Mautz Paint & Varnish Co.

National Labor Relations Board - Board Decisions

Mar 1, 1957

117 N.L.R.B. 496 (N.L.R.B. 1957)

496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the organization to act as a bargaining representative 2 It is clear
on this record that the Petitioner here exists at least in part for the
purpose of dealing with employers concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or conditions of work,
within the meaning of Section 2 (5) of the Act. The Employer's mo-
tion to vacate or reopen is therefore denied.
2 See Continental Baking Company, 99 NLRB 777, footnote 1; Goebel Brewery Com-
pany, 105 NLRB 698, 699. See also Awnnng Research InststUJte, 116 NLRB 505; F. C.
Russell Company, 116 NLRB 1015, footnote 5; Sperry Gyroscope Co., 88 NLRB 907.
Mautz Paint & Varnish Co. and International Chemical Workers
Union, AFL-CIO, Petitioner . Case No. 13-CA-$027. March 1,
1957
DECISION AND ORDER
On July 9, 1956, Trial Examiner Charles W. Schneider issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommendations
,of the Trial Examiner.'
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
,of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Mautz Paint & Varnish Co.,
Madison, Wisconsin, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Chemical Workers
Union, AFL-CIO, or in any other labor organization of its employees,
by discriminatorily discharging employees, or by discriminating in
any other manner in regard to their hire or tenure of employment,
or any term or condition of employment, because of their membership
in, leadership, or activity on behalf of any such organization.
(b) Interrogating its employees concerning their activities on be-
half of International Chemical Workers Union, AFL-CIO, or any
1 The Petitioner's request for oral argument is hereby denied, as the record and_ briefs
adequately present the issues and positions of the parties.
117 NLRB No. 72.
MAUTZ PAINT & VARNISH CO. 497
other labor organization, in a manner constituting interference, re-
straint, or coercion in violation of Section 8 (a) (1). ,
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of their right to self-organization, to form
labor organizations, to join or assist International Chemical Workers
Union, AFL-CIO, or any other labor organization, to bargain col-
lectively through representatives of their awn choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employ-
ment, as authorized in Section 8 (a) (3).of the Act.
2. Take the following affirmative action-designed to effectuate the
policies of the Act.
(a) Offer to Theodore Pavlue _and Louis Hoxie immediate and
full reinstatement to their former or substantially equivalent posi-
tions without prejudice-to their -seniority and other rights and priv-
ileges, and make them whole in the manner set forth in the section of
the Intermediate Report entitled "The Remedy"
(b) Upon request, make available to the- Board and its agents for
examination and reproduction all payroll records and other data
necessary to analyze and compute back pay and reinstatement rights
required by this Order.
(c) Post at its plant at Madison, Wisconsin, copies of the notice
attached hereto marked "Appendix."' Copies of said notice, to be-
furnished by the Regional Director for- the Thirteenth Region, shall,
after being duly signed by the Respondent or its representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained by it for sixty (60) consecutive days thereafter in conspicuous_
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent, to insure
that said notices are" not altered, defaced, or covered by any other,
material. "
(d) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from date of this Order, what steps the
Respondent has taken to comply herewith. ,
2 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be inserted before the words "Pursuant to i Decision and Order ," the words,
"Pursuant to a Decree of the United States Court of Appeals , Enforcing an' Order."
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate The policies of the National Labor,
Relations Act, as amended, we hereby notify our employees that :
423784-ST-vol. 117=33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in International Chemi-
cal Workers Union, AFL-CIO, or in any other labor organization
of our employees, by discharging or in any other manner dis-
criminating in regard to their hire or tenure of employment, or
any term or condition of employment.
WE WILL NOT interfere' with, restrain, or coerce our employees
in ,the exercise of the right to self-organization, to form labor
organizations, to join or assist International Chemical Workers
Union, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any and all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Sec-
tion 8 (a) (3) of the Act.
WE WILL offer Theodore Pavlue and Louis Hoxie full and im-
mediate reinstatement to their former or substantially equivalent
positions without prejudice to their seniority and other rights and
privileges, and will make them whole for any-loss of pay incurred
as a result of their discharges.
All our employees are free to become, or refrain from becoming,
members of the above-named Union or any other labor organization,
except to the extent that this right may be affected by an agreement
in conformity with Section 8 (a) (3) of the Act.
MAUTZ PAINT & VARNISH CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted' for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT ANDRECOM MENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by International Chemical Workers Union , AFL-CIO, herein
called the Union , the General Counsel of the Board issued his complaint dated
November 28, 1955, against Mautz Paint & Varnish Co., herein called the Re-
spondent . The complaint alleged , in substance , that the Respondent engaged in
unfair labor practices within the meaning of Section 8 (a) (1) and ( 3) of the National
Labor Relations Act, 61 Stat. 136, by discriminatorily discharging Theodore Pavlue
and Louis Hoxie in June 1955, and by various enumerated acts in the nature of
interference , restraint , and coercion of employees in the exercise of rights guaranteed
by the Act. Copies of the charges, complaint , and notice of hearing were duly
served upon the. Respondent . In due course the Respondent filed its answer and
amended answer denying the commission of unfair labor practices.
Upon due notice a hearing kas'held in Madison , Wisconsin , on January 17, 18,
and 19, 1956, before the duly designated Trial Examiner . All parties were repre-
sented, were afforded full opportunity to be heard , to examine and cross-examine wit-
nesses, to introduce relevant evidence , to engage in oral argument upon the record,
MAUTZ PAINT & VARNISH CO. 499
and to-filb bt fs and proposed findings. The Respondent has filed a brief , which has
been duly considered.
Upon the basis of the entire record in the case , after consideration of all the
relevant evidence , and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
l ntz Paint & Varnish Co. is a Wisconsin corporation, maintaining an office and
plant in Madison, Wisconsin. The Respondent is engaged in the manufacture and
ribution of paints, varnish, and protective coatings.
During the calendar year 1954 the Respondent purchased for use in its, business
raw materials valued at more than $1,000,000, of which in excess of 80 percent was
a 'hipped to its place of business in Madison, Wisconsin, from points outside the State
of Wisconsin. During the year 1954 the Respondent sold finished products valued
at more than $1,000,000, of which in excess of 50 percent was shipped and transported
in interstate commerce from the Respondent's plant in Madison, Wisconsin, into and
through States of the United States other than the State of Wisconsin.
It is conceded, and it is found, that the Respondent is engaged in commerce within,
the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
International Chemical Workers Union, AFL-CIO, is a labors Organization admit-
ting tt membership employees of the Respondent.
HE. THE UNFAIR LABOR PRACTICES
A. Background and summary
In late 1951 and early 1952 an unsuccessful attempt was made to form a labor
organization among the Respondent's employees. In January 1955 the idea was
revived. After some preliminary discussion among themselves, a group of interested
employees contacted representatives of the Union for assistance, and, as a consequence,
meetings were arranged and a campaign undertaken.
The campaign followed a conventional pattern. Meetings were held; employees
were solicited at their homes and at the plant, designation cards secured, handbills
distributed, and literature mailed. A substantial number of signed designation cards
was secured, and a petition was filed with the Board for an election. The Respond-
ent declining to consent to an election, a hearing upon-the Union's petition was held on
March 7, 1955. An election was in due course directed by the Board, and held on
April 26, the Union losing. The two employees most active on behalf of the Union
campaign were Theodore Pavlue and Louis Hoxie, the alleged discriminatees.
The Respondent likewise conducted a campaign, similarly conventional, in opposi-
tion to the Union. The Respondent's campaign embraced interviewing and ques-
tioning of individual employees by officials of the Respondent, speeches to -groups of
employees in the plant and at company social functions, and the distribution and
mailing of literature to employees. In this campaign the Respondent is asserted
to have made threats of reprisals and promises of benefit, contrary to the Act. This
the Respondent denies.
In June 1955, the employment of the two leading union protagonists, Pavlue and
Hoxie, was terminated There is dispute as to whether the terminations constituted-
discrimination because of their union activities. Indeed, there is dispute as to
whether they were discharged, which the General Counsel asserts, or whether instead
they resigned or terminated their employment voluntarily, as the Respondent
asserts.
The Respondent has been in business some 33 years . It has a total of around 100
employees at its Madison plant, of whom approximately 40 are in the unit in which the
Union sought recognition.
The testimony of officials of the Respondent, and the Company's literature issued
during the election, suggest a strong degree of personal or paternal identification in
the relations between the Company and its personnel. Thus, Company President
Bernard Mautz described the relationship as "a personal deal," in which there was
no need for "outsiders." Executive Vice President Henry Behnke, the Respondent's
second ranking officer, described it as a "close personal relationship," and the entire
organization as "a family group." Company literature issued during the campaign
expressed indignation at attacks made in union literature, saying "we will not
tolerate an outsider trying to break up our friendship, which is exactly what they are
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trying to, do and which is exactly why we are fighting unionization- in the Mautz,
Paint factory." It is apparent that company executives felt strongly on the subject
of unionism among the Respondent's employees, believed it to be unnecessary in the
Respondent's plant, harmful to the close associations which the Respondent had
sought to cultivate with its personnel, and inimical to the best interests of both the
employees and the Respondent. The prospect of union organization was apparently
regarded as a continuing challenge to the Respondent's forward-looking policies. As
part of its personnel program, Plant Manager William Hallman conferred with every
employee in the plant 3 or 4 times a year. At some time during these interviews
Hallman always made it a point to ask employees whether they thought that they
would be better off with a union.
Donald Ewelt's undenied and credited testimony is that when he applied for em-
ployment in mid-May 1955, Hallman asked him whether he was "in favor of a union."
When Ewelt replied that it made no difference to him, Hallman stated that the Re-
spondent would "sooner deal with men personally instead of going through a
union ." Ewelt was hired.
We turn now to a discussion of other incidents in connection with the alleged unfair
labor practices.
B. Dega's interrogation of Pavlue and Hoxie
The first general union meeting for all employees was held about January 26. Some
15 employees attended this meeting; all but 1 of them signed authorization cards.
On the following day Theodore Pavlue and Louis Hoxie, most 'active of the union
proponents, signed up some 12 or 13 more employees at the plant.
The union activity shortly came to the attention of management. During the week
following the January 26 meeting Donald Dega, assistant secretary and credit man-
ager of the Respondent, questioned employees Pavlue and Hoxie separately about
the union activity. Dega did this after consulting and securing the approval of
President Mautz. Dega's purpose was to secure information to give to Executive
Vice-President Behnke, who was then in Texas. Dega ordinarily assumes some of
Behnke's responsibilities when Behnke is out of town.
Pavlue, Hoxie, and Dega testified about these conversations. On the whole, their
testimony is largely in agreement. The gist of Pavlue's testimony on the subject
is as follows:
A . . . . he wanted to know if I signed a card.
Q. . What did you tell Mr. Dega when he asked you if you signed a card?
A. I told him I did.
Q. You said he asked you if the union promised you anything?
A. Yes.
Q. What did you say?
A. I said no, they had not.
Q. What else?
A. He wanted to know in what way I thought the union could benefit myself
in my opinion.
Q. What did you say to him?
A. I told him it would give us security and a voice. _
Q. All right. Did he ask you some other questions?
A. Yes, he wanted to know how the present policy could be improved, what
I did not like about them.
Q. What did you say?
A. I guess I told him I didn't have a voice in matters.
Q. What other questions did he ask you?
A. I think he asked who the organizers were.
Q. Did you tell him? How did you answer that question?
A. I told him I didn't know exactly who they all were.'
Q. Were any names mentioned in the conversation?
A. Yes, he mentioned the fact that Louis Hoxie was definitely one of the
organizers.
Q. He told you this?
A. Yes.
Q. All right. Did he ask you any other questions that you remember?
A. Well, none that I can think of, other than did I attend that meeting and
did I sign a card.
'In his later testimony Pavlue admitted that he had not told Dega the truth in this
answer.
MAUTZ PAINT & VARNISH CO. 501
Q. He asked you that?
A. Yes.
Q. How did you answer that?
A. Did I attend the meeting, "Yes, I did."
Q. You told him you attended the meeting?
A. Yes.
Dega told Pavlue that he was free to answer the questions,'and he made no threats
or promises.
Hoxie's testimony as to his interview by Dega is substantially as follows:
Q.. . . Tell me what he said and what you said?
A. Well, he asked me if I was at the union meeting. I said "yes."
Q. Yes?
A. He asked me where it had been held. I told him in the Labor Temple.
He asked who was there , and I think I told him he knew as well as I did who
was there . I was about the last one he was talking to . He asked me if I signed
a card; I said yes, and he asked me if the union promised me anything.
Q. Goon.
A. I said no . He asked me what I thought the union should [sic] do for
me that the company could not, and I said they could give me job security and
possibly better wages.
He asked me if I was the leader of the movement, I told him , "You know
I am, as well as I do."
He also told me that I was the highest paid order picker at the plant, and
he asked me if I did not get periodic raises during the time I had been there;
and I told him I had, but not for the last two years that I had been working
there. I said if the union was there, I didn 't think I would have to wait two
years to get a raise.
Let's see-he asked me if I felt the union would get in or not, and I said I
didn't think the people would go against their own interest . That is as near as
I can remember.
Dega did not tell Hoxie that he should discontinue his union activities, and "he
made no promises or threats. Hoxie expressed the conviction that he would be
discharged if the Union failed to get in. The record does not indicate any response by
Dega. Dega wrote down the answers given him by Pavlue and Hoxie , who.checked
them, Pavlue making one minor correction.
As a witness Dega testified that these interviews were "informal ," or "general"
"discussions"; he denied that he had a "questionnaire" or a "formal list" of questions.
However it be characterized, it,is evident that Dega was seeking information about
the union activities and sympathies of employees. Though he may not have drawn
up a "formal" list of questions, Dega had "noted certain subject matters" for dis-
cussion with Pavlue and Hoxie. As his testimony indicates , his exploration of these
subject matters took the form of inquiries.
After careful evaluation of the respective accounts of these conversations, I do
not find in Dega's testimony any substantial contradiction of the testimony of Pavlue
and Hoxie . A document identified as Dega's notes of the Pavlue interview appears
to corroborate Pavlue's version . Dega's notes of the Hoxie interview are not in
evidence . Based upon my observation of them as witnesses , and upon consideration
of the record evidence as to these conversations , I credit the testimony of Pavlue and
Hoxie.
C. The cottage parties
The Respondent leases from the Mautz estate a cottage on Lake Mendota at
Madison. For some years the Respondent has there held so-called "cottage parties"
monthly in clement seasons . Employees and company officials attend these func-
tions . Attendance is voluntary. The purpose of the get-togethers is to provide a
more personal contact between employees and management outside of working
hours, and to invite suggestions for the improvement of employee relations, produc-
tion, and working conditions . Such meetings were held in February , March, and
April, 1955. Food and refreshments were provided , as was usual, by the Respond-
ent, though apparently on a somewhat more elaborate scale than ordinarily. At
each of these meetings the principal subject of discussion, stimulated by questions
from employees , was the union organizing campaign.
At one such meeting Vice-President Behnke had copies of union contracts with
paint plants in other cities and some local plants. He compared these with the
Respondent 's wage scales and other benefits provided employees by the Respondent.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Behnke specifically referred to the Respondent's pension plan. Employee Pavlue's
testimony, denied by Behnke, is that Behnke stated that there would be no guarantee
of a pension plan under a union, or of the Respondent's vacation and picnic and
cottage party policies, statements which Pavlue regarded as threats. I think it
likely that Pavlue's recollection is correct with respect to these matters. The whole
tenor of the Respondent 's arguments to employees throughout the campaign was
that its benefits were more generous than anything they could attain through the
Union. Literature distributed by the Respondent and signed by Behnke and other
company officials (indeed Behnke's very speech of April 22) after enumerating the
various benefits which employees enjoyed, argued that the Company could only
maintain .that record by "working with you [employees] rather than with strangers"
(the Union ). These arguments appear to me to be substantially the equivalent of
the assertions which Behnke denies. I credit Pavlue's testimony.
The April cottage party was held on Friday, April 22, 4 days before the election.
On the day before the party the Respondent issued literature reiterating its "record"
and urging attendance at the party. At this meeting Vice-President Behnke read a
speech urging the employees to vote against the Union. Though he did not call
them by name, Behnke expressed puzzlement as to why employees Pavlue and
Hoxie should have been "interested in working to get the Union into our plant."
He said:
It has seemed to me that there are but very, very, few people who have been
interested in working to get the Union into our plant. I have searched my soul
for the reasons why. Two people [Pavlue and Hoxie] who are most active
have perhaps been given more opportunities than might otherwise have been
available in another plant. They have been transferred when requested, they
have been steadily increased in pay, and I doubt very much whether they could
exchange their present compensation for another job with their training and
experience anywhere else in the- city of Madison. The only thing 'that I can
find is that it is a lack of confidence, a lack of faith; it is a lack of confidence in
themselves and a lack of faith in the Company.
Behnke further stated that under a union the Company could no longer treat
employees as "individuals"; said that there would be no wage increases under a union
except after "discussion" and final consummation of a contract, and then only for the
term of the contract: "There would be no opportunity to discuss any increases in
the interim." He adverted to the fact that the Union could only ask the Company
for employee benefits and if the Company did not grant them presumably the Union's
only recourse would be to strike. At this time of the year, he said, the Respondent
traditionally surveyed and raised wages but could not "talk about" it now, because
the union campaign prevented it. The speech concluded with a reiteration of the
many benefits which the employees enjoyed at the hands of the Respondent, and
closed with a plea for a vote against the Union as being in the employees' best
interests.
In sum, the speech was typical campaign literature-matched on the union side
by contrary propaganda-containing the usual appeals to loyalties and to employees'
self-interest, summing up the employer's contributions to their well-being, invidious
comparisons with the union standards , carefully vague suggestions of personal and
financial unhappiness if the Union were voted in, and suggestions-some not at all
vague-of additional emoluments ready for presentation to employees when it could
be done' "legally," that is, when the Union was not there.
D. Hallman's statements to Pavlue and Smith
William Hallman is the Respondent's plant manager. In the weeks before the
election, Hallman spoke to employee Pavlue a number of times about the Union.
On some of these occasions Hallman inquired in a jocular vein-though not always
recognized as such by Pavlue-how Pavlue's "organizing was coming along." On
other occasions, however, Hallman spoke more seriously, sometimes in the presence
of Raphael Smith, under whose direction and supervision Pavlue worked in the
varnish department.
Thus, in the course of a number of conversations in the weeks prior to the election,
Hallman made the following statements to Pavlue: He thought that Pavlue was
being misled, and if Pavlue was "not satisfied with the company policies" he should
"find [himself] another job"; he thought that Pavlue would be "happier someplace
else," and inquired why Pavlue did not quit. Pavlue replied that jobs were "hard
to find," whereupon Hallman said that he would "find the job for [Pavlue] if
[Pavlue] would leave." On several occasions Hallman told Pavlue that he "felt
MAUTZ PAINT & VARNISH CO . 503
sorry far" Pavlue, and Pavlue's wife and two children. Pavlue asked what Hallman
meant by that remark, but Hallman did not elaborate.
Hallman-testified as a witness for the Respondent, but did not deny Pavlue's testi-
mony as to these occurrences. I credit Pavlue's accounts
E. Behnke's statements to Pavlue and Smith
About 2 weeks prior to the election, Executive Vice-President Behnke talked
to Pavlue on the apron in front of the varnish factory in the presence of Raphael
Smith, under whom Pavlue worked. Behnke suggested that Pavlue might take
"inventory" of the "good" and "bad" things about his employment and unionization
and then act as his conscience dictated. Smith then asked Behnke what the attitude
of supervision would be toward employees who were organizers for the Union, or
who favored it. As to this there is no dispute. There is dispute, however, as, to
Behnke's answer.
Pavlue's testimony as to the incident is that Behnke replied, in substance, that
the Respondent would "naturally" be more favorably inclined to men who "went
along with the Company."
Smith's testimony on direct examination as a witness for the General Counsel is
as follows: 3
A.... I asked MT. Behnke how he would feel toward us-those of the
employees, if the union came in, that did not show partiality toward the union
and" those that did show partiality? And he told me it would. only be natural
for the company to have a better feeling toward the people who favored them,
but as far as making a promise was concerned, nothing, was said.
Q. Can you remember the exact words or as close as possible the exact words
that Mr. Behnke used?
A. I think that was the exact words.
Q. Your question, as I 'understand it, was how the company would feel
toward the union and nonunion men?
A. Yes, he said it was only natural for the company to feel a little different
or better towards those men that did not vote for the union or were not union
men; that he would feel better toward them than those who were pro-union
or similar [something?] to that effect. The exact wording, I can't remember.
On cross-examination by the Respondent, Smith testified:
Q. Did you bear Mr. Behnke say in your presence to Mr. Pavlue that favors
would be given to those who went along with the company?
A. Not in those words. He said that it would be only normal for them to
lean a little more toward those who were for the company than were for the
union.
Behnke denied stating that the Company would favor employees who followed the
Company rather than the Union. His testimony was that he
stated our record was the best guide to that, that we had gone through this
before, that all men were treated the same as all others, with reference to
raises, improvements, transfers, promotions.
-On the basis of this record and my observation of the witnesses, I must credit
the testimony of Smith and Pavlue.4
2In a memorandum of an interview with Field Examiner Mayberry of the Board in
September 1955 (referred to herein as the Mayberry ]Memorandum , set footnote 4, infra)
Plant Manager Hallman is quoted as denying having made two statements : ( 1) the one
to the effect that he was sorry for Pavlue „ and (2 ) one to the effect that since Pavlue
didn't go along with company policies he would probably be happier somewhere else.
As to the second statement, Smith's testimony seems corroborative of Pavlue's. Ilalimans
denials to Mayberry were-not repeated in the hearing.
Extrajudicial assertions of such character , unless in the nature of admissions , cannot
be, accepted as the equivalent of testimony I assume throughout the advertency of any
any omission to support testimonially, under oath , and subject to cross -examination, any
declaration favorable to the declarant made to Field Examiner Mayberry.
' Smith testified twice, once as a witness for the General Counsel, the second time as a
witness for the Respondent.
' Pavlue impressed me as a witness who sought to be truthful. His testimony disclosed
a willingness to reveal facts favorable to the Respondent as well as those adverse to it.
Smith, though a somewhat more complicated problem, as will appear in the discussion of
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. Schockmel's statements to Tredinnick
About a month after the general union meeting of late January 1955 , ,Frank
Schockmel , the Respondent 's purchasing agent and traffic manager , spoke to em-
ployee Thomas Tredinnick about the Union . This conversation took place in the
retail store which the Respondent operates in-connection with the plant.
Schockmel asked Tredinnick what the employees could gain by getting the Union
in. Tredinnick enumerated a number of things , whereupon Schockmel said that
,the employees could lose their pensions and paid vacations if the Union came in;
-that is, those benefits could be abolished . ' • - ' -
A few days or-a week later Schockmel summoned Tredinnick to his office, where
he asked him a number of questions along the lines of the conversation in the store.
During this discussion Schockmel gave Tredinnick figures showing the cost of manu-
facturing and,shipping paint, and then said that the Respondent could have its paint
made and labeled in Chicago . Schockmel also said that the Respondent was planning
on building a new plant on the outskirts of Madison , but that it could be built instead
at Edgerton; a-small town south of Madison. -
.Schockmel did not suggest that Tredinnick discontinue his union activities or
promise him anything if he did so. However, Tredinnick interpreted Schockmel's
remarks concerning the pension plan and vacations as threats to abolish them if
,the Union came in.5
G. President Maut z ' talk with Pavlue
In the late afternoon of a day about mid 'or late April,5 Raphael Smith instructed
'Theodore Pavlue to go to Plant Manager Hallman 's office . When Pavlue got there
.he was met by Hallman and President Bernard Mautz . Mautz spent the next hour,
for which Pavlue was paid; attempting to "sell" Pavlue on the Company 's views of
the union question.
Pavlue's termination , infra, was at all events not a willing witness, and I conclude from
j observing him that his affirmative testimony against the Respondent is to be credited.
Behnke was a voluble witness, whom I credit with desire to be truthful , but whose testi-
mony disclosed evidences of faulty observation , unreliable recollection , and a tendency
-to precipitate conclusion . For example , the Respondent 's answer, signed and sworn to
by Behnke on December 28, 1955, avers without qualification that "Louis Hoxie was dis-
charged" by the Respondent . Later the Respondent filed an amendment to its answer
averring, In sum , that Hoxie had quit. As a witness Behnke testified that it was now his
position that Hoxie had quit.
Other factors cast doubt on the probativeness of some of his testimony.
--Thus, on September '18, 1955, Field Examiner Mayberry of the Board's Chicago Regional
Office, in the presence of the Respondent 's attorney , interviewed officials of the Respond-
ent, among them Behnke , concerning the unfair labor charges here. Mayberry reduced the
, substance-of the interviews to writing under date of September 9, and on September 14
he mailed two typewritten copies'6t the memorandum to the Respondent with the request
that the document be examined carefully and any omission , errors, or - corrections noted.
This memorandum was examined by most of the Respondent 's affected 'officials, including
Behnke, who indicated corrections were in order . Under date of September 27, 1955,
the Respondent , by its attorney , acknowledged the communication and mailed back several
,pages of corrections . - Regarding - the statements, in Mayberry's memorandum attributed
to Behnke , the Respondent 's corrections state that ( save for corrections not here mate-
rial) "Mr. Behnke states that the memorandum regarding his statements is substantially
tcorrect." Louis Hoxie's termination followed a survey made by the Respondent of "pick-
ling" errors made by Hoxie and other employees . In the Mayberry memorandum Behnke
`declared that he had instructed Frank Schockmel , purchasing agent and traffic manager,
,to have that survey made. Behnke's testimony , however , is that he had nothing to do
with the survey , and that in this respect the memorandum is incorrect . In the memoran-
dum Behnke further stated that he told Pavlue that with a union employees "might not be
as friendly and open as if all the employees were one together ." As a witness , however,
Behnke testified that he did not think that he had made such a statement to Pavlue.
When the contrary declaration in the memorandum was shown to him a few minutes later,
Behnke testified that he "may have" made the statement to Pavlue , but insisted that he
had not previously denied having done so.
5 The findings as to Schockmel 's statements to Tredinnick are based on the latter's cred-
ited testimony . Shockmel testified as a witness for the Respondent but did not deny
'Tredinnick 's testimony.
6 Pavlue gave the date as about mid-February . I find him mistaken as to that.
MAUTZ PAINT & VARNISH CO. 505
Mautz' accepted testimony as to how the interview began, and why, is as follows-
.I asked Bill Hallman if he wouldn 't be present when I talked to Ted, because
I wanted a witness for anything said. -
Ted came up and I said, "I want Mr. Hallman to listen , because I would like
to ask questions and discuss problems with you. I want you to know you do
not have to stay and listen to me, and any time you want to leave , feel free,to
do SO.
"I have been told by, my counsel not to make threats and promises, and if
that is agreeable with you, I want to figure and discuss some problems, which
include your activity in the union and your thoughts of the union; what it could
doforyou and for the company."
,One of the reasons I did talk to Ted was that I had known Ted for many
years, and he would look you straight in the eye and answer frankly; and
toward the end, he did not do that. -
* * * * * * *
he was doing a good job. I thought perhaps it might help if I discussed
things with him . I didn't have any way of making him do that, I know that.
President Mautz' further testimony is that he had heard rumors to the effect that
Pavlue was going to leave the Respondent's employ , that Pavlue "thought the Union
would be a good thing," and from then on was going to "a union man ," and that
President Mautz wanted to discuss why Pavlue felt that way.
Pavlue's version of the conversation , some of which is disputed, is as follows.
Mautz had copies of the various union contracts on the desk. He compared the
wage scales in those to Pavlue 's wages He explained - the Respondent's pension plan,
and pointed out that Paylue would - soon ,, be eligible to participate in it. President
Mautz further said that ' Pavlue- was- being misled, particularly by Hoxie, and that if
"outsiders" came in there would be no guarantee of the pension plan, cottage parties,
and picnics , though he did not say that they would be abolished . Mautz further
said that the Respondent could buy varnish as cheaply as it could manufacture it. He
observed that the Respondent had always provided steady employment when times
were slack but said that if the Union came-in and there was not enough work, em-
ployees could be sent home. He further intimated that the plant could be moved, but
would not be ."if there was no interference from outsiders ." Mautz 'asked Pavlue
who were some of the people responsible for organizing the Union , and when Pavlue
said that he did not know who they all were , Hallman and Mautz said that they had
"a pretty good idea" who the organizers were. Mautz concluded the conversation
by asking Pavlue to "think it over," said that Paylue was being misled , but that he felt
sure that Pavlue would change his mind . Mautzfurther told Pavlue that if he had any
questions or if Mautz could help him in any way, Pavlue should feel free to call him
either at the office or at home. - ,
Both President Mautz and Plant Manager Hallman testified concerning this inter-
view. President Mautz' testimony as to the purpose of calling in Pavlue has been
set out heretofore. He further testified that he made no promises or threats to
Pavlue . Ultimately Mautz denied only limited portions of Pavlue 's testimony: ^
Mautz denied making any statement about the Company moving from Madison; he
did not think that he discussed the closing of the plant, although the question of
whether to buy varnish and to discontinue manufacture pf it had been a matter of
"staff" discussion for some time ; Mautz did not ask'Pavlue who was responsible for
the union activity.
Hallman's testimony is that President Mautz did not say , in Hall man 's presence,
that the Company would move, or the pension fund be jeopardized, if the Union.
Lame in. -
With regard to the question as to whether Mautz asked who the union organizers
were, I think it possible that Pavlue confused this interview with the one he had with,
Dega, and mistook questions as to the sources of dissatisfaction for inquiries as to the
identity of the union leaders . Inquiry by Mautz as to the identities does not appear
to me in keeping with the character and tenor of the rest of the interview, as, related,
by Pavlue . On what I regard as a reasonable possibility of such confusion, I accept
Mautz' denial in this instance.
However, I find differently with respect to Mautz' statements concerning the pos-
sibility of the Respondent 's purchasing rather than manufacturing varnish, and the
consequent closing , of the varnish plant . It seems apparent that Pavlue could not'
7 Other denials were modified on cross-examination.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have acquired information about this possibility, except from company officials. I
conclude it more likely that in this instance Pavlue's recollection is correct. It is
therefore found that Mautz made these statements.
H. Postelection interference
The Union filed its petition on February 11. The Respondent declined to consent
to an election-for what reason does not appear. In its literature, the Union accused
the Respondent of "stalling" and suggested that the Respondent was "afraid of an
election." In its literature, the Respondent denied that it was afraid of an election.
Its explanation for not consenting to an election was that it did not like "strong arm
tactics" and it merely wanted "to follow the orderly processes of the law." There
being no substantial evidence-indeed no apparent affirmative contention-to the
contrary, I assume that the Respondent's insistence upon following the formal repre-
sentation procedures of hearing and direction of election was for cause, and not for
the purpose of gaining time within which to combat the Union.
A hearing upon the Union's petition was held on March 7, 1955, and an election
directed by the Board on March 30. The election was held on April 26, the Union
losing decisively-l0 for, 27 against.
Shortly after the election, the Respondent put a new employee insurance plan
into effect. Factory employees were called individually to the office of Plant
Manager Hallman where, in the presence of Assistant Secretary Dega, the new plan
was explained to them. Louis Hoxie's undenied testimony as to what occurred in his
insurance interview, which took place about 2 weeks after the election, is as follows.
After the insurance plan was explained to Hoxie,
Mr. Hallman said he was slow to anger, but he was mad now. He said
that before the election- he couldn't say anything to the employees about the
union, but now he could. He was free to speak. And he went on to say that
Mr. Mautz had built up a nice business there, and he didn't want any outsiders
coming in and telling him how to run his business; and as long as he was produc-
tion manager, he was going to do' everything in his power to prevent anyone
coming in and doing that.
And he told me I wasn't satisfied working there because there wasn't a union,
he wanted me to go where there was a union, and I would be happy.
Both Dega and Hallman'were witnesses for the Respondent, but neither gave any
testimony in contradiction of, or concerning, this interview with Hoxie. I credit
Hoxie's testimony as to the conversation.
Conclusions as to Interference, Restraint, and Coercion
The Respondent's right to express its views on the subject of unionization is both
constitutionally and statutorily protected. It is entitled to declare those views as
vigorously as it chooses, so long as the declarations contain no threat of reprisal or
promise of benefit. And it may attempt to persuade employees by noncoercive argu-
ment to its opinion. Insofar as the Respondent's expressions were devoid of threats
or promises and noncoercive, I therefore find them privileged, regardless of how
strongly they were stated, or how biased, unfair, or untruthful others might consider
them. To paraphrase a recent statement by the Fifth Court of Appeals in N. L. R. B.
v. T. A. McGahey, et al., 233 F. 2d 406: "The personal views [of the Respondent]
or its colorful, forceful means of expression do not ... violate the law. . . ." Nor,
as the court there said, is casual, moderate interrogation as to whether employees
desire union representation unlawful where unrelated to evidence indicating that
employees might consider the inquiries as forecasting reprisals. But, as the court
was careful to point out, statements coercive in themselves, because of the circum-
stances of their expression, and interrogation related to evidence indicating reasonable
apprehension of reprisals, are unlawful. In the instant case, certain of the conduct
of officials of the Respondent fall outside the pale of the law. In this category are
the following items of conduct which I find coercive, containing threats of reprisal
or promises of benefits for engaging in or refraining from union activity or designa-
tion. By this conduct the Respondent interfered with, restrained, and coerced
employees in the exercise of rights guaranteed in Section 7 of the Act.
(1) Executive Vice-President Behnke's statements to employees Pavlue and Smith
to the effect that the Company would be more favorably disposed to those emnloyees
who opposed the Union, than to those who supported or voted for it. This was
both a threat of reprisal for favoring the Union and a promise of benefit for oppos-
ing it.
MAUTZ PAINT & VARNISH CO. 507
(2) The statement to employee Tredinnick by Frank Schockmel, purchasing
agent and traffic manager, to the effect that pensions and vacations could be abolished
if the Union came in.
(3) Schockmel's statements to Tredinnick several days later in his office, to, the
effect that the Respondent could cease manufacturing paint and buy it for resale,
and suggesting that the proposed new plant could be built in Edgerton, rather than
on the outskirts of Madison.
Both the above statements of Schockmel were threats of reprisal by the Respondent-
if the employees designated the Union as bargaining agent.
(4) President Mautz' statements to employee Pavlue suggesting the discontin-
uance or moving of the varnish factory.
(5) President Mautz' declaration to Pavlue to the effect that if the Union came in'
the Respondent would no longer try to provide employment in slack times, as it
had in the past, but would lay off employees instead.
(6) Plant Manager Hallman's statements to employee Pavlue inviting him to quit
his employment, suggesting that Pavlue find another job, and saying that Pavlue
would be happier elsewhere since he was "not satisfied with the company policies,"
and stating that he was "sorry for" Pavlue's family. These remarks not only sug-
gested reprisals against Pavlue because of his union advocacy, but were additionally
coercive because of their obvious assumption that such advocacy disqualified one
for satisfactory employment with the Respondent.
(7) Plant Manager Hallman's similar declarations to employee Hoxie.
(8) In the context in which it occurred, Hallman's statement in the same conversa-
tion with Hoxie, to the effect that President Mautz would not have outsiders telling
him how to run his business and that as long as Hallman was production manager
he would do "everything in his power" to prevent it.
(9) In the above contexts, President Mautz' statements to Pavlue and Vice-'
President Behnke's statements at the cottage parties to the effect that there was no
guarantee of existing benefits, such as the pension plan, parties, and picnics, if the
Union came in. In the circumstances of their delivery these declarations imported
more than objective statements of fact, or mere predictions of adverse consequences
beyond the Respondent's control. Implicit in the arguments, when considered in
the light of the other evidence, was the threat that the Respondent might assist in
producing that result if the employees demonstrated "lack of confidence" in the
Respondent by voting in the Union. And that the Respondent was prepared to
discriminate against union supporters was specifically spelled out by Vice-President
Behnke in his conversation with Smith and Pavlue.
(10) In the light of the foregoing circumstances, and against that background, the
Respondent's letters to the employees of April 18 and 21, and Behnke's, speech to
the employees at the April 22 cottage party contain threats of reprisal. Those
exhortations closed with substantially the following statement:
THIS IS OUR RECORD
THIS IS WHAT WE NOW HAVE.
THIS IS WHAT WE WANT TO CONTINUE.
THIS IS OUR CREED!
1. 33 years of steady work.
2. No shutdowns for even a few hours.
3. No short work weeks.
4. No winter layoffs.
5. Wage rates equal to or better than those prevailing in the community. We
are making continuous studies and the policy of granting increases as soon as
it is possible still prevails.
6. Mautz Pension Plan second to none.
6A. Group Hospitalization Plan.
7. A vacation plan equal to or better than most Union contracts.
7A. Group Life Insurance Plan.
8. No strikes.
9. No dues.
10. No fines.
11. No assessments.
12. No Union Contract.
13. No broken friendships.
14. A personal interest in each and every employee.
15. No picket lines.
The above is our record. We want to keep it. We can only do it working with
you rather than working with strangers.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As has been seen , several of the Respondent 's officials made statements to the
effect that these benefits could not be "guaranteed" if the Union came in. Those
declarations were not mere academic statements of legal opinion . The Respondent,
was not conducting a sedate seminar on the law. It was attempting to induce
employees to forego union representation . The enumeration in its verbal state-,
ments and in its literature of the benefits which it had conferred upon employees was
not merely to demonstrate that such representation was unnecessary . There is the,
rather plain assertion that the benefits cannot be had "working with strangers." And
obviously the appeal is not merely to stimulate employee gratitude . The tenor of the
Respondent 's enumeration and comment is such , whether designedly or not, as to
constitute warnings to employees that the benefits might be lost if they chose a.
union to represent them . I think the declaration that the benefits could only be
continued "working with you rather than working with strangers ," is plainly a threat.-
There is no evidence-indeed no suggestion-that this was merely a prediction of
consequences beyond the Respondent 's control . No circumstance is pointed to
justifying the conclusion that union representation would make the continuance of
such employment conditions impossible-or even more difficult . It is found that
the quoted statement contained threats of reprisal.
(11) In such context some, though not all, of the interrogation of employees as
to their union activities was coercive . As has been seen , moderate , casual inquiries
unrelated to other coercive conduct are permissible . Insofar as such inquiries in this
case were attempts to ascertain the fact or extent of employee dissatisfaction with
company policies, or conduct toward employees , I think them privileged , indeed
unobjectionable . Most of Dega's interrogation of Pavlue and Hoxie , I find , is in that
category . Some of Dega 's questioning , however , went beyond the scope of legiti-
mate inquiry and became coercive . This is so, for example , with respect to ques-
tions whether Pavlue or Hoxie had signed union cards, had attended union meetings,
what other employees had attended meetings , and who the union organizers or leaders
were . The case is to be distinguished from that of Blue Flash Express, Inc., 109
NLRB 591 , where the employer, in asking employees whether they were union
members, specifically and truthfully informed the employees that he had received
a letter from a union claiming to represent the employees and requesting the employer
to recognize it as their representative , and the purpose of the employer was solely to
know how to answer the union 's letter . No such situation is present here. No
legitimate reason is apparent or suggested as to why the Respondent should require,
need , or want information as to which employees had signed union cards , attended
,union meetings , or were leaders in the union activity . In the absence of other per-
-suasive reason, the normal inference is required , which is that the information was
wanted for illegitimate purposes , such as suggested by Behnke to Smith and Pavlue.
in any event , in the absence of any explanation to employees at the time of asking
the questions , such inquiries would inevitably be coercive and tend to restrain em-
ployees from engaging in the inquired -about activities . It is found that Dega's
questioning of Pavlue and Hoxie on those subjects was coercive.8
Similarly coercive was Plant Manager Hallman 's inquiry of Donald Ewelt, in
interviewing Ewelt for employment , as to whether Ewelt was "in favor of a union."
Such interrogation has no perceivable legitimate connection with suitability for
employment . Likewise Hallman's regular inquiries of employees several times a
year in the course of personnel interviews as to whether they think they would be
better off with a union , are coercive , in the light of the evidence to the effect that
employees who favored a union would not be favorably regarded by the Respondent.
The claim that the interrogation was permissible because isolated ; I think without
evident merit.'
The coercive character of the Respondent 's conduct is not dissipated by alleged
statements by Behnke to the effect that the Respondent would not engage in dis-
criminatory conduct . There is specific evidence of assertions , by Behnke and others,
to the exact opposite , rendering the generalized statements-even if made-quite
neutral and, except for their value as self -serving evidence of motive , quite meaning-
less. Threats or promises , express or covert , are not canceled out by such state-
ments. It seems significant that none of the Respondent's campaign literature in
9 The Respondent contends that Dega is not a supervisor, has no "apparent" supervisory
authority, that employees have not been led to believe that he spoke for management, and
the fact that he is an "agent" is immatei ial. I find that Dega exercises supervisory author-
ity over employees in his office. He also substitutes for Vice-President Behnke when
Behnke, admittedly a supervisor, is absent He was so acting at the time he questioned
Pavlue and Hoxie In addition, I find Dega to be a managerial agent with apparent
authority to speak for management on matters of employee relations.
MAUTZ PAINT & VARNISH CO. 509
evidence contains any assurances against discrimination. And equally significant
that, if made, employees were not reassured. Thus Smith, who had been employed
for a number of years, had to ask Behnke to state the Company's policy; prior to
the election Pavlue expressed fear that if the Union lost the election he would be
forced to resign; after the election, according to Smith's May 3 memorandum, Pavlue
indicated apprehension of being discharged; in his interview by Dega, Hoxie told
Dega that he
was here three years ago when the Union tried to get in and I saw two men
fired for it. If we fail this time, I know the same thing will happen to me .9
It is consequently found that by the conduct enumerated above the Respondent
interfered with, restrained, and coerced employees in the exercise of rights guaranteed
in Section 7 of the Act, and thereby violated Section 8 (a) (1) of the Act.io
1. The Discharges
Theodore Pavlue and Louis Hoxie were the most active union leaders among the-
employees, a fact known to the Respondent. Their leadership prompted Vice-
President Behnke to make the following comment in his speech at the cottage party
of Friday, April 22, 4 days prior to the election. The two people Behnke referred.]
to were Pavlue and Hoxie.
It has seemed to me that there are but very, very few people who have been
interested in working to get the Union into our plant. I have searched my soul
for the reasons why. Two people who are most active have perhaps been given
more opportunities than might otherwise have been available in another plant.
They have been transferred when requested, they have been steadily increased
in pay, and I doubt very much whether they could exchange their present com-
pensation for another job with their training and experience anywhere else in
the city of Madison. The only thing that I can find is that it is a lack of con-
fidence, a lack of faith; it is a lack of confidence in themselves and a lack of
faith in the Company.
In June the employment of both was terminated. The General Counsel alleges
that they were discharged because of their union activities; the Respondent's answer
asserts that Pavlue "resigned of his own accord," and that "Hoxie was discharged."
Subsequently the answer was amended as to Hoxie to deny that he was discharged,
and alleging that he refused to accept a transfer and "terminated his employment
voluntarily." The answer admits the refusal to reinstate Pavlue and Hoxie.
1. Pavlue
Pavlue began to work for the Respondent in October 1950 in the mix room at
$1.10 an hour, and was successively transferred and promoted in pay until, at the
time he was terminated, he was earning, with his incentive pay, about $2.12 per
hour. For a year and a half he was a group leader on the paint mixing floor, trans-
ferring from that job at his own request, in order to become assistant varnish maker
under Raphael Smith. In connection with that transfer Pavlue took a voluntary
cut in wages of 3 cents per hour, which he later regained. At the time of his termi-
nation he was working as assistant varnish maker under Smith. He was a satisfactory
employee, "doing a good job," according to Mautz. He was one of a few employees
selected by Mautz to be spoken to in an effort to convert them to the Company's
view of the union question. He and Hoxie were 2 of the 3 employees interrogated
by Dega respecting the union activities. Pavlue explained the union point of view
in some of the cottage parties. As has been seen, Plant Manager Hallman suggested
to Pavlue several times that, since he was apparently not satisfied with conditions
0 No inference is drawn that there was any such discrimination after the 1952 election.
The only point of this reference is that both during and after the 1955 campaign employees
were apprehensive about how the Respondent would react if they favored the Union ; and
if the Respondent gave any assurances they were obviously not adequate.
10 As to conduct of the Respondent related herein, concerning which no specific unfair
labor practice has been found, I find no violation of the law, either because privileged, or
because otherwise not constituting unfair labor practices. For the same reasons, or be-
cause I have credited the Respondent's testimony denying the occurrences, I find similarly
with respect to asserted conduct of the Respondent or its officials not specifically adverted^
to herein. In the interests of brevity I have generally omitted discussion of those mat-
ters on which I have found favorably to the Respondent.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the Respondent 's plant , he would be "happier somewhere else," and should quit;
and further said that he was sorry for Pavlue's wife and children . Vice-President
Behnke told Smith and Pavlue , in sum , that the Company would be more favorably
disposed toward employees who supported the Company rather than those who
,favored the Union.
Pavlue had worked in most departments of the plant, including the shipping depart-
ment . Work in the varnish room was arduous and grimy , the temperatures high
and the fumes unpleasant . Smith described it as "about the filthiest place you can
work." At about the beginning of 1955, Pavlue told William Freund, assistant to
Plant Manager Hallman, that he would like to transfer to the shipping department.
Freund told Pavlue that he would have to talk to Hallman about it.
Pavlue and Raphael Smith , his superior , were neighbors and friends . During the
month of April, Pavlue told Smith that if the Union did not win the election, his
position would be so uncomfortable that he would probably have to resign. Smith
told Pavlue that he would need time to break in a new man; Pavlue assured Smith
that he would give him adequate notice. Pavlue also spoke to Freund about the
possibility of his leaving if the Union lost.
These statements of Pavlue were relayed to Plant Manager Hallman, who told
Smith and Freund to reduce the statements to writing . Smith and Freund then
wrote memorandums , dated April 13 and 14, respectively , stating in substance that
Pavlue had said that he would quit if the Union lost the election ." The election
was held on April 26 and the Union lost. Under date of May 3 Smith wrote another
memorandum as follows:
Pavlue told me that if he was fired the first thing he would do would be to file
an unfair labor practice against the Company. He said he had a good record
and it would be hard to find anything wrong with him other than his union
work. He stated that after the dismissal he would probably be rehired and paid
his back wages . This statement was made after the election.13
Shortly after the election , notices were posted in the plant to the effect that there
would be a vacancy in the varnish department, and another in the shipping depart-
ment , and inviting applications from employees . Pavlue signed the notice for the
job in the shipping department, the customary method of application. The record
does not indicate whether there were any other applicants for that job.
Shortly afterward , at the meeting with Hallman and Dega at which the new
insurance plan was explained , Pavlue told Hallman that he had signed for the ship-
ping department job. Hallman said that Pavlue would have to take a wage cut.
Pavlue indicated his willingness to do so. Hallman replied that he could not let
Pavlue know at that time. There is no indication in the evidence that anything was
said at that meeting about Pavlue's leaving.
Hallman and Schockmel then approached employee Ewelt, who had just been hired,
and offered him Pavlue 's job at an increase in pay, and Ewelt accepted . Hallman
then brought Ewelt to Pavlue to train , telling Pavlue that he did not want Pavlue to
quit without notice. Pavlue protested, saying that he would give notice if he quit, and
there was no reason for the action. Nevertheless, he trained Ewelt for 2 weeks. At
the end of that time, on Wednesday, June 1, Hallman told Pavlue that he would be
"all done" on Friday. Pavlue asked if that meant he was being transferred to the
shinning department. Hallman responded "no," that Pavlue was "all through."
Pavlue's employment was terminated as of Friday. Smith, his superior, was first told
that Pavlue was being terminated about 15 minutes before Pavlue himself was'in-
formed . Smith protested to Hallman , but to no avail.13
"Hallman also testified, and Pavlue denied, that on April 13 and on later occasions
Pavlue told him that he would not continue with the Respondent if the Union lost the
election I do not credit that assertion. I am convinced that if Pavlue had made any
such statements to Hallman the latter would have written memorandums on them, as he
had Smith and Freund do Note, too, the absence of evidence that the subject was raised
at the insurance meeting, later discussed.
v Pavlue was unaware of the existence of these memorandums. Indeed, until the Re-
spondent put in its defense, the General Counsel was likewise unaware of them despite
an investigation of the charges which included interviews with company, officials and
Smith, and an appearance on the witness stand by Smith as a witness for the General
Counsel Smith's explanation for his failure to mention the memorandums was that he
had forgotten them.
v Hallman testified that at the termination interview he told Pavlue that he could not
transfer Pavlue, that Pavlue "had been probably transferred four or five times to every
department in the plant . I said we could not agree to that, and further it would mean
MAUTZ PAINT & VARNISH CO . 511
Conclusions as to Pavlue's Discharge
As has been seen, the Respondent's contention is that Pavlue "resigned of his
own accord." As the foregoing facts demonstrate, however, the termination' was
involuntary. Pavlue's employment relationship with the Respondent was severed
by the Respondent, not by Pavlue, and against Pavlue's will, not with it.' The Re-
spondent dispensed with his services without qualification. That is a discharge; not
a resignation, even if it was in genuine anticipation of his, quitting. It is consequently
found that Pavlue was discharged. -
That he was discharged, however, is not dispositive of the case, for there still re-
mains the question whether, however the termination be characterized, it constituted
a discrimination by the Respondent because of Pavlue's union activities.
An employer has the unquestioned right, so far as Section '8 (a) (3) of this
statute is concerned, to discharge an employee for any reason he chooses-indeed for
no reason at all, if he wishes-so long as he does not discriminate on the basis of
union membership or activity. So here, a genuine determination by the Respondent,
for bona fide business reasons unconnected to Pavlue's union activity, that it did not
wish to retain him in its employ because he had expressed an intention of resigning,
would not be an unfair labor practice. The Respondent is entitled to carry on its busi-
ness efficiently, and the statute is not to be construed as preventing it. However,
neither may the Respondent use business considerations-indeed any considerations-
as a pretext for discharging an employee because of a bias against him resulting
from his legitimate union conduct. Here the preponderance of the evidences estab-
lishes, in my opinion, that it was Pavlue's militance on behalf of the Union that re=
sulted in the termination of his employment, and not concern by the Respondent about
his possible resignation.
Pavlue was a highly satisfactory employee until he became active in the cam-
paign on the side of the Union. The Respondent's antipathy to the Union and its
unfavorable judgment of employees who supported it is evident from the vigor, the
tenor, and the nature of the campaign it waged against the Union, and the character
of the appeals to employees to defeat it. The Respondent's arguments and its litera-
ture leave no doubt the Respondent's strong conviction 'that employees who sup-
ported the Union were without confidence in their own ability to advance, and lacked
faith in the Company. As Behnke put it in his April 22 speech: For an employee to
want a union was a "reflection on the individual." It will scarcely be doubted that
deficiencies of such character would disqualify one for advancement, or employment,
with the Respondent. Specifically the Respondent included Pavlue and Hoxie among
such employees. They were the only two employees to be singled out for public
comment. Implicit in Behnke's observations about them in his April 22 address is the
accusation of ingratitude in two such favored employees of lack of judgment in them;
and over all the brooding mood of bafflement, of chagrin, at this lack of confidence and
faith; in sum, the impression is, of betrayal. And as the Respondent's campaign gen-
erally-and the remarks of Behnke and Hallman to Smith, Pavlue, and Hoxie, spe-
cifically-disclose, the Respondent in time inevitably came to equate support of the
Union as the equivalent of disloyalty to it, a condition to be remedied , as Hallman
suggested, only by quitting the Company's employment; or, conversely, opposition
to the Union as the equivalent of loyalty to the Respondent, a condition to be lauded
and rewarded. As the Respondent said of employees who had signed an antiunion
petition which was characterized by the Union as "phony": "We are proud of you re-
gardless of what the Union thinks of you."
In view of all these factors, and particularly the. statements made to him per-
sonally by company officials, it is not at all surprising that Pavlue should have come to
the conclusion that if the Union lost the election, the Respondent would make his
position so uncomfortable that he would have to resign.' Even before the election
Hallman was inviting him to quit, on the hypothesis that Pavlue was so dissatisfied
that he could no longer be "happy" with the Resondent-a scarcely mistakable hint
as to how dubious Pavlue's future prospects were. If Pavlue began to,look for other
employment after the election, it was a consequence ,of -his reasonable fear, caused by
the Respondent's actions, that if he remained with - the Company he would be dis-
a demotion " Pavlue had taken a demotion both as to pay and status when he had trans-
ferred to the varnish department No reason is suggested as to why his previous transfers
and service in other departments should have disqualified him for consideration for fur-
ther employment One would normally suppose that the opposite would be true It will
hlso be noted that shortly after Pavlue, a satisfactory employee, was being denied a
transfer, Hoxie, an allegedly unsatisfactory employee, was supposedly being urged to ac-
cept, and was refusing, a transfer.
512 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
criminated against. Under such circumstances the Respondent 's claim that it was
protecting itself against Pavlue's quitting without notice , even if true, would not be a
defense. For it was the Respondent 's unfair labor practices which had caused and
produced the situation : The Respondent cannot plead the consequences of its wrong
as excusing it from accountability for the wrong itself.
. But I do not think it true that the Respondent was-protecting itself against a sum-
mary leave -taking by Pavlue. I do not believe that that was its motive in discharging
him. "It is my "conclusion that Pavlue , by reason of his, union leadership , has be-
come totally non grata to the Respondent , and that his statements to Smith and
Freund about leaving were seized upon as pretexts to speed his departure when he
showed no postelection inclination to bring it about expeditiously.
In the first place I see no point in having Smith and Freund reduce their state-
ments to writing except to provide a defense to charges of unfair labor practices
in connection with Pavlue 's leaving. And there could be no necessity for such a de-
fense unless the Respondent anticipated taking some affirmative action itself. For
if Pavlue quit voluntarily , his previous declarations of intention to do so were of no
materiality as far as the Respondent was concerned . They were of relevance only
as the basis for terminating his employment involuntarily . In sum , if the Respondent
had in good faith accepted Pavlue 's declarations as statements of intention to resign,
'simply because of a disinclination to work under nonunion conditions , I do not
think that Hallman would have directed that the memorandums be written.
In the second place , Pavlue had given Smith assurances that he would not leave
without notice . If the Respondent was dissatisfied with those assurances, or did
not regard them as adequate , no reason appears why , if acting in good faith, it did
not ask Pavlue for better ones. Unless his interest in the Union be deemed such,
Pavlue had given the Respondent no cause to question his responsibility . His record
was good , his services satisfactory ; he had worked in most departments of the plant.
It seems implausible to me that , unless it were anxious to get rid of Pavlue, the Re-
spondent would not have at least had a definitive interview with him to clarify the
situation . The contrast between the Respondent 's treatment ; of Pavlue when he
evinced an interest in the Union and its treatment when -he evinced the possibility of
leaving, seems to me striking and significant . When it learned of the former, he
was sought out and interviewed on the subject by Dega, and summoned to a formal
interview by President Mautz in the presence of Plant Manager 'Hallman . Dega and
Mautz sought to learn the reasons for his presumed dissatisfaction ; Mautz sought
to change his views . Other company officials displayed interest in his union atti-
tudes. But when it had been heard that he had said that he was leaving the Com-
pany 's employment , the only interest displayed by the Respondent was to have
the declarations reduced to writing in order that they could be used against him.
These strike me as the actions of an employer seeking to get rid of an employee,
not those of one in good faith seeking to protect his operations.
If the Respondent had been relying on the reports as to Pavlue's statements as
the basis for its action , the May 3 memorandum of Smith stating Pavlue's expressed
apprehension of being fired was notice that his concern was not of quitting, but of
being discharged . His request , admittedly serious, for transfer to the shipping de-
partment , where he had worked before, was additional notice that he had no - thought
of precipitate quitting.14
If, as the Respondent asserts, its only concern was that it should not be left in the
lurch without an assistant ' varnish maker , that problem was solved when Ewelt had
been trained by Pavlue . The Respondent then had several nondiscriminatory and
nonburdensome courses of action: it could have retained Ewelt as Smith 's assistant
and transferred Pavlue to the shipping department as he wanted , or it could have
offered him Ewelt 's old job . Or it could have kept Ewelt in his old job and retained
Pavlue as Smith 's assistant , and thus have benefited by his greater experience and his
undoubted competence . But it was not, I conclude , the operational problem which
concerned the Respondent , but rather the need to get shed of Pavlue . Hallman's
explanations for not transferring Pavlue to the shipping department , namely, that
it would involve a demotion and a pay cut , which would lead to dissatisfaction, are
14 Dega originally testified that Pavlue 's application for the shipping department was
considered "a joke" because Pavlue had said that he was leaving . Dega later modified
this statement, and conceded that at least Pavlue was serious-a conclusion borne out by
the evidence Here, too, it seems significant , if Dega's explanation is correct , that no one
sought to ascertain the precise situation However, Hallman's statements to Pavlue in
denying the transfer do not indicate that he had any doubt about the bona fides of Pavlue"s
request. Note, too, that when Pavlue inquired about the transfer at the insurance meet-
ing, the question of his leaving was apparently not even raised.
MAUTZ PAINT & VARNISH CO . 513
not credible in the light of the fact that Pavlue had in the past taken both without
apparent concern-on the part of the Respondent, and had nevertheless continued his
record of satisfactory performance. Moreover, there is a significant absence of any
reference by Hallman'at that time to the fact that such a solution would still leave
unsolved the problem which supposedly caused Pavlue's replacement in the varnish
department, namely, possibility of his summary quitting: If, as it now asserts, the
Respondent had been motivated by that consideration, it seems to me that that would
have been the first comment made by Hallman. In any event the point would cer=
tainly have been stated, instead of advancing other and untenable grounds.
Two weeks after Pavlue was discharged, Hoxie, the other outstanding union leader,
was discharged on a pretext because of his union activities, as is hereinafter found.
Upon the basis of the whole record and the foregoing considerations, I find that
the Respondent discharged, and thereafter refused to reinstate, Theodore Pavlue
because of his support of and activities on behalf of the Charging Union. It is
further found, that the Respondent thereby interfered with, restrained, and coerced
employees in the exercise of rights guaranteed in Section 7 of the Act, and dis-
couraged membership in a labor organization by discrimination in the terms, tenure,
and conditions of employment of Pavlue.
2. Hoxie
Louis Hoxie was hired by the Respondent on August 28, 1950 , and remained in
its employ until Friday, June 17, 1955, when his services were permanently termi-
nated. This was exactly 2 weeks after Pavlue had been discharged. The General
Counsel asserts that Hoxie was discharged; the Respondent contends that he quit.
Hoxie started as a helper on a truck at 90 cents per hour. He worked at that job
for about a year and a half, getting wage increases to $1.30 an hour . He then
moved into the shipping department where, except for a brief period of service in the
retail store , he remained until his termination . At the time of the termination Hoxie
was employed as an order picker , at a base pay of $1 .48 an hour, plus incentive.
Hoxie was the fastest worker in the group; he picked more orders and produced more
work , and because he did so, he was the highest paid nonsupervisory employee in
the department , altho his base pay was the same as that of other pickers.
An order picker assembles orders for shipment . The goods are stored in bins or
on shelves. They-are put there by employees known as packers. It is the duty of
the packers to put each type of merchandise in its proper place, with the oldest stock
(identified by code numbers ) to the front . The pickers assemble the orders from
this stock.
The pickers, of whom there were apparently four in June 1955, take the order
sheets from a peg board in the shipping department and collect the items needed
to fill the order , place them on a skid , and return the order to the shipping depart-
ment . It is then the responsibility of the checker , an employee named Tom Larson,
to check the items on the skid against the written order , to see that they conform.
The goods and the written order then go to packers , who make up a packing slip
showing the number of pieces in the order . From that packing slip a bill of lading
is drawn and the goods ultimately shipped.
It is thus seen that as to the kind of items in the shipment both the picker and the
checker must err before the order can go out incorrectly, and as to the number of
items there must be errors by the picker, the checker, and the packer.
Nevertheless errors in picking do occur and are not discovered until the customer
complains ; and this has been so for years . Rarely does a day go by without such
errors. The pickers have been spoken to individually and in groups many times
and urged to be careful in picking , to be good housekeepers ( that is, to keep stock
in its proper place ) and not to "milk" stock ( that is, not to leave it disarranged in
order to achieve speed ). Pickers work on an incentive system based solely on volume
of production . No deduction is made for errors . However, proper procedure calls
for Larson , the checker , to require a picker to correct his own errors, though Larson
may do it himself . Hence , if the system is properly operated by the checker , careless
speed would seem to reduce a picker 's earnings rather than augment them. The
only feature of the job which would not be automatically policed by a requirement
for a self-correction of errors would appear to be the matter of milking stock.
This condition of affairs has existed in the shipping department for many years.
Frank Schockmel , purchasing agent and traffic manager , and head of the depart-
ment since 1952, testified that the condition existed when he took over ; in fact,
Schockmel testified, "that was the reason I was assigned to that department ." There
is no evidence that up to June 1955 the condition was considered sufficiently serious
to warrant disciplining anyone , or instituting a survey or record of individual errors.
423784-57-vol. 117-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Nor, apparently, was any one employee considered more delinquent than any other,
or any picker singled out for cautioning more than any other. Nor had any em-
ployee ever been discharged or transferred from the department or warned of the
possibility of such action because of picking errors. In sum, although the regularity
of occurrence of individual error, and the identity of the picker responsible therefor,
were ascertainable at all times , the performance of the pickers, both singly and
collectively, was apparently not considered deficient enough to warrant anything more
than mild caution-and this seemingly uniformily distributed among all of them.
After the election, however, the situation changed. Although there is no testimony
to the effect that customer complaints or errors increased over what they had been
before, Department Head Schockmel decided, according to his testimony because
of customer complaints, "to intensify our efforts to correct errors." To that end
Sohockmel directed Checker Larson to keep a written record of picking errors until
further notice. There is no indication in the testimony of Schockmel that the number
of customer complaints or picking errors had increased over what they had been
before.
Schockmel's further testimony is that the survey lasted some 6 to 8 days, and was
completed on June 17, and that after its completion he individually interviewed the
pickers about their record of errors disclosed by the survey.
On Friday, June 17, Hoxie was called to Plant Manager Hallman's office where
he was interviewed by Schockmel in the presence of Hallman. All three of the
participants testified about this interview. Although there are some variances in
their testimony, there seems to be no actual dispute among the three as to what
occurred. The variances appear to be mainly the result of omission from, or the
shifting of order or emphasis in, the narrative of the witnesses. I find that the fol-
lowing occurred.
Schockmel had a sheet of paper before him, which he told Hoxie listed Hoxie's
picking errors. He told Hoxie that Larson had kept a check of such errors for
several days. Schockmel further said that this was not quality work, suggested that
Hoxie had been milking the stock, which accounted for his high production, and said
that he did not think that Hoxie was qualified to work any longer in the department.
Schockmel then asked Hoxie whether he would consider going into the varnish
department. Hoxie replied that he would. Schockmel then said that Hoxie should
consider the matter over the weekend. At that point, however, Plant Manager
Hallman said that he had no openings in the varnish department. There was some
further conversation, in the course of which Hoxie said that he was not quitting,
that he would have to be fired. Hallman or Schockmel replied that he was not
being fired, they just had no more work for him. Hoxie said that he would not get
down on his knees and beg for a job, perhaps asked for his check, and the interview
terminated. Hoxie left the plant. The Respondent has never offered him another
job or reinstatement to his old one.
Conclusions as to Hoxie's Discharge
As has been seen, Hoxie was a union leader. Along with Pavlue, he was selected
by Assistant Secretary Dega to be questioned about the nature of and the reasons for
the union activity in the plant. In interrogating Pavlue, Dega mentioned that Hoxie
was one of the organizers. Hoxie was 1 of the 2 employees referred to by Behnke
in his April 22 cottage speech as unaccountably "most active" in behalf of the
Union-the other person being Pavlue.
In the meeting with Hallman and Dega after the election, at which the new insur,
ante plan was explained to Hoxie, Plant Manager' Hallman said that he was "slow
to anger," but "mad now," and further said, in sum, that now that the election was
over he was "free to speak." Hallman then told Hoxie that President Mautz had
"built up a nice business" and "didn't want any outsiders coming in and telling him
how to run his business"; and that as long as Hallman was "production manager"
he was "going to do everything in his power to prevent it." Hallman further told
Hoxie that Hoxie was not satisfied at the Respondent's because there was no union,
and he suggested that Hoxie "go where there was a union," where Hoxie would be
"happy."
It has been previously noted that when he was being interrogated by Dega con-
cerning the union activities Hoxie expressed the conviction that if the Union failed
to get into the plant he would be discharged.
As has been seen, the Respondent's answer admitted the allegation of the com-
plaint-indeed specifically averred-that Hoxie was discharged. Thereafter, however,
'n amended answer was filed denying that Hoxie was discharged and alleging that
he refused to accept a proffered transfer and terminated his employment voluntarily.
MAUTZ PAINT & VARNISH CO . 515
As the foregoing facts disclose, however-and Plant Manager Hallman later ad-
mitted-the assertion that Hoxie refused a transfer is incorrect . The evidence like-
wise refutes the allegation that Hoxie left voluntarily . It is apparent from the facts
that , however euphemistically the situation might have been put, Hoxie was un-
mistakably informed by Hallman and Schockmel that the Respondent had no further
employment for him . It is likewise clear that the termination was not with
Hoxie's consent or acquiescence . It is thus idle to argue that he left voluntarily.
I find that he was discharged , and further , that the action was in reprisal for his
union activities.
These activities and the comment and hostility they aroused on the part of the
Respondent have been detailed above . The entire set of circumstances surrounding
the discharge are consistent only with the conclusion that, as in the case of Theodore
Pavlue, the Respondent sought to rid itself of the sole remaining employees whose
union leadership had evoked its particular attention and adverse comment.
In the first place, there is no adequate nondiscriminatory explanation apparent
or suggested as to why, at this particular time, the Respondent should suddenly
display increased concern over picking errors . There is no evidence that there was
any change either in the number of errors or in the number of customer complaints.
In the second place, it could have been predicted with reasonable certainty that a
check would show that Hoxie was probably , as Schockmel put it , "leading the field"
in the number of picking errors . This was because Hoxie was the leading producer
in the department . Since he picked more, the incidence of error could normally be
expected to be higher. Hence the institution of the survey is itself suspect as a
device for "getting" Hoxie. But even if the survey was instituted in good faith,
the conclusion must nevertheless be drawn that the Respondent used the results as a
pretext for getting rid of Hoxie.
It must be noted at the outset that the evidence of Hoxie's asserted errors is not
the most probative . Larson , the checker , supposedly made the record . Larson,
however, was not called as a witness by the Respondent . Instead , Traffic Manager
Schockmel testified as to the results shown by the survey . According to Schockmel,
Larson turned over his original records of the check to Schockmel . The latter then
used them as the basis for the interviews with the pickers . Following that action,
Sohockmel 's testimony continues , the originals were sent by him to a typist to be
copied. Schockmel thereafter received back typewritten material purporting to be
copies of the original material . Schockmel did not check the copies against the
originals . The originals were not produced , and the typist did not testify. Over
objection by the General Counsel , the typewritten material was admitted into evi-
dence as having been made in the ordinary course of business.
It is apparent that the typewritten record is susceptible of substantial error, both
by Larson in his observation and recording , and by the typist in copying. The
possibility of error was pointed out at the time the documents were admitted in
evidence . While the accuracy of the copies is not denied , it is scarcely a matter on
which there could be denial . Not knowing that the record was being made, the
picker was not in a position later to deny the accuracy of it.
But even if its accuracy be assumed , the record seems incomplete . Thus, although
the documents in evidence show the survey as beginning on June 6 and proceeding
through June 17, and there are records for the other pickers through the latter date,
in Hoxie 's case the record runs only through June 14. Although Schockmel's
testimony is also that the survey ran through June 17, there is no explanation for the
absence of data on Hoxie for the last 3 days . For the foregoing reasons, the evidence
as to the number of errors, both by Hoxie and the other pickers, embodied in the
typewritten record , is not necessarily conclusive.
But even if the accuracy and completeness of the records in evidence be assumed,
their significance , as has been seen, is diminished by reason of Hoxie's higher rate
of production . This is not to say or suggest that the burden is on the Respondent to
disprove that it discriminatorily discharged Hoxie. It is under no such obligation.
Nor is it obliged to be reasonable in its conduct , so long as it is not motivated by illegal
considerations . It may be as capricious as it chooses. But in determining motiva-
tion, as the statute commands that we do, we cannot-indeed must not-avoid taking
into account the plausibility of the explanations in the light of the evidence.
Significant , I think, is the fact that, whatever the delinquencies of the pickers, none
of their errors could result in incorrect orders unless the checkers were also at fault.
For it was the checker's responsibility to check the skid load against the order after
the picking , and thus eliminate errors. As to errors in number of items picked
(and according to the record in evidence almost half of Hoxie's asserted errors fall
into this category )-as distinguished from errors in the kind of items picked-in
addition to the picker , the checker and the packer must also err before the order could
516 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD
go out incorrectly. Yet there is no indication in the' evidence of any equivalent con-
cern by the Respondent for the deficiencies of the checker and the packer, at least none
on which it took any comparable action. The whole survey, in fact, seems to a
'disinterested observer to be somewhat pointless when confined merely to the pickers.
True, if the checker and the packer were doing their jobs satisfactorily the Re-
spondent might well wish to instill a greater sense of accuracy in the pickers. But
where the malady supposedly being investigated (incorrect orders going to customers)
could not exist without concurrent fault on the part of the checker, and perhaps the
packer, it would seem to me that surveying the errors of the pickers alone, while
admittedly striking at the primary cause of the difficulty, ignores the breakdown
in the other two-thirds of the machinery. I simply do not think it plausible that
efficient business methodicians, as I assume the Respondent's officials to be, would
have so attacked the problem if they were interested only in improving the depart-
ment's performance.
The argument is made that, unlike in other departments, the pickers were on the
"honor" system and there was no method of policing their incentive system. Indeed,
it was this consideration, according to Schockmel, that impelled him to suggest a
transfer to another department, where Hoxie's actions could be policed. I find no
merit in that argument. So far as errors in picking are concerned, if the checker is
doing his job, the errors will be discovered, and the picker required to rectify them.
The picking is thus self-policing as to errors if the system is followed. Careless pick-
ing would reduce the picker 's earnings , not increase them.
As to "sloppy housekeeping" and "milking" of stock, the only way to check such
performance is by observation of the picker at his work. There is no probative
evidence here to indicate that Hoxie was guilty of such delinquencies. Schockmel did
testify that one picker, Hancock, complained to him that Hoxie "milked" the stock.
but Hancock did not testify to that effect, nor did anyone else. Schockmel made no
apparent effort to check the assertion. I do not think it likely that a responsible de-
partment head would normally accept such a charge as dispositive of the fact and
act upon it without more substantiation. I consider it significant that there is no
testimony by Larson, the checker, either as to the accuracy of the records'of the survey,
or as to Hoxie's performance.
The record establishes that Hoxie is the only picker ever to be discharged for
errors. None has ever been transferred, or his transfer suggested, for such a reason.
Following the election , Hoxie did not accept Hallman 's suggestion that he resign
and seek employment elsewhere where he would be "happy." I conclude from the
evidence that the motive for the survey was to secure a pretext for removing Hoxie
from the department. Hoxie was a union leader. The Respondent had made its
distaste for the Union and for its leaders evident to officials like Schockmel as well as
to employees. Hoxie's continued presence in Schockmel's department was no doubt a
source of embarrassment to Schockmel. It may be that Schockmel's original purpose
was not to discharge Hoxie, but only to get him out of the department. Schockmel's
suggestion that Hoxie transfer may indicate that. However, it seems unlikely that
Schockmel did not discuss the whole matter with Hallman before they interviewed
Hoxie, and improbable that they did not agree upon a course of action. I conclude
that Schockmel's suggestion of a transfer was mere window dressing, possibly made in
the expectation that Hoxie would indignantly decline, and thus be in the position of
refusing employment. The allegation in the Respondent's amended answer to the
effect that Hoxie had refused the transfer and quit may thus represent no more than
Schockmel's and Hallman's confusion of their original hope with the subsequent fact.
If that hypothesis is correct, when Hoxie agreed to consider transfer, there was nothing
left for Hallman to do but to say that he had no job for Hoxie.
But there is no need for speculation. However the situation was contrived, the
evidence, in my judgment, establishes that Hoxie's employment was not terminated
voluntarily, or because of or in connection with his errors on the job, or with any
aspect of his performance in it. It is my conclusion and finding that, like Pavlue, he
was discharged because of his union leadership and union activities in the Respondent's
plant.
It is further found that by discharging and refusing to reinstate Hoxie for such
reasons the Respondent discriminated in his hire and tenure of employment, dis-
couraged membership in the Union, and interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth above, occurring in connection with its
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.
H. A. RIDER & SONS
V. THE REMEDY
517
Having found that the Respondent has engaged in unfair labor practices , it will be
recommended that it cease and desist therefrom, and take certain affirmative and
remedial action designed to effectuate the policies of the Act. -
It will be recommended that the Respondent offer Theodore Pavlue and- Louis
Hoxie immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority and other rights and privileges, and
-make them whole for any wage losses incurred as a result of the discrimination against
them , in accordance with the Board 's usual policies.
Upon the basis of the foregoing findings of fact, and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. International Chemical, Workers Union, AFL-CIO , is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By interfering with , restraining , and coercing employees in the exercise of rights
guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Theodore
Pavlue and Louis Hoxie, thereby discouraging membership in a labor organization,
the Respondent has engaged in and is engaging in unfair labor practices within the
-meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
H. A. Rider & Sons, Petitioner and Local No. 912 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL-CIO. Case No. 2O-RM-212. March, 1,
1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Shirley N. Bingham,
hearing officer. The hearing officer's rulings made at the -hearing are'
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor- organization involved claims to represent 'certain
employees of the Employer.
- 3. The Employer seeks a determination of representatives among
the production and maintenance employees at its processing plant in
Watsonville, California. The Union contends that no question con-
cerning representation exists because of its alleged disclaimer.
For a period of 2 years, beginning in the summer of 1954, the Union
has made a series of demands on the Employer to sign a contract rec-
ognizing the Union as the representative, of the Employer's employees.
On September 10, 1956, at about 10 a., m., two of the Union's repre-.
sentatives called on the Employer and presented it with a contract and
117 NLRB No. 76.