Jakel Motors Inc.

National Labor Relations Board - Board Decisions

Jul 20, 1971

192 N.L.R.B. 147 (N.L.R.B. 1971)

JAKEL MOTORS INC. 147
Jakel Motors Incorporated and Jakel Manufacturing
Company andLocal 483, International Brotherhood
of Boilermakers; Iron Ship Builders , Blacksmiths,
Forgers
'
. and Helpers, AFL-CIO. - Cases
14-CA-5685 and 14-RC-6423
July 20, 1971
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER` AND MEMBERS BROWN
AND JENKINS
On' March 31 , 1971, Trial Examiner Thomas F.
Maher "issued ' his Decision 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
attached- Trial Examiner 's Decision. The Trial Exam-
iner further : found - that ' the Respondent had not
engaged in certain other unfair labor practices alleged
in the complaint, and recommended that such
allegations be, dismissed . He further recommended
that the representation election held on July 2, 1970,
in Case 14=RCL6423 , be set aside and a new election
held: Thereafter, the`Geneial Counsel filed exceptions
and a supporting brief, and the Respondent filed
cross-exceptions and a supporting brief and a brief in
answer to, the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act ,, as amended, the
National Labor Relations Board has delegated its
powers:--in connection - with these cases to' a three=
member panel.
The Board- has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed . The Board has considered the Trial
Examiner 's Decision, the exceptions and briefs, and
the entire record ,in these cases , and hereby adopts the
findings , conclusions, and recommendations of the
Trial Examiner as modified below.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner as modified below and
hereby orders that the Respondent, Jakel Motors
Incorporated and Jakel Manufacturing Company,
Highland; Illinois, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner's recommended Order, as modified below.
1. Delete paragraph 1(c) from the Trial Examin-
er's recommended Order and substitute the following:
"Granting benefits calculated to persuade employ-
ees not to select the Union, or any other labor
organization, as their collective-bargaining represent-
ative."
2. Substitute the attached notice for the Trial
Examiner's notice.
IT IS FURTHER ORDERED that the election conducted
on July 2,1970, in Case 14-RC-6423 be, and it hereby
is, set aside and that Case 14-RC-6423 be, and it
hereby is, remanded to the Regional Director for
Region 14 for the purpose of conducting a new
election at such time as he deems that circumstances
permit the free choice of a bargaining representative.
[DIRECTION OF SECOND ELECTION 2 omit-
ted from publication]
1 In agreeing with the Trial Examiner that the Respondent's
announcement and the granting of a new 'paid holiday prior to the election
violated Section 8(axl) of the Act and is a basis for overturning the
election held on July 2, 1970, we rely on the fact that such conduct, in the
circumstances herein present, was calculated to, and did, interfere with the
freedom of choice of the employees in the election.
2 In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them. Excelsior
Underwear Inc., 156 NLRB 1236; N.LRB. v. Wyman-Gordon Co., 394 U.S.
759. Accordingly, it is hereby directed that an election eligibility list,
containing the names and addresses of all the eligible voters, must be filed
by the Employer with the Regional Director for Region 14, within 7 days
after the date of issuance of the Notice of Second Election by the Regional
Director. The Regional Director shall make the list available to all parties
to the election . No extension of time to file this list shallbe granted by the
Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate you about
your own or-your fellow employees' union mem-
bership or preference. '
WE WILL NOT threaten that we will close our
plant in the event that you should select the Union
to represent you.
WE WILL NOT grant benefits calculated, to
persuade our employees not to select the below-
named Union, or any other organization, as their
collective-bargaining representative.
WE WILL NOT in any like or related manner
interfere' with our employees or restrain or coerce
them in the exercise of. rights guaranteed them by
the National Labor Relations Act:'
All of you, our employees, are free to remain or
become, or refrain from remaining or becoming,
192 NLRB No. 31
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
members of, or to withdraw from , Local 483,
International Brotherhood of Boilermakers , Iron Ship
Builders, -Blacksmiths; Forgers and Helpers,
AFL-CIO, or any other labor organization. -
JAICEL MOTORS
INCORPORATED AND
JAKEL MANUFACTURING
Dated By
COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone. -
This notice must remain posted for 60. consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 210 North 12th, Boulevard, Room 448,- St.
Louis, Missouri 63101, Telephone 314-622- 4174.
TRIAL EXAMINER'S DECISION
STATEMENT of THE CASE
THOMAS F. MAHER, Trial Examiner: Upon a charge filed
on July 8, 1970, by Local 483, International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and
Helpers, AFL-CIO, herein referred to as the Union, against
Jakel Motors Incorporated and Jakel Manufacturing
Company, Respondents herein, the Regional Director for
Region 14 of the National Labor Relations Board, herein
called the Board, issued a complaint on behalf of the
General Counsel of the Board on August 31, 1970, alleging
violations of Section 8(a)(1) of the National Labor
Relations Act, as amended (U.S.C., Sec. 151, et seq.), herein
called the Act. Respondent duly filed its answer to this
complaint admitting certain allegations thereof, but
denying the commission of any unfair labor practices.
Meanwhile, on September 29, 1970, the Regional
Director issued a report on objections and, challenged
ballots in Case 14-RC-6423 wherein, an election had been
held'among Respondent's employees on July 1, pursuant to
a stipulation for certification upon consent election
approved June 15, 1970. The results of the election
disclosed that the Union was rejected by the employees by
a vote of 271o 21, with 15 ballots challenged. In his report
the Regional Director, having ruled on the challenges,
determined that his rulings could not affect the result of the
r Objections 1 and 5(a) of the Regional Director's report.
2 The complaint was further amended at the trial before me to
incorporate further allegations of Sec. 8(a)(1), to which Respondent
interposed its oral answer denying the conduct alleged.
3' With its brief Respondent filed a motion to correct the record in two
respects , one being the misplacing of quotation marks to include a witness'
election and directed-, that the challenged ballots not be
opened. Upon the consideration of.the objections filed by
the Union the Regional _ Director, after ,investigation,
concluded that with respect to alleged interrogation of
employees and the granting of an additional paid holiday
during pendency of the representation petition' there had
been raised substantial and material issues of fact critical to
the issue of whether the- election should be set aside. He
accordingly issued an order on the same date consolidating
for trial and decision Cases 14-RC-6423 and l4-CA-5'685.
Thereafter, on October ' 19, 1970, upon further investiga-
tion, the Regional Director amended the complaint herein
to allege a violation of Section 8(a)(3) of theAct, to which
Respondent duly filed its answer.2
Pursuant to notice a trial was held before me in St . Louis,
Missouri , where the parties were present, represented by
counsel, and afforded full opportunity to be heard, present
oral argument, and file briefs. ` Briefs were filed by
Respondent3 and the General Counsel'on February 16,
1971. 1 `
Upon consideration of the entire record, which includes a
transcript and exhibits in Case 14-CA--5685 and the briefs
of the parties, and specifically upon my observation of each
witness appearing before me,4 I make the following:_
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF RESPONDENT
Jakel Motors Incorporated and Jakel Manufacturing
Company are Illinois corporations, jointly maintaining
their only office and place of business in Highland, Illinois
where they are ' engaged in the manufacture, sale, and
distribution of'subfractional electric motors , metal stamp-
ings, dies, and related products . During the year -ending
December 31, 1969, each Respondent, in the course and
conduct of its businessoperations, manufactured , sold, and
distributed at its Highland , Illinois; plant products valued
in excess of $50,000 of which products valued in excess=of
$50,000 were shipped from said plant directly. to points
located outside of the State of Illinois . The Respondents are
and at all relevant times have been affiliated businesses
with common offices , ownership , and directors and having
a common labor policy for their employees.
Upon the foregoing admitted facts I conclude and find
that Jakel Motors Incorporated and Jakel Manufacturing
Company , referred to hereinafter, collectively, as Respon-
dent, are joint employers engaged in commerce within the
meaning of Section 2(2),(6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local 483, International Brotherhood of Boilermakers,
Iron Ship Builders, Blacksmiths, Forgers , and Helpers,
AFL-CIO, is admitted to be and I accordingly conclude
and-find to be a labor organization within ,the-meaning of
Section 2(5) of the Act.
explanation of a quoted remark in addition to the quoted remark itself, the
other being the erroneous substitution of Respondent's name , Jakel, for the
actual name of its accountant , Troeger. In,the absence of opposition the
motion to correct is granted and the original copy of the transcript has
been corrected accordingly.
4 Bishop and Malco, Inc., 159 NLRB 1159, 1161.
JAKEL MOTORS INC. 149
M. THE ISSUES
1. Whether the discharge of a union member who was
responsible for the spoilage of a substantial amount of work
was discriminatory or for cause.
2. Interrogation of and threats to employees as unlawful
interference, restraint, and coercion and the basis for
setting aside an election.
3. The granting of a paid holiday as unlawful interfer-
ence, restraint, and coercion and as the basis for setting
aside an election.
IV. THE UNFAIR LABOR PRACTICES
A. The Organization of the Employees
Sometime in January 1970 interest in the Union
developed among Respondent 's employees and during the
next 2 or 3 months meetings were held at which an average
of seven or eight employees were in attendance. Included
among the employees attending and actively supporting the
organizing campaign were Mary Busch, Grace Meyer,
Alice Landolt, Judy Meyer, Evelyn Storbeck, and Elma
Hamil.5 In this respect employee Grace Meyer credibly
identified Mary Busch as_ a member of an organizing
committee "consisting of seven or eight employees ," and as
having spoken in behalf of the Union around the plant
many times, with the 'same comparative frequency as the
other members of the group.
On April 13, 1976, the Union filed with the Regional
Director a petition for election as bargaining representative
of employees of Respondent in the following unit conceded
to be appropriate for bargaining purposes:
All production and maintenance employees , excluding
office clerical employees, professional employees,
guards and supervisors, as defined in the Act.
As, previously noted, a consent election was held on July 2,
1970, pursuant to a stipulation for certification approved by
the Regional Director on June 15. The Union lost by a vote
of 27 to 21. The resolution of additional challenged ballots
did not develop valid ballots sufficient in number to affect
the outcome of the election. However, among the timely
objections to conduct affecting the outcome of the election
were two which the Regional' Director deemed to raise
substantial and material issues of - fact critical to a
determination of whether the election should be set aside.
These objections are the allegations of employee interroga-
tion and the granting of a paid holiday established for
coercive purposes. They will be considered hereafter and
will determine my ultimate decision as to whether the
election be set asides
B. The Supervisory Status of Robert Martin
Robert Martin, a setup man assigned to the care of
machinery in one section of the plant, figures prominently
in two significant incidents in this case -the discharge of
one employee and the interrogation of another. Because his
employment status relates directly to these incidents it
would be appropriate to resolve it now.
In the representation proceeding Respondent contended
that Martin was not a supervisor. In support of its
contention it proffered the testimony of President Otto
Jakel who described Martin as a "working leadman"
assigned to the final assembly area under the direction of
Production Supervisor Holshauser. He stated that Martin's
working hours were the same as other employees, that he
was paid on an hourly basis, and that his pay rate was
higher than the others but not being on an incentive basis
his annual salary would be less . He'denied that Martin had
any supervisory authority. Thus he could not grant time off,
hire or discharge employees, nor could he direct the work of
others except on orders from Holshauser.
At the trial before me Martin's duties were considered in
further detail. Thus employee Mary Busch described
Martin's assignment of employees from one job to another
when he was in the process of fixing that employee's
machine, as it became inoperative for short periods of time.
Supervisor Holshauser confirmed this, stating, however,
that Martin made such assignments either at his direction
or with his approval after it had been accomplished.
Martin's principal job, it is agreed, is that of setup man,
which, as Jakel put it, places him practically in the
maintenance department. In the performance of his duties
he would adjust the machines in the final assembly area,
correct malfunctions, and generally oversee mechanical
operations. When not doing this he was available to bring
parts and supplies to operators at their machines.
Employee Grace Meyer confirmed the foregoing account
of Martin as supplied by Mrs. Busch, and she also recalled
an incident when Martin permitted her to go home when
she came to -him and told him that she was ill. Both
employees also noted- that on occasion when Holshauser
was not in the plant Martin was in charge . No one had so
informed them, according to Mrs. Busch, but the employees
"just presumed that he was in charge of it that day." On the
contrary, President Jakel had testified at the representation
proceeding that as a matter of policy when Holshauser was
absent he (Jakel) took his place, as he did when the
supervisor of Respondent's other shop was absent.
Two documents submitted in evidence would, on their
face, strongly support General Counsel's claim that Martin
was a supervisor. On these vacation request slips which
Martin approved, he signed his name in the blank space
designated "supervisor." Supervisor Holshauser credibly
described the circumstances under which these slips were
signed . Thus, on an occasion in early spring 1970, shortly
after Martin came with the Company, Holshauser had
occasion to be instructing Martin in the procedures being
followed in the plant, including the operation, of the
vacation records which Holshauserniaintained. In describ-
ing the procedure for honoring vacation requests Holshau-
ser showed Martin two requests that had been checked out
with the payroll department and were ready for approval.
Whereupon Martin apparently, and without Holshauser's
knowledge, signed the requests himself and passed them on
5 The credited testimony of Employee Mary Busch amended, provides for trial, ruling, and decision by a Trial Examiner and
6 The Regional Director's order consolidating the two cases herein transfer of the case to the Board.
pursuant to Sec . 102.33 of the Board's Rules and Regulations , Series 8, as
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the employees concerned. This, Hoishauser credibly
stated, was not one of Martin's assigned duties and was not
repeated thereafter. On the contrary, Hoishauser restated
Respondent's: position that Martin had no authority to hire,
fire, or recommend either, nor could he-grant time off or set
vacation dates. And in the critical incident herein, the
discharge of Mrs. Busch, it was Holshauser who,decided to
discharge her, and told Martin he was doing so. According-
ly, as we.' shall consider in another context elsewhere, it is
not critical to the issue, of Martin's employment status `that
he intruded himself into Mrs. Busch's termination by
announcing to her a :decision already made by Production
Hoishauser.Superv or.
Upon, consideration of- all the evidence relating to'Robert
Martin's duties, and independent of the Regional Director's
determination in his report on objections that Martin was a
supervisor,? I am persuaded that at best he was a leadman,
or setup man, whose directional duties were limited only to
the extent required in the performance of mechanical
assignments.8 These activities are the ones to which the
employees testified when called by General Counsel. Thus
he directed them from machine to machine, shut down their
machines, as necessary, for their repair, and corrected their
operations .9 On ;the positive side the testimony of President
7akel.`and Supervisor Hoishauser stated in rebuttal not only
that Martin did not possess the statutory attributes of
supervisory authority but that such direction as he did give
,was in the furtherance of his -primary job of keeping, the
machines operating. -Nor am I disposed to view his
approval of two vacation `requests as an indicia of
authority. On the contrary Supervisor Holshauser's'credit-
ed testimony convinces me that this was but an incident of
meddling of_ less import, than his later intrusion into the
-Busch affair. Upon all of the foregoing, therefore, I
conclude and find that Robert Martin was not a supervisor
as defined in the Act.
C. The Alleged Discrimination against Mrs. Mary,
Busch
1. Sequence of, events
Mrs. Mary Busch was first employed by Respondent in
June,1961. Her employment extended to March 1962, from
January to May 1967, and -from August 1967 until' her
termination -on June 26, 1970. During the year and a half
prior to June 9, 1970, she was employed as a winder,
engaged in the winding of coils which constitute an integral
part of a small electric -motor manufactured by Respon-
dent.
'On June 9 Mrs. Busch was assigned to new duties, the
operation of a 'Dennison Airpress, a machine designed, to
take two preformed flat, C-shaped segments of laminated
metal and, bythe application of pressure on each, join the
two, locking them together. The resulting product of this
operation was a flat, laminated metal frame, several inches
square, into which had been inserted a prewound' coil. In
addition, the frame contained a cylindrical center opening
4 Cf. N L.R.B. v. Sagamore Shirt Company, 365 F.2d 898 (C.A.D.C.).
8 Compare : Freedman Loader Corporation, 127 NLRB 514, 516. '
9 1 am not persuaded that recommending to an ill worker that she go
home when she so requested constitutes more than an exercise of basic
of precise measurements calculated to receive a rotor at the
next step of assembly, thereby completing the motor. The
frame in "pushed,, together---' "form, - -was -referred to
throughout the' record as a "stator." The `-operation by
which the two laminated segments of the frame were joined
by the press,`as described above, was called the "bushed
together."
Mrs. Busch beganwork on the so-called 326 motor on
June 24, and from the very beginning of the job she claims
to have had difficulty. As she described it, the laminated
segments became lodged in the machine and could only be
removed by prying. The finished job was; warped from
excessive pressure. After several complaints by Mrs. Busch
the machine was shut down at the direction of Employee
Don Ostringer, the tool and die man, and Mrs. Busch was
assigned to another machine. On the following day, June
25, Mrs. Busch continued to. operate the newly assigned
machine with apparent success after some initial difficulty
resulting from stator frames becoming lodged in the press,
as had occurred on the other machine.
On Friday, June 26, Mrs. Busch returned to'thesame job
at the same machine she had used at the close of the
previous day. She worked the machine' at day.' At
approximately 3:45 p.m. Production Supervisor Holshauser
was alerted by an inspector, Dotson, to a condition of the
"pushed -together" 326 stator then being produced, where-
by it would-not fit into a standard gauge . Further inspection
disclosed that this problem was caused by th ;warped ;or
bent condition of, the stator, theresult.of excessive pressure
in the "pushed-together" operation. Holshauser checked
further and found that in the boxes ot-stators "pushed-
together" by Mrs. Busch during that day all of the stators
were warped.10 At this point 'Robert Martin `injected
himself into the affair,'having already been presented with
the machine problem by his superior, Holshauser." Martin,
who apparently had" not checked the pressure' off Mrs.
Bush's machine to, that point, went to the machine, checked
,the pressure, and, according to Mrs. Busch, found it
excessive. He then turned to the stators'shehad completed
and told her that she had'bent,3,000 of them and that she
was terminated. Ina distraught condition Mrs. Busch then
went to Holshauser and told him that Martin had
terminated her.- Her account, of this incident substantially
agrees with Holshauser's, thus: '
He, told me that Bob didn't have the, authority46 -fire
me, but he did, and I asked him for a reference and -he
told me no because of the work} I have done. I told himfI
also did good work he had said. He said yes,_ but, this
time I didn't do good work and this vwas it.
Earlier Mrs. Busch testified to the incident with lYJartin and
to the extent of the damage, thus:
Q. When he came over were you there when he
tested the pressure?
A. I didn't see the pressure-
Q.
Late afternoon now?`
A. `Yes. '
Q. What happened?
common sense.
10 At the trial one of these stators was displayed and identified by all
parties as typical of the damage found . Upon my inspection of the part I
can attest to the obvious warping.
JAKEL MOTORS INC. 151
A. He said the pressure was on 1500 pounds when
he tested it.
Q. Did he say, what it should have been?
A. Six hundred.
Q. Then what happened?
A. Just before.quitting time, he had called me over
and told me that he felt that he had to terminate me
because I had .bent those motors. If I had ruined 200 or
300 he could have excused but, with 3,000 he couldn't do
that.
Q. Had you done approximately 3,000 that day, do
you think?
A. Yes.
TRIAL ExAMINER : Bent them?
THE wITNESs: Bent them like-this (indicating).
While Mrs. Busch, by the testimony , quoted above,
admits: to having, bent 3,000 stators it is to be noted that
previously she testified that "every product I turned out on
my machine I turned over and they all looked perfect."
Continuing, she then stated:
Yes, every twelve or thirteen you have to hold them
up to,see if they were pressed together right.
Q. Did-you do that?
A. Yes.
Q. Did you observe anything particular about the
product?
A. No, Just these,wires were loose.
TRIA XAn R: Which wires?
THE, w,rrNESs : , These wires were loose on some of
them, so I put them back in the box.
TRIAL EXAIINER:_That is,on the winding?
THE wnNEss: Yes, that's the only thing I observed,
and I turned them over with my hand and looked at
every one of them.,
Thus it is apparent that Mrs. Busch has contradicted herself
in detailing not only the degree of personal inspection she
made of her work but of the amount of the damage. I
accordingly prefer-to rely on, the account of damage given
by Production Supervisor Holshauser which conforms to
Mrs. 'Bunch's one estimate that the day's production of
apparently 3,000 she "bent them like this" (supra).
When Holshauser found that all the stators in the boxes
completed by Mrs.' Busch were, bent he shut down the
machine and terminated' her." He then proceeded to
estimate the extent of, the damage and devise; a possible
remedy.
On the critical June 26 Mrs. Busch produced 2,908
stators, a, figure close to her own approximation at the
hearing. Of,,.this number,,2,224 stators were found, on final
'inspection, to be faulty. The remainder, were satisfactory
and were passed' on for shipment. This final inspection-was
accomplished by the assignment of an employee for 2 days
to cull out those which might be reprocessed. Sixty-four
stators were eliminated as scrap . The remaining 2,160 units
,were set aside for further attention. Meanwhile, beginning
on'the day after Mrs. Busch's termination, President Jakel
and the tool:and-die technician, Ostringer, devised a jig or
die to straighten the bent stators. Within-a week or, 10 days
11 Respondent takes no responsibility for Martin 's apparent efforts to
deliver the termination message to Mrs. Busch . Nor did Mrs. Busch in her
testimony have any doubt that she, was being terminated by production
this accessory was fabricated and fitted to a press machine.
An operator assigned to the machine,, devoting 2 days to the
task, straightened the stators and they were considered
reuseable . While the total cost of Busch 's error was not
calculated on the record the elements of the salvage
operation were stated. Thus, in addition to the 10-day delay
that resulted from the error there were 64 stators actually
scrapped; 2 days of inspection were required to cull out the
salvageable items; and another 2 days of an operator's time
to reprocessing the bent stators . In addition to this,
President Jakel estimated that the time and materials
required to prepare a die and press machine for the
straightening operation amounted to $750.
Mrs. Busch has, not since been rehired or reinstated
since her June 26, 100, termination.
2. Conclusions
There is no doubt that Employee Busch was responsible
for 2,000 faulty and unuseiable'products on Friday, June 26,
and as a consequence Respondent was put to considerable
expense and delay to rectify the error. It is of no
consequence that something was wrong with Mrs. Busch's
machine, that it should have been corrected, or that she
may have produced similar warped stators on earlier
occasions. The fact of the matter is that she failed for a
whole day to detect by casual inspection even one out of
over 2,000 warped stators as she turned them out of her
machine.
The defect was not hidden or indistinct. At the trial I was
shown a stator identified by Mrs . Busch as typical among
those produced that day and the warp was clear and
unmistakable. There just can be no question that damage
was done and that it had not been detected before 3:45 on
the afternoon of that workday.
What has occurred- here -was a complete failure of an
employee to note an obvious error and a persistence in that
error for almost a full workday. Under such circumstances I
fail to see what connection Mrs. Busch's membership in the
Union or her activity in behalf of it has with Respondent's
right to protect itself from losses such as were created here.
It is true, of course, that had it been shown that Respondent
used this particular instance as a device to eliminate Mrs.
Busch because of her union sympathies then such a reprisal
could not be tolerated. But the evidence does not show this.
All it shows is the coincidence of known union membership
and activity on the one hand and poor workmanship on the
other, and nothing more. Faced with two such unrelated
facts I do not understand the Act to require an employer to
stand idly by and let his production become a shambles.
Respondent did what any reasonable employer might be
expected to do-terminate a demonstrably inefficient
employee who has caused him a serious loss. I do not find
in this any discrimination within the meaning of Section
8(a)(3) of the Act, nor the interference, restraint, or
coercion of any employee within, the meaning of Section
8(a)(1).
Supervisor Holshauser and not by Martin. I find it of no consequence
therefore that Martin injected himself into the incident, as described.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Interference, Restraint, and Coercion;
1. Interrogation and threats
-During the course of the Union's campaign preceding the
election the Respondent's officials engaged in a number.of
incidents which relate, to the employees' statutory,, rights
mnd the ultimate validity of the July 2, election. In early
April 1970, prior to the filing ofthe petition foran.election,
President -Otto Jakel came to. the work place of employee
grace Meyer and engaged her ina conversation which she
wcredibly describes:
I was running ,the bracket machine and he came up
behind 'me' and-asked me if the rumors were true. I,said,
"What rumors,are you talking about," and he said, "Oh,
come on, Grace." He kind of hit me_on the shoulder,
"you know what I'm talking about." " I said, "do you
mean the Union?" He said, "you know that's what I
mean." I said "yes, they are, they are very true." And he
held out his hand and he said, "Well, I'm awfully sorry
to hear that," he said, "Union is like having your hand
full of jello, it won't,stay in your hand, it falls over the
side, and everybody gets hurt."
Around the, same time Jakel,approached- employee
Lorrain Sa,uerwein at her work place and engaged her in, a
conversation, as, was his frequent -custom with the
employees. This conversation turned, to a- discussion of the
Union, as credibly described by Mrs. Sauerwein:
We just talked about things in genehl and he said. he
had heard rumors about the union coming in and if I
knew anything about it, and I said no, and he asked me
what I, thought about it, and, I said I didn't really know
because I had never had experience with a union before.
-Later in April, on the 27th, upon her return to, work after
recovering from an eye injury Mrs. Mary Busch, whose
termination I have• considered earlier (supra), was ap-
proached by Jakel and he engaged-her in a conversation
about the Union. Mrs. Busch credibly, describes ;the
conversation, thus:
We talked about everything. It wasn't unusual to talk
about anything, but this day, he asked meif I was for the
Union or for him and I told him it was my own personal
belief as to-what I was.
Q. , Was anything, else said?
A. - He asked me if they had been, to my house and ,I
answered, "No," because I really went-to them.12
Sometime in May 1970 - employee Viella Floyd had
occasion to engage in conversation with Jakel as they sat `at
a table, in the, plant, in the company of another employee,
identified, only, as "Charlotte." This conversation she
,credibly describes thus:
Well he asked,me about. the Union, what I thought
about it and-
, Q. (Interrupting) was that approximately the exact
words he used?
A: Yes, and he asked whatI knew about it and then
he asked me, before the,conversation, he asked if'I had
been threatened to sign,a card.
Q. What did you tell him about this?
A. - I said, "No ."
Finally there was the testimony of employee Rosa
Lockeby concerning an extended controversy she had had
with President Jakel beginning in February or March 1970.
It appears that Jakel and employee Lockeby ' had an
exchange of words over her, work . Almost immediately
thereafter Mrs. Lockeby was visited at her home by union
representatives seeking to 'solicit her support ''in the
campaign then in progress . Mks. Lockebyy became
'
suspi-
cious ,of these visitors, believing that they had bee'nsent by
Jakel to trick her into signing a union card . She accused
Jakel of such - plot when she came to work on the following
day and Jakel went to great pains to persuade' Mrs.
Lockeby that he was not engaged in trickery. Mrs.-Lockeby
was apparently hard to convince-and Jakel returned daily
to her Work place to assure her of his lack of connection
with the incident. In the course of these conversations in
which he was being accused of tricking Lockeby with-'uiiion
Visitors-'Jakel would , pose questions concerning the Union,
its progress among the employees, and inquiries as to who
would be urging the Union.
Because of thepeculiarfashion in which Jakel 's questions
arose I would be disposed not to ' consider this particular
interrogation because it could well be concluded that it was
Lockeby who generated the conversations and the ques-
tions 'and not Jakel. After the-election petition had been
filed in April, however, Jakel's continuing questioning of
Lockeby assumes a different complexion for the incident of
the visitors had been 2 months into the past and the election
campaign was at hand. During this `later period,`according
to Lockeby, Jakel continued to question her and -,others
about how other employees ,' felt about` the"Union,
specifically inquiring about Mary Busch, Grace Meyer,
Viella Floyd, Lorrain Sauerwein, andJoyceFeldman.
A final instance of questioning - employees was the
conversation in September 1970 between employee 'loyd
and Supervisor George Cunningham on the occasion of an
interview with Floyd preliminary to her return to work after
recovery from illness . After discussing 'herrrehire, Cunning-
ham asked employee Floyd what she thought about' the
Union.
Jakel's conversations with ' employee ' Lockeby, as de-
scribed above, extended beyond 'his questions ' concerning
the Union.' Thus, Lockeby credibly testified that on'the
occasions Jakel would ask about the Union both-before and
after the filing of the petition,'as detailed "above, lie would
invariably add the comment that he would close the , plant if
the Union came in. As a'consequence, of the fear that- this
engendered tin her, Lockeby testified, she spent a consider-
able amount of time during the election campaign 'urging
the ' girls not to vote for the Union lest the plant would be
closed down.13
2. The, granting of -a paid holiday
Memorial, Day, May 30, had not been a holiday -in
Respondent's-plant prior to 1970. Early in October 1969 a
suggestion was submitted in the, Company's suggestion box
that Memorial Day be made ,paid holiday. It=is stipulated
12 In reaching the, conclusion that, Mrs. Busch's termination was not 13 The foregoing-findings are based-on the credited testimony of the
discriminatorily motivated , but for, cause (supra), I have taken into respective employees involved in the incidents described. I do not accept,
consideration this conversation with Jakel. Jakel's -blanket dental of the conduct attributed to him.
JAKEL MOTORS INC. 1,53
that on October,10, -1969, this suggestion, and others, were
announced to the,employees_by a posted notice. Thereon
was stated: -
Suggestion: Memorial Day Holiday
ANSWER:.
The paid Holiday program is under review at the
present time and as soon as we have come to a decision
you will be.notified,.
Following the_ posting, of this. notice, sometime in Novem-
ber_ 1969, the subject of granting Memorial Day as a paid
holiday was discussed by the Respondent's accountant and
its attorney,' W. J. Taylor, Jr., who credibly testified to the
event. The consensus of this conversation was that from a
business, point of view granting the holiday would put the
Company in line with,the practice followed by plants in the
locality and that it should be done, Thereafter, in the,spring
of 1970, _"as we. neared, Memorial Day President Jakel
called Attorney Taylor and asked him whether, in view of
the union organizing campaign, then going on, they should
go ahead with the paid holiday. Attorney Taylor testified
only to the fact that. he was consulted by Jakel about this
time but he did ' not 'testify to the advice that he gave. Jakel,
however, testified that he was.told to go ahead because he
had made the decision,, earlier and that the granting of the
holiday was in the course of his business. The holiday was
announced by notice on May 26; 1970. '
3. Conclusions
Citation of authority would be superfluous to establish
that a threat to close a plant on the employees' selection of
a union interferes with them, as well as coerces and
restrains them in the exercise of their statutory right to
freely select their bargaining representative. Moreover,
when under such circumstances an employer methodically
questions his employees as to their union preferences and
its progress among the employees he is most certainly
displaying more than idle curiosity. Such questioning in the
context of an expressed determination to close the plant has
been consistently held by the Board and the courts to
constitute unlawful interference, restraint, and coercion.14 I
accordingly conclude and find that the questioning here
and Jakel's threat to close the plant violate Section 8(a)(1)
of the Act.
It would be expected that the granting of a new paid
holiday would normally be accomplished at some time
reasonably prior to the holiday as Respondent claims it did
here, and not at some considerable time before or after it.
But this is not a normal situation. This new paid holiday, a
decided benefit to the employees, was announced midway
between the request for an election on April 13 and the
holding of the election on July 2; a period of time hectically
devoted to enlisting members into the Union and, on
Respondent's part, to inquiring into the union sentiments
and membership of its employees and the threat to close the
plant if the Union won-all of which I have found to
violate Section 8(a)(1) of the Act.
In such a context as I have described it would be
completely unrealistic to conclude that the gift of an
14 N.L.R B. v. DesMoines Foods, Inc, 296 F.2d 285, 287 (C.A. 8);
Frankel Associates, Inc., 146 NLRB 1556.
15 J. W. Martell Co., 168 NLRB 435.
immediate paid day off has no influence upon the
employees' preferences to be expressed in -the coming
election. To the extent, that they were thus influenced, or
indeed that they reasonably might have been expected to be
mfluenced, by such timely beneficence they were thereby
interfered with, restrained, and coerced in the exercise of
their statutory rights, including the right to vote freely in a
Board-conducted election. I accordingly conclude and find
that by granting Memorial Day asa paid holiday, under the
peculiar circumstances present here,'Respondent further .
violated Section 8(a)(1) of the Act.15,
V. OBJECTIONS TO ELECTION
In addition to the foregoing findings and, conclusigns
upon which I shall base my recommendation for a remedy
to the unfair labor practices committed I also have before
me objection to the conduct of, the election in Case
14-RC-6423, referred to me by the Regional Director for
disposition.
A review of the pleadings and related evidence discloses
that the objections raised are substantially identical with
the allegations in the complaint of violations of Section
8(a)(1). To, the extent therefore, that, 1 have already treated
of these allegations and found certain of them to constitute
unlawful conduct, as alleged, it'would be an undue burden
on the record and reader to reiterate these findings irh a
parallel context. Suffice it to say that in the instances, of
interference, restraint, and coercion which I have already
found (supra), it is an a fortiori conclusion that such conduct
interferes with the exercise of the free choice of voters
necessary for an election.16 I shall accordingly recommend
that the election be set aside.
VI. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section 1V,
above, occurring in connection with its business operations
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
THE REMEDY
It has been found that Respondent has violated the At in
certain respects. I will accordingly recommend that' an
order issue requiring Respondent to cease and desist
therefrom and to take affirmative action which will
effectuate the policies of the Act. Nothing herein, however,
shall be deemed to require the Respondent to withdraw the
paid holiday which it granted its employees.17
I shall further recommend that the election conducted on
July 2, 1970, be set aside, inasmuch as I find the objections
on which the hearing was directed have merit, and that a
new election be held when the Regional Director deter-
mines that the time is appropriate.
16 Irving Air Chute, Inc, Marathon Division, 149 NLRB 627, affd, 35(
F.2d 176 (C.A. 2)
17 Cf. Pepsi-Cola Bottling Company of Sacramento, 147 NLRB 410.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon, the foregoing findings of fact, conclusions of law,
and the entire record in this consolidated case and pursuant
to Section 10(c) of the National . Labor Relations Act, as
amended, I hereby issue the following recommended: 18
ORDER
Jakel-, Motors Incorporated and Jakel Manufacturing
Company, its officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees concerning
their union membership and preference.,
(b) Threatening its employees that it will close its plant if
they select ,a union-to represent them.
'(c) Granting'employees any further paid holidays under
circumstances which would influence them in their
selection of a bargaining representative.
(d) In any like or - related manner interfering with,
is 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 , 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.
19-In the event that the Board's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading : "Posted
restraining, or coercing its, employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action , which it 'is
deemed will effectuate the policies of the Act:
r
(a) Post at its Highland, Illinois, plant the ' attachednotice
marked "Appendix." 19 Copies Hof said" notice, on' forms
provided by the Regional Director for Region '1'4, ' after
being duly signed by the Respondent, Iihall` be posted
immediately upon receipt, thereofin conspicuous places,
and be maintained for a period of 60 consecutive days.
Reasonable steps shall be taken to insure that -said^notices
are not altered , defaced, or covered by any other'inaterial. '
(b) Notify "the said Regional Director,- in writing, wit in
20 days from the _receipt -of, the-Trial Examiner's Decision,
what steps it has taken to comply herewith.20
IT -IS FURTHER RECOMMENDED that 'the election held on
July 2,` 1970,'m* Case 14-RC4423 be set aside and that the
Regional Director for Region -14-conduct a''new election
when thetime is appropriate.
by,Order of the National Labor RelationsBoard ," 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."
20 °Ill the event 'that this recommended Order is adopted by the Board;
after exceptions have been filed, this -provision shag be modified to read-'
"Notify the Regional . Director for Region 14, in writing, within 20-days
from the date of this Order, what steps , Respondent has taken ,to,comply
herewith."