Hydro-Molding Co., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1970

183 N.L.R.B. 614 (N.L.R.B. 1970)

614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hydro-Molding Company, Inc. and Aluminum TRIAL EXAMINER'S DECISION
Workers International Union , AFL-CIO. Case
3-CA-3783
June 19, 1970
DECISION AND ORDER
BY MEMBERS FANNING, MCCULLOCH, AND JENKINS
On March 23, 1970, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
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. He further found that
Respondent had not engaged in other unfair labor
practices alleged in the complaint and recom-
mended that such allegations be dismissed. Respon-
dent filed timely exceptions, and a brief in support
thereof, to the Trial Examiner's Decision.
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
Decision, the exceptions and the brief, and the en-
tire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the Board hereby
adopts as its Order the Recommended Order of the
Trial Examiner, and orders that Respondent,
Hydro-Molding Company, Inc., Plattsburgh, New
York, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Ex-
aminer's Recommended Order.
' Respondent 's exceptions directed to the credibility resolutions of the
Trial Examiner are without merit The Board will not overrule the Trial Ex-
aminer 's resolutions as to credibility unless a clear preponderance of all
relevant evidence convinces us that they are incorrect On the entire
record, such a conclusion is not warranted herein Standard Dry Wall
Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
' The Respondent has not filed exceptions to several of the findings of
violations of Section 8(a)( I) made by the Trial Examiner , and the General
Counsel has not filed exceptions to the Trial Examiner's recommended
dismissal of two 8 ( a)( 1) allegations We adopt the Trial Examiner's con-
clusions on these mattters pro forma
ARTHUR M. GOLDBERG, Trial Examiner: Based
upon an amended charge filed on June 3, 1969,1 by
the Aluminum Workers International Union,
AFL-CIO (herein called the Union or the Charging
Party), the complaint herein issued on July 11 al-
leging that Hydro-Molding Company, Inc. (herein
called Hydro, the Company, or the Respondent),
violated Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended (herein called the
Act). The alleged 8(a)(1) conduct consisted of in-
terrogation of employees concerning their union
membership and activities on various dates in April
and May; interrogation of employees concerning
union membership and desires by means of
questions on its employment application form;
threats on various dates in April, May, and June of
discharge and other reprisals if employees became
or remained members of the Union; a promise of
economic benefit, made on or about April 1, if the
employees refrained from union activity; the
promise and grant of wage increases and other
benefits on or about March 24 if the employees
refrained from union activity and to induce them to
do so; and creating the impression of surveillance
of union activity. The putative 8(a)(3) violations
consisted of the transfer of Stephen Micanko with a
resulting reduction in hours of employment and his
subsequent discharge on June 2, all because of his
union activity. Respondent's answer filed on July
18 denied all asserted violations of the Act. The
answer stated that the employment questionnaire
had been in use for 18 years and that many em-
ployees who had affirmatively answered the
questions concerning union membership and
willingness to join a union had been hired by the
Company. Hydro admitted granting the wage in-
crease but asserted that this was done pursuant to a
promise made to the employees as a matter of long-
standing company policy. As to Micanko, the
answer admitted his transfer and discharge but
claimed that both actions were for cause as thereto-
fore stated to the Regional Office in the Company's
statement of position served in answer to the
original charge. A copy of that statement of posi-
tion was attached to the answer.
A first amendment to the complaint issued on
August 27 alleged further acts of interrogation and
threats of reprisal for union activity. An answer to
the complaint amendment, filed on August 29, de-
nied all allegations of violation set forth in the
amendment.
A second amendment to the complaint issued on
October 10 alleged that the Company further vio-
lated Section 8(a)(1) of the Act by posting a notice
in the plant on or about September 10 creating a
suggestion box and employee review committee to
i The original charge was filed on May 26, 1969 Unless otherwise noted
all dates herein weie in 1969
183 NLRB No. 72
HYDRO MOLDING COMPANY 615
handle employee grievances . This amendment was
answered by Respondent on October 13 with a
denial that the conduct set forth in the amendment
"constituted an unfair labor . practice in any way,
shape , form or manner."
All parties participated in the hearing in Platts-
burgh, New York, on October 22 and 23, and
were afforded full opportunity to be heard, to in-
troduce evidence , to examine and cross -examine
witnesses , and to present oral argument . Oral argu-
ment was waived and briefs were filed by General
Counsel and the Respondent.
Based upon the entire record' in the case, my ob-
servation of the witnesses and their demeanor, and
my reading of the briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Hydro-Molding Company, Inc., a New York cor-
poration, with its principal office and place of busi-
ness in Plattsburgh, New York, is engaged in the
manufacture, sale, and distribution of custom
molded plastic parts and related products.
Annually in the course and conduct of its busi-
ness operations Respondent purchases and has
delivered directly to its Plattsburgh plant from
points outside the State of New York goods and
materials valued in excess of $50,000. Additionally,
the Respondent annually manufactures, sells, and
ships from its Plattsburgh plant to points outside
the State of New York products valued in excess of
$50,000.
The complaint alleged, Respondent admitted,
and I find that Respondent is and has been at all
times material herein an employer engaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act and meets the Board's standards for as-
sertion of its jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Aluminum Workers International Union,
AFL-CIO, is and has been at all times material
herein a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRACTICES
A. The Organizing Campaign
The Union's campaign to organize Respondent's
employees began about February 24 under the
direction of Ernest J. LaBaff, an International vice
president of the Charging Party. LaBaff visited em-
ployees at their homes, talked to them about the
Union, and solicited their signatures to authoriza-
tion cards. In these conversations LaBaff asked if
the employees knew of any fellow workers who
might be interested in helping the Union. These
talks led LaBaff to Stephen Micanko.3
LaBaff and Micanko first met at the latter's home
on March 19 at which time Micanko signed a union
card and agreed to solicit for the Union among the
employees.
The Union filed its petition for election on April
21.' The Union held its first meeting for the em-
ployees on April 24.
The hearing on the Union's petition was held on
May 13. The Company claimed that Micanko was a
supervisor. Micanko testified as to his own status
and that of other company employees. In the Deci-
sion and Direction of Election issued on June 4
Micanko was found to be an employee within the
meaning of the Act and eligible to vote.
The first election was held on July 2. Thirty-nine
votes were cast against union representation, 37
employees favored the Union, and there were 6
challenged ballots. Resolution of the challenges on
September 6 yielded three more votes against the
Union.
Following union objections to the conduct of the
first election, a second election was run on October
20, at which time 43 employees were against the
Union, 38 voted yes, and there were 7 challenged
ballots.
Prior to the present organizing campaign there
had been at least five representation elections con-
ducted at the Company.'
B. The March Promise and Grant of a Wage
Increase
1. The increase is promised and paid
On April 10 the Company granted a wage in-
crease to all employees ranging from 10 to 25 cents
per hour.
Early in the year most employees had signed a
petition asking for a meeting to present a demand
for increased wages and other benefits. On March
17 the Company assembled its workforce for a
meeting which was addressed by Mark A. Rabin,
Respondent's vice president and general manager.
Rabin told the employees that the Company's
earnings figures for the preceding year warranted a
wage increase which would be effective in April .6
2 General Counsel filed a motion with his brief to correct certain inadver-
tent errors in the stenographic record herein Respondent also requested
correction of an inadvertent error Neither party has opposed the other's
request Accordingly, an Order Correcting Transcript is attached hereto
and issued as of the date of this Decision ordering the corrections so
requested [omitted from publication]
' Testimony of LaBaff
' Case 3-RC-465I
s Testimony of Company President Sol Levites
6 Employee Lucy Kramer, alone among the witnesses, testified that
Rabin also announced that employees with 10 years of service would
receive a third week of vacation There was no evidence adduced that addi-
tional vacation benefits were ever instituted Accordingly, I find that
General Counsel has failed to establish that this additional benefit was
promised or granted
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employees Kramer and Rita Roberts credibly
testified that while speaking Rabin held a union
handbill on the subject of security and told the em-
ployees there was nothing in the union pamphlet
that the Company could not give them . Rabin told
the employees that security for the Company and
employees came from Hydro's ability to fill orders
on time and the quality of the work produced.
Rabin testified that it was company policy to talk
to the employees several times a year and that pur-
suant to this procedure the toolroom employees
had been assembled late in 1968 , told that the
Company would review the year 's results after
receiving the figures from the accountant , and that
a wage increase would be forthcoming if the
economic factors were favorable . At the March 17
meeting, Rabin told the employees that the figures
had just been received or would be received shortly
and that it looked as if the Company should be able
to put the wage increase in effect in the early part
of April . Rabin claimed to have told the employees
at the March meeting there would be a wage review
at the end of 6 months and that if the economic
conditions were favorable and the Company's
results were better than they had been in the
preceding year , another wage increase would be
given.
Margaret Hobbs , a former employee who volun-
tarily left Hydro 's employ shortly before the hear-
ing herein , testified that while she had not attended
the toolroom employee meeting in December 1968
at which management promised a wage increase,
she had heard about that meeting shortly before the
March 17 meeting of the entire working force.
Hobbs testified that she did not hear Rabin say
there would be another wage increase in October
but added , " We had a couple of pressers [sic] that
kept going off and on . And some of us couldn't
hear everything that was said ." Lucy Kramer de-
nied that Rabin said anything about another raise
after 6 months.
2. Conclusions and findings
The complaint alleged that "Respondent ... on
or about March 24 ... offered, promised, and
granted to its employees wage increases, increased
vacations , and other benefits ... if they refrained
from becoming or remaining members of the
Union , or giving any assistance or support to it, or
in order to induce them to do so." I shall recom-
mend dismissal of this allegation of the complaint.
Rabin's uncontroverted testimony establishes
that in December 1968 the Company had an-
nounced to the toolroom employees that a wage in-
crease would probably be granted after a review of
the operating figures for 1968. While there was no
direct corroboration of Rabin 's account of that
meeting, Hobbs testified that she had heard about
the December meeting before the March 17 an-
nouncement of the wage increase . The March 17
meeting came about in part as a result of an em-
ployee petition for higher wages and other benefits,
but it appears that the petition circulated in the
plant before the advent of the Union's organizing
campaign . Although I credit employee testimony
that Rabin had in his possession a union handbill on
the subject of security and told the employees that
security would come to them and the Company as a
result of quality production and the meeting of
customer demands in a timely fashion, there is no
evidence that the announced wage increase was in
any way conditioned on abstinence from union ac-
tivity or that it was occasioned by the Union's or-
ganizing campaign . Rather , the evidence indicates
that the announcement of the wage increase on
March 17 and the subsequent grant of higher pay
on April 10 was no more than a fulfillment of a
company commitment made in December , prior to
the advent of the Union, and that it came about in
the normal course of Respondent 's operations. Ac-
cordingly , I shall recommend that the complaint al-
legations that Respondent promised and granted a
wage increase and other economic benefits to the
employees ' if they would refrain from union activi-
ty or to induce them to do so be dismissed.
C. Interrogation , Threats , and the Impression of
Surveillance
General Counsel called a series of witnesses to
testify to conversations with company supervisors
in which Respondent 's agents were alleged to have
questioned the employees about their union activi-
ties and sympathies , to have threatened reprisals for
adherence to the Union or to be levied in the event
-the Union succeeded in organizing the plant, and to
have made statements indicating that the Company
was maintaining surveillance of the employees'
statutorily protected activities.
Former employee Margaret Hobbs testified to a
number of conversations with Richard Seman, su-
perintendent of a plant section . On or about April
17, at her machine, Seman asked Hobbs how she
felt about the Union, explaining he was asking
because he had not heard her mention the Union.
Hobbs told Seman she had heard things for and
against the Union and was trying to decide for her-
self which way to go. Seman replied that because
he had worked in the past for two organized em-
ployers and had suffered a reduction in pay he was
against the Union . Seman told Hobbs that General
Manager Rabin could do the same thing to Hydro's
employees , take away their profit-sharing plan and
insurance , and close the plant . Seman denied saying
that Rabin could take this action . However, Seman
admitted that he had asked employees if they were
' Complaint paragraph 6(d) and (e)
HYDRO MOLDING COMPANY
for or against the Union, but "only out of personal
curiosity."
Employee Yvette Hebert testified that on or
about May 1 Seman asked if she was for the Union.
Hebert replied that in some ways she favored the
Union and in other ways was opposed to it. Hebert
asked why Seman had inquired and he replied that
he had asked the other girls on the day shift during
the preceding week when Hebert had been on the
night shift, and now that she was on days he was
asking her.
On April 25, Margaret Hobbs testified, Seman
commented that she had a new boyfriend. Hobbs
asked who Seman was referring to and Seman
pointed to Stephen Micanko, saying, "Your Union
buddy over there." Hobbs added that from time to
time Seman referred to Micanko as her boyfriend.
Seman denied making such statements.
Hobbs testified that on May 20, with employee
Bea Hamel present , Seman told Hobbs he was
warning her that if she was heard talking about the
Union in the plant during working hours he would
have her brought to court. Seman told Hobbs that
"his lawyer hired him to bring any girl that talked
about the Union into court." Seman denied making
this statement . Hamel did not testify.
Some days later, on May 23, Seman asked Hobbs
if she had told any lies about him. Seman explained
that he had been called to the office "to answer to
a mess of lies that were told about him." Margaret
Hobbs testified that Seman declared that unions
were no good and that a union had given him a raw
deal. Seman told Hobbs that if the Union came into
the plant he would take a cut in pay and that the
employees could lose their profit-sharing plan, paid
insurance , and also take a cut in wages . Seman de-
nied saying that unions were no good or that if the
Union came in the employees could lose their profit
sharing and suffer a cut in pay.
Hobbs testified that on July 3, the day following
the first election, Seman commented that she was
not wearing her union badge. Seman said he could
understand the employees wanting the Union for
more money, but he added, "You could lose your
profit-sharing plan." Seman suggested that Hobbs
ask a long-time employee how much money she
had in the profit-sharing plan. General Manager
Rabin joined Hobbs and Seman at this point. Hobbs
asked Rabin if he had not said that in some years
there might not be contributions to the profit-shar-
ing plan if the money were needed for machine
repairs or new equipment. Rabin agreed that he
had said this. Hobbs then told Seman that with the
Union there would be a retirement plan which
would be good every year. Seman left and Hobbs
told Rabin that all she had to lose was her in-
surance. Rabin explained, Hobbs testified, that she
could only lose her interest in the profit-sharing
plan if she quit the Company's employ. In his
testimony Rabin denied telling Hobbs she could
lose her interest in the profit-sharing or that he had
617
ever spoken to her regarding her attitude toward
the Union . Seman did not address himself to this
conversation.
Employee Gale Bloom testified that on or about
May 15 , after first asking whether she would give
him an honest answer, Seman asked her if she was
for or against the Union . Bloom replied that she
was "definitely for the Union ." Seman said he was
opposed to this union of all unions and went on to
say that he knew that Micanko was indoctrinating
the girls and that Bloom had lunched with Micanko
quite a few times . Bloom denied this , pointing out
that she and Micanko had lunch periods at different
hours . Seman asked if Micanko had given Bloom a
union card to sign . Bloom explained that she had
signed her card at home and had done so before
Micanko signed his because the union representa-
tive had asked her for Micanko 's address . During
the conversation Seman commented that if the
Union came in he would be out of a job. Bloom de-
nied that the Union would take anyone's job.
Seman then said that he would hate to see Bloom
leave because she was a good worker . Sometime
later Seman returned and asked Bloom to forget
everything he had said.
Employee Ingeborg Guinup testified that on May
19 after she complained to Seman about the heat in
the plant he brought up the Union . Guinup asked
what her question had to do with the Union. Seman
stated that if the Union came in Guinup might have
to start with $ 1.65 per hour . Guinup replied that
had nothing to do with her question. Micanko's
name came into the conversation and Guinup asked
why Seman was picking on Micanko . Seman replied
that Micanko had started " the business with the
union" and had gone about it in a sneaky way. If
Micanko would come right out in the open and talk
about the Union , it would be different , Seman told
Guinup.
Joan Palmer, who worked for the Company for a
short period , testified that on or about May 15 Su-
pervisor Ronald Provost had asked if Palmer was
for the Union . In a second conversation some days
later Provost told Palmer that since she rode to
work with Rita Roberts he figured Palmer was for
the Union and if he determined that she supported
the Union he would replace her. Provost generally
denied having said that anyone would lose their job
because of the Union.
Employee Shirley Trombley testified that on or
about April 1 she went to the lunchroom to ask Su-
pervisor Alphonse LaMonda what job he wanted
her to do . LaMonda asked Trombley what she
thought about the Union . Trombley replied that she
didn 't know much about it. LaMonda told
Trombley that in the past he had received a raw
deal from a union and that if Rabin wanted to do so
he could move his machines to some other place
and drop the profit-sharing plan . LaMonda also
said that in the event of a strike , replacements
could be hired . Trombley testified that no one else
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was present during this conversation. Foreman
Ronald Provost was asked if he had heard LaMon-
da make these remarks and testified that he had
not.
Trombley testified that about a month later, on
or about May 7, in a second conversation, LaMon-
da again said that Rabin could move his machines
to another plant and that the employees could
possibly lose their profit-sharing.
Employee Rita Roberts testified that on May 21
General Manager Rabin asked her what the Union
had promised to make her support it. Roberts
replied that the Union had promised nothing but
that she had seen other companies going union and
felt she would like to try working under organized
conditions. Roberts testified that Rabin asked if she
had spoken to other employees who had worked in
a union plant and ascertained what the union had
done for them. Rabin testified that he had heard
that Roberts was prounion and was curious as to
why she supported the Union. Rabin explained that
in the past the Company had helped Roberts with
interest-free loans when she needed money. Rabin
testified that he asked Roberts, "With the
background of our history or relationship it's been
stated that you are favoring the Union. Just out of
curiosity, tell me why." Roberts replied that she
would like to give it a try.
Employee Beverly Cleland testified that on June
18, Foreman Victor Killer spoke to her in his of-
fice. Killer said that he had to tell the employees
certain things about the Union. Killer said that if
the Union came in they would lose their profit-shar-
ing, insurance , and hospitalization, would probably
have to pay union dues of up to $7 per month and
if they went on strike he had a right to replace
them. Killer asked Cleland what the Union would
pay the employees if they went on strike. Cleland
replied that she didn't know. Foreman Killer said,
"Don't tell me you don't know this," and suggested
she ask her union man. Employee Leona Primard
testified that she also had a talk with Killer in his
office on June 18. Killer told Primard that he had
some things to talk about with all the girls . Primard
testified that Killer told her that if the Union came
in they would lose their profit-sharing, the em-
ployees would have to pay for their own insurance
and pay union dues of $7 per month. Primard was
also told that Killer had the right to replace striking
employees. Neither Cleland nor Primard was cross-
examined . Killer did not testify. Respondent's coun-
sel recapitulated Cleland's and Primard's testimony
to Rabin and asked what instructions the general
manager had given to Killer and the other foreman.
Rabin replied that using a printed set of guidelines
of what an employer may do in an organizing situa-
8 Assuming the supervisors were in fact instructed as to what they could
lawfully do to combat the Union, "It is what [the supervisor] said or did,
not what he was told to say, do, or not say or do, that counts " Hendrix
tion, supplied to him by his attorney, he had told all
the foremen what they could and could not do.
I find that the employees' testimony establishes
that Respondent's supervisors engaged in a con-
certed campaign of interrogation and threats and
led the employees to believe that their contacts
with union adherents were being monitored by the
Company. In reaching this conclusion I note that
Hobbs' account of Seman's interrogation on April
17 is corroborated by Hebert's testimony that she
was questioned by Seman about her union sym-
pathies immediately after she was transferred to his
jurisdiction, at which time he explained to Hebert
that he had previously asked the employees under
his supervision if they were for the Union. Seman's
reference to Micanko as Hobbs' boyfriend, his
inquiry to Bloom as to whether Micanko had sol-
icited her signature to a union card and his claim
that Micanko was indoctrinating the girls plus his
accusation to Bloom that Micanko was organizing
for the Union in a "sneaky" way establishes
Respondent 's conviction that Micanko was in the
forefront of the Union's campaign and would tend
to impress the employees with the fact that the
Company was watching their contacts with union
adherents. Rabin acknowledged that he had
questioned Rita Roberts as to why she was support-
ing the Union, thus indicating to Roberts that
Hydro had knowledge of her union sympathy. Cle-
land's and Primard's unrebutted testimony
establishes that Foreman Killer systematically
threatened the employees under his supervision
with loss of benefit if the Union was successful in its
organizing campaign.8 All things considered I find
that on various dates in April, May, June, and July,
Respondent interrogated and threatened its em-
ployees and created the impression that their activi-
ties in behalf of the Union were under surveillance,
all in violation of Section 8(a)(1) of the Act.
D. Union Badges
Employee Lucy Kramer testified that on May 19
she first wore a union badge which she had
received at a union meeting the night before. The
union badge, approximately 1-1/2 inches in diame-
ter, bears the Union's name in small type and its in-
itials in large letters.
Kramer testified that General Manager Rabin
came to her work station and told her that it was
not customary to wear jewelry on the job and he
considered her union badge to be jewelry. Kramer
asked if Rabin wished her to remove the union in-
signia and he replied that he left that up to her.
However, Rabin said that if she continued to wear
the badge she would not be covered by the Com-
Manufacturing Company, Inc v NL RB , 321 F 2d 100, 104 (C A 5),
Texas Electric Cooperatives , 160 NLRB 440, 460-461, enfd in pertinent
part 398F2d722(CA 5)
HYDRO MOLDING COMPANY
pany's insurance. Kramer removed her badge and
asked the other girls wearing union pins to do the
same.
Kramer again wore her union badge on May 21.
On this occasion Rabin remarked that it appeared
she was taking orders from another company.
Kramer testified that Rabin said she was not
covered by the Company 's insurance while wearing
the union badge and , he concluded , " I don't want
any more charges from the Union . You can tell
LaBaff that."
Kramer acknowledged that the Company has a
rule against wearing jewelry but claimed that she
and other employees occasional ) wear pins and
necklaces to work . Kramer testified that she had
never before been asked to remove jewelry.
During the morning of May 19, the first day the
union badges appeared in the plant , an antiunion
employee wore a cardboard sign suspended from
her neck by a string reading , "To hell with unions."
Kramer testified that this employee entered the
company office wearing her sign.
Another employee was wearing a pin with her in-
itials.
Rabin testified that he told Kramer that her
union badge , pinned to her clothing , was similiar to
jewelry, and might be caught in an operating
machine . Rabin told Kramer that in the event of
such an accident the Company might lose its in-
surance claim . Rabin stated that the Company must
protect all employees with insurance and that under
workmen 's compensation the Company 's cost is
based on its own history.
Rabin testified that if a piece of metal fell into a
machine it could not only damage the mold and
machine but there was also danger to the operator
of the equipment . Rabin claimed that employees
wearing necklaces , key chains , or bracelets are ad-
vised to remove the articles . Kramer agreed that if
a piece of jewelry got into a machine the mold
could be ruined.
Foreman Ronald Provost testified there was a
company policy that jewelry and jewelry-like items
should not be worn near machines , adding, "[b]ut
it is not enforced to the fullest extent."
I am at a loss to determine under which allega-
tion of the complaint this episode involving the
union badges is supposedly encompassed. In his
brief General Counsel argues:
The direction to remove the union badge
constituted illegal interference with union ac-
tivities . [ Citation omitted .] The threat to
deprive Kramer of her insurance for wearing
the badge also consituted an illegal threat.
However, Kramer did not claim that Rabin told
her to remove the badge, rather she testified that
when she asked him if he wished her to remove the
badge Rabin replied that he left that up to her. As
to the alleged threat to deprive her of insurance, I
credit Rabin 's explanation that he told Kramer that
the Company was obligated to protect her with in-
619
surance coverage , but that a claim for an accident
arising from the union badge falling into the
machinery might be disallowed and that the cost to
the Company for workmen 's compensation
coverage could rise if such an accident was on the
Company's record.
Accordingly , I find no unlawful conduct by
Respondent in connection with the union badge in-
cident.
E. Stephen Micanko
1. Background
Stephen Micanko began working for Hydro in
March 1967 and was discharged on June 2. Until
some time in July 1968 Micanko worked on the day
shift as a maintenance man under Richard Seman's
supervision . His duties included the repair and
setup of machines for production . Setup work con-
sists of placing a mold in the machine , checking the
machine with the mold to determine that it is func-
tioning properly , and putting the machine into
production . In July 1968 Micanko was transferred
to the night shift at his own request. Company Pre-
sident Sol Levites testified that Micanko asked for
the assignment to nights because he had purchased
a house trailer and wanted his daylight hours free to
install it . In addition Micanko told Seman that he
had a chance to work at a filling station to make
extra money . Seman saw no objection to the
transfer , Wensel , the night maintenance man, was
willing to switch to the day shift , and the transfer
was effectuated.
Micanko testified that the normal working hours
for maintenance men was 10 hours a day and that
he had worked 10 hours per shift both before and
after his transfer to the night shift in July 1968.
There is a 2-hour overlap of shifts , the night shift
starting at 3 p.m. and the day shift ending at 5 p.m.
Micanko received a wage increase of 15 cents
per hour on April 10, the day of the general wage
increase.
Micanko first became interested in the Union on
March 19 when LaBaff came to Micanko's home,
secured an authorization card from him, and en-
listed Micanko 's assistance in organizing the other
employees . Micanko took a supply of union cards,
visited employees at their homes , and obtained
authorizations for the Union . Micanko testified for
the Union at the May 13 representation hearing at
which his own status as an employee was litigated.
Micanko also gave testimony about other em-
ployees whose supervisory status was in question.
I have heretofore credited employee testimony
that Seman on a number of occasions linked
Micanko to the organizing campaign , expressed his
belief that Micanko had initiated the organizing ef-
fort, inquired about Micanko 's activities in behalf
of the Union, and noted his disapproval of Mican-
ko's organizing tactics . Thus, on two occasions
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Seman referred to Micanko as Hobbs' "Union
boyfriend," asked Bloom if Micanko had solicited
her signature to an authorization card, and told
Bloom that Micanko was indoctrinating the girls
and told Guinup that Micanko was working for the
Union in a "sneaky" way.
On or about May 1, about 1-1/2 weeks before the
May 13 representation hearing, Seman accused
Micanko of threatening a girl in the shop. Micanko
denied the claim and asked Seman to identify the
employee involved. Seman did not answer, saying
instead, "You're an organizer." Seman said that
Rabin knew of the incident and that if Micanko de-
nied it they could talk to the general manager.
Micanko and Seman went to Rabin who said that if
anything was bothering Micanko they could sit
down and talk about it. Micanko said he preferred
to talk outside of working hours and Rabin and
Micanko met the next morning for a talk. Micanko
testified that he and Rabin discussed safety hazards
in the plant, some personal gripes that Micanko had
with other people in the plant, and Micanko's feel-
ing that the women in the shop were afraid to speak
up. Micanko stated that he told Rabin that it would
be good to have a union. Rabin asked if Micanko
was soliciting for the Union and Micanko
acknowledged that he was. With this the conversa-
tion ended.
Rabin's version of this conversation, given during
his direct testimony, was that it concerned Mican-
ko's grievances, "a whole pile of grievances," many
of them petty. Rabin testified that he "conceivably '
asked Micanko what benefits he expected to
receive from the organizing effort. In redirect
testimony, after reading parts of his prehearing af-
fidavit Rabin enlarged on his prior account of the
conversation. Rabin testified that he told Micanko
that his work was deteriorating and that he had
noticed that Micanko was not paying much atten-
tion to his work. Rabin noted that Micanko ap-
parently had some problems and asked how he
could help Micanko. At this point Micanko listed a
series of gripes, many of them petty. Rabin testified
that he pointed out that Micanko was causing a
great deal more mistakes and errors than was nor-
mal for a person performing his job assignment and
told Micanko that he was capable of doing better
work, but apparently had his mind on other things.
Rabin explained to Micanko that he had permitted
a machine to run under conditions which created
rejects, "he had permitted an excess of material in
a number of cases to accumulate causing excessive
repair requirements and expenses involved in such.
He had on a number of occasions permitted
damage to tools. And this led up to the end of May
such very serious damages." Rabin testified that
9 Rabin did not refer to this conversation in his testimony Thus, Mican-
ko's testimony stands uncontradicted
this was said to Micanko in their conversation early
in May.
2. Micanko's transfer to the day shift
a. The transfer is effectuated
Micanko testified that on May 3 Rabin asked if
Micanko wished to stay on the night shift. If so, the
general manager stated, Micanko would have to
sign a statement to that effect. Micanko agreed to
do so but Rabin never brought such a statement to
him for signature.9
On May 12 Rabin complained that Micanko had
permitted one machine to run for 3 to 4 hours
producing bad parts and had allowed a serious
amount of overproduction on another machine.
Rabin said that Micanko needed additional training
and would be transferred to the day shift effective
May 19.
Micanko testified that on May 16 Seman asked
why Micanko didn't just not punch in for work the
following morning. Micanko asked why and Seman
replied, "You know you are going to get fired."
Micanko replied that he had suspected that would
happen since his shift had been changed. Seman
then told Micanko that he had been instructed by
Rabin and Levites to "get the goods" on Micanko
so that he could be fired. Seman explained that at
first Levites had planned to "kill [Micanko] with
kindness" on the day shift, but that following
Micanko's testimony at the representation hearing,
the company president had determined to get rid of
him. Seman said he would deny the conversation if
Micanko went to Rabin or Levites about it.10
Micanko reported for work on the day shift on
May 19. During the day, Micanko testified, Seman
asked how the organizing business was going.
Micanko replied it was going well and queried
Seman about how it felt to "play G-d." Later that
day Seman asked Micanko for his key to the plant
and told Micanko to punch out at 4 p.m., thus giv-
ing him a 9-hour day. While on the day shift, before
his transfer to nights in July 1968, Micanko had
worked a 10-hour day. Company President Levites
testified that Micanko worked only 9 hours per day
after returning to days because he was no longer in
a supervisory position, had fewer duties to carry
him past the normal working hours, and had
reverted to trainee status. There was no claim that
Micanko had served in a supervisory capacity be-
fore going on nights in July 1968. As noted, the Re-
gional Director in his Decision and Direction of
Election, based on testimony as to Micanko's duties
on the night shift, found that he was not a super-
visor. In its statement of position in response to the
1s Seman did not refer to this conversation in his testimony Micanko's
testimony stands unrebutted
HYDRO MOLDING COMPANY 621
original charge which was attached to and made a
part of its answer to the complaint, Respondent
wrote:
Mr. Micanko worked fewer hours on the day
shift than he did on the night shift because of
the unavailability of foremen to train him ....
May 14th" 1969 Machine #C-20 #819 7,000
pcs. over.
May 21st 1969 Machine #B-13. 18 minutes
after 4-p.m. machines bell went off. Found ap-
proximately 2 hrs. accumulation of drool on
nozzle & valve which stopped machine cold.
b. Seman 's logbook on Micanko
Starting with an entry dated May 9 Seman main-
tained a written record of Micanko's malfeasence
on the job. These entries were made by Seman in a
spiral bound notebook referred to by Company
President Levites as a "production log book. "
Levites explained that Seman used this notebook to
record jobs done and other events that had to be
tabulated. The first pages of the notebook are filled
with lists of dates and job numbers with brief com-
ments appended thereto.
Levites testified that Seman came to Rabin and
himself" and complained that he was having con-
siderable difficulty with Micanko's performance.
Levites described Seman as "sort of despairing of
ever doing anything successful with" Micanko.
Levites testified that because Respondent had al-
ready invested 2 years in training Micanko and he
was a valuable employee in many ways, he sug-
gested to Seman that the foreman add to his
production logbooks any comments that had to do
with Micanko s job performance.
Seman testified that he complained to Rabin and
Levites about Micanko's failure "to take care of the
machines in a manner which I considered proper"
and "to be on time with the machines, to do things
on a scheduled basis." Seman originally testified
that he first observed Micanko's bad work in
February or March. He called the matter to
management 's attention in April. Seman later
testified that Micanko's bad work developed in Oc-
tober 1968. At that time, Seman stated, Micanko
improperly set a mold in a 150-ton machine result-
ing in damage to the machine. Seman testified he
cannabalized a replacement part but did not report
the incident to management. However, Seman said
he was not in the plant when the alleged accident
occurred but knows it had to be Micanko's fault
because it was the only possible way it could have
happened. Later in his testimony Seman stated that
he observed Micanko doing things wrong every day
since October 1968.
Respondent introduced Seman's logbook into
evidence. As noted the first entry concerning
Micanko is dated May 9. The log on Micanko reads
as follows:
May 9th 1969 Machine #B-13 Running
10020 Ran Shorts & Flash from 5 pm to 8 pm
(1 box full) which had to be hand sorted to
remove good pcs.
Seman placed the conversation in April
The log shows the date May 14 crossed out and no other date sub-
May 28th 69 Steve was told on May 27th not
to put Delrin into C-24 until the heats came
down to Delrin level (300-350 degrees) He
failed to follow these instructions & created a
dangerous condition for his own safety, and
filled the entire building with a choking gas for
over 5 minutes. Ed Wieland gave him these in-
structions.
Mach . #C-24. Universal die-set was set up by
Steve without one screw to the stationary side
of platen being tight.
c. Respondent 's reasons for the transfer
On May 12 Rabin told Micanko that because he
had permitted a machine to run for 3 to 4 hours
producing bad parts and on another occasion had
permitted a serious overproduction of parts, he was
being transferred to the day shift for training.
Micanko admitted that on Friday, May 9, one of
the automatic machines for which he was responsi-
ble had produced faulty parts for about one-half
hour. Micanko explained that his instructions were
to check each machine every 15 minutes but that
on May 9 he had trouble with another machine and
did not get to the machine in question for about
one-half hour. At that time he discovered that scrap
parts were being run. Micanko testified that he im-
mediately shut the machine down and called Seman
at home who told Micanko not to worry about the
situation and that they would look into the problem
the following morning. The following day Micanko
discovered that an operating part in the machine
was loose causing the material to be injected short
of the proper point. Micanko testified that this
situation had occurred before and that scrap parts
were run several times a week. Micanko denied
that the machine had run scrap parts more than
one-half hour.
Seman testified that when he left the plant at 5
p.m. on May 9 the machine was operating properly.
Seman claimed to have returned to the plant at 8
p.m.13 and that it was he who discovered that every
part being produced by the machine was faulty
because insufficient material was getting through to
fill the mold cavities. Seman claimed that based
upon the number of bad parts that had accumu-
lated the machine had been running improperly
from 5 p.m. on, a period of 3 to 3-1/2 hours.
stituted.
" Micanko denied that Seman returned to the plant that night
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Margaret Hobbs testified that
Foreman Seman and maintenance men Wieland
and Wensel-had asked her on occasion to sort scrap
parts. At one time Wieland had brought to her our
boxes of scrap parts, asking that she sort them after
Rabin had left.
General Manager Rabin testified that while it was
the practice to deliberately run parts short of
material when machines are first put into produc-
tion and that these are either discarded or sorted by
people assigned to slow operating machines, the
Company's ratio of scrap to overall production is
less than 3 percent. On May 9, Rabin claimed, two-
thirds of the parts run were scrap.
As to the overrun of parts, Micanko admitted
that on Wednesday or Thursday, May 7 or 8, he
failed to follow instructions to shut down an auto-
matic machine under his control at 9 p.m., resulting
in an overrun of 7,000 pieces on an order for
10,000. Micanko testified that overruns occur from
time to time and that the excess pieces are stocked
and used for later orders. Rabin testified that stan-
dard procedure calls for overruns of 5 percent but
that Micanko had permitted a 70-percent excess.
Rabin stated that overruns in excess of 5 percent
are permitted to keep machines or operators busy
and agreed that the excess parts are used for sub-
sequent orders.
d. Conclusions and findings
I find that Respondent transferred Micanko to
the day shift because of his activities on behalf of
the Union. The picture of Micanko's poor job per-
formance painted by Seman was laid on with too
broad a brush. Seman first testified that he noticed
bad work by Micanko in February or March, then
he remembered an incident of improper work by
Micanko in October 1968 and finally Seman
claimed to have observed Micanko making
mistakes every day since October 1968. However,
Seman does not claim to have reported Micanko's
deficiencies to higher management until April at
which time he was allegedly told to keep a written
record of Micanko's errors. Despite this claim of
unending errors by Micanko, Seman - did not
discover improper work warranting an entry in the
log until May 9.
Seman 's statements to employees about Mican-
ko's union activities and his characterization of
Micanko's tactics as "sneaky" evidence Respon-
dent's awareness of Micanko's efforts for the Union
and the Company's hostility toward him.
Micanko's deficiencies were again sketched
bigger than life in Rabin's version of his conversa-
tion with Micanko early in May in which Rabin
"conceivably" asked Micanko what benefits he ex-
pected from the Union and said that Micanko's
" This account of the discharge interview is based on a synthesis of
Micanko's and Rabin's testimony . Rabin added that he told Micanko the
mind was "apparently ... on other things." Rabin
claimed to have told Micanko early in May that he
had permitted a machine to run making defective
parts, the occurrence of May 9, and to have "per-
mitted an excess of material in a number of cases to
accumulate causing excessive repair requirements
and expenses." Seman's log, allegedly started in
April, shows only one incident of accumulation of
excess material and that on May 21.
Micanko was a credible witness who candidly ad-
mitted mistakes. I credit Micanko's unrebutted
testimony that on May 16 Seman told him that the
plan had been to transfer him to the day shift and
there to "kill [him] with kindness" but that follow-
ing Micanko's testimony for the Union at the
representation hearing on May 13 the decision had
been made to "get the goods on Micanko and to
discharge him.
The two reasons advanced for the transfer appear
to be no more than ordinary production problems
faced in plant operations and I credit Micanko's
claim that on May 9 he was responsible for no more
than one-half hour roduction of defective parts.
Accordingly, I find that in violation of Section
8(a)(3) of the Act Respondent transferred Mican-
ko from night duty, the shift he had requested and
preferred, to day work with a reduction in hours of
work, in retaliation for his union activities and to
prepare the groundwork for his discharge.
3. Micanko's discharge
a. The circumstances of Micanko's discharge
When Micanko reported for work at 7 a.m. on
Monday, June 2, he discovered that his timecard
was missing from the rack. Seman told Micanko
that he was not to punch in until Rabin arrived.
Later, when Micanko met with Rabin in the latter's
office, Rabin asked if Micanko had loosened the
bolts on machine C24. Micanko was not sure that
he had done so, but admitted loosening the bolts.
Rabin then said that Micanko had too much on his
mind and was not paying proper attention to his
work. Rabin discharged Micanko, saying it was
because Micanko could have damaged or destroyed
a costly mold. Rabin told the secretary to pay
Micanko the money due him and the interview
ended. 14
Micanko testified that on Thursday, May 28, he
had set up machine C24 with the mold for part #
809 for a production run. Later Micanko learned
that this was to be a test run on #809 which was
completed about 10 a.m. Micanko then asked
Rabin what he was to do with the mold and was
told to cool and remove it to make room for
another mold. Micanko started the cooling process
but was called away by bells signifying trouble on
damage could have been irreparable and that all Micanko could say was,
"I'm sorry."
HYDRO MOLDING COMPANY 623
other machines. Micanko explained that his prima-
ry responsibility was machines in production, not
those being set up. Later that afternoon Micanko
started to take out the die-set on C24 but was again
called away to other machines. He left at his regu-
lar quitting time of 4 p.m. When he started work
the following day, May 29, Micanko did not return
to C24 because of other duties.
About 11 a.m. on May 29 Micanko was told by
maintenance man Ed Wieland that C24 was set up
and ready to go. Wieland had set up the new mold
in C24 and put it into production. Micanko was
told that he was to remove the molded parts from
the machine, put them in boxes, and take them to
the inspection department.
Company President Levites explained that about
17 percent of Hydro's machines are equiped with
Universal molds or frames into which the actual
molds, composed of accurately machined modules,
are set. These modules are attached and detached
for each production run. Using these modules
rather than complete molds Hydro is able to reduce
tooling costs and expedite the manufacture of
molds. In the mounting of the modular molds care
must be taken that the parts are accurately placed
and that the sides of the Universal mold (Universal
die-set) do not move.
Wieland testified that on May 29 he was in-
structed by Rabin to install the mold on C24 for a
part for Delco. Following normal procedures, Wie-
land obtained the mold, put it in the Universal
mold, floated the parts together, and made sure
that it was in working order. Wieland then started
the machine into production. On the second or
third shot of material Wieland noticed that one of
the stationary sides of the Universal mold, into
which the component parts of the Delco mold had
been placed, had jumped. Wieland stopped the
machine and discovered that the four bolts which
fasten this stationary plate had been unloosened
and were withdrawn quite a bit. Wieland testified
that this was not a normal condition. Wieland asked
the toolroom man if he knew anything about the
condition of the stationary plate, explaining that the
bolts were loose. The toolroom man denied
knowledge of the matter. Wieland returned to the
machine, tightened the bolts on the stationary
plate, and put the machine back into production.
Company President Levites was present. Wieland
did not mention the condition of the stationary
plate to Micanko.
Levites testified that when Micanko had removed
the mold for part #809 from machine C24 he had
loosened the large bolts holding one side of the
Universal mold rather than the small bolts fastening
the mold itself. Levites stated that "As far as I was
concerned, that had cooked Mr. Micanko's goose. I
was in favor of dismissing him on grounds of this
type of technical incompetence and that was
done."
Micanko denied there was incompetence on his
part, because he claimed, it was Wieland's job
when setting the mold to be sure that all parts were
securely fastened in place. If he had set the Delco
mold in place , Micanko testified, he would have
checked the setup and tightened the four bolts in
question.
General Manager Rabin testified that employee
Shirley Hart , who was discharged a few days before
the hearing herein for allowing the machine she was
attending to run defective parts for 3-1/2 hours,
had previously broken a mold. Rabin did not claim
that Hart was terminated for damaging the mold.
Respondent pointed to two other instances of
failure by Micanko to properly perform his job in
the period between his reassignment to the day shift
on May 19 and his discharge on June 2. The first
involved the accumulation of excess material or
drool on the nozzle of machine B 13 on Wednesday,
May 21. On May 22 Rabin accused Micanko of
having permitted a 3- to 4-hour accumulation of
drool on the machine. Micanko answered that the
amount of drool in question could have accumu-
lated in a few minutes if the machine had been im-
properly adjusted. Wieland explained that if a
safety device had been set wrong the material
would have bypassed the cutoff and the amount of
drool claimed would have built up. Micanko
testified that before he left work at 4 p.m. on May
21 he had checked the machine and it had been
operating properly. The following morning, May
22, when he discovered that the machine was not in
operation and Seman told him to look at the nozzle,
Micanko checked the machine production card and
discovered that B13 had been shut down at 4:15
p.m., the day before, 15 minutes after he had left
the plant. Rabin testified that it is common for a lit-
tle drool to accumulate on automatic machines.
Rabin further stated that the "excess material or
drool will give off a smoke that is easily visible and
that will rise right above the machine."
The second incident occurred on May 28 while
Micanko was removing nylon molding compound
and replacing it with Delrin, a molding compound
with a melting temperature much below that of
nylon. When Delrin is overheated ammonia gas is
given off. Micanko testified that he was purging or
cleaning the machine of the nylon15 using Bam-
berger compound , a cleansing material which has
the property of melting at the temperature of the
material with which it is used. As the nylon and
Bamberger compound passed through the machine
Micanko lowered the temperature to prepare for
the infusion of the Delrin which is not safe at tem-
peratures above 350 degrees.16 Micanko testified
that as he fed Delrin in the machine froze. At that
la Rabin testified that nylon melts at 487 degrees Fahrenheit
1e Wieland testified that the proper Delrin temperature is between 400
and 415 degrees
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
point Micanko shut down the machine as it was 4
p.m. and he had been ordered to leave at that hour.
The following morning Micanko raised the heat on
the machine back up to nylon temperature to
complete the purging process and as a result the
Delrin gave off ammonia gas. Micanko claimed that
under the best of circumstances when Delrin is put
into a machine some fumes will be given off.
Seman testified that when the incident occured
the employees in the plant had to leave their
machines and run for air. Some, Seman claimed,
fell to the floor thinking the air there would be free
of the gas. The foreman stated that during the 5
minutes it took to clear the air in the plant there
was no production. Wieland agreed that he had
never seen as great an emission of gas but said
nothing about employees running for air or an in-
terruption of production. Micanko denied that em-
ployees left their machines or that anyone ran out
of the plant or fell to the floor.
b. Conclusions and findings
The issue ... is not, of course, whether or
not there existed grounds for discharge .
apart from ... union activities. The fact that
the employer had ample reason for discharging
[Micanko] is of no moment. It was free to
discharge [him] for any reason good or bad, so
long as it did not discharge [him] for [his]
union activity. And even though the
[discharge] may have been based upon other
reasons as well, if the employer was partly
motivated by union activity, the [discharge
was] violative of the Act.4
4 If employees are discharged partly because of their participation in
a campaign to establish a union and partly because of some neglect or
deliquency , there is nonetheless a violation of the National Labor
Relations Act N.L.R B v. Jamestown Sterling Corp, 211 F 2d 725,
726 (2d Cir , 1954) ""
I have heretofore found that Respondent was
aware of Micanko's union activity, held him
responsible for the organizing campaign and had
made known its hostility toward him because of his
organizing efforts. Further, I have credited Mican-
ko's testimony that Seman candidly admitted that
he had been told to get the goods on Micanko fol-
lowing the representation hearing and Levites' deci-
sion to get rid of Micanko. In that conversation
Seman told Micanko, "You know you are going to
get fired."
Micanko was allegedly discharged for endanger-
ing the Delco mold by failing to secure the bolts on
the stationary plate. It is not clear that creation of
the danger to the mold can be laid solely at Mican-
ko's door. Wieland set up the mold and put the
machine in production. I am not convinced that a
setup man could have carefully set the mold in
place in the manner described by Levites and not
have observed movement resulting from the loose
stationary plate which served as the anchor of the
modular mold. Further, Wieland's failure to even
mention the dangerous situation to Micanko when
he turned over operation of the machine to Mican-
ko does not comport with Levites' claim that when
the condition was discovered "Wieland appeared to
be in a state of shock" or with Respondent's
evaluation of the danger to the mold. Moreover,
Rabin testified that Hart had damaged a mold some
weeks before the hearing and had been retained by
the Company until a subsequent failure to properly
attend to her work.
I credit Micanko's version of the incident of May
22 when excess drool accumulated on a machine.
Had Micanko permitted drool to accumulate for
hours, as claimed by Respondent, it would appear
the smoke which Rabin testified would have come
from the accumulated material would have alerted
others to the situation. In this connection I note
that Respondent did not controvert Micanko's
testimony that the machine had been shut down
only 15 minutes after he had checked it and found
it in proper order.
As with so much of his testimony, Seman inflated
the Delrin incident out of proportion. Seman's
description of the chaos created is belied by Wie-
land's account of the event.
All things considered, I find that Respondent se-
ized upon plant problems, only in part attributable
to Micanko, to carry out its purpose of ridding itself
of Micanko because of his outspoken and con-
spicuous union activity and thereby violated Sec-
tion 8(a)(3) of the Act.
F. The Company Meetings in June
On June 16 and again on June 3018 Respondent
assembled all the employees to hear an address by
Company President Levites. On June 30 General
Manager Rabin spoke as well.
Levites testified that his talks at both meetings
were essentially the same and in reply to a union
handbill on security which had intimated that
Hydro's employees were not very secure. Levites
stated that he spoke from notes and that following
the list of do's and don'ts supplied by the Com-
pany's attorney he was careful in what he said.
Levites testified that he listed to the employees the
benefits the Company had supplied to them without
unionization, including their wage scale, fully paid
health and major medical insurance , and the profit-
sharing plan to which the Company had made con-
tributions in all but 2 years since its creation.
Levites stated that he told the employees that the
17 N L R.B. v. Great Eastern Color Lithographic Corp., 309 F . 2d 352, 355
(C.A 2)
'" The first election was conducted on July 2
HYDRO MOLDING COMPANY
profit-sharing trust fund was doing well and that all
were enjoying "a very nice , tax-free accumulation,
particularly those who had been with us say a good
number of years." Levites told the employees of the
value to them in dollars and cents per hour of the
Company's fringe benefit plans . Next Levites noted
the Company's recent expansion in the plant and
equipment and the addition of new product lines
which would provide more stable employment.
As against these company benefits Levites
testified he pointed out changes which might come
with a union. First he told the employees that they
were free to join a union and that he was speaking
to them to make sure they made an educated choice.
Levites noted that when employees join a union
they take on a new set of obligations including the
duty to pay dues, initiation fees, and possible as-
sessments to support other groups which might be
on strike. Levites told the employees that negotia-
tion of a union contract involved the risk of a strike
and that in the event of a walkout the Company
would seek to maintain production and that strikers
could be legally replaced. Levites testified that he
alerted the employees "that there was another
greater risk than that." He told the employees that
Hydro's biggest customer was International Busi-
ness Machines and that the tools used to fabricate
parts for IBM were the customer's property. Levites
read to the employees parts of the "tool agree-
ment" with IBM which provides that the tools are
IBM's property, may be removed by IBM at any
time , and told the work force that if there was the
"risk of strike or interference with production, we
will be obligated to advise IBM, and the risk existed
that these tools will be withdrawn."19 Levites
testified that he told the employees that the tools
Hydro was using had come from strikebound plants
from which the tools had been taken and given to
the Company. He told the employees that histori-
cally when tools were removed from a struck plant
they were never returned and that Hydro had never
lost a tool it had obtained in this manner.
Levites denied having suggested that the em-
ployees might lose the profit-sharing plan.
General Manager Rabin testified that he was not
in Plattsburgh on June 16, the day of the first meet-
2, but that he did speak to the employees on June
Rabin testified that he pointed out to the em-
ployees the accessibility to them of the Company's
'd The agreement between IBM and Hydro , entitled "Tooling Cer-
tificate," provides in pertinent part
1. We acknowledge that the below listed items of tools and tooling in
our possession are the property of IBM Each has been identified by an
IBM tool number
2 Whenever requested by IBM , we shall return any or all of said items
plus any drawings covering them to IBM without cost except that
transportation charges shall be billed collect
+ • s r
9 If for any reason we are unable to continue production , we shall
notify IBM immediately and IBM shall have the right to enter our
625
management, the benefits of the profit-sharing plan,
the total benefits that had been paid out under the
plan, and the number of persons who had shared in
the distributions. Finally, Rabin testified, "I pointed
out that with all favorable conditions being what
they were in line with a previous commitment, that
we-it looked favorable that when we had the ac-
countant's figures in by the early part of August or
thereabouts, we should be able to do something
substantial for them."
Seven of General Counsel's witnesses were
questioned about the June meetings . Of the six20
who recalled the matters discussed, all remembered
Levites' remarks about the Company's relations
with IBM and the possibility that IBM would
remove its molds if there was the possibility of a
strike. Five of the employees testified that Levites
had raised the possibility that the employees might
lose the profit-sharing plan if the Union's campaign
succeeded .21 Five of the employee witnesses re-
called Levites saying that if the union came in the
employees might have to pay for all or part of their
insurance.22
General Counsel's witnesses corroborated
Rabin's account of his June 30 talk.
Respondent called three employees23 who, in
response to leading questions, denied that either
Levites or Rabin had said that if the Union came in
the employees might lose the profit-sharing plan, be
required to pay the cost of their insurance, might
suffer a reduction in wages , that the plant would
close and move away, or that there would be any
reduction in benefits. On cross-examination each of
the employees denied that anythin had been said
at these meetings about insurance.2
Foreman Ronald Provost was asked the same
leading questions and gave the same answers. At
one point Respondent's counsel asked Provost:
Q. Did you at either meeting hear either Mr.
Rabin or Mr. Levites state or imply if the
Union came in, the profit sharing plan would
go out?
A. (By Provost) Not if a Union came in, no.
I didn't hear that.
The point was pressed on cross -examination.
Q. (By General Counsel) I believe Mr. Fein-
berg _asked whether or not the statement was
made that people would lose the profit sharing
plan if the Union got in. I believe your answer
premises at any time to remove its tools
m Trombley testified that she didn't pay too much attention to what was
said
=' Employees Lucy Kramer, Leona Pnmard, Margaret Hobbs, Rita
Roberts, and Beverly Cleland The concensus of their testimony was that
Levites told them he would not say they would lose the profit-sharing plan,
but they could
22 Employees Lucy Kramer, Judy Lamore, Leona Primard , Margaret
Hobbs, and Rita Roberts
t' Katherine James , Dora Seymour, and Dora Bushey
24 Dora Seymour limited her answer to a denial that there had been men-
tion of hospitalization
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was they didn 't make the statement if the
Union got in:
A. (By Provost) Yes.
Q. Well, I mean was the statement made it
is possible they might lose their profit sharing?
A. Yes, there was that possibility.
The denials by Respondent's employee witnesses
that Levites or Rabin had uttered the allegedly
violative threats at the June meetings were elicited
entirely by leading questions. Counsel were alerted
on the record that little weight would be given such
testimony. The suspect nature of testimony given in
response to leading questions is demonstrated by
the fact that these witnesses, in response to leading
questions , denied there had been mention that the
employees might have to pay for their own in-
surance if the Union came in. Then, the same wit-
nesses denied that there had been any mention at
all of insurance at the meetings. Accordingly, I give
no weight to this testimony in seeking to determine
whether, in fact, Levites "threatened ... employees
with discharge or other reprisals 1125 at the June
meetings.
Levites was an attractive witness but his credibili-
ty suffers from lack of corroboration. The em-
ployee witnesses called by General Counsel were
equally impressive and their testimony which car-
ried the ring of truth, was mutually corroborative.26
In addition, Provost, a company supervisor and
Respondent's own witness, further buttressed their
testimony that the possibility of loss of the profit-
sharing plan was mentioned at the June meetings.
Accordingly, I find that in his talks to the em-
ployees at the June meetings Levites, in violation of
Section 8(a)(1), threatened the employees with
possible loss of the profit-sharing plan and cost-free
insurance in the event the plant was unionized.
While Levites' statements to the employees of
possible action by IBM to remove its molds stand
unrebutted and the Tool Certificate established
IBM's right to do so, this possibility was tied to an
"assumption that the union, which had not yet even
presented any demands, would have to strike to be
heard." N.L.R.B. v. Gissel Packing Co., 395 U.S.
575. As to the threats of possible loss of the profit-
sharing and company-paid insurance, I find that
these statements violated Section 8(a)(1) as they
fall within the Court's teaching in Gissel that:
If there is any implication that an employer
may or may not take action solely on his own
initiative for reasons unrelated to economic
necessities and known only to him, the state-
ment is no longer a reasonable prediction
based on available facts but a threat of retalia-
Complaint paragraph 6(c)
-" Moreover, all but Hobbs are presently employed by Hydro and were
knowingly testifying against the interest of their Employer Federal En-
velope Company, Division of Nationwide Papers Incorporated, 147 NLRB
tion based on misrepresentation and coercion,
and as such without the protection of the First
Amendment. 395 U.S. 575, 618.
G. The Employee Suggestion Program
On September 20 the Company posted at various
points in the plant a notice entitled "Suggestion
Boxes and Review Committee." In full the notice
read:
SUGGESTION BOXES AND REVIEW
COMMITTEE
IN ORDER TO CREATE GOODWILL A
NUMBER OF SUGGESTION BOXES WILL
BE PLACED THROUGHOUT THE PLANT
AREAS.
COMMITTEE MEMBERS ARE REQUIRED
FROM THE FOLLOWING AREAS:
1) One Member from Coil Winding
2) One Member from West Section
3) Two Members from Main Section
COMMITTEE VOLUNTEERS ARE ASKED
TO POST THEIR NAMES BELOW:
IF MORE THAN 4 NAMES ARE LISTED,
ALL EMPLOYEES WILL VOTE ON THEIR
SELECTION OF 4 NAMES FROM THE
ABOVE LISTING.
NATURALLY THIS COMMITTEE WILL
OPERATE FOR A TRIAL PERIOD OF 6
MONTHS AND CAN BE RE -ELECTED OR
CHANGED BY POPULAR VOTE AT THAT
TIME.
THE COMMITTEE WILL THEN MEET TO
DETERMINE FURTHER PROCEDURES.
/s/ M.A. Rabin
A number of employees affixed their names in
the area of the notice provided for volunteers for
the Review Committee.
At two times in the past Respondent had at-
tempted employee suggestion plans . The first effort,
some 15 years before , had involved regular
meetings with the employees in which the sug-
gestions were reviewed. The second effort, 8 to "10
years before the events herein , had been aban-
doned because too many of the unsigned sug-
gestions lacked merit.27
That the instant program was designed by
Respondent as more than a system of collecting
suggestions was explained by Rabin , who testified,
1030, 1036
=r This account of Hydro's past experience with employee suggestion
plans is based mainly on Rabin's testimony Lucy Kramer's testimony cor-
roborates Rabin in part
HYDRO MOLDING COMPANY
"This time we thought we would establish a com-
mittee that not only management would be viewing
the suggestions but really basically the employees
themselves would be able to screen the suggestions
first and pick out what had merit to it."
"So far as appears conditions of employment
were the only matters of common interest between
management and the employees "28 and their resolu-
tion would achieve the desired end of creating
"goodwill ." Thus, inevitably the employee sug-
gestions solicited by this program will relate to their
wages, hours, and working conditions.
The greater vice lies in the creation of a
representative employee committee to screen out
and pass on to management those suggestions
which had merit . The language of the notice29
makes clear that this company-created conduit for
channelling employee suggestions to their Em-
ployer was to be a mandatory procedure.
In the words of Respondent 's counselS° this sug-
gestion plan and review committee constituted a
"type of employee-management relations ." I find
that the review committee was conceived of as a
" labor organization " within the meaning of the Act.
N.L.R.B. v. Cabot Carbon Co., 360 U.S. 203.31
Accordingly, I find " that Respondent violated
Section 8 ( a)(1) by imposing a committee of its own
creation upon its employees as their collective-bar-
gaining representative for any collective bargaining
which they might wish to engage in, and thereby in-
terfering with their rights to self-organization and to
bargain through representatives of their own choos-
ing." (Footnote omitted.) Walton Manufacturing
Company, 126 NLRB 697, 701, enfd. 289 F.2d 177
(C.A. 5).
H. The October Wage Increase , The Denial of an
Increase to Kramer , and Kramer 's Work Assignment
on October2l
Although not alleged to be violations in the com-
plaint or the two amendments thereto, General
Counsel now seeks a finding that Respondent vio-
lated Section 8(a)(1) of the Act by its grant of a
general wage increase to the employees early in Oc-
tober, the second such increase in 1968 and the
first time in its history that Hydro had ever given its
employees two wage increases in 1 year ; the denial
of an increase in October to Lucy Kramer who had
served as the Union 's observer at the duly election;
and by the assignment of Kramer , on October. 21,
to a work station adjacent to material to which the
'tl Walton Manufacturing Company, 126 NLRB 697, 700, enfd 289 F 2d
177 (CA 5)
29" suggestion boxes will be placed " "Committee members are
required from I'll all employees will vote
I' ll this committee
will operate " "The committee will then meet to determine further
procedures " ( Emphasis supplied
5Tr p 183
Section 2 ( 5) of the Act, 61 Stat 138, 29 U S C Sec 152 (5) provides
627
Company knew Kramer was allergic the day after
she was union observer at the second election.
The October wage increase and the Company's
failure to include Kramer in its largesse both took
place before the Regional Director issued the
second amendment to the complaint on October
10. Further , no effort was made to amend the com-
plaint at the hearing to allege these actions as viola-
tions nor did General Counsel state on the record
that he would seek relief for these matters. As to
Kramer's October 21 work assignment , Respon-
dent's counsel objected to General Counsel going
into the matter and withdrew this objection only
after General Counsel stated on the record , " I feel
that at least , although no finding can be made on it,
to show the animosity of the Company, I would like
to put this in."
On this record *I cannot find that these "material
issue[s] [have] been fairly tried by the parties
[and] should be decided ... regardless of whether
[they have ] been specifically pleaded ." American
Boiler Manufacturers Association v. N.L.R.B., 366
F.2d 815 , 821 (C.A. 8); International Union of
Operating Engineers , Local No. 139 (Camosy Con-
struction Co., Inc.), 172 NLRB 173.
1. Respondent's Application Form For Employment
For at least 20 years32 and continuing to the time
of the hearing herein the Company has required ap-
plicants for employment to complete a form con-
taining the following questions:
12.Are you a Union member? Are you willing to
join?
Rabin testified that over the years a substantial
number of applicants had stated that they were
union members or willing to join but that no appli-
cant was ever rejected because of such affirmative
answers.
The Board has held33 that the "use of an employ-
ment application which required prospective em-
ployees to answer questions as to whether they
were members of a union violated Section 8(a)(1)
of the Act. Springfield Garment Manufacturing
Company, 153 NLRB 1126 ." This is true even in
the absence of evidence that any applicant was
refused employment because of union affiliation.
Reno's Horseshoe Club, Inc., 162 NLRB 268, 269,
274. Accordingly I find that the inclusion of these
questions on Respondent 's employment application
farm violated Section 8 (a)(1) of the Act.
"The term 'labor organization"me..._ ny organization of any kind, or any
agency or employee representation commm.,. ]an, in which employees
participate and which exists for the purpose , in wiono
n rt, of dealing
wa esrievances labor dis utesnh l g, p ,oyers concerni g gwit emp ,-,,f pay,
nditions of work "l tfh oymen , or coours o emp
'= Testimony of General Manager Rabin
3' Sterling Aluminum Company, 163 NLRB 302
427-258 O-LT - 74 - 41
628
unfair labor practices within the meaning of Section
8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
6. The Respondent has not committed other un-
fair labor practices as alleged in the complaint.
RECOMMENDED ORDER
The Respondent, Hydro-Molding Company, Inc.,
its officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees about their union
activity and sympathy or the union activity and
sympathy of other employees; threatening em-
ployees with loss of the profit-sharing plan, loss of
paid insurance, loss of employment opportunity, or
with plant closing in the event the plant is
unionized; creating the impression of surveillance
of union activity; imposing upon employees, as a
condition of employment, a requirement that col-
lective bargaining must proceed on the basis of a
labor organization sponsored, formed, or assisted
by the Respondent; requiring prospective em-
ployees to answer questions on the employment ap-
plication as to their union membership and
willingness to join a union ; or, in any other manner
interfering with , restraining , or coercing employees
in the exercise of their rights guaranteed in Section
7 of the Act.
(b) Discouraging membership in the Union, or
any other labor organization, by discriminating
against employees in regard to the terms and condi-
tions of their employment.
2. Take the following affirmative action which it
is found will effectuate the policies of the Act:
(a) Offer to Stephen Micanko immediate and
full reinstatement to his former position on the
night shift or to a substantially equivalent position,
without prejudice to his seniority and other rights
and privileges, and make him whole for any loss of
earnings he may have suffered by reason of
Respondent 's discrimination against him as set
forth in the section of this Decision entitled- "The
Remedy."
(b) Notify Stephen Micanko, if presently serving
in the Armed Forces of the United States of his
right to full reinstatement upon application in ac-
cordance with the Selective Service Act and the
t ed to them in Section 7 of the Act and _ universal Military Training and Service Act, asaran egu
thereby engaged in and is engaging in unfair- iabor
practices within the meaning of Sectio--6(a)(1) of
the Act.
4. By engaging in.to c'n-duct described in sec-
tion III, F_-n eof, Respondent discriminated
a aiT-.^cephen Micanko in regard to the terms and
unditions of his employment, in order to
discourage activities protected by Section 7 of the
Act, and thereby has engaged in and is engaging in
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in sec-
tion III , above, occurring in connection with the
Respondent 's operations described in section I,
above, have a close, intimate , and substantial rela-
tionship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes
burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices , I shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act.
Having found that the Respondent unlawfully
first transferred and then discharged Stephen
Micanko , I shall recommend that Respondent be
ordered to reinstate him to his former position on
the night shift or a substantially equivalent position
of employment without prejudice to his seniority
and other rights and privileges and to make him
whole for any loss of pay he may have suffered as a
result of Respondent's unlawful conduct, including
loss suffered by reason of the reduction in his hours
of employment following his transfer to the day
shift . Backpay shall be computed in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289,
with interest added thereto in the manner set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
Upon the foregoing findings of fact and upon the
entire record in this case, I make the following:
1. Hydro-Molding Company, Inc.,
ployer engaged in commerce within the
Section 2 (6) and (7) of the Act.
CONCLUSIONS OF LAW
is an em-
meaning of
2. Aluminum Workers International Union,
AFL-CIO , is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By engaging in certain described conduct
referred to hereinabove in section III, C, F, G, and
I, hereof, Respondent interfered with, restrained,
and coerced its employees in the exercise of rights
amended, after discharge from the Armed Forces.
(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 necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(d) Post at its Plattsburgh, New York, plant co-
HYDRO MOLDING COMPANY
pies of the attached notice marked "Appendix."34
Copies of said notice, on forms provided by the Re-
gional Director for Region 3, after being duly
signed by the Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 3, in
writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.35
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges unfair labor practices
not found herein.
" In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings, conclusions, and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
is In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which both sides had the op-
portunity to present their evidence , the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice and
abide by its terms.
We violated the law when we transferred Stephen
Micanko to the day' shift on. May 19, 1969, and
when we fired him on June 2, 1969, because of his
activities for the Aluminum Workers International
Union , AFL-CIO.
WE WILL NOT again fire anyone or change
their working conditions for such activity.
WE WILL NOT threaten employees that the
selection of a union as their bargaining
representative will result in loss of the profit-
629
sharing plan, paid insurance , or loss of any
other benefit.
WE WILL NOT interrogate employees con-
cerning their union membership or activities or
the union membership or activities of other
employees in a manner violative of Section
8(a)(1) of the Act.
WE WILL NOT require applicants for employ-
ment to answer questions on the employment
applications as to their union membership.
WE WILL NOT threaten employees that the
plant will be shut down or moved away, or that
work being done in the plant will be lost to the
employees , if a union comes into the plant.
WE WILL NOT create the impression of sur-
veillance of the union activities of employees.
WE WILL NOT impose upon our employees,
as a condition of employment , a requirement
that collective bargaining must be conducted
through a labor organization to be sponsored,
formed , or assisted by the Company.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of
the Act.
WE WILL offer Stephen Micanko his job
back with backpay.
WE WILL notify Stephen Micanko, if he is
presently serving in the Armed Forces of the
United States of his right to full reinstatement
upon application as provided by law, after
discharge from the Armed Forces.
All our employees are free to become or remain,
or refrain from becoming or remaining , members of
the Aluminum Workers International Union,
AFL-CIO, or any other labor organization.
Dated By
HYDRO-MOLDING
COMPANY, INC.
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any-questions concerning this notice or com-
pliance with' its provisions may be directed to the
Board's Office, Drislane Building, Seventh Floor,
60 Chapel Street, Albany, New York 12207,
Telephone 518-472-2215.