Hearever Co., Inc.

National Labor Relations Board - Board Decisions

Nov 25, 1958

122 N.L.R.B. 208 (N.L.R.B. 1958)

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. When employees are gathered to hear views of company rep-
resentatives regarding the election in an area where, as here, they are
accustomed to find themselves, there results free and open discussion
with both management and employees enjoying the confidences and
assurances which are normal aspects of collective and group activities 5
Accordingly, we find, contrary to the Regional Director, that the meet-
ings in the conference room did not interfere with a free choice of
bargaining representative. We therefore reject the recommendation
of the Regional Director that the election be set aside, and shall issue
the following certification.
[The Board certified that a majority of the valid ballots was not cast
for Local 790, International Association of Machinists, AFL-CIO,
and that this Union is not the exclusive representative of the employees
at the Employer's Tulsa, Oklahoma, plant, in the unit found appro-
priate by the Board.]
5 See Mead-Atlanta Paper Company, 120 NLRB 832.
Hearever Co., Inc. and International Association of Machinists,
District Lodge No. 115, AFL-CIO. Case No. 20-CA-1341.
November 05, 1958
DECISION AND ORDER
On June 25, 1958, Trial Examiner William E. Spencer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent 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
Intermediate Report attached hereto. The Trial Examiner also found
that the Respondent had not engaged in certain unfair labor prac-
tices and recommended dismissal of allegations. of the complaint
concerning such practices. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor.
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman Leedom
and Members Bean and Jenkins].
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
1 Because of its disagreement with the Trial Examiner's findings and recommendations,
the Respondent charges the Trial Examiner with bias and prejudice. We find no evidence
in the record of any bias and prejudice and no merit in this . contention . We further
122 NLRB No. 34.
HEAREVER Co., INC. 209
Intermediate Report, the exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Hearever Co.,
Inc., Castro Valley, California, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Granting wage or other benefits for the purpose of inducing
or encouraging its employees to disavow or refrain from affiliating
with International Association of Machinists, District Lodge No. 115,
AFL-CIO, or any other labor organization.
(b) Theatening to move the situs of its operations in the event
its employees choose to be represented by the above-named Union
or any other labor organization.
(c) Formulating and circulating among its employees a petition
for a company or independent union, and soliciting signatures thereto.
(d) Discouraging membership in the above-named Union or any
other labor organization of its employees, by discharging its em-
ployees or by discriminating in any other manner in regard to their
hire or tenure of employment, or any term or condition of employment.
(e) In any other manner interfering with, restraining, or coercing
its employees in the right to self-organization, to form labor organi-
zations, to join or assist the above-named Union, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a
labor organization as authorized in Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Offer Sharon Chisholm and Mary H. Iledstrom immediate
and full reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority and other rights and
find no reason to disturb the Trial Examiner's credibility findings. Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 P. 2d 362 (C.A. 3) ; ef. N.L.R.B. v. Universal
Camera Corporation, 190 P. 2d 429 (C.A. 2), on remand from Universal Camera Corpora-
tion v. N.L.R.B., 340 U.S. 474.
2 The Trial Examiner erroneously designated Emery's title as forelady instead of floor-
lady. However, correction of Emery's title in no way affects the validity of the Trial
Examiner's conclusion that she held a supervisory position.
505395-59-vol. 122-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
privileges, and make them whole for any loss of pay they may have
suffered as a result of the discrimination against them, in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Preserve and make available to the Board or its agents, upon
request, for examination and copying, all payroll records, social-secur-
ity 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 at its plant at Castro Valley, California, copies of the
notice attached to the Intermediate Report marked "Appendix." 3
Copies of said notice, to be furnished by the Regional Director for
the Twentieth Region, San Francisco, California, shall, after being
duly signed by a representative of the Respondent, be posted by the
Respondent immediately upon receipt thereof, and be maintained by
it for a period of sixty (60) consecutive days thereafter, in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Twentieth Region in
writing, within ten (10) days from the date of this Order, as to the
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated the Act in respects other than herein found,
be, and it hereby is, dismissed.
3 This notice is 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 AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint herein alleges, in substance, that Hearever Co., Inc., hereinafter
called the Respondent or Hearever, discharged two of its employees because of their
union activities, thereby violating Section 8(a)(1) and (3) of the National Labor
Relations Act, 61 Stat. 136, as amended, hereinafter called the Act, and in independ-
ent violation of Section 8 (a)( I) of the Act, made certain statements and engaged in
certain conduct described in detail below. On due notice a hearing before the duly
designated Trial Examiner was held at San Francisco, California, on March 25, 26,
and 27, 1958. All parties were represented and participated in the hearing. The
jurisdictional allegations of the complaint were admitted, the allegations of unfair
labor practices denied. Various motions of the Respondent to dismiss the complaint
in whole or in part, upon which ruling was reserved at the close of the hearing, are
disposed of by the findings and conclusions below.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is a California corporation with its principal office and place of busi-
ness at Castro Valley, California, where it is engaged in the manufacture and sale
of miniature crystal set radios and earphones. During the period from on or about
HEAREVER CO., INC. 211
July 1957, when Respondent commenced operations at its Castro Valley plant,
through and including September 1957, Respondent sold and shipped products of a
value in excess of $50,000 to places outside the State of California.
On these stipulated facts, jurisdiction is admitted and found.
II. THE LABOR ORGANIZATION INVOLVED
International Association of Machinists , District Lodge No. 115, AFL-CIO,
hereinafter called the Union or Machinists , is a labor organization within the mean-
ing of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination
During the period material to this proceeding, the Respondent, in the production
and sale of miniature crystal-set radios at its Castro Valley plant, employed some 20
to 30 persons, mostly females, among them Sharon Chisholm and Mary H. Hedstrom.
Chisholm and Hedstrom are alleged to have been discriminatorily discharged on or
about October 1, 1957. Respondent's president and active director of operations was
Betty Jayne Remer; its production manager, William A. Remer; its forelady in
charge of quality control, Norma Emery.' Louise Stewart was secretary to Mrs.
Remer, and also performed occasional secretarial services for Sales Manager Hewitt.
Hewitt apparently spent little time at the plant and is not involved in the controversy
which gave rise to this proceeding.
The Respondent began operations at its Castro Valley plant about July 1957.
Mrs. Remer and her secretary, Stewart, occupied desks in the front of the plant build-
ing and the area occupied by them does not appear to have been more than partially
enclosed during the period in question . Employees using the front entrance to the
plant would be observable to Remer and Stewart as they came and went. There was
a parking lot to the rear of the plant and presumably those employees who drove
cars to and from work would enter and leave by a rear door.
About the middle of September, Mrs. Remer became aware of organizing activities
when a representative of the Leather, Plastic & Novelty Workers Union handed her a
pamphlet in the parking lot to the rear of the plant. She requested the organizer not
to hand out pamphlets on plant property. She later saw pamphlets of the same union
inside the shop. On or about September 24, immediately after work hours, the
Machinists held a meeting for Hearever employees in a cafe directly across the street.
from Respondent's plant. This meeting, conducted by Machinists representatives,
was attended by a group of Hearever employees, including Chisholm and Hedstrom,
and most of those attending the meeting appear to have signed authorization cards.
(Some had also signed cards for the competing Novelty Workers Union.) At the
suggestion of Machinists representatives, of the employees attending the meeting,
two, by election, were designated shop stewards. These two were Chisholm and
Hedstrom. According to the credited testimony of the two, they in turn designated
two other employees, Opal Knapp, Chisholm's mother, and Marlene Vieira, to assist
them in performing their functions as shop stewards.
There is some question whether Mrs. Remer actually observed Hearever employees
as they crossed the street and entered the cafe directly across from the plant to attend
the Machinists meeting. That she had advance knowledge of the meeting is admitted
since she testified that one of the employees invited her to attend. She was uncer-
tain , however, whether she was at her desk at closing time when employees attending
the meeting and using the front entrance of the plant for exit would pass in unob-
structed view of her desk, and I am inclined to think that she was not, since
none of the employees attending the meeting who testified could recall with certainty
seeing her as they left the plant. She did, however, return to her office after
closing time, as indicated in the testimony of her secretary, Stewart. Forelady
Emery testified that she saw Remer and Stewart standing at the window which
fronted on the street and gave a clear view of anyone entering the cafe, and heard
comments exchanged such as "There go two more," and, "What a dirty trick."
Remer denied this and testified that there would be no need for her to stand at
the window which was to one side of her desk and reached from ceiling almost to the
floor, when from her desk she could see a "small dog crossing the street." While
I am convinced that Emery was mistaken in believing that she saw Reiner in the
' There is conflicting testimony on whether Emery bore the title "forelady," but the
real issue is whether she was vested with supervisory functions of a degree which made
the Respondent answerable for her conduct. This will be discussed hereinafter.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
latter's office at closing time, I am of the opinion that she did see her there shortly
thereafter and that her testimony was substantially true, though whether Remer
stood at the window or sat at her desk is immaterial, and in any event there is no
doubt in my mind that Stewart observed and took note of employees crossing the
street to attend the union meeting. The relationship between Stewart and Remer
was such that it would be no more than reasonable to infer that Stewart imparted
to her employer the results of her observation.2
On or about the day following the September 24 meeting, Respondent's attorney
and a member of its board of directors, at Mrs. Remer's invitation, came to the plant
and addressed the employees on their rights to engage in, or to refrain from engaging
in, union activities. A copy of this statement was posted in the plant. It is a
communication clearly within the scope of Section 8(c) of the Act, though the
following paragraph has some relevancy as explanatory of a subsequent develop-
ment:
You may form your own organization to secure what is commonly known as
union benefits. If you do this you may set your own dues, initiation fees, and
represent yourselves. If you do this the management can in no way dominate
or control your organization and you can negotiate your wages and conditions
with management just the same as if you were any other union.
On a date uncertain between the Machinists meeting of September 24 and October
1, Emery, Respondent's forelady, went to Mrs. Remer and asked the latter's advice
about forming a company union. According to Emery's credited testimony, Mrs.
Remer in effect suggested the wording to serve as a text for a petition favoring a
company union, and at Emery's request, Stewart, Remer's secretary, made up typed
forms which Emery then circulated among the employees. The text contained an
assurance that employees would not be discriminated against in refusing to sign the
petition. Apparently none of the employees approached by Emery signed it.
Admittedly, in the circulation of the petition, Emery made no representations that
it was authorized or sponsored by Mrs. Remer.
On October 1 Production Manager Remer discharged Chisholm and Hedstrom.
The reason given for Chisholm's discharge was insubordination. The high percent-
age of "rejects" in her assembling of radios was the reason given Hedstrom for her
discharge. On the same day it appears that Opal Knapp, Chisholm's mother, and
another employee, Marlene Vieira, also were discharged, but it is not alleged that
their discharges were unlawful.
Production Manager Remer testified that he supervised all production and per-
sonnel and was in charge of hiring and firing. His explanation of his action in
discharging Chisholm for insubordination was that she had been "quite nasty" to her
forelady, Emery. Emery, he testified, had come to him twice in tears because
Chisholm had "sassed" her. This testimony was substantially corroborated by
Emery. She testified that in August, after Chisholm had been impertinent to her,
she recommended Chisholm's discharge to Remer and told him that one or the
other of them had to go. Remer replied that he would talk to Chisholm. No fur-
ther action was taken at the time. According to Remer, Emery's second complaint
came in early September. He offered no explanation why the discharge was not then
effectuated but was effectuated October 1.
As to Hedstrom, Remer testified that at Mrs. Remer's direction, he made a tabu-
lation of "rejects" attributable to the 4 top production employees, all females,
covering the period September 16-30, and this tabulation showed Hedstrom led the
4 in the number of rejects.3 He also testified that Hedstrom talked too much but
2 Stewart admitted that she "may" have refused the offers to two employees respec-
tively to furnish her with lists of employees attending the meeting because she already
knew who they were, and also admitted that on the afternoon the meeting occurred, after
Mrs. Remer returned to her desk, they "may" have discussed the union meeting.
a Both Chisholm and Hedstrom were engaged in the assembly of the constituent parts of
the miniature radios, which included a certain amount of soldering. After assembly, the
radios were tested for quality, and if they did not meet the standards they were returned
to the assemblers as "rejects." Not all rejects were the fault of the assemblers, since
some of the constituent parts might be defective, and, regardless of assembly, this would
cause them to fail to meet the quality tests and they would be returned as rejects. While
the radios were marked for identification of the assembler, and therefore the number of
rejects attributable to each employee could be determined from the tabulation kept by
Remer, these tabulations would not show whether the failure was due to defective parts or
the manner in which they were assembled.
HEAREVER CO., INC. 213
admitted that talk around the worktables during working hours was "tolerated,"
though he attempted to discourage it, and that all the employees talked from time
to time and had been reprimanded because of it.
Mrs. Remer, who testified that she directed Production Manager Remer to dis-
charge Chisholm and Hedstrom, gave a somewhat different version of Chisholm's
discharge. If her testimony is accepted, Chisholm's discharge was precipitated when
Mrs. Remer found her at her mother's worktable where she did not belong, and
later saw Chisholm at the latter's own table idle and with a cigarette in her hand.
According to Remer she asked Chisholm, "Don't you have anything to do?" where-
upon Chisholm looked up at her, exhaled smoke in Remer's face, and said, "Not
particularly." Remer testified that there was a "tremendous air of defiance" in the
plant that day and it had been reported that several employees, including Chisholm,
had left for lunch prior to the scheduled time. At the end of the day, she testified,
she directed Production Manager Remer to let Chisholm go. She further testified
that it had been reported to her that Chisholm used vulgar language at her work-
table, and that on complaint of other employees, she had transferred Chisholm to
another table. The incident of the transfer appears to have occurred about the
middle of September.
Chisholm admitted that she used vulgar language on occasion but testified, with
corroboration, that off-color jokes were indulged in generally around the worktables.
She admitted that some 2 weeks prior to her discharge she was transferred to another
worktable, but it was her credited testimony that several other employees were
transferred at the same time and that the move was explained by Production Manager
Remer as an operational change. It is clear, and I find, that she was never repri-
manded because of her use of ribald or vulgar language. She admitted that she
had a lighted cigarette on her ashtray on October 1 when approached by Mrs. Remer,
but denied that she exhaled smoke in the presence of the latter. Smoking was per-
mitted at the worktables during working hours. She admitted that she was talking
and that Remer admonished her to get back to work, but denied that she made the
retort attributed to her by Remer. Chisholm, 18 years of age at the time of her dis-
charge, admittedly was one of Respondent's top producers and had a comparatively
low percentage of rejects.
Hedstrom was also one of Respondent's top producers. The sole substantial reason
advanced for her discharge was the alleged high rate of rejects. She doubtless also
talked more at her worktable than met with Respondent's approval but, as Remer
testified, talking was "tolerated" and there is no showing that Hedstrom excelled
in garrulity, If Respondent's tabulations are credited, her ratio of rejects during
the period covered by the tabulation-September 16-30-was substantially higher
than that of the other three top producers.
I regard with some skepticism Respondent's tabulations, though they were but-
tressed by the original slips from which the tabulations were made.4 Admittedly,
there was a good deal of confusion in the plant during September and on occasion
quantities of defective parts were intermixed with nondefective parts. Emery
credibly testified that on an occasion good and defective earphones became mixed
on several trays. Although the total of defective parts for the entire period may
have been no more than 1 or 2 percent of the whole, this does not exclude the
possibility of certain lots becoming so intermixed at times as to raise an employee's
ratio of rejects above normal and for reasons not attributable to the employee.
As previously noted, a reject was charged to the employee through whose hands
it passed in assembly, even though it was a reject because of defective parts, and
Respondent's tabulations took no account of this. Further, a substantial doubt
as to the accuracy of the tabulations is created by Hedstrom's credible and corrobo-
rated testimony that because of a burn on her hand suffered at noon, September 26,
she worked as an assembler only a half-day on that date, and not at all as an
assembler on September 27, whereas Remer's tabulations attribute to her normal
full-time production in assembly on both days.5
Accepting Remer's tabulations as accurate, it would be difficult to account for
Emery's consistent and unshakable testimony that Hedstrom's record for rejects was
4 These slips were purported to bear the original notations of the testers showing total
daily production, the number of rejects, and designation of the individual assembler whose
work was thus recorded. Some of the notations were in ink, some in pencil on the same
slip, not always in the same handwriting, some of the figures were barely legible, and
there were some erasures or "marked over" figures. None of the persons making the
notations testified with respect to them.
5 The daily production tabulation were posted in the plant but did not show the per-
centage of rejects.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of the lowest in the plant, so low in fact, that according to Emery, when
Hedstrom did make a mistake in soldering it was considered a joke. True, the
actual record of rejects did not pass through Emery's hands but were deposited with
Remer, but admittedly Emery was in charge of quality control; rejects regularly
came to her table; and while she did not personally handle all of them since that
would have been a physical impossibility, it is hard to believe that with her oppor-
tunities for observation and her duties as forelady in charge of quality control, she
would have been of the firm opinion that Hedstrom had fewer rejects due to faulty
assembling than any other employee, if the fact was that Hedstrom had substantially
the highest number of rejects among the four top producers. Emery, discharged by
the Respondent some months before testifying, may very well have been biased in
her testimony, but she freely admitted her complaints with respect to Chisholm and
that she sought Chisholm's discharge, and it is not shown that there was any par-
ticular bond of friendship between her and Hedstrom. I believe her testimony with
respect to Hedstrom's work is entitled to weight and while I hesitate to characterize,
and do not characterize Respondent's tabulation on Hedstrom's rejects as an outright
fabrication, I am convinced that it does not present a true and accurate account of
rejects attributable to Hedstrom. Assuming, however, contrary to these findings, a
comparatively high ratio of rejects attributable to Hedstrom, there are other factors
of a persuasive nature-both as to her and as to Chisholm-which cause me to
question Respondent's bona fides in effectuating these discharges.
Both Mrs. Remer and her secretary, Stewart, while not denying knowledge that
Chisholm and Hedstrom attended the September 24 meeting, did deny knowledge
that they were union stewards. I am convinced, however, that Mrs. Remer was
informed of their election as union stewards at the September 24 meeting and re-
garded them as the probable instigators of union activity in the plant. Employee
Perri Nelson, a witness for the General Counsel but an evasive and reluctant one,
who attended the Machinists meeting and there signed an authorization card, ad-
mitted that subsequent to the meeting she approached Remer and asked her if "she
thought that it would be a good idea . if the plant turned Machinists' Union."
According to her, Remer replied "that the only thing she could say about it was
that $2 an hour was an awfully high wage when it was a company that was just
starting out." Questioned, "Did Mrs. Remer ask you who attended the meeting at
Del's Cafe?," Nelson testified, "She didn't ask me. 1 thought she was probably
aware of who attended, because it is directly across the street." She then denied
that she told Remer who attended the meeting, but in answer to the question "Were
any names mentioned between you and Mrs. Remer as to who was at that meeting?"
testified, "The names of Mary Hedstrom and Sharon Chisholm were mentioned,
and I have been asked quite a bit about this, and I do not clearly remember whether
Mrs. Remer said she knew that they were shop stewards-their names were in the
conversation, but 1 do not remember exactly in what way." Remer, who testified
that she was very much upset during this period, recalled the conversation with
Nelson but little of its substance. She did nipt recall whether Chisholm and Hed-
strom were mentioned. It was obvious that Nelson was not imparting any informa-
tion she considered adverse to her employer and benefactor,6 if she could avoid it,
and her admission that Chisholm and Hedstrom were singled out for mention during
this conversation and her failure of memory as to whether Remer said she knew
they were shop stewards, invite something more than mere speculation.
On the same point, there is Emery's testimony, disputed by Remer, that in a tele-
phone conversation Remer told her that an employee, Maudine Harbin, had given
her the names of the shop stewards, and that she, Remer, had learned through this
employee that Hedstrom was the instigator of union activity in the plant.? Previ-
ously, according to Emery, Remer had told her that she believed that Chisholm and
her mother, Opal Knapp, were the instigators. There is Emery's further testimony,
also denied by Remer, that on the day of Chisholm's discharge, or the day preceding
it, Remer told her that she wanted to discharge Chisholm but had to have a "legiti-
mate" reason, and suggested to Emery that the latter pick a quarrel with Chisholm
and, if necessary, "needle" her into making some retort which would serve as justi-
fication for the discharge. Though the probable bias of the witness, Emery, may
6 While in Respondent's employ Nelson underwent an operation and Remer paid for it
to an amount of about $350. That such an act of commendable generosity should meet
with appreciation and a show of loyalty is but natural but nevertheless in weighing the
witness' credibility such matters of necessity must be taken into account.
7 This information was probably correct. Hedstrom first engaged in organizing for the
Novelty Workers, and then changed to the Machinists and was active in behalf of that
union.
HEAREVER CO., INC. 215
be conceded , the position that she held at the time these alleged conversations
occurred was such in relation to management that Remer would feel no hesitancy in
confiding in her as one sharing management 's viewpoint , and her account of these
conversations did not impress me as fabrications . I have no doubt she withheld
nothing that she considered to be adverse to the interests of her former employer
but it does not follow that she substituted imagination for memory , invention for
fact. I credit her, and her testimony related to the circumstances attending the
discharges illuminates what otherwise would be puzzling and ambiguous.
Remer's sudden decision on September 30 to have her production manager make
a tabulation of the rejects record on the four top producing employees , and the
limitation of this survey to the brief period of September 16-30 and to just four
employees , and the summary discharge of Hedstrom which followed , without a
prior warning or reprimand or any indication that her work was unsatisfactory, is
made doubly suspect by the fact that Hedstrom had been advanced both in wage
and in job classification on September 27, and had previously received two wage
increases . Chisholm's discharge based, according to Production Manager Remer,
on her insubordinate conduct with respect to Emery-who the Respondent now con-
tends was a rank-and -file employee-occurring at least some 2 weeks prior to the
discharge , but precipitated , according to Mrs. Remer , by insolence directed at Mrs.
Remer on the day of the discharge , something which, apparently , Production
Manager Remer was not aware of since he made no mention of it in his testimony,
also finds its only logical explanation in the context of Emery's testimony.
The predominance of the material probative evidence , in my opinion , supports
the General Counsel's position , and I accordingly find, that the Respondent dis-
charged Chisholm and Hedstrom because of their union activities, thereby discourag-
ing membership in a labor organization , and interfering with, restraining, and
coercing its employees in the exercise of rights guaranteed them in Section 7 of
the Act.8
B. Interference, restraint , coercion
1. Promotion of a company union
The complaint alleges in substance that Respondent promoted the formation of
a company union in an effort to defeat the organizational activities of the Machinists.
I have found that the statement read to Hearever employees by Respondent 's attor-
ney on the day following the September 24 meeting of the Machinists , and posted
in the plant , was privileged free speech , and I do not find any other evidence of a
material and probative character that the Respondent in an unlawful manner
"solicited , promoted , and urged" employees to disavow the Machinists and to form
an independent labor organization , other than the petition that was formulated by
Emery in consultation with Mrs. Remer , typed by Stewart at Emery's request, and
circulated by Emery.9
From Emery 's testimony I infer that she sought out Remer and asked the latter's
advice and that the latter did no more than suggest a text for the petition . The peti-
tion having been typed by Stewart , who occupied a desk in Remer 's office, it may
be inferred that Remer was aware of these services rendered Emery. There might
still be some doubt , however, whether Remer's assistance in the formulation and
preparation of the petition was violative of the Act , were it not for the position
occupied by Emery. While Mrs. Remer denied that Emery bore the title "forelady"
or had any supervisory functions , as previously noted Production Manager Remer
testified that Chisholm was discharged because of insubordination with respect to
forelady Emery . Obviously , he regarded Emery's position as managerial in char.
acter, for it would be anomalous indeed to charge one rank-and-file employee with
insubordinate conduct with respect to another rank-and-file employee. Further, it
is clear that on occasion , though not often , he consulted Emery with respect to the
Production of individual employees and she would make reports to him. There
8 The Respondent , because it later signed a contract with the Novelty Workers Union,
would have it inferred that it was not hostile to "outside " labor organizations, but it
does not necessarily follow from the execution of this contract , which may or may not
have represented substantial gains for the employees , that the Respondent was not
vigorously opposed to the representation of its employees by the Machinists. I think there
is no doubt that it was.
11 credit the testimony of Mary Preston , a former employee of Respondent, that in
response to her inquiry about forming a company union, Romer expressed a preference
for a company , over an "outside," union , and advised that employees would get the same
benefits from a company union they would get from any other union, but do not find these
remarks responsive to an inquiry violative of the Act.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were also consultations between Emery and Mrs. Reiner of managerial character.
Emery made recommendations for discharge and while they were not always
followed they were on occasion effective, and the only reasonable assumption that
can be made on the evidence is that her recommendations were accorded weight.
Finally, though she was started on an hourly wage she was later placed on a salary
basis. Withal, I am convinced that during the period in question she regarded her-
self and management regarded her as a managerial employee, and that the employees
would reasonably assume when she solicited them to sign a petition for a company
union, that she was acting with the consent and approbation of management. While
under current decisions management may with impunity, I believe, express a prefer-
ence for an independent or company union over a so-called outside organization,
management's preparation and circulation of a petition for a company union, even
though the petition is worded in a manner to give verbal reassurances to those who
do not wish to sign it, is, I believe, a trespass upon employees' right to self-
organization and violative of the Act. Accordingly, I find that the Respondent
prepared and circulated among its employees a petition for an independent or com-
pany union, and thereby interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act.
2. Interrogation of employees
I find no substantial support in the evidence that the Respondent "interrogated and
questioned" employees about their own union activities or those of other employees,
and recommend dismissal of this allegation of the complaint.
3. Wage increases
On or about September 27, 1957, the Respondent granted a wage increase to most
of its employees, and this is alleged to have been done for the purpose of defeating
organizational efforts of the Machinists. There is substantial support for this allega-
tion. A wage increase following so closely on the heels of the Machinists' first
organizational meeting would in any event invite suspicion, and when that wage
increase had been preceded by another general wage increase by no more than a
week, such suspicions may very well ripen into a reasonable inference. There are
other factors, however, to be considered. No statement, oral or otherwise, accom-
panied the September 27 increase to indicate an underlying purpose of persuading
employees against union affiliation. And Respondent's business was a comparatively
new one, in a comparatively or completely new field, where rapid growth might well
be accompanied by frequent adjustments upward in the wage scale. The original
starting rate for production employees was $1 an hour and in August this was
raised 10 cents for some or most employees. A second raise, accompanied by a
job classification of employees, occurred about September 23, shortly after Mrs.
Remer was released from a hospital where she had been confined for a brief period.
She explained this increase as resulting from a changeover from the production of
premium (giveaway) radios of a "marginal" type of production, to models which
Respondent would retail and which allowed for a greater margin of profit. Accord-
ing to her, the September 23 raises were overdue and hurried and somewhat
negligible, being based on anticipation of higher profits rather than an exact account-
ing. Further, according to her, after her return from the hospital and the release
of the September 23 wage schedule, Respondent's accountant rendered a financial
statement covering operations through August, which was better than she had antici-
pated and which justified a more generous increase than was reflected in the Septem-
ber 23 schedule. She thereupon put into effect the wage increase of September 27,
and the new wage schedule and classifications were posted in the plant on Sep-
tember 30.
It is elementary that an employer is not barred from granting wage increases and
other benefits because an organizational campaign is taking place. It is only where
the granting of such benefits has as an object the thwarting of organizational objec-
tives, that there is a trespass of employee rights under the Act. Benefits, in this
connection, are viewed in the same light as penalties. Obviously, in such a situation
as we have here, where the granting of wage benefits was not accompanied by
statements which might afford a clue to motive, the ascertainment of motive is diffi-
cult. It may well be that absent any organizational activity, and in view of its
expanding operations, the Respondent would have granted successive wage increases
within a short period of time. However, the granting of two increases within a week
of each other, each following closely on an organizational development of which
the Respondent had knowledge, viewed against the background of other conduct..
HEAREVER CO., INC. 217
such as the discharge of employees because of their activity on behalf of the
Machinists, calls for something more persuasive by way of explanation than is
found in the testimony of Mrs. Renter.
Admittedly, she first learned of organizational activities about September 15, and
her testimony that the September 23 increase was hurried and negligible necessarily
raises the question of why the Respondent acted so hurriedly and inadequately when
it knew that its accountant was in the process of preparing a financial statement
covering its operations through August-assuming, on Remer's testimony, that the
statement was not actually rendered before the granting of the September 23 in-
crease. On September 24, to Respondent's knowledge, the Machinists entered into
the organizational picture. It is a reasonable assumption on the evidence that this
knowledge caused the Respondent a good deal more concern than was experienced
when only one union, the Novelty Workers, was active among the employees, for it
was on and after September 24 that the statements and conduct found herein to have
constituted unfair labor practices occurred. A second wage increase followed
almost immediately.
Remer testified that this second wage increase was based on the financial state-
ment covering the period through August but was unable to state with exactitude
just when this statement was rendered, and the Respondent made no attempt to fix
this date with certainty. There is therefore no corroboration, documentary or other-
wise, of Remer's testimony that the statement came to her attention within the short
period between the September 23 and 27 increases, and I have been unable to give
her testimony full credit on other matters relating to her conduct with respect to the
organizational activities of her employees. While she testified in effect that she had
no knowledge of the wage demands of the Machinists, in her discussion with
Nelson-a witness favorably disposed toward the Respondent-during which Nelson
sought her advice with respect to the Machinists, she spoke of how ruinous a
$2-an-hour rate of pay would be to a beginning company. I think we can assume,
without strain, that with a wage rate as low as that paid by the Respondent at the
start of organizational activities, a proposal for higher wages would be a cardinal
point in any organizational campaign, and I have no doubt some hint or rumor-if
not more-of such proposals had come to Remer's attention in the period preceding
the granting of the September 27 increase. Under all the circumstances, I am unable
to regard the second increase on September 27, and the organizational meeting of
the Machinists on September 24, as unrelated, and must find, on the basis of what
I believe to be a preponderance of the material and probative evidence, that in the
granting of the September 27 increase the Respondent had as an object the thwarting
or discouragement of activities among its employees on behalf of the Machinists.
4. The threat to move the plant
Many of the constituent parts necessary to Respondent's assembly and sale of the
miniature radios were manufactured in Japan and- imported for Respondent's use.
This would be common knowledge among those engaged in the assembly of the
radios. Emery testified that at some unspecified time, Mrs. Remer told her that a
Mr. Browner "was in Japan looking over a factory. And she also made the state-
ment that they could get their work done cheaper in Japan, because they had to
ship the parts in here anyway, and they could assemble cheaper there." This testi-
mony, not specifically denied, does not of course establish an explicit threat and,
in any event, there is no evidence that Emery repeated Renter's statement to rank-
and-file employees. It does, however, make more plausible than otherwise might
be the case, the testimony of employees James Henning and Mary Preston.
Henning, who was advised to seek employment with the Respondent by a Ma-
chinists representative, who admittedly lied in getting employment with Respondent,
and who worked for Respondent 1 month and quit, testified that at a time a repre-
sentation election was pending,1° Mrs. Remer told him that "if the Machinists' Union
got in there she would have to close down, or that she could go to Japan and she
could get the work done much cheaper, and that her parts were made there. She
also stated she could go down the coast possibly and set up with cheaper labor."
Preston, discharged by Respondent at some time prior to testifying, testified that
on an occasion when she sought Mrs. Remer's advice about forming a company
union, she asked Remer if the latter intended to close the plant if the union came in,
'°A Board election was scheduled in October but was indefinitely postponed when an
unfair labor practice charge was filed. At a later date, on an RC petition, an election
was held with the Machinists and Novelty Workers on the ballot. The latter won and
the Respondent executed a contract with it.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and that Remer replied in the affirmative. According to Preston, Remer said she
would have to have her work done elsewhere because she could not "afford" the
union. She made no reference to the Machinists by name.
Perri Nelson, whose testimony in other matters has been alluded to, testified that
on an occasion when she sought Mrs. Remer's advice because of her own confusion
about organizational activities, she told Mrs. Remer she had heard that if the
Machinists Union "got into Hearever," Remer would move her operations to
Japan, whereupon Remer laughed and said that was a ridiculous idea, that she had
not said anything like that. This testimony is in accord with Remer's own testimony
on the topic, quoted in its entirety:
Q. Did you ever talk to anyone about closing the factory and moving it to
Japan?
A. That is absurd.
There is no doubt that Remer was deeply and understandably concerned and
upset with two unions competing for the allegiance of her employees. I am con-
vinced that her statement to Nelson, in reply to Nelson's inquiry concerning the
Machinists, "that the only thing she could say about it was that $2 an hour was an
awfully high wage when it was a company that was just starting out," was a direct
reference to wage proposals being used by the Machinists in its organizational cam-
paign . Her statement to Emery about cheaper operations in Japan is indicative of
a state of mind, and I am persuaded that in her conversations with Henning and
Preston, respectively, she did suggest and indicate moving the situs of her operations
as an alternative to union victory. Henning's testimony on a sum of money ad-
vanced by Remer to pay for transportation to the polls, discussed infra, was fully
corroborated, and though their versions of their conversation were in conflict, Remer
admitted that Preston came to her seeking advice about forming a company union.
The talk of moving the plant to Japan may indeed have been absurd, as Remer
viewed it, but in view of the imports from Japan which went into the assembly of
radios manufactured by her, it would not necessarily appear to be absurd to her
employees, but to the contrary would represent a threat to their livelihood.
I find that by threatening to move the situs of operations in the event of a union
victory, the Respondent interfered with, restrained, and coerced its employees
within the meaning of Section 8(a)(1) of the Act.
5. Transportation to the polls
Among Respondent's employees were a group of teenagers who worked only on
Saturdays. When an election was scheduled, Mrs. Remer admittedly caused $10 to
be offered this group to pay for their transportation to the polls, and when the
election was indefinitely postponed the money was returned to her. There is no
evidence that these employees were singled out because they were believed to be
opposed to union representation or that any conditions whatever were attached to
the free transportation thus offered them, or that the money was provided for any-
thing but transportation to the polls. The Board has held that transportation of
employees to the polls by car or bus by their employer, where this service was
rendered without discrimination, did not constitute election interference." There
would be even less basis for holding it to be an unfair labor practice. I can see no
material difference between providing the vehicles used in transportation and provid-
ing funds to pay for transportation, and there being no evidence that the offer of
money solely for transportation had a discriminatory basis, I find that it did not
constitute a violation of the Act.12
N. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
"John S. Barnes Corporation, 90 NLRB 1358; R. H. Os brink Manufacturing Company,
104 NLRB 42.
12 It was not specifically pleaded as a violation but was fully litigated with the under-
standing that the General Counsel sought a finding that it constituted unlawful
interference.
HEAREVER CO., INC. 219
V. THE REMEDY
Having found that the Respondent discharged Sharon Chisholm and Mary H.
Hedstrom because of their union activities , I will recommend that the Respondent
offer them immediate and full reinstatement to their former or substantially equiva-
lent positions , without prejudice to their seniority and other rights and privileges,
and make them whole for any loss of pay suffered because of the discrimination
against them , by payment to each of a sum of money equal to what she normally
would have been paid in Respondent 's employ from the date of her discharge to the
date of Respondent 's offer of reinstatement , less her net earnings , if any, during said
period. Loss of pay shall be computed upon a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289.
The Respondent 's trespass upon employee rights under the Act, as disclosed by
the entire evidence , is of such character and scope that to make the remedy co-
extensive with the threat it will be recommended that the Respondent cease and
desist from in any manner interfering with, restraining , and coercing its employees
in the exercise of the rights guaranteed them in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
-1. Machinists is a labor organization within the meaning of Section 2(5) of
the Act,
2. By discriminating in regard to the hire and tenure of employment of its em-
ployees, Sharon Chisholm and Mary H. Hedstrom , thereby discouraging member-
ship in the Machinists , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (3) of the Act.
3. By the aforesaid discharges and by circulating in its plant and by soliciting
signatures to a petition for a company or independent union; threatening to move
its operations in the event the Machinists succeeded in organizing its employees; and
effectuating a wage increase with an object of inducing its employees to disavow or
refrain from affiliation with the Machinists , the Respondent has interfered with,.
restrained , and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act , thereby engaging in unfair labor practices within the meaning of Sec-
tion 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
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 , we hereby notify our employees that:
WE WILL NOT induce or encourage our employees to disavow or refrain
from membership in International Association of Machinists , District Lodge
No, 115, AFL-CIO, or any other labor organization , by the granting of wage
or other benefits ; by threatening to move the situs of our operations; or by
the promulgation , circulation , and solicitation of signatures to a petition for
an independent or company union.
WE WILL NOT discourage affiliation with the above -named or any other labor
organization , by discharging our employees , or by discriminating in any other
manner in regard to their hire or tenure of employment or any term or condi-
tion of employment.
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
organizations , to join or assist the above -named Union , or any other labor
organization , to bargain collectively through representatives of their own choos-
ing, and to engage in collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as authorized by the National Labor Relations Act.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL offer Sharon Chisholm and Mary H . Hedstrom immediate and full
reinstatement to the positions they formerly held, or their equivalent , without
prejudice to seniority or other rights and priveleges , and make them whole for
any loss of pay they may have suffered as a result of the discrimination
against them.
HEAREVER CO., INC.,
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.
Brighton Manufacturing Company , Inc. and International
Union , United Automobile, Aircraft, and Agricultural Imple-
ment Workers of America , AFL-CIO, Petitioner. Case No.
7-RC-3584. November 26, 1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on October 22, 1957, among
the employees in the agreed appropriate unit, under the direction and
supervision of the Regional Director for the Seventh Region. Upon
the conclusion of the election a tally of ballots was furnished the
parties. The tally of ballots shows that there were approximately
28 eligible voters and that 28 ballots were cast, of which 14 were for
the Petitioner, 12 were against the Petitioner, and 2 were challenged.'
As the challenged ballots were sufficient to affect the results of the
election, the Regional Director caused an investigation to be made,
and on March 7, 1958, issued his report on challenged ballots and
recommendation. The Regional Director found that George Green
was a supervisor, and recommended that the challenge to his ballot
be sustained and the Petitioner be certified. The Regional Director
was unable to determine Whitehead's status and recommended that a
hearing be held for that purpose if the Board did not adopt his recom-
mendation as to Green.
Thereafter the Employer filed timely exceptions to the Regional
Director's report, and on April 28, 1958, the Board directed that a
hearing be held to resolve the issues raised by the challenges to the
ballots of Green and Whitehead.
Thereafter, a hearing was held before Emil C. Farkas, hearing
officer. On August 25, 1958, the hearing officer issued and served upon
the parties his report, in which he found that Green was a supervisor,
and that the challenge to his ballot should therefore be sustained.
1 The Petitioner challenged George Green and James Whitehead as supervisors.
122 NLRB No. 36.