Fox Manufacturing Co.

National Labor Relations Board - Board Decisions

Dec 9, 1955

114 N.L.R.B. 1313 (N.L.R.B. 1955)

FOX MANUFACTURING COMPANY 1313
[The Board directed that the Regional Director for the Eighth
Region shall, pursuant to the Rules and Regulations of the Board,
within ten (10) days from the date of this Direction, open and count
the ballots of Charles P. Kett, Jerry Kokish, Thomas Spaulding, and
Vladimir Saskijedic, and serve upon the parties a supplemental tally
of ballots, including therein the count of these ballots.]
MEMBERS MuimocK and BEAN took no part in the consideration of
the above Decision and Direction.
Corporation, supra. Accordingly, in these circumstances we find no merit in the Peti-
tioner's contention.
Likewise, we do not agree with the Employer that the Petitioner will circumvent the
Board policy of refusing to include in a unit only part of a group of employees whose
duties and interests are the same, by excluding Wolf from the unit by challenge, while
refraining from challenging another employee performing the same guard duties. Sus-
taining the Petitioner's challenge to Wolf is predicated solely on his duties as a guard.
Accordingly, we believe that it is immaterial to the determination of this exception that
another employee performing the same duties was permitted to vote free of challenge.
Fox Manufacturing Company and United Furniture Workers of
America, AFL-CIO.' Case No. 10-CA-2213. December 9, 1955
DECISION AND ORDER
..On July 12,1955, Trial Examiner Thomas S. Wilson issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief. The
Respondent's request for oral argument is denied, as the record, includ-
ing exceptions and brief, adequately presents the issues and the posi-
tions of the parties.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate,-Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions.
1. We agree with the Trial Examiner that the Respondent dis-
charged White on December 16,1954, because of his union membership
and'activities and in order to discourage membership in the Union, in
violation of Section 8 (a) (3) and (1) of the Act. The Respondent
s The AFL _ and CIO having merged, we are showing the affiliation of the Union
accordingly.
314 NLRB No. 206.
1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excepts on the ground that the Trial Examiner's findings of facts and
conclusions are contrary to evidence.
White was hired by the Respondent as a satnder in March 1950. In
July 1953 he was selected by Superintendent Anderson for promotion
to the spraying job in the table department. His job was described by
Anderson as an ''intricate" and "most important job in the depart-
ment." During his employment White's rate of pay on Foreman
Callahan's recommendations was increased from $0.75 to $1.05 per
hour. White remained on this job until December 16, 1954, when he
was peremptorily discharged by Superintendent Anderson allegedly
because some of the tables sprayed by him the day before were too
light in color. The Respondent contends that White on several prior
occasions had sprayed tables too light, that he had been warned on
those occasions, and that the December 16th incident was but the last
straw that brought about the discharge. However, like the Trial Ex-
aminer, we are not persuaded that White was discharged for his fail-
ure to color the tables according to specifications rather than for his
union activities.
The Union began. organizing the Respondent's plant early in No-
vember 1954. White joined the Union on November 12,1954, and soon
became 1 of the 2 leading proponents of the Union in the plant. He
attended-3 or 4 union meetings held for the Respondent's employees
and signed up 18 to 25 employees for membership in the Union. His
union activities soon became known to his superiors. On November 15
Foreman Callahan, under whom White worked as a sprayer, told him
that he heard that White was trying to organize a union in the plant.
When White denied knowing anything about it, the subject was
dropped., About a week later, however, Callahan again asked White
how the Union was going. Finally, on December 13, Callahan stated
to White ; "I hear you are having something to do with the Union,"
and when' White replied, in effect, that engaging in union activity
was "a fellow's privilege,'.' Callahan retorted : "Well, that is a good way
to get your job."
Spraying tables to the required shade and color is admittedly an
intricate and difficult job. It cannot be readily ascertained until the
tables dry and the damage is done, whether they have been shaded
according to specifications. Plant Manager Anderson testified that
White, on three prior occasions, shaded the tables too light and that
they had to be refinished. The first occurred a month or two after
White's transfer to the table room, the second, 2 or 3 months there-
after, and the third, about 6 months before the discharge. Taking
into consideration that the first 2 instances of improper spraying
bccurred within 2 or"3-months after he assumed the'job they might be
properly ascribed to White's lack of experience on the job. , The third
occurred about 8 months thereafter and 6 months before the discharge-
FOX MANUFACTURING COMPANY 1315
That these incidents, spaced so far apart during White's nearly a year
and a half of employment on the job, were not serious enough to
justify White's discharge is clear from Anderson's own testimony
that on none of these occasions did he reprimand White "other than
[he] would try to impress on [White] importance of holding color,
holding the shade," and that he did not at that time warn White
that he would be demoted or discharged in the event of a repetition of
such errors in the future. Nor is the harsh treatment accorded to
White understandable in the light of White's otherwise satisfactory
employment record, and particularly the Respondent's policy of leni-
ency with respect to discharges. White was employed by the Respond-
ent for almost 5 years. For the last 18 months he was performing
the most important job in the department. Yet, White was peremp-
torily discharged without being given another chance on a different
job.
While on the one hand, the reasons advanced by the Respondent
in explanation of White's discharge are far from persuasive, on. the
other there is substantial evidence to support the General Counsel's
contention that the real reason for the discharge was White's member-
ship in, and his activity on behalf of, the Union. That the Respond-
ent knew of the Union's efforts to organize the plant and of White's
part in it, may be reasonably inferred. Thus Superintendent Wert tes-
tified that he learned of the Union's efforts to organize the plant the
very day the union organizer came to the plant to distribute union
literature. Respondent's witnesses testified that there was considerable
talk among the employees about organizing the Union, and also that
little if anything could go on in the plant without becoming known
very promptly to everybody. Finally, Foreman Callahan admitted
that he asked White on one occasion as to how the Union was going.
On two other occasions, Callahan stated to White that he heard that
he was trying organize a union in the plant. White himself, to all
practical intents and purposes, admitted to Callahan that he was an
active union member when, in response to Callahan's question, he
stated that he believed that engaging in union activities was an em-
ployee's privilege.
Furthermore, there is substantial evidence to show that, in discharg-
ing White, the Respondent was prompted by antiunion motivation.
Superintendent Wert, reflecting the company policy with respect to
unions, stated to an applicant for employment, that "the company is
against [the union], that it had been tried before and it didn't work,"
and that they are "just not going to have any more union out there."
Foreman Callahan, in line with this policy, warned employees Wills
and McKinley that, if the Union came in, cleanup time and working
hours would be cut down. While interrogating White about the
387644-56-vol . 114-84
1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union, Callahan warned White that for an employee to have anything
to do with the Union is a good way to "get" his job. Shortly after the
discharge of White, the Respondent also issued a warning slip to
Caldwell, another active union member and an an employee of 10
years' standing, allegedly for "lack of interest in his work," but in
reality, as the Trial Examiner found, for his active participation with
White in an attempt to organize the plant.
Upon the entire record, we find that the Respondent's exceptions
to the Trial Examiner's findings and conclusions with respect to
White's discharge are without merit.
ORDER
Upon the entire record and pursuant to Section 10 (c) of the Na-
tional Labor Relations Act, the National Labor Relations Board
hereby orders that the Respondent, Fox Manufacturing Company,
Rome, Georgia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Furniture Workers of
America, AFL-CIO, or any labor organization, by discriminating in
any manner against any of its employees or applicants for employ-
ment in regard to the hire or tenure of employment or any term or
condition of employment.
(b) Interrogating or questioning employees or applicants for em-
ployment concerning their union activities, connections, or sympa-
thies; threatening employees or applicants for employment with re-
prisals if they oppose the company policy that there should be no
union in the plant.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to form
labor organizations, or to join or assist United Furniture Workers of
America, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage
in concerted activities for the purposes of collective bargaining or of
mutual aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds
necessary to effectuate the policies of the Act :
(a) Offer to Clayton White immediate and full reinstatement to
his former or substantially equivalent position, without prejudice
to his seniority or other rights and privileges, and make him whole,
in the manner set forth in the section of the Intermediate Report en-
titled "The Remedy," for any loss of pay he may have suffered by
reason of the Respondent's discrimination against him.
FOX MANUFACTURING COMPANY 1317
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of back pay due
and the rights of employment under the terms of this Order.
(c) Post in conspicuous places at the Respondent's plant in Rome,
Georgia, including all places where notices to employees are customar-
ily posted copies of the notice attached to the Intermediate Report
marked "Appendix A." 2 Copies of said notice, to be furnished by
the Regional Director for the Tenth Region, shall, after being duly
signed by Respondent's representative, be posted by said Respondent
immediately upon receipt thereof and maintained by it for a period
of sixty (60) consecutive days thereafter. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from date of this Decision and Order, what steps
the Respondent has taken to comply herewith.
MEMBERS MURDOCK and BEAN took no part in the consideration of
the above Decision and Order.
2 This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner" the words "A Decision and Order." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order."
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed on December 22, 1954, by United Furniture Workers
of America , CIO, herein called the Union , the General Counsel of the National
Labor Relations Board , herein called the General Counsel ,' and the Board re-
spectively, by the Regional Director for the Tenth Region (Atlanta, Georgia),
issued its complaint dated May 13, 1955 , against Fox Manufacturing Company,
herein called the Respondent , alleging in substance that the Respondent: (1) By
various enumerated acts and statements had interfered with , restrained, and co-
erced its employees ; and (2 ) had discharged Clayton White because of his mem-
bership in and activities on behalf of the Union, thereby engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and
Section 2 ( 6) and (7) of the National Labor Relations Act, 61 Stat . 136, herein
called the Act . Copies of the complaint , the charge , and the notice of hearing were
duly served upon the Respondent and the Union.
The Respondent duly filed its answer wherein it admitted certain allegations of
the complaint but denied the commission of any unfair labor practices.
Pursuant to notice , a hearing was held on June 7, 1955, at Rome , Georgia, be-
fore the duly designated Trial Examiner. The General Counsel and the Re-
spondent were represented at the hearing by counsel . Full opportunity to be heard,
to examine and cross-examine witnesses , and to introduce evidence bearing upon
the issues was afforded all parties . On June 27, 1955, a brief was received from
the Respondent.
'This term specifically includes the counsel appearing for the General Counsel at
the hearing.
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire 'record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Fox Manufacturing Company is, and has been at all times material herein, a
corporation duly organized and existing under the laws of the State of Georgia,
having its principal office and place of business at Rome, Georgia, where the Re-
spondent is, and has been, engaged in the manufacture of furniture. During the
past annual period, which period is representative of all times material herein,
Respondent has made sales to customers outside the State of Georgia valued in
excess of $2,000,000. During the same period of time purchases of raw materials,
supplies, and equipment obtained from sources outside the State of Georgia ex-
ceeded the value of $1,000,000.
The Respondent concedes, and the Trial Examiner finds, that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
United Furniture Workers of America, CIO, is a labor organization admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
At all times material here the Respondent's plant manager was F. D. Anderson
and the plant superintendent W. H. Wert. Pleasant Roy Gray worked as a super-
visor and inspector under Kirk (Red) Callahan, foreman of the finishing depar4.
ment.
For 5 or 6 years between about 1942 and 1948 the employees of the Respondent's
plant had been represented in collective bargaining by the Union. During this
period relations between the Respondent and the Union appear to have been satis-
factory. However, sometime about 1948 the employees apparently abandoned the
Union as a result of a combination of a union strike threat, a drastic reduction of
employees, and the failure or refusal of union leaders to execute the non-Com-
munist affidavit required by Section 9 (h) of the Act.
Thereafter the employees have been without union representation. However,
sometime in early November 1954 the Union again began an attempt to organize
the Respondent's employees.z Among the very first employees to execute the union
authorization cards were Thomas A. Caldwell and Clayton White, who signed such
'cards on November 12, 1954. These two employees then became the leaders in the
distribution of union authorization cards and in the solicitation of their fellow em-
ployees to execute the same.
The Respondent was, and is, proud of the fact that the labor turnover at its plant
was very low. It attributed this result to the fact that discharges at the plant are
practically unknown because of the company policy of giving the employees numerous
chances rather than discharging them for their first error. However, it was oc-
casionally necessary to hire new employees. These applicants or employees were
interviewed prior to employment by either Anderson or Wert as the occasion arose.
On April 14, 1954, Wert interviewed Harley Brownlow. During the course of this
interview Wert mentioned the Union and said: "The Company is agin it. . It has
been tried here and it didn't work" and then added that he did not think it would
work at the plant anymore .3
2 Wert testified that the union organizer was first reported to be at the Respondent's
gate trying to organize the Respondent's employees the day following the day on which
a representation election was held at the General Electric Company plant at Rome,
Georgia. The records of the Board in Washington, D. C., of which the Trial Examiner is
here taking official notice, show that in Case 10-RC-2815 (not reported in printed
volumes of Board Decisions and Orders) such a representation election was held by the
Board at the General Electric plant in Rome, Georgia, on October 28, 1954, and that a
runoff election was held there on November 9, 1934
8 As this interview occurred more than 6 months prior to the filing of the charge in
the present case, this incident is cited here only on the question of the motivation of the
Respondent and not as evidence of an unfair labor practice
FOX MANUFACTURING COMPANY 1319
' On or about August 11, 1954 , Wert interviewed James Justice, inquired if Justice
had ever belonged to a union , and then, upon learning that at his last job Justice had
been a member of the Operating Engineers Union , stated : "We don 't have any con-
tracts here or any union . . . . They had a contract out here a time or two. It
wasn 't a success here. We are just not going to have any more union out here."
Justice was employed following the interview and was working at the time of the
hearing.
Again on September 20, 1954, Wert inquired of Joe Fraser , who was applying for
work , if Fraser had ever belonged to a union and, upon receiving a negative answer,
stated that the Company had had a union there before but it would not work and
that if Fraser "had a union in mind, to forget it" because it just would not work at
the Respondent 's plant.
Wert acknowledged that he had interrogated the employees as to their union
affiliations , if any, but originally testified that company practice in that regard had
changed "in the last few years." Subsequently , however , he denied that it was now
the policy of the Respondent not to inquire regarding the union affiliations stating
that he believed "it is my privilege and right to ask a man" those questions. Wert
made the intent of such interrogations clear when he explained to Justice, the
former union employee, that "we are just not going to have any more union out
here" and when he ordered Fraser "to forget" the idea of a union.
As found heretofore , Thomas A. Caldwell and Clayton White signed union authori-
zation cards at the beginning of the Union 's organizational drive about November
12, 1954 , and thereafter were the two most active union adherents at the plant in
distributing union cards and soliciting signatures thereto.
Wert knew of the presence of the union organizer at the plant on the very afternoon
he appeared , probably November 10, 1954 . There was considerable talk in the plant
about organizing the Union . And, as adduced during the Respondent's examination of
witnesses , "everybody in the plant knew that some one was trying to organize a
union" and that little , if anything , could go on at the plant without becoming known
very promptly.
Soon after the organizing began Foreman Callahan informed employee James
Wills that , if the Union came in, cleanup time would be cut and the hours would be
cut to 40 per week from the 56 hours the plant customarily operated.
On or about November 15,4 Foreman Callahan, under whom White worked as a
spray hand ," i. e., painting furniture with a spray gun, spoke to White at the table
department saying: "I hear you are trying to organize a union up here." The subject
was dropped when White denied knowing anything about it.
About a week or so later, or about November 22, Callahan again spoke to White'
in the table department asking how the Union was going . Again White denied having
any knowledge.
Then about December 13, Callahan came up to White in the department and
stated : "I hear you are having something to do with the Union ." White answered
that he "figured that was a fellow 's privilege" to which Callahan retorted : "Well, that
is a good way to get your job."
As a witness Callahan admitted having asked White how the Union was going but
denied the other two episodes found above which are based upon White 's credited
testimony . Also, as a witness , Callahan further testified that White was the only
employee to whom he spoke about the Union among the 40 employees in his
department . However Callahan had signed an affidavit containing the following state-
ments: "I asked a couple of men at work in my department how they felt about the
Union . . . White was not one of the men that I asked how they felt about the
Union ." Thus Callahan proved himself to be anything but consistent as a witness.
The Trial Examiner credits the testimony of White.
Although , as a witness , Callahan denied having any knowledge of White's union
affiliation and activities , he was unable to explain why he selected White from among
the 40 employs in his department to inquire about the Union. It is a fair assumption
from the evidence adduced by the Respondent as to the knowledge of the organiza-
tion attempt in the plant , from the fact that Callahan persisted in speaking to White
about the Union , and from White 's activities on behalf of the Union among the
employees under Callahan 's foremanship that Callahan , and therefore the Re-
spondent , knew of White 's leadership in the union organization effort.
About December 13, Callahan called White's attention to 25 or 30 tables which
he claimed were "too light" in color and shade . However, when White inquired as to
whether Callahan wanted him to add more color to them, Callahan decided against
All dates cited herein refer to the year 1954 unless otherwise noted.
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
this suggestion and had nothing extra done to the tables which thereupon passed
Respondent 's admittedly strict inspection.
Three days later on the morning of December 16, Anderson, Gray, and Callahan
were looking at some of the tables which had been sprayed by White when White
walked up to the group. Anderson inquired of White as to what was wrong with the
color. White answered: "It beats me ." Whereupon Anderson replied that, if it beat
White, that "was all" and ordered Callahan to have White paid off immediately with
the instruction: "I don't want him no where in the plant." These orders were executed
immediately with Callahan escorting White from the plant. White has never been
reinstated.
Either just before or just after White's discharge Callahan inquired of employee
McKinley Justice as to what he thought of a union. Justice replied that he thought
it would be all right if carried on right. Callahan's reply was: "Well, better let well
enough alone like it is for we could go on short time. . . We could be cut to 40,
hours." At this time the plant was normally working 58 or 59 hours per week.5
Also one evening after White's discharge, Thomas Caldwell, White's cohort in,
actively soliciting for the Union, was ordered to see Superintendent Wert in his
office. After having Caldwell sit down Wert said: "Thomas, . we want to talk
to you about your work. . . . You are falling down on production and you are
taking a little too long to make your setups.... Thomas, we are not damned
fools. We know what is going on around here.. . We know that it don't take you
3 or 4 hours to make a little old simple setup like a 406 armed spindle or 378
spoke." To this Caldwell answered: "Mr. Bill, it hasn't took quite that long yet
to make a setup." Wert thereupon laughed and said: "I know." After Caldwell
stated that he would do his best to "come up a little," Wert continued: "Well .
that's right, that is all I could ask you to do. . . Thomas, we are not damned
fools. . We know what is going on around here." Caldwell then inquired about
his continuing to go to the stockroom. Wert answered that that would be all right
as "that is part of your job" and once again reiterated: "Thomas, we are not
damned fools, we know what is going on around here." Just as he dismissed Cald-
well, Wert handed Caldwell a warning slip on which was written "lack of interest
in his work" with the remark: "You take this in case anything comes up later on."
In view of the Respondent's declared policy of not discharging an employee for his
first offense and without warning, the warning conveyed by this slip can hardly be
called concealed.
B. Conclusions
1. Interference, restraint, and coercion
In its brief Respondent appears to anchor its defense to the charge of interfer-
ence, restraint, and coercion upon the contention that the inquiries of Callahan
and of Wert were mere isolated inquiries caused by idle curiosity or as ordinary
acts of business management made without the intent of management to coerce
because asked without threats. This is an interesting theory but it omits many,
if not most, of the pertinent facts proved herein.
First, were the inquiries made by Wert and Callahan isolated? In view of
Wert's testimony that he inquired of employees and applicants for employment
as to their union affiliations as a matter of company policy based upon "right and
privilege" and that that policy had not been changed-despite his intimation to the
contrary made earlier in his testimony-it is clear that Wert's interrogations were
routine, regular interrogations of employees which cannot qualify as "isolated in-
cidents." It also seems that Callahan's interrogations followed the same company
policy.
Second, were these interrogations made out of idle curiosity without threats or
intent to coerce? The testimony proves, without denial, that Wert informed em-
ployee Fraser to "forget" any ideas he might have about a union and he was even
more explicit, if possible, when he instructed Justice "we are just not going to have
any more union out here." Thus, in expressing the company policy during these
interrogations, Wert made it clear that anyone who worked for the Respondent must
forgo the right to be represented by a union and forget any ideas they might have
about union representation because it was company policy that "we just are not
5 Although Callahan denied having made any statement regarding shorter working hours
to any employee , neither the substance of his testimony , as noted above, nar his demeanor
on the stand gave the Trial Examiner the impression that Callahan was an altogether
reliable witness. The Trial Examiner credits the testimony of Wills and Justice as to
these two episodes.
FOX MANUFACTURING COMPANY 1321
going to have any more union at the plant." The threat to the tenure of employ-
ment of any man who failed to forget or worked to secure union representation
in the plant contrary to Wert's statement of company policy is too clear to require
argument. These statements also made clear the intent behind the interrogations
which was, in Wert's own phraseology, "we just aren't going to have any more
union out here." This was no expression of opinion. This was a statement of fact,
which, through the Respondent's power of discharge, became also a warning and
a threat.
And so Callahan was likewise expressing company policy, perhaps not so dras-
tically but maybe more effectively, when he warned employees that, if the Union
did come into the plant, the Company could cut the hours of employment from
58 to 40 per week. The effectiveness of this threat was due to the fact, as the
Respondent brought out at the hearing, that the employees themselves wanted the
longer hours and, indeed, had always requested them. Thus the threat to cut the
hours, and thus the take-home pay, is a very potent economic weapon. Of course
Respondent had the right to do as it saw fit in regard to working hours except to
condition its action thereon upon the advent of the Union. That condition precedent
attached to the possible shortening of the hours makes Callahan's statement into
an illegal threat violating Section 8 (a) (1) of the Act.
Then we come to the cases of White and Caldwell, the two most active union
adherents in the plant. In White's case Callahan let him know that his union activi-
ties were known to the Respondent within 3 days of the date White had executed a
union card by saying: "I hear you are trying to organize a union up here." Then,
following one reminder that his union affiliation had not been forgotten, Callahan on
or about 3 days before White's ultimate discharge, upon White's admission that he
believed engaging in union activities was an employee's privilege, warned "Well,
that is a good way to get your job." This remark proved to be more prophetic than
a mere threat, for 3 days thereafter White was precipitantly discharged.
Similar pressure was brought to bear on Caldwell, soon after White's discharge,
by Superintendent Wert, who, upon the pretext that Caldwell's production was
slipping, insisted upon giving him a warning slip reading "lack of interest in the
work" while reiterating the enigmatic sounding remark: "Thomas, we are not damn
fools here. We know what is going on." A person with knowledge of the existing
organizational drive in the plant would not find that remark too hard to interpret.
That this otherwise enigmatic remark was addressed to Caldwell's union activities
rather than any alleged reduction in his work became patent from Wert' s smiling
agreement that his own exaggerated estimate of Caldwell's slowness was incorrect
as well as by Wert's further reiteration of the above remark following Caldwell's
inquiry as to whether he could continue to go to the stockroom as his work required.
It is a reasonable interpretation that Wert was, in fact, objecting to Caldwell's union
solicitation. The threat, of course, became obvious with the handing of the warning
slip to Caldwell when one recalls the Respondent's pride in the fact that they never
discharged an employee for his first error. Thus, the receipt of this warning slip
made Caldwell eligible for discharge at the immediate whim of the Respondent there-
after. The handing of this warning slip to Caldwell so soon after White's discharge
is significant-especially as there was no such slip in White's case. It is further sig-
nificant that of the 2 most active union adherents in the plant, the Respondent dis-
charged 1 precipitantly and contrary to tradition and then promptly prepared the
second I for immediate discharge by insisting upon giving him a warning slip on an
obvious pretext for the Respondent made no effort at all to prove its charge against
Caldwell, either to Caldwell or at the hearing.
The intent behind this policy of interrogation and of threats was made clear from
Wert's own statement that there was to be no more union at the plant. Thus these
interrogations and threats were intended to interfere with, restrain, and coerce the Re-
spondent's employees into obedience to the Respondent's policy of "no more union."
This interrogation was not mere idle curiosity, as in the cases cited in the Respondent's
brief, but was the intentional pursuit of a systematic and coordinated plan of threaten-
ing and warning employees against seeking union representation because of the Com-
pany's stated and adopted policy against permitting union representation at the plant
anymore. Interference, restraint, and coercion need not be successful in order to
violate Section 8 (a) (1) of the Act. Therefore, the Trial Examiner must find that
this systematic interrogation and threatening of employees with the intent to prevent
unionization of the employees was a violation of Section 8 (a) (1) of the Act.
2. Discharge of Clayton White
In its brief the Respondent appears to have based its defense to the allegations of
discriminatory discharge of Clayton White exclusively on the ground that he was
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged for cause, i. e., bad workmanship. Thus apparently the Respondent has
abandoned its claim that it had no knowledge of White's union activities. This
abandonment is justified by Callahan's remarks indicating his knowledge, and there-
fore Respondent's, that he had heard that White was trying to organize a union at
the plant as well as by the admission on December 13 by White to Callahan that he,
White, believed it to be an employee's privilege to engage in union activities. Nor,
in considering White's case, should it be forgotten that Callahan's prompt retort to
that was that that was a good way to lose one's job, i. e., "to get one's job."
The events of 3 days after the making of this prophetic remark are shrouded in
considerable mystery beyond the fact that, while looking at some tables which White
had painted, Anderson ordered White's immediate discharge with the remark that he
did not want White any place in the plant. Whereupon Callahan escorted White
immediately to the payroll office.
This precipitant discharge was almost unprecedented in the Respondent's plant
where management prided itself on how rarely it had to dismiss an employee due to
its policy of lenience and always giving the employee a second chance.
Respondent claimed that White had painted the tables "too light" in shade and
color. There is no question but that White in his position as the spray gun painter
was solely responsible for the color and shading of the tables. There is, however,
considerable question whether the tables were, in fact, too light-and even more
question as to the seriousness of the error, if in fact there was an error.
Anderson appeared uncertain as to the identity of the individual who called his
attention to the color of the tables, testifying on one occasion that the individual was
Foreman Callahan and on another that it was Inspector Gray. He was certain, how-
ever, that whichever one it was had asked him to look at the tables because "I think
[or I am afraid] they are light." Gray claimed credit for the alleged discovery but
it was notable that Gray had made no effort to locate Anderson to report that error
but, on the contrary, only reported the error when he saw Anderson walking in the
department. Nor had Gray made any effort to report the same to Callahan, his
foreman. As Gray had clearly indicated during his testimony his desire and eager-
ness to prove how well he, Gray, was doing his job by reporting errors to his superiors,
his slowness to report on this occasion would indicate the same degree of uncertainty
that an error had been made as was exemplified by the qualifying words "I think."
That these words had been used advisedly was further corroborated by the testimony
of Couulie who carried the tables back and forth to and from White's spray booth
and who about 6 weeks prior to the discharge had also been instructed to inspect the
coloring of the tables. Couulie testified that, after he had called Callahan's attention
to the tables, Callahan had to get the color. pattern or chart in order to determine
if the tables were in fact too light. Hence, it is clear from the testimony of the Re-
spondent's own witnesses that, if the tables were too light, that error was so slight as
to require the use of the color chart to determine. Anderson's own uncertainty was
shown by his testimony that White "admitted that the tables were too light, as I
recall it."
In further corroboration of the slightness of the error in shading, if any, it is
noteworthy that not one of the Respondent's officials or supervisors would or could
testify how many, if any, of the tables involved had to be "washed" and refinished or
else resprayed. If the tables had been finished (i. e., sprayed, sanded, lacquered, and
rubbed) at the time of the discovery of the error, then in order to darken the shade,
the table had to have the finish "washed off" and the full refinishing done again.
If, however, the off color was noted before the finishing had been completed, then
all that needed to be done was to have some more paint sprayed on the tables. The
Respondent's witnesses were even in conflict as to whether the tables had been
finished or whether they had just come from the color spray booth. If, as Couulie
testified, he had just taken the tables from the color spray booth, then the damage,
if any, was negligible as it required only to have some more color sprayed on. If,
on the other hand, the discovery was made after the tables had been finished, as
testified by Gray, then the tables had to be "washed," i. e., having the color and
lacquer removed by chemicals, before being refinished, then Couuhe and Inspector
Gray, both of whom, according to their own testimony, paid close and incessant
attention to the coloring, had failed to note the alleged error in shading during
numerous handlings of the tables and for an unreasonable length of time. Further-
more, not one of the Respondent's witnesses could or would testify how many, if
any, tables were washed and refinished and/or how many resprayed-or in fact, that
the tables did not ultimately pass inspection as painted by White which was
exactly what had happened only 3 days before when Callahan had claimed that other
tables sprayed by White had been too light.
Actually there were very few tables involved on December 16. Anderson testified
that there were only about six tables. Gray testified there were 4 or 5 only, while
FOX MANUFACTURING COMPANY 1323
the best obtainable estimate from Foreman Callahan was that there were more than
1 but less than 25 tables involved. Hence whether finished or not, the damage to
the Respondent was very small.
On account of this minor damage Anderson discharged White precipitously. At
the hearing Anderson explained that his precipitous action was caused by numerous
previous similar errors in coloring which caused him to come to the conclusion that
it just was not worthwhile "going on" further with White. These other incidents,
accepting Anderson's testimony at face value, were 4 in number with the first
instance thereof occurring a month or 2 after White's promotion to the spray booth
in July 1953, the second 2 or 3 months thereafter, the third 6 months prior to De-
cember 16, 1954, and the last of course on December 16. On the first three of these
occasions when Anderson allegedly reprimanded White, "it wasn't anything very
severe other than that I would try to impress on [Whitel the importance of holding
the color, holding the shade." 6 Anderson never threatened to demote or to discharge
White on any of the previous occasions. Nor did White ever receive a warning slip
such as was given Caldwell later.
White acknowledged that he had been spoken to about the color and shading
before but obviodsly did not consider these to be reprimands. Anderson's testimony
tended to corroborate his belief.
While Anderson's estimate of the instances of poor workmanship was as stated
above, the testimony of Callahan, Gray, and Couulie as to these reprimands increased
in exact proportion as the witnesses' supervisory status decreased. Gray testified
that there were 3 or 4 instances in the last 6 months of White's employment while
Couulie recalled reporting White's poor workmanship to his superiors as often as
once or twice a day. The only other specific instance which involved Callahan was
on December 13, but on that occasion the tables passed inspection without having
been changed. The Trial Examiner has difficulty in reconciling these divergent
estimates.
This testimony of Respondent's witnesses, of course, does not coincide with White's
employment history which shows that White was employed originally in 1950 as a
sander, that Anderson promoted White to the spray booth in July 1953 because
the spraying, being the most important operation in the table department, required
a man "that has got a little extra ability" which Anderson personally felt that White
had and which Anderson testified White had proved he had by his work in the
spray booth. In addition to Anderson's selection of White for promotion to the
spray booth, Foreman Callahan acknowledged that he had recommended White for
promotion during his employment in the spray booth 2 or 3 times with the result
that his rate of pay increased from 75 cents to a $1.05 an hour. Employees whose
work is as bad as the testimony here would indicate, if believed, do not secure the
promotions which White had received.
The fact of the matter is that there was nothing about the work done on December
16 which would have caused White's precipitant discharge but, contrary to the Re-
spondent's denials, the Respondent knew that White was one of the active adherents
of the Union soliciting memberships and seized upon this minor December 16
incident regarding the tables as a pretext to discharge White so as to eliminate an
employee who was attempting to' violate the company policy that there was to be
no union in the plant anymore.
The Trial Examiner is convinced, and therefore finds, that the Respondent dis-
charged Clayton White on December 16, 1954, in order to discourage membership
in the Union in violation of Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire
and tenure of employment of Clayton White on December 16, 1954, by discharging
him, the Trial Examiner will recommend that the Respondent offer to Clayton White
6 The quote is Anderson's own description of his reprimand.
1324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges, and make him whole
for any loss of pay he may have suffered by reason of said discrimination by payment
to him of a sum of money equal to that which he would have earned as wages from
the date of the discrimination against him to the date of the offer of reinstatement
less his net earnings during such period, in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by
the Respondent in the instant case are such as to indicate an attitude of opposition
to the purposes of the Act generally. In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, thereby minimizing industrial
strife, which burdens and obstructs commerce, and thus effectuate the policies of
the Act, it will be recommended that the Respondent cease and desist from infring-
ing in any manner upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Furniture Workers of America, CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By discharging Clayton White on December 16, 1954, thus discriminating
in regard to the hire and tenure of employment of said Clayton White and thereby
discouraging membership in United Furniture Workers of America, CIO, the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (3) and (1) of the Act.
3. By interrogating employees and applicants for employment as to their union
affiliations , sympathies, or activities and by threatening employees with reprisals
if they did not follow company policy against again allowing employees to be
represented by a union, and by interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respond-
ent has engaged in and is engaging 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 com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in United Furniture Workers of Amer-
ica, CIO, or any other labor organization, by discriminating in any manner
against our employees or applicants for employment in regard to their hire
or tenure of employment or any term or condition of their employment. -
WE WILL NOT interrogate or question our employees or applicants for em-
ployment concerning their past or present union activities , connections , or sym-
pathies.
WE WILL NOT threaten any of our employees or applicants for employment
with economic or other reprisals because of his union activity, membership or
seeking union representation at our plant.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees or applicants for employment in the exercise of their rights to self-
organization, to form labor organizations, to join or assist the above-named or
any other labor organization, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities except to the extent that such rights may be
affected by an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Clayton White immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his seniority
or other rights and privileges, and will make him whole for any loss of pay
he may have suffered as a result of our discrimination against him.
TRANSFORMER ENGINEERS 1325
All our employees are free to become or remain members of the above-named
.Union or any other labor organization . We will not discriminate in regard to the hire
or tenure of employment or any term or condition of employment because of mem-
bership in or activities on behalf of any such labor organization.
Fox MANUFACTURING COMPANY,
Employer.
Dated---------------- By----------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced , or covered by any other material.
Transformer Engineers and Local 1955 , International Brother-
hood of Electrical Workers, AFL-CIO,' Petitioner. Case No.
21-RC-4123. December 9,1955
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National La-
bor Relations Act, a hearing was held before Louis A. Gordan, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. -
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks to represent a unit of production and main-
tenance employees at the Employer's Pasadena, California, plant.
The Employer contends that the only appropriate unit comprises the
production and maintenance employees of the Employer, Pacific
Transformers, herein called Pacific, and William Miller Instruments,
Inc., herein called Miller, as a single multiplant unit. The parties also
raised certain unit composition issues, which are hereinafter dis-
cussed.
The Employer and Pacific are wholly owned subsidiaries of Miller.2
All three companies are under common management and control.' The
Employer and Pacific are each engaged in the manufacture of trans-
formers for use in electronic equipment and instruments. Miller
' The AFL and CIO having merged, we are amending the identification of the Union's
affiliation.
2 The Employer in 1952 acquired control of Pacific , and early in 1953 the controlling
interests of the Employer bought out Miller.
8 All three companies have board directors in common , as well as the same president,
vice president and treasurer, and secretary.
114 NLRB No. 204.