General Automation Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Sep 21, 1967

167 N.L.R.B. 502 (N.L.R.B. 1967)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Automation Manufacturing , Incorporated
and International Union , United Automobile,
Aerospace and Agricultural Implement Workers
of America (UAW), AFL-CIO. Cases 7-CA-5471
and 7-RC-7180
September 21, 1967
DECISION AND ORDER
BY MEMBERS BROWN , JENKINS , AND ZAGORIA
On March 7, 1967, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged 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 attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor prac-
tices alleged in the complaint, and recommended
that such allegations be dismissed. Thereafter, the
Respondent and the Charging Party filed excep-
tions and supporting briefs.'
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, briefs,
and the entire record in these cases, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner except as modified
herein.2
The complaint alleged that Respondent had vio-
lated Section 8(a)(1) of the Act by coercively inter-
rogating an employee concerning his and other em-
ployees' interest in and activities in support of the
Union. The Trial Examiner found that the Respond-
' The Charging Party excepts , inter alea, to the Trial Examiner's rejec-
tion of its request for a monetary remedy to make the employees whole for
losses they may have suffered as a result of the Respondent 's unlawful
refusal to bargain . We deem it inappropriate in this case to depart from our
existing policy with respect to remedial orders in cases involving viola-
tions of Section 8(a)(5), and therefore deny the said request However, in
adopting the Trial Examiner's disposition of this matter, we do not pass on
or adopt his rationale for rejecting the Charging Party's contentions.
2 The Trial Examiner did not fully set forth data showing Respondent's
engagement in commerce . The record shows that Respondent is now, and
has been at all times material herein , a Michigan corporation with its pnn-
cipal office and place of business located at Troy, Michigan , where it is en-
gaged in the manufacture, sale, and distribution of magnetic base dull
presses and diamond core bits . During the year ending December 3 1,
1965, which period is representative of all its operations during all times
material herein, Respondent , in the course and conduct of its business
operations , purchased and received at its Troy, Michigan , location materi-
als and supplies valued in excess of $50,000 directly from points outside
ent's president, Warren, interrogated employee
Bayer shortly after Respondent received the
Union's claim of majority at which time Warren
asked Bayer if he had signed a union card. Upon
receiving an affirmative reply, Warren then asked
Bayer if he knew any others who had signed. Bayer
then indicated that he knew that employees Hayes,
Wierzchowski, and perhaps another employee, had
signed cards. Respondent admitted this interroga-
tion.3 The Trial Examiner stated in his Decision
that this sole instance of interrogation was trivial
and not in a coercive context or setting,4 and ac-
cordingly found no violation here. The Charging
Party excepts to the Trial Examiner 's failure to find
that this conduct violated Section 8(a)(1) of the Act.
We find merit in this exception.
The Board has consistently held that interroga-
tion by an employer which seeks to ascertain an em-
ployee's union sympathies and which places an em-
ployee in the position of acting as an informer re-
garding the union activities of his fellow employees,
is coercive, and more particularly where the infor-
mation thus obtained is used as part of an overall
pattern whose tendency is to restrain or coerce.5
The fact that such interrogation is made in a casual
manner during a friendly conversation in an infor-
mal context or setting does not lessen its unlawful
effect.6 Accordingly, contrary to the Trial Ex-
aminer, we find and conclude, that the Respondent,
by the aforementioned interrogation, engaged in
conduct which tended to interfere with, restrain,
and coerce employees in the exercise of their Sec-
tion 7 rights, and was violative of Section 8(a)(1) of
the Act.
The complaint further alleged, inter alia, that on
or about February 2, 8, 14, and March 4, 1966,
Respondent mailed to its employees letters which
threatened, created employee fear, and conveyed to
employees the impression that a loss of jobs,
layoffs, economic losses, union violence, and other
union-caused misconduct would result if the em-
ployees selected the Union as their bargaining
representative in a pending Board election. The
Trial Examiner found that, taken separately or
together, these letters were not violative of the Act
the State of Michigan , and during the same period of time shipped finished
products valued in excess of $50 ,000 to points outside the State of
Michigan.
It is admitted , and we find , that the Respondent is an employer engaged
in commerce within the meaning of Section 2 (6) and 7 of the Act, and that
it will effectuate the policies of the Act to assert jurisdiction herein.
3 Warren testified that his inquiries of Bayer were directed to learning
why the employees wanted a union , "what the employees wanted," "what
is it we haven't heard about" and "what has the company done wrong" to
provoke union activity.
4 The interrogation took place while Warren was taking Bayer over to
another city to pick up a company truck that had been undergoing repairs.
S Young & Stout , Inc., 162 NLRB 230; Richman Brothers Company
and Richmond Brothers Madison, Inc., 157 NLRB 1666 ; see also Reno's
Horseshoe Club, Inc., 162 NLRB 268 ; Lincoln Bearing Co. v. N.L.R.B.,
311 F.2d 48 (C.A. 6).
6 Arkansas Grain Corporation , 160 NLRB 309 ; Little Rock Hard-
board Company , 140 NLRB 264.
167 NLRB No. 66
GENERAL AUTOMATION MFG.
and did not prevent a fair election, and that they did
not constitute unlawful interference, restraint, or
coercion within the meaning of the Act. We find
merit in the Charging Party's exceptions to this
finding of the Trial Examiner.'
Within a short time after the Respondent
received the Union's claim of majority and prior to
the date originally set for a consent election, the
Respondent sent to each of its employees four let-
ters setting forth its views an arguments against
representation by the Union. We are of the opinion
that these letters contain statements which, whether
considered separately or in the context of the entire
letters, go beyond permissive "argument" and the
protection afforded under Section 8(c) of the Act
and, in fact, contained statements that implied
threats of reprisals and statements which were in-
tended to interfere with, restrain, and coerce em-
ployees in the exercise of rights guaranteed by Sec-
tion 7 of the Act.
The Respondent, in its letters to its employees in
furtherance of acknowledged union animus, en-
gaged in a campaign that could have for its only pur-
pose the instilling in the minds of its employees a
sense of fear and reprisals by the Respondent in the
event of a union victory in the forthcoming election.
Illustrative of such statements are the following:
So what can the Union Experts do? They can
either scale down their demands to about what
we are paying now, or close us up with a mass
picket line. (February 2, 1966)
* * *
The UAW can call a strike. It is known as a
strike happy outfit. You will have to walk a
picket line with men from General Motors,
Ford, Chrysler-not people who work at
General Automation. (Ibid.)
You will have to leave work and walk a
picket line at someone else's plant-over a
problem about which you know nothing . (Ibid.)
The UAW can put us out of business. We
doubt if many of you honestly want to see that
happen . (Ibid.)
If the Union wins the Election, can you
imagine the shoving around, the beatings, the
acid on their cars - that will be the lot of the
people who opposed the Union and wanted to
be left alone? ... (February 8, 1966)
' Member Zagona would affirm the Trial Examiner in this respect
The Charging Party in its Objections 4-6 to the election in Case
7-RC-7180, whcich had been referred for hearing in the instant case,
503
The effect of the Union is not usually felt the
first year of the Contract . They spend the first
year "casing the joint" just like burg-
lars-finding out who is who, making life mis-
erable for the people who opposed
them- threatening management with beatings,
strikes - and conducting slowdowns . (Ibid.)
The next year-they really "lay it on."
* * * *
By this time the Union has infiltrated
General Automation with guys they can
"trust" - and our own people who have worked
hard to make this place go, have quit in disgust
or because of acid on their cars, or threats of
beatings. (Ibid.)
What About Outside Picketing?
Have the "union pushers " discussed with you
your obligation , if the UAW wins the Labor
Board election , to join their wild and violent
picket lines at other plants whenever they have
a tough strike ? (February 14 letter)
*
Maybe you know some people right here in our
little shop, who, if they were the UAW
"Stewart" [sic] might have you up on charges
because you were trying to earn a dollar or
two? (Ibid.)
The following excerpts represent an attempt by
Respondent to threaten employees by using a mul-
tiplant national contract situation which would be
inapplicable under a single-plant contract.
Would You Want To Be Laid off
To Make Room ForA UAW "Ringer"?
The biggest cause of dissatisfaction with the
UAW at Mansfield was a Union provision
which could force the company to lay off its
regular employees to make room for em-
ployees from other plants who had more
seniority during layoffs. (March 14, 1966)
It would be quite a hardship on both you and us
if we had to lay you off and hire someone to
take your jobs from some other plant during a
strike or layoff at their own plant just because
they have been paying dues to the UAW
Bosses for a longer time than you have. (Ibid.)
likewise alleged such letters as grounds for setting aside the election con-
ducted by the Board on April 5, 1966, among Respondent's employees
The Trial Examiner overruled these objections
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We think it clear from the above illustrative state-
ments contained in Respondent's letters, and con-
sidering the context of all of Respondent's letters as
a whole, that the Respondent intended to instill in
the employees a sense of fear that unionization
would bring on strikes, beatings, and other acts of
violence, possibly towards the employees per-
sonally, by the Union, and a loss of jobs. The fact
that the Employer attributed such consequences to
the Union, rather than to its own acts, does not
make the Respondent's acts lawful, since it is clear
that the dire consequences the Respondent
describes could only be brought to fruition by the
employees themselves in accepting the Union as
their representative. The Board has consistently
held that where an employer engaged in conduct, as
described in the above-quoted excerpts of Respon-
dent's letters, which was not an attempt to influence
the employees by reason, but was an appeal to fear,
such conduct was intended to interfere with,
restrain, and coerce employees in the exercise of
their rights guaranteed by Section 7, and was, ac-
cordingly, violative of Section 8(a)(1) of the Act."
The Respondent's president, Warren, undoubt-
edly on the basis of information gained through his
interrogation of employee Bayer, began, in his letter
of February 8, a campaign of vilification, ridicule,
and harassment of employees Hayes,
Wierzchowski, and Amos, all of whom were sup-
porters of the Union. Respondent's letters
publicized the job history, wages, and personal
financial problems of these employees. In addition,
the Respondent attached to its letter of February 8
a copy of a letter it received from a finance com-
pany concerning employee Amos' alleged
delinquency in payments on a loan. In addition to
circulating such privileged information, Respondent
Warren, in the same letter, further vented his spleen
by emphasizing the attack on Amos as follows:
Julian Amos was absent 189 hours during the
same period. I have enclosed a letter concern-
ing Julian Amos which gives you an idea of the
type of thinking he does. He had every oppor-
tunity with us - yet he chose to not pay some
bills, and to join a Union.
The following excerpts from the February 8,
1966, letter further demonstrates Respondent's
campaign of vilification, ridicule, and harassment of
employee union advocates:
The Union wants your dues- $6.00 per
month- but they will put you into an
"Amalgamated Local"- not a General Auto-
mation Local - with Union members from the
larger shops and from Union Headquarters.
You'll have Ray Wierzchowski and George
Hayes governing your working conditions-
and hours ....
If you vote for the Union, Hayes and
Wierzchowski and some boxers will tell you
what hours to work, what work to do, and you
can support them while they walk picket lines
at Chrysler or some other plant.
What about these people who went to the Union?
George Hayes. George had a UAW friend
whom he approached. Georgewas absent dur-
ing the work week (not counting Saturdays)
106 working hours between September 4, 1965
and January 15, 1966!
Ray Wierzchowski. Ray tried to get another
job- actually gave us notice- but when he
found out things were not so rosy for him at
Upton Electric, he decided to stay with us.
Did you know that Ray lost a lot of years
seniority at another plant because the Union
came in, called a strike- and the plant had to
close. Ray evidently doesn't care about you-
its Ray he wants to take care of. You'd think
he'd be wanting to see the place go so we all
could have jobs- even if we couldn't have
retirement incomes in 1966 like the Automo-
bile people.
It should be clear from the above-quoted ex-
cerpts, which do not comprise a full presentation
but are mere illustrations, that Respondent's cam-
paign of harassment, vilification, and ridicule was
intended not only to coerce and restrain the named
employees, which in itself was unlawful, but also to
intimidate, restrain, and to coerce the other em-
ployees in the exercise of their rights guaranteed by
Section 7 of the Act.9
The record discloses that the Respondent's em-
ployees regularly worked 56-1/2 hours per week
which perforce included 16-1/2 hours of overtime.
In addition to the regular overtime, some of the em-
ployees worked additional overtime which was
designated as "contract work." The complaint al-
leges, as hereinbefore stated, the Respondent's pre-
sident, Warren, in his letters to the employees,
threatened loss of such overtime if the Union suc-
ceeded in winning the election.
In its February 8, 1966, letter to all employees,
Respondent threatened that a victory for the Union
would mean that employees such as
... Randy will be called [before "Kangaroo
Courts"] because he chose to work on contract
work! Incidentally- Amos and his buddies did
8 Yazoo Valley Electric Power Associ ation , 163 NLRB 777, Ideal Bak-
ing Company of Tennessee, Inc, 143 NLRB 546; Carl T Mason Co,
Inc, 142 NLRB 480 Cf Pepperell Manufacturing Co , 159 NLRB 291.
9 Rose Company, 154 NLRB 228, Elliot-Williams Co, Inc, 147
NLRB 1342, 1344, enfd 355 F 2d 15, 21 (C.A I), Schnell Tool & Die
Corporation, 144 NLRB 385,392,416.
GENERAL AUTOMATION MFG.
a lot of this work until he found out that making
scrap was expensive.
The Respondent's letter of February 14, 1966,
which was entitled "You Have Plenty to Lose!",
contains the threat of loss of contract work, over-
time, and employees' jobs. The letter states:
You know that if the UAW wins the Labor
Board election on March 9 you will, for all
practical purposes, lose your right as American
citizens to come to work without the approval
of outside Union "bosses".
Then under the heading "What about Overtime?",
the letter states that "the UAW is opposed to over-
time work." Proceeding from the general specific
threats of loss of overtime earnings, the next head-
ing is "You could lose $2000 to $3000 a year." This
is followed by these two paragraphs.
Last year several of our employees earned
between $2000 and $3000 in overtime pay.
Their income tax Form 2s shows this.
Anyone who thinks that a small outfit in our
financial position could grant wage increases
which would make up this difference has not
given it much thought.
The evidence outlined above, together with
similar statements in all of the letters, clearly shows
that the Respondent not only generated an at-
mosphere of fear of economic loss and hostility to
the Union, together with its admonitions of dire
consequences which might follow union organiza-
tion, but engaged in a campaign of humiliation,
vilification, and harassment of employee union ad-
vocates, the tendency of which was to restrain and
coerce employees. We therefore find and conclude
that the letters of the Respondent, taken in their full
context, tended to interfere with, restrain, and coerc
employees in the exercise of their Section 7 rights,
and were violative of Section 8(a)(1) of the Act.10
We find, in agreement with the Trial Examiner,
that on or about January 14, 1966, a majority of em-
ployees in an appropriate unit designated the Union
as their bargaining representative. We also find that
in view of the Respondent's flagrant 8(a)(1) viola-
tions of the Act, outlined above, and in view, as
found by the Trial Examiner, of Respondent's
further unfair labor practices violative of Section
8(a)(1) and (3) of the Act, Respondent's refusal to
bargain with the Union on and after January 20,
1966, was motivated by Respondent's desire to gain
time to dissipate the Union's majority-, and that by
such refusal Respondent violated Section 8(a)(5)
and (1) of the Act. I t In recommending that the elec-
10 Graber Manufacturing Company, Inc, 158 NLRB 244, Dal-Tex
Optical Company, Inc., 137 NLRB 1782, Marsh Supermarkets, Inc, 140
NLRB 899, enfd. 327 F 2d 109 (C A. 7), cert denied 377 U S 944, Oak
Manufacturing Company, 141 NLRB 1323, 1324-25, Surprenant Manu-
facturing Co , 144 NLRB 507, enfd in part and denied in part not per-
tinent here 341 F 2d 756 (C.A 6), Metal Craft Co, 151 NLRB 1497,
N L R B v Geigy Co, 211 F 2d 553, 557, N L R.B v McCatron, et al ,
505
tion held on April 5, 1966, in Case 7-RC-7180, be
set aside, the Trial Examiner found, and we agree,
that the Union's Objection 7 was meritorious.
However, we find merit, contrary to the Trial Ex-
aminer, in the Union's Objections 4, 5, and 6, which
refer to Respondent's letters to its employees, and
Objection 8, which refers to Respondent's inter-
rogation of employee Bayer. We have found, con-
trary to the Trial Examiner, that Respondent un-
lawfully interrogated an employee and engaged in
other unfair labor practices, as outlined above,
through the medium of letters to its employees in
violation of Section 8(a)(1) of the Act. We shall,
therefore, set aside the election also on the basis of
Objections 4, 5, 6, and 8, which relate to this
conduct. 12
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, General Automation
Manufacturing, Incorporated, Troy, Michigan, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as modified herein.
1. Insert the following new subparagraphs (c)
and (d) in paragraph 1 and reletter present subpara-
graphs (c) and (d) as (e) and (f):
"(c) Interrogating employees as to their own
union activities or the union activities of other em-
ployees."
"(d) Threatening employees with adverse
economic conditions, including loss of work or jobs,
and engaging in conduct which has for its purpose
the harassment, vilification, and ridiculing of em-
ployees if they engage in the support of the Union."
2. Delete from paragraph 2(d) of the Trial Ex-
aminer's Recommended Order that part thereof
which reads "to be furnished" and substitute
therefor "on forms provided."
3. Insert the following between the second and
third indented paragraphs of the notice:
WE WILL NOT interrogate any of our em-
ployees with respect to their own protected ac-
tivities or with regard to the protected activities
of other employees.
WE WILL NOT, by letter or otherwise,
threaten our employees with loss of economic
benefits or jobs, nor engage in harassment,
vilification, or ridicule of our employees, in
order to dissuade them from union activity.
dlbl a Price Valley Lumber Co, 216 F 2d 212, 216 (C A 9), cert. denied
348 U S 82I , J A Wasserman, dlb/a Maryland Sportswear Company,
104 NLRB 70
11 Joy Silk Mills, Inc., 85 NLRB 1263, enfd as modified 185 F 2d 732
(C A. D C ), cert. denied 341 U S. 914.
i2 Bernel Fgam Products, Inc, 146 NLRB 1277; Irving Air Chute
Company, Inc, 149 NLRB 627.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION, AND REPORT
AND RECOMMENDATIONS ON OBJECTIONS
TO ELECTION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein (issued June 7, 1966; charges filed February 23
and April 11, 1966), as amended, alleges that the Com-
pany has violated Section 8(a)(3) of the National Labor
Relations Act, as amended, 73 Stat. 5 19, by rescinding an
increase to George M Hayes on or about February 7,
1966, and laying him off on or about February 14, 1966,
and not recalling him thereafter, all because of his union
activities; and Section 8(a)(I) and (5) of the Act by said
acts, by coercively interrogating employees concerning
their own and other employees' union interest and activi-
ties, instituting a system of written reprimands to
discourage union activities, mailing to employees threats
of loss and violence, and attempting to embarrass union
sympathizers by publishing information concerning their
finances, and by refusing to recognize the Union as col-
lective-bargaining representative although it had no good-
faith doubt of the Union's majority status. The answer,
admitting certain facts, places others in issue, including
its averments that the promised increase to Hayes was
conditional, that his layoff was for lack of work, and that
the Company questioned the appropriateness of the bar-
gaining unit earlier claimed.
Consolidated with the hearing on the above issues was
a hearing with respect to issues raised by certain objec-
tions by the Union to conduct affecting the results of an
election conducted by the Board on April 5, 1966, among
the employees.
A hearing was held before me at Detroit, Michigan, on
December 14 and 15, 1966. Briefs have been filed by the
General Counsel, the Union, and the Company, the time
to do so having been extended.
Upon the entire record in the case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT WITH REASONS THEREFOR
AND CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company's status as a
Michigan corporation, the nature and extent of its busi-
ness, and its engagement in commerce within the meaning
of the Act are admitted; I find and conclude accordingly.
I also find and conclude that, as admitted, the Union is a
labor organization within the meaning of the Act.
It. THE UNFAIR LABOR PRACTICES
A. The Alleged Independent Violation of Section
8(a)(I)
At the close of his case, the General Counsel withdrew
his earlier allegation of coercive interrogation of em-
ployees on or about March 1, 1966. Shipping Clerk
Bayer testified that, while riding with Warren, the Com-
pany's president, in January 1966 apparently immediately
after the Company received the Union's claim of majori-
ty, of which more below, he was asked by Warren
whether he had signed a union card and, after his affirma-
tive answer, whether he knew any others who had signed.
Although without Blue Flash, safeguards, this sole in-
stance of interrogation is trivial; nor was the context or
setting coercive. Notwithstanding my own impression2
that interrogation is not the "expressing of any views, ar-
gument, or opinion," and therefore constitutes inter-
ference, I find no violation here.
With respect to the allegation that on or about January
22 the Company instituted a system of written repri-
mands to discourage union activities, the Company ad-
mits the institution but, denying any unlawful purpose,
avers that it was intended to correct employee short-
comings. We have no testimony concerning purpose,
which is presumably left for inference. As I stated at the
hearing, any inference might depend on the nature and ex-
tent of the system, about which we have no information
beyond its adoption. But even if new and more stringent
rules were not at that time adopted (as the General Coun-
sel informed us), I find and conclude that the change from
oral to written forma immediately after the Union's claim
of majority tends to interfere with employees' organiza-
tional activities and is violative. There is no evidence or
suggestion of a mitigating explanation to the employees,
whatever the Company had in mind.
Aside from the fact that a notice dated February 7 and
posted by the Company is not alleged to have been viola-
tive, there is no question but that it answered a false4
rumor and correctly stated the law with respect to is-
suance of wage increases not previously promised. The
actual denial of an increase to Hayes is considered infra.
We come now to the allegations based on four letters
which the Company mailed to all employees on February
2, 8, and 14 and March 4, respectively. The General
Counsel argues that these letters are not temperate and
that their underlying theme is violative. This perforce
compels an evaluation of the skill and experience which
prompted the letters, and a drawing of that fine line which
fluctuates with the facts. Both the General Counsel and
the Union call attention to different expressions found
violative elsewhere. I shall not undertake to point out dif-
ferences between the many cases cited and the facts here.
Were violation to be found in the instant letters, it would
be under the heading of "general tone" or "underlying
theme."
The letter of February 2 does not so much indicate a
closed mind and anticipatory refusal by the Company to
grant or to bargain concerning increases in pay as a
detailed explanation that increases could not be afforded.
It was not a threat of company action, but a warning that
the Union might force a shutdown. However displeasing
to a union such arguments may be, I find no violation in
this letter; nor in similar references in the letter of
February 14 or its references to union practices and prin-
ciples.
Attached and made part of the Company's letter of
February 8 is a copy of a letter to the Company from a
finance company concerning employee Amos, one of the
union protagonists.5 Attachment of such a letter to one
distributed to all employees is a low blow, remotely if at
Blue Flash Express, Inc, 109 NLRB 591
s This finds support in some Board decisions
The tendency to interfere with employees is the relevant considera-
tion, not the Company's purpose or reason in instituting the system.
a The nature and extent of the rumor have not been questioned See
American Greeting Corporation, 146 NLRB 1440, 1442.
5 To the extent that the principal letter includes factual statements con-
cerning Hayes and another employee, Wierzchowski, what is herein noted
concerning the letter attachment applies to these if in lesser degree
GENERAL AUTOMATION MFG.
all relevant to the issue of representation. I am not con-
tent to employ the phrase, "without condoning it." Less
willing than some to pass items off as expressions of so-
called animal exuberance or as commonly accepted acts,6
I would condemn this personal attack based on credit
status or lack of it. But I shall not base a finding of inter-
ference with protected activities on this error in judgment
or good taste and its possible tendency to interfere. The
issue here is legality, not propriety or decency of an at-
tack on an employee because of his financial condition.
(It does not appear that he was guilty of more than
defaults in payment on a loan; the circumstances are not
set forth.) I do not find that this item tended to interfere
within the meaning of the Act.
As for the naming and reference to union leaders, if
knowledge of their identity was brought home to the em-
ployer without evidence or claim of unlawful surveillance
on its part, admission of such knowledge does not con-
stitute a threat; I do not infer any. Where the "Union
leaders" are known, and the employer's liability is based
on such knowledge, as infra, reference thereto is no threat
to other employees, presumably not themselves leaders.
The letter of March 4 cites the Union's action at
another company in blocking an employees' decertifica-
tion petition and a contract provision there which could
compel layoffs infavor of employees elsewhere who had
greater seniority. Such action by the Union and its endor-
sement of such a provision may lawfully be cited as argu-
ments against its designation. There is no showing that
these are untrue or otherwise unfair arguments.
My finding with respect to each of these letters is the
same whether they be considered sentence by sentence
or "in their totality." If beyond the overall picture por-
trayed by the letters singly we consider their effect in
toto, they do indeed paint an unpleasant picture. But the
warnings of possible untoward consequences do not sug-
gest inevitability; and the possible consequences por-
trayed are those which would stem from union action. I
find and conclude that taken separately or together, the
Company's letters are not violative and did not prevent a
fair election; and that they do not constitute unlawful in-
terference, restraint, or coercion although, even if not un-
lawful, the Thermidorean bias which they indicate pro-
vides additional if unnecessary support for the findings of
discrimination, below.
B. The Alleged Violation of Section 8(a)(3)
1. The denial of the wage increases
It is clear that Hayes had been promised two wage in-
creases of 5 cents, one which he received, effective on or
about January 7; the second to take effect on February
7.7 Hayes testified that the promise, made in December,
was without condition, and in this he was not con-
tradicted by Evins, the plant superintendent. The Com-
pany's stated defense is that the second increase was con-
ditioned on improvement in Hayes' attendance and that
the condition was not met. Had Evins, when he promised
the increases to Hayes, conditioned the second or either
on improvement in attendance as averred in the answer
but without evidentiary support, our situation would be
8 The American Tool Works Company, 116 NLRB 1681, 1682-83,
1700
7 While Hayes was himself confused concerning the date for the second
increase, his earlier statement and the testimony by Evins indicate the
February 7 date
507
materially different. But no such condition was declared
to Hayes; and it clearly was not even in Evins' mind for
not only did he fail to mention it to Hayes in February,
but although he was allegedly concerned8 over Hayes'
absences, he told him that the increase would be
forthcoming and effective February 7. Hayes' attendance
had not improved; neither had it worsened.
I do not here assume any portion of the employer's
right to pass upon the seriousness of Hayes' short-
comings as described. The fact is that the promise was
made to him with full knowledge of them. Without
passing on the sufficiency or wisdom of the Company's
alleged reason, I find that it was not the true reason for
the discharge, but a pretext.
The only new factor was Hayes' known union activity.
It was stipulated that he was a leader in union activity at
the plant, and that the Company had knowledge of that on
or before February 7 His ability and performance on the
job are not questioned.
No more impressive is the defense as stated in the
answer: "Further by February 7, 1966 it was known by
Mr. Warren and Mr. Evins that a reduction in the work
force was imminent, and that Mr. Hayes would be laid off
at the end of that work week." The record does not sup-
port such anticipation prior to Hayes' appearance on be-
half of the Union at a Board hearing on February 11.
Having told us that he decided on February 7 to deny the
promised increase because Hayes had not quit dunking
(a newly mentioned condition which was not pressed) and
because his attendance was poor (Warren here injected a
mention of "good work," which has not been questioned),
Warren later testified that it was on February 14 that he
decided to layoff Hayes; this belies the defense of
knowledge on February 7 that Hayes would be laid off at
the end of that workweek. After the promised increase
received a month before and the promise of a second in-
crease, renewed that very day, the refusal at the end of
the week to give Hayes the increase as of February 7 was
discriminatory; I so find and conclude.
2. The layoff
The finding of discrimination as of February 7 lends
support to a finding of discrimination in the layoff a week
later. As the Supreme Court has said in Erie Resistor,9
When specific evidence of a subjective intent to dis-
criminate or to encourage or discourage union mem-
bership is shown, and found, many otherwise in-
nocent or ambiguous actions which are normally in-
cident to the conduct of a business may, without
more, be converted into unfair labor practices.
This may be the "falling dominoes" principle applied in
this field: the culpability is progressive. Having "begun a
[not so] good work," 10 the Company proceeded velifi-
cally.
But the testimony directly related to the layoff itself in-
dicates discrimination and points to the finding to be
made. The Company's action was neither innocent nor
ambiguous.
It is averred that Hayes was laid off for lack of work. If
not generally downward prior to February 14, the Com-
pany's sales as indicated in its chart received in evidence
8 The poor attendance record did not appear to be serious to the Com-
pany or disadvantageous when the increase was granted in January
N L R B v Erie Resistor Corporation, 373 U S. 221, 227
10 Philippians 16
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had been depressed for approximately a year. Whatever
the explanation for continued production despite lower
sales, the fact is that Hayes had been hired in the middle
of that 1-year period and then, after he left to work else-
where, was rehired in the latter part of December with
a promise of increases, as noted above. Also most signifi-
cant is the fact that, at the time of Hayes' layoff as since,
the plant was working a 55-1/2-hour 6-day week.11
There was no violation of seniority or transferability
principles in Hayes' discharge; nor of reemployment
preference rights (into which counsel hopefully wan-
dered) when new employees were hired several months
later. (It will serve no purpose to detail the work and pay
rates of these latter.) Nor is the issue whether the Com-
pany could manage without replacing Hayes directly or
indirectly. The testimony concerning continuance of his
work by transfer and new hirings is not clear. More sig-
nificant than the testimony and arguments pro and con
with respect to replacements and continuance of Hayes'
work is the renewed assurance a few days before he was
discharged, noted above, that he would receive the
second increase. There is no evidence of change of cir-
cumstances during those last few days other than Hayes'
new and prominent role on behalf of the Union.
There is no suggestion of such lack of work as to
prompt action on February 14 in the face of the recent
hiring, the increase given, and the promise of another with
reassurance of it just a week before Even if under exist-
ing economic circumstances action had to be taken some-
time, there is no explanation for the action 3 days after
Hayes appeared on behalf of the Union at a Board hear-
ing, less than 2 months after his reemployment, and
shortly after his work had received the highest praise. If
timing be ever a factor, it is outstandingly so here. I find
and conclude that Hayes was discriminatorily laid off on
February 14.
C. The Alleged Violation of Section 8(a)(5)
I find and conclude that, as alleged and admitted, the
following is an appropriate unit within the meaning of
Section 9(b) of the Act:
All production and maintenance employees of the
Company employed at its installation at 1200 East
Maple Road, Troy, Michigan, including shipping and
receiving employees, but excluding office clerical
employees, guards and supervisors as defined in the
Act.
In a letter dated January 17 and received by the Com-
pany on that day, the Union claimed that "the majority of
the employees" had designated it as exclusive bargaining
representative, and requested that bargaining negotia-
tions be instituted. The Company denied the request by
letter dated January 20, claiming a good-faith doubt of
majority and reciting, ". . . there may be questions con-
cerning the appropriate collective bargaining unit which
should be determined by the National Labor Relations
Board."
If in questioning the Union's "majority of the em-
ployees," the Company considered the phrase as includ-
ing all employees and excluding none, it did not raise the
question, which could have been readily resolved; the
refusal was outright and in general terms. That "there
may be questions" in any situation can scarcely be de-
nied. But in so declaring, the Company did not raise any
question concerning appropriateness of unit and
presented nothing in that connection for resolution or
even discussion. Thus if the unit as described in the letter
were not clear and varied substantially from that now al-
leged, the Company's good faith in rejecting it could be
questioned.
Beyond that, with clarification in more expert terms
and agreement on the unit, we come to the question
whether there was a substantial variance between the unit
as first described; as defined12 in the Union's representa-
tion petition filed on January 24; and as thereafter found
by the Regional Director, agreed upon by the parties, and
found herein. The Company has at no time indicated what
question or doubt concerning unit was presented by the
original description or that which followed a few days
later. There has been in fact no substantial variance in the
unit descriptions. We must not overlook the potential for
clarification, if necessary, which is available where
parties in good faith seek to attain specificity and agree-
ment on details.
On the issue of majority, it was stipulated that on
January 17 and 20, the respective dates of demand and
refusal, the Company had 18 employees in the unit
described in the complaint; and that between January 6
and 14, 12 of the 18 had executed cards designating the
Union as their collective-bargaining representative.
The Decision and Direction of Election issued on
March 11, and the election tally showed a vote of 14 to 2
against the Union. The latter thereafter filed its objec-
tions, of which more below.
Under the Joy Silk Mills13 rule, the interference and
discrimination committed immediately after the Union
made its demand and the Company learned of the or-
ganizational activities, prove the Company's bad faith in
its rejection of the demand; and it is not to "be heard to
say that it entertains an honest doubt as to the Union's
majority status...."
I would not minimize the overwhelming margin against
the Union in the election held some 2 months after the
layoff and other interference. But the facts and the rela-
tive extent of violation here take the case out of the rule
and rationale of Hammond & Irving.14 With the Com-
pany's antiunion attitude as forcefully even where law-
fully expressed to the employees as it was here, the inter-
ference found and particularly the discrimination against
a leading union supporter would be and was, I find, trau-
matic in its tendency on employees. The Company effec-
tually prevented free expression by its employees under
fair and laboratory conditions. I am constrained to find
violative refusal to bargain, and I shall recommend that
the Company be directed to bargain with the Union as
representative of the employees in the unit . With this
finding of refusal to bargain, it will serve no useful pur-
pose to find further refusal in connection with subsequent
violations, supra.
11 Warren's remark, when the union representative asked him on
February 10 to release Hayes for the Board hearing the following day,
that Hayes wasn't doing anything is supported by no evidence in the
record except that of Warren's own pique and animus
It Case 7-RC-7180 All production and maintenance employees, ex-
cluding office, clerical employees, technical employees, guards and super-
visors, as defined in the Act
13 Joy Silk Mills , Inc , 85 NLRB 1263, 1265, enfd as modified on other
grounds 185 F 2d 732 (C A D C ), cert denied 341 U S 914
14 Hammond & Irving, Incorporated , 154 NLRB 1071 Cf also Dee's
of NewJersey , Inc, 161 NLRB 204
GENERAL AUTOMATION MFG. 509
III. THE OBJECTIONS TO THE ELECTION
With respect to the Union's election objections, num-
bered 3 to 8, which have been referred for hearing herein,
No. 3 was overruled at the hearing for reasons noted on
the record. Objections 4 to 6 refer to some of the Com-
pany's letters, above, and are also overruled. Objection
7 is covered by the finding of discrimination against
Hayes on February 14, and is sustained. As for Objec-
tion 8, that various employees were interrogated, the al-
legation of interrogation of employee Bayer has been
dismissed; nor would that incident warrant or lend sup-
port to setting aside the election. We recall that the
General Counsel withdrew the allegation of interrogation
of other employees. There is no evidence of other inter-
rogation, although Warren stated that he had "similar
discussions" with other employees, a statement which the
Union thereafter refused to explore although the opportu-
nity to do so was presented; Objection 8 is overruled.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the Company, General Automation
Manufacturing , Incorporated , Troy, Michigan , its of-
ficers, agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Union,
United Automobile , Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL-CIO, or in any
other labor organization by discriminatorily refusing
wage increases or discharging any of its employees or dis-
criminating in any other manner in respect to their hire or
tenure of employment , or any term or condition of em-
ployment.
(b) Instituting or modifying a system of reprimands to
discourage or interfere with employees' protected con-
certed activities.
(c) Refusing to bargain collectively with the Union as
exclusive representative of all employees in the ap-
propriate unit with respect to rates of pay, hours of em-
ployment , or other conditions of employment.
(d) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Offer to George M . Hayes immediate and full rein-
statement to his former or substantially equivalent posi-
tion, without prejudice to his seniority or other rights and
privileges , and make him whole for any loss of pay
sustained by reason of the discrimination against him,
with interest to be computed in the customary manner;15
and notify him, if he is presently serving in the Armed
Forces of the United States, of his right to full reinstate-
ment upon proper application after discharge from the
Armed Forces.
(b) Upon request recognize and bargain collectively
with the Union as the exclusive representative of the em-
ployees in the appropriate unit.16
(c) 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 to facilitate the checking of the amount of
backpay due.
(d) Post at its place of business in Troy, Michigan, cop-
ies of the attached notice marked "Appendix. 1117 Copies
of said notice, to be furnished by the Regional Director
for Region 7, shall, after being duly signed by the Com-
pany's representative, be posted by the Company im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are
customarily posted. Reasonable steps shall be taken by
the Company to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writ-
ing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith. I"
I FURTHER RECOMMEND that Objections 3, 4, 5, 6, and
8 to conduct affecting the results of the election be over-
ruled; that Objection 7 be sustained; and that the election
of April 5, 1966, be set aside.
15 The Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827, Crossett Lumber Company, 8 NLRB 440,
Republic Steel Corporation v N L R B, 311 U S 7, F W Woolworth
Company, 90 NLRB 289, 291-294, Isis Plumbing & Heating Co, 138
NLRB 716
is I do not endorse the Union's request that the remedy include
backpay allegedly lost because of the Company's refusal to bargain, such
backpay to be determined according to either of two methods described in
the Union's brief or, with flattering confidence placed in the Trial Ex-
aminer, according to "any number of additional formulae [which] might
occur to the Trial Examiner and afford a sufficient basis for determining
the amount of back pay in a subsequent proceeding " Such methods or
formulae would assume that an agreement which the Company has
prevented would be reached, and they would substitute the Board's
judgment (an extension of expertise which has not been accorded to this
or any other agency by statute or cases) as to fair or probable terms for the
parties' Judgment and agreement
i7 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
18 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 7, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT discourage membership in Interna-
tional Union, United Automobile, Aerospace and
Agricultural Implement Workers of America
(UAW), AFL-CIO, or any other labor organization
by discriminatorily refusing wage increases or
discharging any of our employees or discriminating
in any other manner in respect to their hire or tenure
of employment, or any term or condition of employ-
ment.
WE WILL NOT institute or modify any system of
reprimands to discourage or interfere with em-
ployees' protected concerted activities.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with,
restrain , or coerce our employees in the exercise of
the right to self-organization , to form labor organiza-
tions, to join or assist International Union , United
Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL-CIO, 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 activi-
ties, except to the extent that such right may be af-
fected 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 George M. Hayes 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 suffered as a result of the dis-
crimination against him.
WE WILL recognize and bargain upon request with
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), AFL-CIO, as the exclusive representative
of all employees in the bargaining unit described
herein with respect to rates of pay, hours of employ-
ment , or other conditions of employment. The bar-
gaining unit is:
All production and maintenance employees of
the Company employed at 1200 East Maple
Road , Troy, Michigan , including shipping and
receiving employees, but excluding office cleri-
cal employees, guards and supervisors as
defined in the Act.
All of our employees are free to become , remain, or to
refrain from becoming or remaining , members of Interna-
tional Union , United Automobile , Aerospace and
Agricultural Implement Workers of America (UAW),
AFL-CIO, or any other labor organization , except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a condi-
tion of employment , as authorized in Section 8(a)(3) of
the Act.
GENERAL AUTOMATION
MANUFACTURING, INCOR-
PORATED
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employee if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit , Michigan
48226, Telephone 226-3200.