Foster Transformer Co.

National Labor Relations Board - Board Decisions

Aug 19, 1974

212 N.L.R.B. 936 (N.L.R.B. 1974)

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Foster Transformer Company and District 34 of the
International Association of Machinists and Aero-
space Workers, AFL-CIO. Case 9-CA-7983
August 19, 1974
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On January 18, 1974, Administrative Law Judge
Lowell Goerlich issued the attached Decision dismiss-
ing this proceeding. Thereafter, General Counsel filed
exceptions and a supporting brief, and Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
As set forth more fully in the Decision of the Ad-
ministrative Law Judge, below, the complaint herein
sought to test whether Respondent effected the reclas-
sification of Lydia Milburn from "instructor" to "sin-
gle-winder" on or about August 15, 1973, in violation
of Section 8(a)(3), (5), and (1) of the Act. The Admin-
istrative Law Judge concluded that the reclassifica-
tion was effected because of, and in accord with,
established practice and he therefore dismissed the
complaint. We agree that his dismissal is abundantly
supported by his findings and the record evidence.
The testimony of Harrison, Respondent's president,
that Respondent had a longstanding policy of paying
employees performing multiple jobs at the rate of pay
for each job, regardless of classification, stands un-
contradicted. The treatment of employees Moran and
Frost is illustrative that this policy was applied to
employees who did both instructing and production
assignments . The Administrative Law Judge found
that Milburn's pay at an instructor's rate was in devia-
tion from such policy, which anomaly was corrected
when the error was discovered. Although, as testified
to by Milburn, Harrison stated in 1969 that Milburn
would be paid at the instructor' s rate "all the time,"
that statement must be reviewed in the context in
which it was made; i.e., that Milburn was then in-
structing a number of employees because of her
foreman's death. Under these circumstances it made
good sense to classify her as instructor and to pay her
the instructor's rate. Unlike our dissenting colleague,
we perceive no evidence that Respondent committed
itself to pay Milburn the instructor's rate even though
circumstances later changed and Milburn performed
primarily the job of single-winding.'
Furthermore, it is apparent that the union publicity,
calling attention to the inequity caused by Milburn's
receiving a rate of pay in excess of that paid to other
employees similarly situated, was what motivated Re-
spondent to correct that inequity.' Whatever
Respondent's intent 3 years earlier, it was not bound
to continue in effect a plainly inequitable rate struc-
ture. Nothing in our law requires the perpetuation of
such inequities merely because a respondent may
have, at some time in the distant past, embarked upon
a mistaken course. In our view, Respondent was clear-
ly entitled to take the action it did in line with its
uncontradicted policy of paying the applicable rate
for the work performed and to correct an unwarrant-
ed departure from that policy.
For the above reasons, we adopt the Administrative
Law Judge's dismissal of the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the complaint be, and it hereby is, dis-
missed in its entirety.
MEMBER FANNING , dissenting in part:
Contrary to my colleagues, I would find that Re-
spondent demoted Union Bargaining Committee
Member Milburn from her classification as instructor
to the classification of single-winder because she had
"leaked" her rate to the Union, and thereby violated
Section 8(a)(3) and (1) of the Act.
The facts are not really in dispute. Only their signif-
icance is in question.
1 Contrary to our dissenting colleague , we find that Milburn was paid in
accordance with Respondent's pay policy following her reclassification
Harrison's testimony that Milburn's timecards revealed that she was per-
forming no inspection at that time stands uncontradicted Milburn's testimo-
ny that she performed some inspection and was not paid at the inspector's
rate therefor , in the face of her admission that she did not designate on her
timecards that she was doing inspecting , is plainly incredible of belief
2 We are of the view that our colleague 's reliance on Respondent's warning
to Milburn . some 7 months prior to Respondent's change of Milburn's classi-
fication, not to threaten employees in order to convince them to sign union
cards as showing union animus is misplaced Moreover , the 7-month lapse
of time diminishes the usefulness of this statement as probative evidence We
also reject our colleague 's finding that Roberts ' query to Milburn the day
after her reclassification why "[she ] told the union what [she] made," consti-
tuted an admission that Respondent had prior knowledge that Milburn had
"leaked" her rate to the Union and was motivated thereby in reducing her
pay Rather, we view this remark as implying that Milburn had brought on
her misfortune by calling attention to the inequitable rate which she was
receiving
212 NLRB No. 130
FOSTER TRANSFORMER COMPANY 937
Respondent is engaged in the manufacture and sale
of transformers at its plant at Cincinnati, Ohio, which
employs between 100 and 125 production and mainte-
nance employees .3 In 1953 Milburn was hired as a
single-winder in the single-winding department. In
1969, according to Milburn's undenied testimony, the
death of the foreman who had done the instructing in
the department placed an additional burden of in-
structing single-winders on Milburn. Milburn testified
that she subsequently informed Herman A. Harrison,
Respondent's president, that she would no longer in-
struct unless she was given instructor's pay. Accord-
ing to Milburn's credited testimony, Harrison agreed
to place Milburn on an instructor's salary "all of the
time .114 Company records introduced by Respondent
clearly indicate that Milburn's classification was
changed to "instructor," effective July 21, 1969, at a
higher rate of pay.' Milburn thereafter was paid at the
instructor's rate until August 15, 1973.6
In August 1970, when Milburn and employee Dick
were on voluntary layoff, Milburn was recalled to
work prior to Dick. According to Dick's undenied
testimony, when Dick protested that she had greater
seniority, Respondent's personnel manager (Fern-
side) responded that "Milburn had a higher classifica-
tion . . . and . . . made more money...."'
According to her testimony, Dick further complained
to Manufacturing Manager Roberts without obtain-
ing any satisfaction; however she did not pursue the
matter because she was subsequently recalled from
the layoff.
Prior to January 11, 1973, Milburn's union activity
was confined to signing an authorization card. How-
ever, on January 11, according to Milburn's uncontra-
dicted testimony, Manufacturing Manager Roberts
called Milburn into his office, and reported to her that
he had information that she was handing out union
cards and was threatening employees to induce them
to sign such cards. Roberts warned Milburn that if he
received further reports, the Company would dis-
charge her.' Milburn thereafter increased her activity
on behalf of the Union by passing out union cards,
collecting dues, and distributing union handbills at
the plant, which she continued to do through August
159
It is undisputed that, 2 days before the alleged dis-
crimination against Milburn occurred, the Union so-
licited and received from Milburn information as to
the rate of pay she was receiving. The next day the
Union distributed a handbill complaining that em-
ployee Dick (who also performed single-winding) was
paid $2.14 per hour, although she had 27 years of
service, while Milburn was receiving $2.48 per hour
although she had 21 years of service. According to
Harrison's testimony, after he saw the handbill, and
upon receiving complaints from employees about
Milburn's preferential treatment, Harrison contacted
the head of the accounting department, Napier, and
others 10 to determine if an error had been made (since
Harrison was aware that Milburn was doing only sin-
gle-winding). When Harrison was advised that com-
pany records showed that Milburn had been classified
as "instructor" since 1969, and was paid the rate de-
scribed in the circular, although Milburn was doing
no instructing," Harrison questioned Napier and
others why Milburn was promoted to "instructor" in
1969. According to Harrison, no one would take re-
sponsibility for Milburn's promotion, and he consid-
ered the promotion authorization slip containing
Napier's name to have been forged. It is undisputed
that the next day (August 14) Harrison called Milburn
to a meeting at which Roberts was present. According
to Milburn's credited testimony, Harrison told her
that she was improperly classified as "instructor" and
that he was reclassifying her as "single-winder" at a
lower rate of pay, since her receiving the higher rate
was unfair to the other girls. Harrison stated that he
did not know who had made Milburn an instructor,
and asked her who it was. Milburn replied that it was
3 These employees were represented by an independent union until Febru-
ary 5, 1973, when, as the result of a successful election, the Union was
certified . However, Respondent has never recognized the Union.
4 Harrison testified that at some time prior to 1968 he had advised the
payroll department that it was company policy to pay for the job performed
by an employee for the time thejob was performed , regardless of the classifi-
cation held by such employee. In 1968, according to Harrison 's testimony,
employee Moran , a multiple-winder, was paid as an instructor when she was
instructing and as a multiple -winder when she operated the multiple -winder.
Moran was not called to testify.
5 Harrison denied that he had authorized the promotion of Milburn and
claimed that Foreman Napier 's signature on the form reclassifying Milburn
was a forgery . However, Napier was not called to testify.
6 Milburn thereafter , according to her undenied testimony . was invited to
and attended instructor's meetings in the company of Harrison until the
advent of the Union in 1972 Harrison testified that "he did not recall" that
Milburn attended such meetings . The discontinuance of Milburn 's atten-
dance at the time of the Union 's first appearance . while curious, is not
expi lamed by any record testimony.
Fernside was not called to testify.
s Roberts was called as a witness but was not questioned and therefore did
not testify about this matter
9 Milburn was also a member of the Union's bargammg,committee, which
was met with Respondent's continuing refusal to bargain despite a court
decision upholding the Board's order to bargain . Foster Transformer Compa-
ny,, 205 NLRB 571 (1973), enfd. 491 F.2d 727 (C.A 6, 1974).
0 Neither the head of the accounting department nor Napier, Milburn's
foreman who were responsible for the accuracy of Milburn's pay and classifi-
cation, was called to testify . It was Napier's responsibility to initial Milburn's
timecards , after verifying their accuracy , and the accounting department's
responsibility , according to Harrison's testimony , to oversee the correctness
of an employee's pay
11 Certain timecards put in evidence by Respondent or stipulated by the
parties showed that on most dates between June 20 and August 16 Milburn
performed no instructing . Milburn admitted that between July 16 and Au-
gust 16 she did no instructing because there was no new and different work
on which she had to instruct Dick. However, Milburn testified, without
contradiction , that prior to and after this period she was engaged from 15
minutes to a half hour on certain days in instructing, and that before 1973
she instructed the work of more than one employee.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Harrison. Harrison responded that he "couldn't recall
it," that she had been erroneously paid, but that the
Company would not ask her to return the overpay-
ments. Company payroll records introduced by Re-
spondent show that on August 15 Milburn was
reclassified by Napier from "instructor" to "single-
winding" and that the noted reason was: "To change
employee to correct classification. Was in instructor
rate in error." Milburn testified on the same day she
told Roberts that she was going to "fight" the change.
Roberts rejoined: Why had she "told the Union what
[she made?]" Milburn replied that the Union could
find out what they wanted to know without asking
her.
According to Milburn's undenied testimony, al-
though she performed some instruction 12 after Au-
gust 16 nevertheless she was paid only at the rate for
single-winder.
While the treatment of Moran and Frost arguably
supports Harrison's testimony that prior to 1968 he
had established a policy of paying the rate applicable
to the work actually performed regardless of the
employee's regular classification, it is unexplained
why the accounting department did not follow such
policy in the case of Milburn," unless, of course, as
the General Counsel contends, a special exception
was made for Milburn. As contended by the General
Counsel, I would find that a special exception was
made in Milburn's case to pay her for all work per-
formed at the instructor's rate.14
The Administrative Law Judge expressly credited
Milburn's testimony that upon confrontation as to the
matter, Harrison did not deny that he had authorized
her special status. The weight of the testimony and the
failure of Respondent to call the key witnesses who
could have established the truth or nontruth of
Harrison's assertions compel an inference that their
testimony would have been adverse to Respondent.'S
Thus I would conclude that Napier's initialing of
Milburn's promotion in 1969 was not a forgery, but
was authorized by Harrison, and that Milburn's clas-
sification as instructor, for all work performed, was
intended to be an exception to Respondent's general
rule in this regard. Unlike the majority, I would find
that Harrison had agreed to Milburn's special status
and his excuses that Milburn was reclassified because
of employee complaints and because of Respondent's
general pay policy for multiple jobs were pretexts to
cloak Respondent's motivation behind Milburn's de-
motion to discourage union activity by its employees.
Such motivation may be inferred from the precipitate
action Harrison took, on the heels of the Union's
disclosure of Milburn's rate as well as the unconvinc-
ing reasons for Harrison's decision. Undoubtedly
also, Respondent's reduction of Milburn's pay in re-
prisal for what had immediately before transpired (the
Union's publication of Milburn's rate) was the result
of Respondent's lingering union animus as reflected
by Roberts' threat to Milburn, in January 1973, and
Milburn's ignoring of such threat by increasing her
union activities and pursuing them continuously
through the date of Harrison's decision.16
In addition, unlike my colleagues, I find that
Milburn's discriminatory demotion cannot be ex-
plained away by a comparison to Moran and Frost.
These employees were classified and continued to be
classified as multiple-winders and obtained an in-
crease in pay during any time they spent in instruct-
ing. In Milburn's case it is undisputed that there was
a change in classification which resulted in a loss of
pay. Furthermore, according to Milburn's testimony,
which is uncontradicted and which the Administra-
tive Law Judge failed to consider, Milburn was paid
at the lower rate after her reclassification even when
she performed instructing work. Thus Respondent
did not follow the same policy for Milburn as it did
for Moran and Frost, but rather, Milburn was dispa-
rately treated in order to discourage her union activi-
ties and the union activities of other employees, in
violation of Section 8(a)(3) and (1).17
12 Although Harrison testified that his examination of the timecards since
August 13 showed that Milburn was not "claiming" any instructor 's pay, this
does not constitute a denial that Milburn, in fact , performed instruction As
the timecards were not produced by Respondent, I would draw an inference
that they would not have established that Milburn did no instructing Ac-
cordingly, we shall credit Milburn 's testimony that she did perform instruc-
tion after August 16 and was not paid therefore at an "instructor 's" rate.
13 Harrison testified that about this time , employee Frost, who, according
to payroll records introduced by Respondent, was classified as "multiple-
winder," complained about being paid at the multiple-winder rate for time
Frost also spent instructing He therefore directed that Frost be given back-
pay for the time spent in instructing and that in the future Frost be paid the
instructor's rate for instructing . Frost was not called to testify.
14 It is incredible that Harrison was unaware that Milburn was classified
as instructor. According to Milburn's undenied testimony , she was in
instructor's meetings attended by Harrison from the time of promotion.
Harrison 's testimony that he could not recall this does not constitute a denial
of Milburn 's testimony Moreover, as noted, in 1970 Fernwood, according
to Dick's testimony , advised Dick that Milburn was classified in a different
job and at a higher rate of pay than Dick 's job which was single-winding.
Respondent 's failure to call Fernwood entitles us to draw an inference that
Fernwood, Respondent's agent , was aware of Milburn's circumstances and
that, as claimed by General Counsel, an exception to the policy had been
made in Milburn 's case.
15 Tennessee Leather Products, Inc, 200 NLRB 495 (1972), Interstate Cir-
cuit, Inc v. U S, 306 US 208, 226
i6 One of these activities was, of course, Milburn 's furnishing the Union
with her rate of pay I agree with the General Counsel that Roberts' query
of Milburn why she had revealed her rate to the Union , immediately follow-
mg Milburn's statement that she was going to fight the pay reduction, con-
stitutes an admission that Respondent had knowledge that Milburn had
revealed such information to the Union and was one of the reasons for her
demotion . Woody Pontiac Sales, Inc., 175 NLRB 218, 229 (1969); Troxel
Manufacturing Company, 174 NLRB 853 (1969), fn. 1. See also Cement
Transport, Inc, 200 NLRB 841 (1972).
n I would find it unnecessary to decide whether Respondent 's change in
pay policy with respect to Milburn also constituted a violation of Sec. 8(a)(5)
DECISION
STATEMENT OF THE CASE
FOSTER TRANSFORMER COMPANY
II THE LABOR ORGANIZATION INVOLVED
939
At all times material herein , the Union is and has been
a labor organization as defined in Section 2(5) of the Act.
LOWELL GOERLICH, Administrative Law Judge: The charge
filed on August 23, 1973, by District 34 of the International
Association of Machinists and Aerospace Workers, AFL-
CIO, herein called the Union, was served on Foster Trans-
former Company, the Respondent herein, by registered mail
on August 28, 1973. An amended charge filed by the Union
on October 3, 1973, was served on the Respondent by regis-
tered mail on October 10, 1973. A complaint and notice of
hearing was issued on October 11, 1973, alleging that the
Respondent had violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended, herein referred
to as the Act. The General Counsel charged unlawful inter-
rogation and a unilateral reduction of the wage rate of
employee Lydia Milburn because of her interest in, sympa-
thies for, and activities on behalf of the Union.
The Respondent filed a timely answer denying that it had
engaged in or was engaging in the unfair labor practices
alleged. -
The case came on for trial on November 15, 1973, at
Cincinnati, Ohio. Each party was afforded a full opportuni-
ty to be heard, to call, examine, and cross-examine witness-
es, to argue orally on the record, to submit proposed
findings of fact and conclusions, and to file briefs. All briefs
have been carefully considered.
FINDINGS OF FACT,' CONCLUSIONS , AND REASONS THEREFOR
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Ohio corporation engaged in the manu-
facture and sale of transformers at its plant located at Cin-
cinnati, Ohio. Respondent's Cincinnati, Ohio, plant
location is the only facility involved in this proceeding.
During the past 12 months, which is a representative
period, Respondent had a direct outflow of goods and mate-
rials, in interstate commerce, valued in excess of $50,000
which it sold and shipped directly from its Cincinnati, Ohio,
plant to points, outside the State of Ohio.
At all times material herein, Respondent is and has been
an "employer"I as defined in Section 2(2) of the Act, en-
gaged in "commerce" and in operations "affecting com-
merce" as defined in Section ' 2(6) and (7) of the Act,
respectively. '
1 The facts found herein are based on the record as a whole and the
observations of the witnesses.
The credibility resolutions herein have been derived from a review of the
entire testimonial record and exhibits, with due regard for the logic of proba-
bility, the demeanor of the witnesses, and the teachings of N L.R B v. Walton
Manufacturing Company & Loganville Pants Co., 369 U S 404,408 (1962) As
to those witnesses testifying in contradiction to the findings herein, their
testimony has been discredited, either as having been in conflict with the
testimony of credible witnesses or because it is in and of itself incredulous
and unworthy of belief. All testimony has been reviewed and weighed in the
light of the entire record.
III THE UNFAIR LABOR PRACTICES
A. Pertinent Facts
On August 15, 1973, the Board ordered the Respondent
to recognize and bargain collectively with the Union (205
NLRB 571). The order is presently pending before the Unit-
ed States Court of Appeals for the Sixth Circuit on a request
for review and a petition for enforcement of the order.
Previously on February 5, 1973, the Regional Director for
Region 9, on behalf of the Board, certified that the Union
had been designated and selected by a majority of the em-
ployees of the Respondent as their exclusive representative
for the purpose of collective bargaining within the meaning
of Section 9(a) of the Act in the following appropriate unit:
All production and maintenance employees of the Re-
spondent at its Cincinnati, Ohio, location, including
truck drivers, but excluding all office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act.
The Union had won a Board-conducted election on No-
vember 16, 1972.
On August 15, 1973, the Respondent, without bargaining
with the Union, unilaterally reduced employee Lydia
Milburn's wages from $2.48 an hour to $2.14 an hour.
Milburn had been rated as an instructor 2 in 1969 which
job carried the $2.48-an-hour rate. The $2.14 rate was that
of a single-winder, Milburn's principal job. Milburn had
worked for the Respondent for 21 years.
Prior to January 1973 Milburn had not been active in
union affairs. On January 11, 1973, Milburn was called into
Manufacturing Manager Billy L. Roberts' office. Roberts
informed Milburn that he had withesses who reported that
she "handed out union cards, threatened people and forced
them to sign union cards."
Milburn denied the accusation. Roberts warned Milburn
that "if it ever came up again they would have no alternative
but to dismiss [her]." Thereafter Milburn increased her ac-
tivity on behalf of the Union by passing out union cards,
collecting dues, and distributing union handbills at the
plant.
In February 1973 Milburn was elected a union commit-
teewoman. The Respondent was informed of her election by
letter dated February 21, 1973.
According to Milburn, when her foreman died in 1969 it
placed the additional burden of instructing on her. Because
of this situation Milburn told Herman A. Harrison, presi-
dent of the Respondent, that she would no longer instruct
unless she was given instructors' pay. From that day for-
ward until August 15, 1973, Milburn received instructors'
2 The instructor rate is rate "E" in Foster's written Statements of Wages,
Hours and Working Conditions. On July 28, 1969, the rate was $2 10. By
August 1973, after a number of general increases, rate "E" was $2.48 an hour.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay full time.'
For each job she performed, Milburn completed a job
card 4 which required the entry of the time she engaged in
instructing. These job cards reflect that she engaged in little
instructing for over a year prior to her reduction in pay and
that her time was almost entirely consumed in single-wind-
ing.5 One other employee, Rose Dick, who had worked for
the Respondent for 27 years, also operated a single-winding
machine. By reason of her experience she needed little in-
struction which no doubt accounted for Milburn' s little in-
struction time.
Rose Dick was also a union committeewoman. In August
1970, while Milburn and Dick were on voluntary layoff,
Milburn was called back to work prior to Dick. Dick pro-
tested to Robert Fernside, personnel manager, because her
seniority exceeded Milburn's seniority by 7 years. Fernside
responded that Milburn "held a higher classification than
[she] did and she made more money than [she] did." Later
Dick talked to Harrison. Harrison told Dick that Milburn
was "in a different classification and she could bump any-
one in the shop and could take [Dick's] job over."
Around August 13, 1973, Deliah Frost, a multiple-winder
in the winding department,6 complained to Roberts that she
was not receiving the instructors' rate for time spent in-
structing. Although Frost's labor tickets had shown both
instruction time and multiple-winding time , she had been
paid the lower multiple-winding rate . When the complaint
was brought to Harrison's attention, he directed that she be
compensated at the higher rate for past instruction time and
that in the future she be paid the multiple-winding rate
when multiple-winding and the instruction rate when in-
structing. She was given backpay of $190.
Another multiple-winder, Anna Moran, a retired employ-
ee who works up to her social security limit each year, is
paid as an instructor when she instructs and a multiple-
winder when she operates the multiple-winder. She is quali-
fied as an instructor as are Milburn and Frost. These are the
only employees presently in the Respondent's employment
who are classified as instructors.
On August 13, 1973, the Union distributed a handbill
citing Dick's pay at $2.14 an hour and Milburn's at $2.48
an hour. When Harrison saw the handbill he made inquiry
regarding Milburn's rate since he was under the impression
that she was engaged in single-winding. He discovered that
personnel action had been taken under the purported si na-
ture of Winding Department Foreman Bige Napier in
1969 rating Milburn as an instructor and that she had been
paid the instructors' rate since 1969. Upon further inquiry
3 Dave Werden , Roberts' predecessor , was present when Milburn directed
her remarks to Harrison Milburn testified, "He [ Harrison ] intended for me
to have instructor's salary all the time Now, that was his exact words"
6 Job cards are made out by each employee at the end of the shift, then
signed by the employee and countersigned by the foreman
s The operator of a single-winding machine places a transformer coil on
the mandrel A foot pedal tuggers the machine and the operator hand feeds
the wire onto the spinning coil . Wires are placed on the coil one at a time
Milburn 's job also required some setup work.
6 The winding department was composed of the multiple -winder section
and the single -winding section Milburn worked in the latter . The same
foreman was over both sections
r Harrison claimed the signature was not Napier 's signature Napier was
not called as a witness
Harrison found no one "who was able to tell [him] either
whose the signature was or how the form came to be there."
Harrison consulted counsel and "made known what our
policies had been , and pointed out that it was a payroll
error , and from the facts that we had been able to ascertain
no one had been able to demonstrate how she had been so
classified , and that [he ] had no knowledge of it , Mr. Roberts
had no knowledge of it , Mr Napier, the foreman, had no
knowledge of it, or any other member of management as far
as [he] had been able to ascertain."
Harrison claimed that he had not granted Milburn the
instructors ' rate . He denied the substance of Dick 's testimo-
ny. He asserted that the Respondent had a longstanding
policy that employees would be paid the instructors ' rate for
instruction time and the winders' rate for winding time. He
maintained that payment to Milburn was in error , an error
in the payroll department . No written policy was ever given
to the payroll department for their guidance.8
According to Harrison , the last time the policy was
brought to the attention of the payroll department by him
was in 1968 with respect to employee Moran.
On August 14, 1973, Milburn was called into the presence
of Harrison and Roberts . Harrison indicated that he had
not realized that Milburn was being paid $2 .48 an hour until
he saw the union pamphlet and that he was cutting her
salary back because it wasn ' t fair to the other girls. Harrison
said he did not know who had made Milburn an instructor
because no one admitted having signed the "slip ." Harrison
asked Milburn who had made her instructor. She answered
that it was he? Harrison responded that "he couldn 't recall
it." Harrison also told Milburn that she had been erroneous-
ly paid the instructors ' rate for doing single -winding and
that he was correcting the rate . Harrison added that Mil-
burn would not be required to restore the overpayment to
the Respondent . The change became effective August 15.10
On the day after Harrison had reduced Milburn's wage
rate , Roberts asked her why "[she] told the union what [she]
made." i i
B. Conclusions and Reasons Therefor
First: The alleged unlawful interrogation. The only evi-
dence of interrogation offered by the General Counsel was
Roberts' inquiry of Milburn as to why she had told the
Union "what she made." Such inquiry does not possess the
attributes necessary to render it coercive. Under the circum-
stances, the interrogation was wholly innocuous.
It is recommended that those parts of the complaint
Harrison testified "our policy is you get paid for the work which you do "
"Without searching the contract [a prior contract with an independent union]
I'm not certain how explicit it is We define ajob, what a winding job is, and
what an instruction job is, or what assembly work is, which is 'A' rate-
there 's about eight or ten different rates in our agreement And you're paid
for whatever work you do That' s been the policy since I've been there."
9 Milburn testified , "I told Mr Harrison that he was the one, him and Dave
Werden is the one that made me instructor"
10 As to the discourse in which Milburn's salary was cut, where there is a
conflict of testimony Milburn has been credited as the more reliable witness.
ii Milburn advised Roberts that she was going to fight the Respondent's
reduction of her wages Roberts then asked her why she had told the Union
what she made Milburn responded that the Union could find out what they
wanted to know without even telling her. (General Counsel's description of
the incident)
FOSTER TRANSFORMER COMPANY 941
based on alleged unlawful interrogation be dismissed. -
Second: The alleged discriminatory treatment of Milburn.
The record is clear that the policy expressed by Harrison,
i.e., employees will be paid the instructors' rate while in-
structing and the winding rate while winding, was adminis-
tered in a like manner in respect to employees Milburn,
Frost, and Moran. "Discrimination consists of treating like
cases differently." Frosty Morn Meats, Inc. v. N.L.R.B., 296
F.2d 617, 621 (C.A. 5, 1961); Successful Creations, Inc., 202
NLRB 242 (1973). Since like cases were treated the same
there was no unlawful discrimination here. See also Midway
Clover Farm Market, Inc., 175 NLRB 1038 (1969); Sarkes
Tarzian, Inc., 157 NLRB 1193 (1966).
It is recommended that those parts of the complaint refer-
ring to 8(a)(3) allegations of discrimination be dismissed.
Third: The failure to bargain in respect to the change of
Milburn's wage rate. 1 2 The credible evidence indicates that
the Respondent maintained a policy which provided that
employees should be paid the instructors' rate while in-
structing and the winders' rate while winding. That such a
policy existed prior to Milburn's reduction in rate is borne
out by the fact that Frost was retroactively compensated in
conformity with the policy before Milburn's reduction oc-
curred. Thus the institution of the policy had no relation to
and predated Milburn's reduction. Hence the question is
whether the implementation of the policy as to Milburn
required collective bargaining. Obviously a change in the
policy would have required collective bargaining as would
any other unilateral change in a condition of employment.
However, the situation here is of a different kind. Here the
employer simply administered an existing condition of em-
ployment in a nondiscriminatory manner. The situation is
no different than had the employer corrected an overpay-
ment to an employee under an existing contract. To con-
form an employee's pay rate to an existing policy as was
done here requires no collective bargaining. Moreover, the
Charging Party has not complained that the Respondent
failed to bargain with the Union when it retroactively ap-
plied the policy to Frost.
It is recommended that those parts of the complaint
based upon allegations that the Respondent violated Sec-
tion 8(a)(5) of the Act be dismissed.
Accordingly it is recommended that the Board issued the
following.
ORDER t3
12 The General Counsel has accurately framed the issue in these words,
"The issue is thus reduced to the question of whether the Respondent's
unilateral reduction in Milburn 's wage rate constituted a substantial change
in her wages or whether the reduction constituted a continuation of past
operational policies in that an error indicating overpayment in her pay was
found and corrected " I have found the latter.
It is hereby ordered that the complaint be, and it hereby
is, dismissed in its entirety.
13 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes