaning,
rather than protected comment, in Katchen's statement to
the effect that in the event of unionization, the Company
would have to discontinue hydroshear production (with a
consequent diminution of employment opportunities) since
it would not be able to pay "the high wages" required by
the Union. Katchen testified that the profit margin on
hydroshears is "very close," and, also, that there "is
actually no profit in it," but these vague, undocumented,
and not wholly consistent, generalizations hardly amount
to an objective demonstration that in the event the
employees chose the Union as their bargaining representa-
tive, the Company would have to abandon the manufac-
ture of hydroshears as a matter of economic necessity.21
Conceivably, collective bargaining would not necessitate
such a result, and, at least in the absence of hard evidence
of such matters as the Union's wage requirements and the
cost-and-profit margin of hydroshear production, Katch-
en's prediction amounted, in my judgment, to an intimated
threat of loss or reduction of work opportunities if the
employees chose union representation. Thus I find that as
a result of the statement, the Company interfered with,
restrained, and coerced employees in the exercise of rights
guaranteed them by Section 7 of the Act, thereby violating
Section 8(a)(1) of the Act.
Particularly against the background of the threat,
Katchen's effort, in the same conversation, to ascertain
from Cordova whether he had signed a union authoriza-
tion card similarly abridged Section 7 rights guaranteed
employees, and thus I find that, as a result of the
interrogation, the Company violated Section 8(a)(1) of the
Act.
Finally, I have given consideration to the question
whether a cease and desist order is warranted in view of the
fact that Katchen's coercive statement and interrogation
involved a single episode and were addressed to but one
employee,22 and I have decided to recommend such an
order. The relatively small size of the bargaining unit
enhances the likelihood that word of Katchen's conduct
spread to a substantial portion of the unit, and, moreover,
the almost even division in the election underscores the
need to immunize the employees from management
20 N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618.
21 I note , in passing , that the Company had not discontinued hydroshear
production as of the time of the hearing in this proceeding, although the
Union had been certified as the employees' bargaining representative more
419
interference with their Section 7 rights. In short, an
appropriate cease and desist order will effectuate the
policies of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unlawful activities of the Respondent set forth in
section III, above, occurring in connection with the
operations of the 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 the
free flow of commerce.
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. Famet, Inc., is, and has been at all material times, an
employer within the meaning of Section 2(2) of the Act.
2. The Union is, and has been at all material times, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining, and coercing em-
ployees in the exercise of rights guaranteed them by
Section 7 of the Act, as found above, the Company 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 affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
5. The evidence does not establish that the discharge of
Ronald Rutledge violated the Act.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices violative of Section 8(a)(1) of the Act, I
shall recommend below that it cease and desist from such
practices, and take certain affirmative actions designed to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]
than 2 months earlier.
22 Compare Morganton Full Fashioned Hosiery Company, 107 NLRB
1534; Western Table Company, 1 10 NLRB 17.