Metal Cutting Tools, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1971

191 N.L.R.B. 536 (N.L.R.B. 1971)

536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Metal Cutting Tools, Inc. and Lodge No. 1553, Inter-
national Association of Machinists and Aerospace
Workers, AFL-CIO. Case 38-CA-971
June 24, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On February 12, 1971, Trial Examiner Lowell Goer-
lich issued his Decision in the above-entitled proceed-
ing, finding that Respondent had engaged in and was
engaging in certain unfair labor practices alleged in the
complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner also found that Respondent had not
engaged in certain other alleged unfair labor practices
and recommended that the complaint be dismissed in
those respects. Thereafter, the General Counsel filed
exceptions to part of the Trial Examiner's Decision and
a brief in support of the Trial Examiner's Decision. The
Respondent filed exceptions to the Decision and a brief
in support thereof, and an answering brief to exceptions
of the General Counsel.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the rulings of the Trial Ex-
aminer made at the hearing and finds that no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the Trial Ex-
aminer's Decision, the exceptions and briefs, and the
entire record in the case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Trial Examiner and hereby orders that Respondent,
Metal Cutting Tools, Inc., Rockford, Illinois, its offic-
ers, agents, successors, and assigns, shall take the ac-
tion set forth in the Trial Examiner's recommended
Order.
' In so doing, we do not rely upon the Trial Examiner's statements to the
effect that Respondent should have given an explanation to its employees
why it discharged Donahue and Clemens.
191 NLRB No. 101 '
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Trial Examiner: A charge in Case
38-CA-971 was filed by Lodge No. 1553, International As-
sociation of Machinists and Aerospace Workers, AFL-CIO,
on July 28, 1970, and was served upon Metal Cutting Tools,
Inc., the Respondent herein, on or about July 28, 1970. A
complaint and notice of hearing was issued on September 3,
1970. In the complaint it was alleged that the Respondent had
violated Section 8(a)(1) of the National Labor Relations Act,
as amended, herein referred to as the Act, by unlawfully
giving its employees the impression that it had kept under
surveillance and would continue to keep under surveillance
the meeting places, meetings, and activities of the Union or
other concerted activity of its employees and that it unlaw-
fully offered, promised, and granted to its employees certain
wage increases and job promotions and other benefits or im-
provements in employees' terms and conditions of employ-
ment in order to induce them to refrain from becoming or
remaining members of the Union or giving any assistance or
support to it.' It was further alleged in the complaint that the
Respondent discharged employees David Donahue and John
Clemens in violation of Section 8(a)(3) of the Act.
The Respondent filed timely answers denying that it had
engaged or was engaging in any of the unfair labor practices
alleged.
The case came on for hearing on October 27, 28, and 29
at Rockford, Illinois. Each party was afforded a full oppor-
tunity to be heard, to call, examine, and cross-examine wit-
nesses, to argue orally on the record, to submit proposed
findings of fact and conclusions, and to file briefs. All briefs
have been carefully considered by the Trial Examiner.
Upon the whole record and upon his observation of the
witnesses, the Trial Examiner makes the following:
FINDINGS OF FACT, CONCLUSIONS, AND
REASONS THEREFOR
I. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material herein
an Illinois corporation with office and place of business
located at Rockford, Illinois. It is engaged in the business of
manufacturing metal cutting tools. Respondent during the
past 12 months, which period is representative of all times
material herein, sold and shipped from its Rockford plant,
herein called the plant, finished products valued in excess of
$50,000 to points outside the State of Illinois. The Respond-
ent is and has been at all times material herein an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Lodge No. 1553, International Association of Machinists
and Aerospace Workers, AFL-CIO, herein referred to as the
Union, is and has been at all times material herein a labor
organization within the meaning of Section 2(5) of the Act.
' The complaint was amended at the hearing. In the amendments it was
alleged that the Respondent harassed employees because they were wearing
union insignia; that the Respondent threatened its employees with loss of
benefits or other reprisals if the Union won an election; that the Respondent
interrogated its employees concerning their union membership, activities,
and desires and the membership, activities, and desires of other employees;
and that the Respondent ordered setup men to cease giving assistance to
those of its employees who were wearing union insignia.
METAL CUTTING TOOLS, INC. 537
III. THE UNFAIR LABOR PRACTICES
A. Facts
First: Union activities and the discharges of David Donahue
and John Clemens. David Donahue and John Clemens were
among 20 persons employed by the Respondent on its night
shift which commenced at 5 p.m. and ended at 2:30 a.m.
During this shift, between 11 p.m. and 11:30 p.m., the Re-
spondent provided employees with a paid lunch period. At
the beginning and end of the lunch period, respectively, each
employee was required to punch out and in on a timeclock.
The rule was that if an employee punched in more than 6
minutes late, that is, after 23:60 on the timeclock2 (The time-
clock was a 24-hour clock on which each hour was divided
into 100 parts.), payment for the lunch period was denied;
otherwise he was paid for the period.
Sometime in April 1970, Donahue and employee Dennis
Woodrow, a day-shift employee, visited the Machinists
Lodge in Rockford, Illinois. The union officials were out.
Donahue and Woodrow disclosed their intentions to the
secretary and left their names and addresses. The following
day Donahue discussed the Union with employee James
Pumphrey at the plant and thereafter with other employees.
Woodrow talked about the Union with Leadman' Dick Love
and Fred Jardine in which conversation Donahue was men-
tioned.
Sometime after the foregoing visitation, a job as operator
of a form relief back off machine became open in the depart-
ment in which Donahue worked. Donahue suggested to
Night-Shift Foreman Leo Love that "in all fairness [he]
should have first chance at the job.' Love told Donahue that
he would talk to Plant Superintendent Dominic Peter Decori
about it. According to Donahue, Love reported that Decori
approved his assignment to the job. At the same time Love
told Donahue that he had convinced Decori that Donahue
was not active in the Union, and that Decori had instructed
him to "keep an eye" on Donahue and if he were active in
the Union he "wouldn't be around much more."' According
to Love, when the matter was broached to Decori, Decori
hesitated because Decori did not like Donahue's job attend-
ance. Love, who had not "really considered anybody else" for
the job, said that he would "find out if he will work steady
and come in here every night." Love went to Donahue and
told him that if he was "going to keep taking off and not
coming in, going home at lunch time and not coming back,
[he couldn't] have the job, but if [he] work[ed] every day [he
could] have it." Donahue replied, " I am going to work every
day."6 Donahue was placed on the job May 8, 1970, and
For example, for the week ending June 13, 1970, Donahue's timecard
reveals an entry of 8.9 hours rather than the usual 9 5 hours for the day's
work, where the entry on the timecard showed the return from lunch to be
at 11:37 a.m (23:62 on the timeclock).
For the purpose of this decision the Trial Examiner does not find it
necessary to resolve the status of the leadmen and has drawn no inferences,
conclusions, or findings from their alleged conduct See Cotton Lumber Co.,
185 NLRB No. 51.
° Donahue considered it a better job, describing it as cleaner and "a little
more complicated work" than he was doing.
Love denied this part of the conversation
6 Donahue denied this part of the conversation The Trial Examiner is
convinced that the conversation contained some of both parts. In view of
the Respondent 's concern in regard to the Union , as is reviewed herein, its
subsequent commissions of unfair labor practices , the smallness of the night
shift, and the cordial relationship between Love and his employees, the Trial
Examiner concludes that the Respondent had heard of Donahue's union
activities and that it is reasonable to believe that Love 's statements about
the Union were made to Donahue On the other hand, Donahue's unimpres-
sive attendance record leads the Trial Examiner to believe that Love re-
ferred to Donahue's job absences . However, the Trial Examiner is not con-
thereafter received a 10-cent-an-hour wage increase.
Around the first of June Union Representatives Collyn
Maple and Phil Preoda contacted Donahue at his home. They
apologized for their neglect which they attributed to a cam-
paign in which they were engaged. They inquired whether
Donahue was still interested in the Union. When he answered
affirmatively , a meeting of night-shift employees was ar-
ranged for June 4, 1970, at Donahue's home. Thereafter
Donahue approached each of the night-shift employees in the
shop and advised them of the meeting. All, except for one
night-shift employee, attended the meeting. Alleged dis-
criminatee Clemens was the first to sign a union authorization
card . Donahue likewise signed a card as did the remaining
employees present, except for one who later signed at the
plant.' Union Representatives Maple and Preoda were also
present at the meeting.
Following the meeting both Clemens and Donahue ini-
tiated and participated in union conversations at the plant.
Each also distributed Machinists pins, Machinists decals for
the toolboxes, and a ballpoint pen with a holder on which
appeared a union insignia. According to Decori, all em-
ployees on the night shift were wearing union insignia. Some
employees wore a Machinists union shirt with a Machinists
emblem approximately 10 or 12 inches in diameter on the
back and a similar one on the front pocket. Of the night-shift
employees, only Donahue and Clemens' wore these shirts. Six
employees on the day shift wore such shirts. The shirts ap-
peared about 2 weeks before July 10, 1970.
On Friday, July 10, 1970, night-shift employees Donald
Verdina, Ralph Clapper, Clemens, and Donahue punched
out for the lunch period and together traveled in Donahue's
car a distance of 2 miles to the Inn Crowd Tavern where they
drank beer. They returned at 12:57 p.m., about one-half hour
late. Love sent them home.
While it was Love's usual practice to write notes to Decori
concerning more serious matters, on Saturday morning he
phoned Decori about the incident.' Decori's version of Love's
report was as follows:
... Leo told me that he had a little problem last night.
He says four of the boys went out for lunch, didn't get
back in time. They were back shortly after 12:00. They
had been drinking. I says who were they. Dave Dona-
hue, John Clemens, Don Verdina and Ralph Clapper. I
said what happened. He said I stopped them, they
punched in, but I stopped them.
He said I questioned them Dom, I wanted to know if
they had been drinking. The fact is he did mention-I
asked them if they wanted a balloon test or if they could
pass a balloon test. I said okay , what else happened.
vinced that the subject "going home for lunch and not coming back" was
mentioned by Love. In this respect it is significant that the timecards offered
by the Respondent reveal only one incident, March 19, 1970, when Dona-
hue failed to punch in after lunch The Trial Examiner considers Love's
testimony to have been gratuitous and unbelievable on this point. De-
meanor, of course, has been considered,
7 The cards of Donahue and Clemens bear the date of June 4, 1970.
' Several days after Clemens commenced wearing the union shirt , Presi-
dent Bruce Miller walked by him "real slow" and "almost stopped , staring
at [his] shirt."
9 Love, implausibly , explained, "because it would take too long to explain
it in a note ." A more plausible explanation is , no doubt, that Love did not
consider the incident of enough importance to write a note
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I asked them how much they had to drink and he said
Dave smarted off to me, he said we had four or five. I said
okay, what else did Dave tell you. Right then, nothing.
I said what did Clemens say-nothing. Verdina, noth-
ing. Clapper-nothing. [Emphasis supplied.]
I said what else, went on. Well, he says, that Dave said
if we had found some women we wouldn't come back,
plus the fact there's going to be some changes around
here. I said what else? Dave did all the talking-he said
yes. I said how was he-he said cocky. I said okay, let
it set and I will look into it Monday morning when I
come in and Leo's parting words were to me, he said
Dom, it's your baby-it's your decision.
Love made no recommendations in regard to the incident."
Decori brought the incident to President Bruce Miller's
attention on Saturday morning. According to Miller, Decori
told him:
That, that these four fellows had come back late from
their lunch hour, that they had admitted to drinking five
beers, that he mentioned the statement if they had found
some women they wouldn't be back yet. He said that Leo
had sent them home and that he was going to have to
take disciplinary action and that he said that he had
warned two of these men
[b]efore and the two had, the other two were relatively
recent night shift employees and had not been warned
and that it was his opinion that the two that had been
warned would have to go and the others would be
warned.
According to Decon he told Miller, among other things,
that Love had reported that the four employees had returned
one-half hour late from lunch; that Love had mentioned the
balloon test; and that Donahue said that if he had found
women he wouldn't have come back. Decori showed Miller
the records of the four employees and told him "about the
John Clemens incident a year ago ," "the warning that Dave
Donahue had, had been extended lunch hours, when I mean
extended lunch hour, he left at 11:00 and did not show up at
all."" To all of this Miller replied, "Dom, you are running
that shop ... so you run it."12
Decori testified that he reviewed the record of each of the
four employees. One such record was the attendance reports
of Clemens" and Donahue.14 Clemens' file also revealed a
note from Love that around March 27, 19691- Clemens was
11 Love's version of the report was as follows: He told Decon that he "had
a little problem last night and [he] hoped [he] had handled it right." He
related:
I had a problem last night . Donahue, Clemens , Clapper and Verdina,
the four of them went out and came back after midnight and admitted
to having four or five beers and I didn't think they should work with
that so I sent them home and they are to see you Monday and he asked
me a few questions about well, if for sure what time it was when they
got back and if for sure they admitted having four or five beers and I
told them that is what they admitted to me
I said I don 't know what you are going to do about it. I says I know
the heats on around here and it's your decision , not mine.
TRIAL EXAMINER: Is that all you remember of the conversation
THE WITNESS Yes.
" As noted above Donahue's timecards show only one such incident,
March 19, 1970. The following day's absence was excused.
11 The variance in the testimony of Love, Decori, and Miller casts doubt
upon their credibility.
11 Clemens' attendance report indicated that he had four "AWOL's"
from February 1967 to July 1969 and none in 1970.
14 According to Decori, Donahue's job attendance improved after he was
placed on the form relief back off machine.
excused to go home for a few minutes to unlock a door for
his wife. He left at 7:30 p.m., but did not return until 10:45
p.m. As explained by Love in his note, "I told him to just take
the rest of the night off, he was drinking;" the note continues,
"he left and probably had a few more drinks and came back
for his tools. As far as I'm concerned he is done. We have set
out to stop this goddam drinking and we can not do it by
letting any one get away with it. I know he is a dam good
grinder hand, but I'm not going to let that make any differ-
ence, quoting you." Clemens was not discharged.
Decori further testified that a note from Love (which, was
not offered into evidence) was in Donahue's file relating that
Love had "talked to him about his attendance problem" at
the time Donahue was placed on the form relief back off
machine."
No notes appeared in the files of Verdina or Clapper.
Love did not recommend the discharge of Clemens or
Donahue nor was his opinion sought by Decori. Both Miller
and Decon, at the time of the discharges of Donahue and
Clemens, knew that they were the only employees on the
night shift who were wearing union shirts.
Decori testified that in discharging Donahue he was "not
really" influenced by his remark "there will be some changes
made" but was affected by such things "like who cares, so he's
late again and I had four or five beers, if I found what I
wanted I wouldn't have come back, back the rest of the
night." Decori conceded that these comments were "wise-
cracks" and that Love's reference to the balloon test would
be "classified as a smart thing too.
In regard to his reason for discharging Clemens, Decori
testified:
Q. So your reason for discharging Clemens was solely
because ...
A. What happened March 26, 1969.
Q. Which concerned drinking?
A. Drinking.
Q. Your primary consideration concerning Clemens
was what you assumed to be his state or probable intoxi-
cation on July 10th?
A. Right.
Q. And it was not the fact that he was 25 or 30 minutes
late?
A. I wouldn't say so.
Decori explained that he did not discharge Verdina and
Clapper because their files were clean and, having recently
come to the night shift, they had not been warned on the
subject of drinking.
On Monday, July 13, Donahue and Clemens appeared
before Decori. Decori referred to the drinking problem and
said that was the reason he was terminating their employ-
ment. Clemens asked if there would be a chance of reinstate-
ment. Decori replied, "Definitely not." Decori indicated that
he would give the employees good references as good grinders
but would have to mention their drinking problems.
Decori's version of the confrontation was as follows:
I says do you remember what I said back a year, a
little over a year ago about drinking? They both, both of
them admitted that they remembered the little meeting
I had with them.
I asked Dave if he remembered Leo telling them about
these extended lunch hours that he was accustomed to
taking." He said yes, I says well, Dave under the circum-
" Love did not mention the note. The Trial Examiner considers refer-
ence to it to be either a fabrication or that the note contained matter
unfavorable to the Respondent.
" The Trial Examiner does not credit this statement.
METAL CUTTING TOOLS, INC. 539
stances you don't leave me much choice. I have got to
let you go.
And to John Clemens I said John, this is-this is a bad
one because you made one mistake. You have been
warned, you heard what I said at the meeting" and now
I said you made another mistake which gives me no
alternative but to discharge you.
John Clemens asked me in fact John Clemens told me
that little speech you made was a long time ago. I said
that's right, and I don't intend to repeat it every night.
He asked to be reinstated and I said no.
Verdina and Clapper also appeared before Decori who
informed them that he had "let Dave and John go." He
further said that he had warned the night shift about the
drinking problem but since Clapper and Verdina had not
been warned he would give them another chance.
When Donahue checked out, Love remarked that he was
sorry that "this happened," and that if he had known it would
have gone "this far" he would not have sent them home on
Friday. Love said substantially the same thing to Clemens.
The Respondent's employees were never informed by the
Respondent what its reasons were for discharging Clemens
and Donahue and for retaining Verdina and Clapper.
Love rated Clemens as a good employee and Donahue as
a fair employee.
After their discharges both Clemens and Donahue dis-
tributed union handbills at the Respondent's plant.
'Approximately 2 weeks after their discharges, as President
Miller was driving out of the parking lot, he stayed to chat
with Donahue and Clemens. They asked to see him. Miller
agreed and Miller, Donahue, and Clemens met the next
morning in Miller's office. At the meeting Donahue asked
that he and Clemens be returned to employment. Miller re-
plied that it was the supervisor's decision and that his hands
were tied. He further commented that he was trying to con-
vince the employees "that they did not need a union, that the
company was too small for a union and between management
and personnel, they were real close." Miller also said, "this
had nothing to do with any union activities."
On June 30, 1970, Miller had sent a letter to the em-
ployees" in which he wrote, "In my opinion, a union would
serve no useful purpose here in our small plant." He also
wrote, "Let there be no misunderstanding: I do not want a
union here at Metcut."
On July 9 Miller wrote to the employees in part:
As you know, our policy here is based upon the sincere
belief that the open shop method of operation is morally
right and economically sound. I believe that it is not
wise, not desirable, and not necessary for you to be
compelled to be represented by some outsider in your
11 Decori was referring to remarks made by him on March 27, 1969,
which according to Decori was "triggered off" by the Clcmens' incident of
March 26, 1969 Decori had known of the drinking problem on the night
shift. According to Decor,, he told night-shift employees that he was "not
going to tolerate any more drinking in the plant or any one coming in
intoxicated or under the influence of liquor whether they report to work
before the shift or after the lunch hour." This, he said, he was adding to the
Company's handbook rule on the subject (The handbook rule banned em-
ployees' bringing liquor into the plant or consuming liquor on the premises.)
Love testified that all he recalled "being referred to by Mr. Decori was either
having alcoholic beverages on the plant premises or being intoxicated on the
plant premises " Love said he didn't think that Decori would object to a
"beer or so," at lunch periods and that he had not warned employees not
to drink beer at lunchtime. In any event, lunch drinking of alcoholic bever-
ages continued after Decori's speech which was known to the Respondent.
There is no credible proof that such dunking off the Respondent's premises
was banned at the lunch period.
11 The Charging Party had filed its representation petition in Case 38-
RC-862 on June 22, 1970.
relationship with me. I believe it is the right of every
employee to deal directly with his foreman, or with Do-
minic, or with me, face-to-face, concerning all matters of
wages, hours and working conditions. I am convinced
that a union coming between us would do no one any
good and may do all of us considerable harm.
I hope to continue our open shop policy of recognizing
and respecting each of you as an individual human be-
ing. This policy has made possible the growth and the
improvements we have experienced here at Metcut. Out-
side interference would, in my opinion, be a serious
disadvantage to all of us.
Two days later on July 11, 1970, Miller concurred in the
discharge of the only two union shirt wearers on the night
shift, an act which even if within the law would have caused
employees to speculate about his purpose in view of his ex-
pressed strong union animus.
On July 23 a stipulation for certification upon consent
election was executed by the Respondent and the Union pro-
viding for an election on August 19, 1970. Miller continued
his letter writing to employees.
In a letter dated August 3, 1970, Miller urged employees
to vote "No" and observed that the Union would not "do
anyone any good." "In fact, we think it might be harmful to
us all."
Again on August 12, 1970 , Miller wrote employees "I do
not want a union here. I am convinced that a union would
not be good for us here at Metcut... I hope you vote `NO."'
Miller further commented, "I honestly believe that you in-
dividually, and all of us together, will be much better off if
we have NO union here at Metcut."
On August 15, 1970, Miller admonished employees, "I
don't want outsiders tampering with our profit sharing retire-
ment plan or our Scanlon plan-and I don't think you do
either. Be sure and vote next Wednesday. Be sure and vote
`No."'
On August 17, 1970, Miller wrote:
A union could do nothing to help us.
I sincerely am convinced that all of us, individually and
collectively, will be better off with no union here at
Metcut. If you agree with me, then be sure to vote on
Wednesday, and be sure to mark your "X" in the square
on the ballot under the word "NO." It will be on your
right hand side.
Be on the right side. Vote NO.
The Union lost the election.19
Second.- The night-shift drinking problem. The drinking
problem on the night shift cropped up quite often and in-
volved several discharges. In early February 1969 employee
Alvin Albey was observed after the lunch period "steadily
getting drunker." Toward the end of the shift Albey became
abusive with employee Kenneth Rodden and "took a swing
at him." A bulletin board glass was broken and blood was
spilled on the floor. Decori discharged Albey the next day,
and said to him on this occasion "you drank while you were
working ... plus the fact fighting, I would not tolerate
fighting in there. Fighting is out. We can't have it because
somebody is going to get hurt."
19 The letters are referenced as evidence of the Respondent's union
animus as well as the efforts employed by it to defeat the Union. While the
General Counsel has not cited these letters as alleged violations of Sec.
8(a)(1), Miller, by these letters, if he did not overstep the brink, came
dangerously close. See N.L.R.B. v Gissel Packing Co., 395 U.S. 575 State-
ments of substantially the same import were held by the Board in Branden-
burg Telephone Company, 164 NLRB 825, enfd. 408 F.2d 377 (C.A. 6), to
tend to impress upon employees the futility of selecting a union representa-
tive See also N.L.R.B. v. Bailey Company, 180 F.2d 278, 279 (C.A. 6).
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Richard Smith, another night-shift employee, was dis-
charged in April 1969. He was observed on "more than one
occasion" in the plant "blurry eyed, nervous, shaky, some-
times steady, sometimes not." Sometimes he wandered
through the plant. According to Love, "he had been drinking
coming in like this quite a lot." On the occasion of his dis-
charge, he was arguing with Donahue. He was "pretty
looped, boy, he was looped bad that one." He said, "first I am
going to beat the hell out of this Donahue, then I am going
to work." As put by Decors, "Dick defied Leo to fire him-
Leo fired him on the spot." Love had sent him home once
before and had talked to him "many times" about his drink-
ing. The next morning Decori confirmed Smith's dismissal in
a meeting with Smith.
Night-shift employee James McDaniel was discharged for
the second time in October 1969. McDaniel, for the first time,
was discharged in February 1969. According to Love, for a
period of 6 months prior to his discharge in February,
McDaniel had appeared "many times" at the plant in an
intoxicated condition. When he appeared in such condition
Love admonished him that such conduct, if repeated, would
be grounds for discharge, and sent him home. ". . . it was
usually three or four days" before he returned to work. Dur-
ing the week prior to his discharge, according to Love,
McDaniel "had been coming down there drunk." On the day
of his discharge he was excused by Love "to run home for
something." When he returned he "didn't talk straight, his
speech was slurred, and he was red eyed ... he was pretty
unsteady." Love told him to go home and' return to see
Decori. McDaniel said that he would not visit Decori. Love
paid him off. Love addressed a note to Decori describing the
incident in which he related, among other things, that "Jim
McDaniel was down here drunk again" and "Here is his card,
I've had enough of him."
McDaniel, nevertheless, visited Decori. Decori told him
that he had been warned by Love and sent home and that he
had no choice but to discharge him.
Later McDaniel contacted Decori who rehired him in May
1969. As explained by Decori, "later on he came back to me
and told me how he had changed, he had a family and it was
-he wasn't going to drink any more and if I would put him
on the day shift this would help him. It was the night shift
that was driving him to drinking and f rehired him."
For several months McDaniel did "real fine" on the day
shift. At his request, Decori transferred him to the night shift.
As described by Decori, "in my weak moments I put him on
nights." His drinking problem returned. He appeared for
work "quite a lot" drunk. According to Love, McDaniel was
discharged for "[d]rinking, poor attendance and coming in
drunk." After several days' absence McDaniels appeared.
Decori said, "I had to do it again."
Love and Decori had not been strangers to the drinking
problem on the night shift. The credible evidence discloses
that Love himself was possessed of a drinking problem which
had been the subject of a discussion between him and Decori.
Moreover, Love was aware of the lunchtime drinking in
which he also had participated. He knew "after all these years
. who has a beer when he goes out to lunch and who
doesn't." When an employee appeared too drunk to work,
Love sent him home.
Decori also knew of lunchtime drinking for he told Love,
according to Love, "It's best not to go out at all if you don't
go out, you don't have a drink-if you don't have a drink,
nobody smells it on you."" Love claimed that he had not had
'0 Decori denied that he was aware of the fact that employees drank
intoxicants at the lunch period Being pressed, however, he testified, "I had
to assume they were getting liquor some place and the only thing, the only
a drink for about a year (October 1969). Prior to that time
Love admitted that sometimes at lunch he drank a couple of
beers. According to employee Raymond Prybylowski, a cred-
ible witness, on "quite a few occasions" Love was in the plant
"red faced, a little bit nervous, shaky, once in a while his shirt
would be hanging out" but "just lately he's been pretty
good."21 As late as 3 weeks before the hearing Prybylowski
had considered Love in the plant under the influence of al-
cohol. Prybylowski was what may be considered a heavy
drinker himself. It was Prybylowski's habit each day to down
three shots of whiskey and a short schnitz of beer, sometimes
referred to as a boilermaker. Love talked with Prybylowski
about his drinking habits "quite a bit" and cautioned him not
to drink too much at lunch. Prybylowski heard no warning
not to drink at the lunchbreak. On one occasion Love said to
him "the fellows are just taking too much and coming back
in a lousy shape." In respect to Prybylowski Love was asked
whether he had ever observed him under the influence of
alcohol. Love's answer was "Yes, sir, drinking, but how far
does drunk go." Love admitted that he knew Prybylowski
had "drinks every night at lunch time." He said that some-
times he thought his drinking was "border line." Love ex-
plained, "I don't think he had too much, but you could let
it go without too much danger."
Clemens said that he usually drank three or four shots of
whiskey at lunchtime at a tavern, many times with Prybylow-
ski,22 and sometimes with other, employees. There is no doubt
that many night-shift employees imbibed alcoholic beverages
at lunchtime off the Respondent's premises. In this aspect
there is no credible evidence that employees had been warned
not to drink alcoholic beverages during the luncheon period
outside the plant. Love had worked under Decori for 14 or
15 years. Decori had worked for the Respondent 28 years.
The Trial Examiner is convinced that they both were familiar
with the night shift's luncheon drinking.
Third.- The 8(a)(1) allegations. About the third night after
Donahue commenced wearing a union shirt (which would
place the date in the latter part of June 1970) Decori re-
marked to him, "brains go along with wearing a white shirt."
Donahue replied, "I notice you are wearing a blue shirt."
Sometime during the election campaign Decori ap-
proached a new employee. Employee Daniel Rodden de-
scribed the incident:
He said can you set up your own machine. He said-this
is really funny, this is a big joke-you want to be a
machinists, but you can't set up your own machines. He
came toward me-I was standing watching. He smiled,
laughed, he said this is actually funny-this is a real big
joke.
I said what you are talking about-he said these but-
tons, he said, this is really funny. I said why, he said guys
wearing the button and stuff and they can't set up their
own machines. He said-I said I can set up mine-he
said yes, in the lathe department you can set up your
own work.
Some of the guys don't know what they are doing but
they want machinists wages and that's ridiculous.
Bill Preston came up, he told him basically the same
thing, this kid Rick Buzbee came over with a print, he
asked Preston how to set it up. Mr. Decori turned to me,
conclusion I can come to was that during lunch time they must be going out
and having some drinks." Decori's denial is not credited.
The testimony of Donahue and Clemens was similar on this subject.
Clemens testified, "Well, Ray and I used to drink the same amount
every night when we went together and Irv Schutt usually two large beers,
one short beer and a shot of whiskey."
METAL CUTTING TOOLS, INC. 541
that is funny, there is another one of you fine machinists
that can't set up his own machine.23
Miller stopped at employee Harold Smith's24 machine and,
among other things, said to Smith, "I recommend that they
vote no" and asked him how he "recommend they vote."
Smith replied, "I recommend they vote yes."25 Miller then
referred to the Scanlon plan (a profit-sharing plan) and re-
marked that he thought the employees liked it. He added, "It
looks like they will be voting on it on the 19th."21
On another occasion employee Preston was setting up a
machine for Rodden. Miller, who was passing, after ascer-
taining that Preston was setting up the machine for Rodden,
smiled and said, "[He]'s a machinist, he ought to be able to
set up his own machine."27 After Miller left Preston explained
that "Miller told them not to set up machines for anybody
now, tell them how to do it and give assistance, but as far as
doing it they won't do that. If we want to be machinists we
have to be machinists."
The Respondent has no job classification entitled "machin-
ist."
Fourth: The incident at midnight on duly 10, 1970. On July
10, 1970, Donahue, Clemens, Verdina, and Clapper jour-
neyed to the Inn Crowd Tavern, a distance of 2 miles from
the plant, in Donahue's car, where they were observed by
Anthony Bilerdello, who with his father operates the tavern.
At the tavern, where they stayed for about 45 minutes, Dona-
hue, Clemens, Verdina, and Clapper were served by Biler-
dello with three 12-ounce glasses of beer each. It was the
opinion of Bilerdello, whom the General Counsel presented
as an expert, that there was nothing in Donahue's or Clem-
ens' appearance which indicated a state of intoxication.
Donahue was "perfectly coherent in his discussions" with
Bilerdello.
While at the tavern Clapper and Verdina asked Donahue
"should we go back, it was getting late." Donahue said, "we
will-that will be all right." They went to Donahue a second
time, and were told, "ain't nothing to worry about." They
went to him a third time and "did talk him into going." As
they drove back to the plant, Verdina suggested that they
fabricate some excuse for being late, but Donahue said, "we
don't need no excuse." The employees left the tavern about
midnight.
When the employees arrived late at the plant Donahue did
the talking. Love described the full event as follows:28
I asked them if they could stand the balloon test. [Love
"naturally" assumed they had been drinking. Love said
there was nothing about their appearance which caused
him to make the remark.]
I says where you guys been-up at the tavern-how
much you had to drink, I said and well [Donahue] four
or five beers.
Four or five beers. I said that is quite a few drinks to
come to work on. Well, he said you want to send us
home. I said I send one of you home, I will send you all
home.
23 Decori admitted that he said to employee Ed Nelson "if you want to
be a machinist, get back to your machine and get back to work."
24 Smith was wearing a union button which was noticed by Miller.
16 Miller admitted the conversation.
26 Miller testified that he said, "they can vote it out if they don't want
it" which he claimed was a vote to be held on the plan. The plan had been
paying bonuses.
11 Miller admitted the conversation.
23 Ronnie Powell, a leadman, was also present but did not testify.
Well, what do we do-well, go on home, 9 so they
went home, went and closed their tool boxes, but Dona-
hue had done all the talking.
He actually said he wouldn't be back yet if he had
found some women.30
Before they left Clapper and Verdina told Love that "they
were sorry they knew they were wrong and wanted to come
back on time, that Donahue was driving and he wasn't ready
to come back yet. They asked him and he didn't want to come
back yet." Love was further informed that they each "had
three, was on their third and didn't finish it." Love testified
that there was nothing about the appearance of the four
which would have led him to exercise his judgment that they
shouldn't have gone to work.31
Clapper's testimony was substantially the same as that of
Love's testimony.32 He said that Donahue "wasn't walking
funny or anything like that" and that he drove the car back
to the plant, turning a corner and parking without incident.
Verdina remembered that Love said that "they had been
threatening to take this paid lunch hour away" and that
Donahue retorted, "[t]here's going to be some changes
made." Love replied, "[T]here's been no changes made as of
19 Love testified, "To me it was easier to send them all home than to pick
two out of the crew and send them home."
3° Love referred to this as a "kind of a fun statement probably."
31 Love testified, "Well Donahue really looked probably the worst-his
face was pretty red, but I think that is kind of natural with him anyway."
On this subject the following was significant of Love's indecision as to
whether the employees should have been sent home.
TRIAL EXAMINER: Now, when Clemens and Donahue came in you
made a decision to send them home, did you not?
THE WITNESS: Yes.
TRIAL EXAMINER: Now, at what point did you make up your mind
to send them home-when they talked to you, when they walked in the
door, did you take a look at them and decide that you are going to send
them home at that or was it later or when was it that you actually
decided these men should go home?
THE WITNESS. Well, I believe when Donahue said if they had found
some women they wouldn't be back yet.
TRIAL EXAMINER: That was the point you decided to send them
home9
THE WITNESS: He said there was two things there, one he says you
want to send us home and I thought he was challenging my authority
maybe and I sent him home. That is all, maybe he wanted to go home.
I don't know.
TRIAL EXAMINER: When he said that, is that when you decided to
send him home?
THE WITNESS: No, I thought about it a little.
TRIAL EXAMINER: Well, at what point did you finally make your
decision-that is what I am getting at.
THE WITNESS: I am trying to recall
TRIAL EXAMINER: What triggered off your decision so to speak?
When he said he had five beers, when they walked in late or was it
when he talked about the women or when he said to you why don't you
send me home-just when was it that you finally made up your mind?
THE WITNESS: I think when he said do you want to send me home,
I said you will all go home. That is the time nearest as 1 ,can say.
TRIAL EXAMINER: The fact he said that was that the thing that
caused you to make up your mind to send him home's
THE WITNESS: No, well, probably that-that was the clincher. I
thought I should send them home when he said that-I probably
figured, well, yes.
TRIAL EXAMINER: And as you indicated you felt that's was a chal-
lenge to your authority?
THE WITNESS: Well...
TRIAL EXAMINER: Is that what you meant?
THE WITNESS: No, not really. Probably-I don't think he probably
challenged my authority. I thought he might have been, but ...
32 As to the sending home part of the conversation Verdina testified:
"After Dave said why don't you send me home, he says I can't just send you
home, I'd have to send all of you home. Then he says why don't you, he said
okay."
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
yet." Verdina testified that there was nothing about the ap-
pearance of Donahue or Clemens indicating intoxication,
"they were natural to me, both natural."
Clemens described the incident as follows:
Leo asked us where we had been.... Dave Donahue
told him we had been at the tavern.
Leo Love asked how much we had had to drink. Dave
Donahue said three or four glasses of beer and Leo Love
said you are setting a poor example . He said can you pass
the balloon test . Dave Donahue said-told him we
could . He said I guess you know that I could send you_
home.
Dave Donahue said yes, it's up to you . Leo said, all
right, we will send you home. He told us to close our tool
boxes and leave.
Donahue described the incident as follows:
He asked where we had been . We told him the tavern.
He said how much did you have to drink. I said three
beers. He said can you stand a balloon test. I said yes and
he said you are ruining it for the night shift....
They are trying to take away your paid half hour for
lunch . I am trying to save it . He said I have a good
notion to send you home. I said should I go home. He
said not you alone, all four of you.
I stood there and do you-and said do you want us
to go-he said yes.
While Donahue was locking his toolbox in preparation for
leaving Love said to him that maybe he was a "little quick."
Whereupon Donahue asked him again whether he wanted
them to go home. Love answered, "[Y]es as you might as
well."
Love did not recommend the discharges nor had he ever
recommended discharges under similar circumstances. In-
deed had it been left to him the employees would not have
been discharged,
B. Conclusions and Reasons Therefor
1. The alleged 8(a)(l) violations
The General Counsel contends that the Respondent gave
the form grinder job to Donahue to induce him to cease his
union activity. On this point the Trial Examiner is of the
opinion that the General Counsel has not proved a prima
facie case.
The General Counsel further contends that Love's remarks
to Donahue that Decori had instructed him to "keep an eye"
on Donahue and that if he were active in the Union, he
"wouldn't be around much more," gave Donahue the impres-
sion that his union activity would be kept under surveillance,
in violation of Section 8(a)(1) of the Act. The Trial Examiner
is in agreement and so finds.
Finally, the General Counsel contends that the Respond-
ent interrogated employee Herb Smith and threatened him
with loss of benefits if the Union should win the election in
violation of Section 8(a)(1) of the Act. Such contention is
planted upon Miller's inquiry of employee Smith as to what
recommendations he was making to employees in respect of
their voting for or against the Union and to Miller 's assertion
that the employees would be voting on the Scanlon plan (a
profit-sharing plan) on August 19, the date of the representa-
tion election . The latter assertion in the context used was a
clear inference that a union victory would put the Scanlon
plan in jeopardy. Moreover, Miller's inquiry of Smith as to
what he was recommending to other employees served no
legitimate employer's purpose but laid the groundwork for
possible discrimination . Miller's interrogation of Smith, as
well as his suggested conditioning of the continuance of the
Scanlon plan on the outcome of the election, was of such a
character as to reasonably tend to restrain employees in the
exercise of rights guaranteed by Section 7 of the Act and was
unlawful.
2. The discharges of David Donahue and John W.
Clemens
The Respondent insists that it discharged David Donahue
because, after warnings (Decori's speech of March 27, 1969,
and Love's talk with Donahue at the time of his promotion,
May 8, ,1970, about "extended lunch hours [Donahue] was
accustomed to taking"), he returned late for lunch" in an
intoxicated condition displaying an unacceptable general atti-
tude,-,and that it discharged John W. Clemens because, after
a warning (Decori's speech on March 27, 1969), he returned
to the plant in an intoxicated condition ." Thus several rea-
sons are advanced for the discharge of Donahue and one for
the discharge of Clemens. The Trial Examiner is convinced
that the reasons given for the discharges are not believable in
the light of the record as a whole . While "[m]anagement can
discharge for good cause, or bad cause, or no cause at all,"
it may not discharge "when the real motivating purpose is to
do that which [the statute] forbids." Portable Electric Tools,
Inc. v. N.L.R.B., 309 F.2d 423, 426 (C.A. 7). On the basis of
the record as a whole, the Trial Examiner concludes and finds
that the "true reason" or "real-motive"" for the Respondent's
discharges of Donahue and Clemens was to discourage mem-
bership in a labor organization, to interfere with employees'
"right to self-organization and to form join or assist labor
organizations," and to contribute to the defeat of the Union
in the coming election. The discharges cannot be disas-
sociated from the Respondent 's intensive campaign to defeat
the Union and Miller's aspirations as expressed in his letters
to the Respondent's employees; nor can the discharge of
Clemens be disassociated from that of Donahue. The same
sophistication which permeates Miller's letters is clearly as-
certainable in the treatment of the discharges. The discharges
were obvious pretexts utilized to further the Respondent's
antiunion aims, as expressed by Miller, a continuation of "our
open shop policy." Miller's letters reveal that he was no tyro
in this business but that he must have known what has been
well stated in N.L.R.B. v. Longhorn Transfer Service, 346
F.2d 1003, 1006 (C.A. 5): "Obviously the discharge of a
leading union advocate is a most effective method of under-
mining union organizational effort." Donahue and Clemens
were known leading union protagonists who braved their
union partisanship as the only employees on the night shift
wearing union shirts.
The decision to discharge Donahue and Clemens was taken
without either a fair investigation or a fair hearing; they were
summarily discharged although the facts then in the Re-
33 Decori testified "I asked Dave if he remembered Leo telling them
about these extended lunch hours that he was accustomed to taking . He said
yes, I says well, Dave under the circumstances you don 't leave me much
choice I have got to let you go "
Decon testified.
Q. So your reason for discharging Clemens was solely because
A. What happened March 26, 1969.
Q. Which concerned drinking?
A. Drinking.
,Q. Your primary consideration concerning Clemens was what you
assumed to be his state of probable intoxication on July 10th?
A. Right.
Q. And it was not the fact that he was 25 or 30 minutes late?
A. I wouldn't say so.
". the `real motive ' of the employer in an alleged § 8(a)(3) violation
is decisive .. " N.L.R.B. v. Brown Food Store, 380 U.S. 278, 287. "It is the
`true purpose' or `real motive ' in hiring or firing that constitutes the test."
Local 357, International Brotherhood of Teamsters [Los Angeles-Seattle
Motor Express] v. NLR.B., 365 U S 667, 675.
METAL CUTTING TOOLS, INC. 543
spondent's possession were insufficient to convince a reasona-
ble person that the basis used to support the discharges was
valid. Under these circumstances Respondent's failure to
conduct a fair investigation is in itself evidence of discrimina-
tory intent, especially when viewed in the light of the Re-
spondent's hostility to the Union. J. W. Mortell Company,
165 NLRB 435, 451; Norfolk Tallow Co., Inc., 154 NLRB
1052, 1059; Shell Oil Company v. N.L.R.B., 128 F.2d 206,
207 (C.A. 5).
It was unreasonable and unnatural for the Rspondent to
have concluded, without deeper inquiry, that Donahue's jac-
tatious retort to Love's "smart" question, to wit, "if they
could pass a balloon test," proved that all four employees had
drunk enough beer to render each unfit for employment or,
as Decori's rule stated, "intoxicated or under the influence of
liquor." Although Decori knew that Donahue "smarted off"
to Love when he said, "[W]e had four or five" beers and had
reason to doubt his "smart talk," he, nevertheless, made no
inquiry as to whether Donahue's suspected boasting reflected
the truth as to the number of beers Clemens and the others
had drunk. Incongruously, the Respondent effected the dis-
charges of Donahue and Clemens before it ascertained that
any of the employees who returned after lunch were so filled
with beer that they were unable to operate their machines.
Nor was this fact ever fairly determined. Indeed, the opposite
appeared for the credible evidence indicated that Love did not
report to Decori that any of the four employees were unfit for
work. Astoundingly Decori did not seek Love's opinion on
the subject. These employees were convicted of intoxication
beyond fitness for work on the sole ground of Love's report
which in substance was that after a smart" question by Love,
Donahue "smarted off' to drinking four or five beers.37 Ac-
cording to Decori, he concluded, "I assume they had four or
five beers or the other two would have spoke up." Decori
added that he presumed "by their silence" that each con-
sumed four or five beers. He explained the presumption by
declaring "I had to take that stand."36 From the credible
record it is obvious that had he not taken "that stand" he
would have lacked even a pretextual reason for the dis-
charges, an observation which may have passed through his
mind.
The charge against Clemens was spurious; he was fired
upon an unsubstantiated assumption and the association of
guilt manifested by his silence. The discharge of a "dam good
grinder hand" must have warranted, under these circum-
stances, at least a listening to his side of the story. To forego
any inquiry was an unreasonable and an unnatural act. Thus
it seems clear that guilt by association in the Respondent's
mind lay not in the mute stance taken by Clemens but the fact
that Donahue and Clemens, unlike Clapper and Verdina who
Jb Decori conceded that Love's inquiry, "can you stand a balloon test"
was a "smart thing, too."
3' The Trial Examiner has not considered whether the consumption of
four or five beers would render any of the four employees unfit for work,
since there is no credible testimony that any one of the four employees
drank that amount In this respect under the circumstances disclosed by the
record, the Trial Examiner does not consider Decori's assumption to have
been reasonable.
' 6 This testimony suggests that Decon may have been prodded by Miller
in this regard. The Trial Examiner has reluctantly discredited Decon whom
the Trial Examiner felt was a man of compassion and understanding and
generally an individual who did not deviate from the truth. However, the
demeanor of Decon as he was testifying in this case and his studied effort
to conform his testimony to that most helpful to the Respondent has con-
vinced the Trial Examiner that the critical portions of his testimony were
fabricated for the occasion and that he was accommodating his boss, Miller,
whom the Trial Examiner finds to be an unbelievable witness. The Trial
Examiner is convinced that Miller called all the shots.
wore only union buttons and were not leaders, were adorned
with union shirts.
Donahue, an admittedly fair employee who had received a
recent promotion and whose job attendance had improved,
was also discharged, in part for drunkedness and displaying
an unacceptable general attitude upon evidence derived from
what Decori tabbed as Donahue's "smart" retorts or "wise
cracks" in response to Love's "smart" question. He was held,
as well as Clemens, to have violated Decori's admonition
uttered in his speech of March 28, 1969, to wit: "I was not
going to tolerate ... anyone coming in intoxicated or under
the influence of liquor whether they report to work before the
shift or after lunch hour."
Assuming arguendo that Decori made these remarks as
stated, there is no credible evidence that the four employees
returned to the plant in an intoxicated condition or under the
influence of liquor nor did Decori have any facts before him
at the time he made the discharges (assuming, of course, that
Decori related for the record all the facts which were dis-
closed to him by Love) from which a reasonable person could
have concluded any of the four employees was intoxicated.
Love, whose experience in this field must be credited, did not
opine that these employees were intoxicated within the mean-
ing of the rule." In fact Love would have discharged neither
Donahue nor Clemens:40
In sum Decori, at the time his decision to discharge Dona-
hue and Clemens was reached, did not have sufficient evi-
dence before him to make a reasonable finding of intoxica-
tion; in fact, the evidence was such as to suggest further
inquiry. He made no inquiry. He made no attempt to ascer-
tain the facts from Love, Powell, Clapper, Verdina, Donahue,
or Clemens, the persons who were present during the inci-
dent. Neither Donahue nor Clemens was given an oppor-
tunity to explain or give his version. As the court observed
in United States Rubber Company v. N.L:R.B., 384 F.2d 660,
662-663 (C.A. 5), "Perhaps most damning is the fact that
both [employees] ... were summarily discharged after re-
ports of their misconduct ... without being given any oppor-
tunity to explain or give their versions." No plausible reason
has been offered by the Respondent for its decision to dis-
charge without affording Donahue and Clemens an oppor-
tunity to explain their conduct, especially where further ex-
planation seemed cogent. The Respondent's hasty and
summary action taken without a fair investigation supports
the inference that the discharges were actually dis-
criminatorily motivated.
Moreover, the Respondent treated cases of intoxication
with leniency and apparent understanding. All prior c'ases'of
discharge for intoxication, even after Decori's speech on the
subject, had been aggravated cases. The employees had been
constant repeaters. No employee in the past had been dis-
charged, as was Donahue, for coming into the plant on one
occasion in a putatively intoxicated condition, or discharged,
as was Clemens, for coming in twice in a period of 1% years
in a putatively intoxicated condition. In fact employee
McDaniel had been discharged only after repeated infrac-
tions and for these he was forgiven and put back to work.
Only after repeated episodes of intoxication was he again
discharged. All of this was permitted even after Decori's
39 It seems inconceivable to the Trial Examiner that Decori would not
have settled with Love whether, in his opinion, the employees were intox-
icated. It seems equally inconceivable that Decori would not have requested
a recommendation from Love All of this may suggest that Decori had not
intended to discharge the employees until his conference with Miller.
10 Love remarked, upon the discharges of Donahue and Clemens, that he
was sorry "this happened" and that if he had known it would have gone "this
far" he would' not have sent them home.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged warning speech. During his second period of employ-
ment, McDaniel appeared drunk "quite a lot."
The compassion, understanding, and toleration with which
McDaniel was treated (action taken' according to Decori "in
[his] weak moments") and its lack in the case of Donahue and
Clemens is strong evidence of discriminatory motivation. No
"weak moments" were allowed when Donahue and Clemens
stood on the carpet. Decori, who could tolerate and forgive
McDaniel's drinking and could tolerate Love's inclination to
drink, put aside his own natural compassion and lowered the
boom on Donahue and Clemens. Their "little problem" (as
it was referred to by Love) was undoubtedly their wearing
union shirts, at which Miller "stared" and Decori ridiculed,
and not the midnight incident. The Respondent's departure
from its lenient treatment of drunkeness in the cases of Dona-
hue and Clemens reveals a discriminatory motivation.
What has been said above leads to the conclusion that the
drinking incident was seized upon as a pretext to discharge
Clemens and Donahue. But Donahue was also discharged
because Love had previously warned "him about these ex-
tended lunch hours he was accustomed to taking" when he
received his promotion. An examination of Donahue's time-
cards, offered into evidence by the Respondent, reveals that
upon one occasion, June 10, 1970, Donahue clocked in at
23:62 rather than by 23:60. Such incident occurred after he
received his promotion and could not have been included in
the warning. Thus, the Trial Examiner is convinced that
Decori's reference to prior warnings for "extended late lunch
hours he was accustomed to taking" was an afterthought,
fabricated for the purpose of adding another reason for the
discharge. The Trial Examiner does not believe, inter alia (in
that the credible record does not so reveal), that Love warned
Donahue as claimed by Decori.
The Respondent's discriminatory motive is also apparent
in its refusal to return Donahue and Clemens to work upon
their request after their discharge. A nonunion employee,
McDaniel, whose infractions were more aggravated, was re-
turned to work. The Trial Examiner finds in this respect that
Miller viewed the reinstatement of the two union shirt wear-
ers incompatible with his campaign to defeat the Union in the
election and to continue his "open shop policy" and therefore
refused to reinstate them.
The discharges during a union election campaign of the
only union shirtwearing employees out of the employees in-
volved in the same incident, without explanation by the em-
ployer to his other employees, has an inherent tendency to
cause employees to conclude that the union shirt wearers
were singled out because they displayed their union affection
in an audacious manner. Thus, the natural and probable
consequence of the Respondent's action was to discourage
union activities and membership in a labor organization and
to induce employees to vote against the Union. While the
Respondent addressed employees by letter on many subjects
(most of which were reasons to vote "No") during the elec-
tion campaign, it did not reveal to its employees the reasons
it singled out the two union shirt wearers for discharge. Thus,
by its inaction it left its uninformed employees to speculate
upon whether their union affection would also trigger their
discharges. Thus the Respondent fostered an atmosphere in-
compatible with its employees' freedom of choice. The fact
that the Respondent allowed itself the advantage of an atmos-
phere thus rendered unfavorable for union adhesion and
growth further reflects the Respondent's discriminatory
motivation which brought about the discharges in the first
place.
Accordingly, the Trial Examiner concludes and finds that
by the discharges of David Donahue and John W. Clemens
on July 10, 1970, and by the Respondent's refusal to return
said employees to work, the Respondent discriminated
against them in violation of Section 8(a)(3) of the Act.
As was said in N.L.R.B. v. Bird Machine Company, 161
F.2d 589, 592 (C.A. 1), support for a finding of unlawful
motivation "is augmented [when] the explanation for the
discharge offered by the respondent [does] not stand up under
scrutiny."
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning
of the Act.
2. The Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and it will effectu-
ate the purposes of the Act for jurisdiction to be exercised
herein.
3. By interfering with, restraining, and coercing employees
in the exercise of rights guaranteed them by Section 7 of the
Act, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
4. By unlawfully discharging David Donahue and John W.
Clemens on July 10, 1970, and by refusing to reinstate them
at their request, the Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (3) of the
Act.
5. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED REMEDY
It having been found that the Respondent has engaged in
certain unfair labor practices it is recommended that it cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It having been
found that the Respondent unlawfully discharged David
Donahue and John W. Clemens and thereby violated Section
8(a)(3) and (1) of the Act it is recommended that the Re-
spondent remedy such unlawful conduct. It is recommended,
in accordance with Board policy," that the Respondent offer
each of the foregoing persons immediate and full reinstate-
ment to his former position or, if such position no longer
exists, to substantially equivalent positions, without prejudice
to his seniority or other rights and privileges and make him
whole for any loss of earnings he may have suffered as a result
of the discrimination against him, by payment to each, re-
spectively, a sum of money equal to the amount he would
have earned from the date of his discriminatory discharge to
the date of an offer of reinstatement, less net earnings during
said period to be computed on a quarterly basis in the manner
established by the Board in F W. Woolworth Company, 90
NLRB 289, and including interest at the rate of 6 percent per
annum in the manner set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
Upon the foregoing findings of fact, conclusions of law, and
the entire record, and pursuant to Section 10(c) of the Act,
the Trial Examiner hereby issues the following recom-
mended:42
" See Rushton Company, 158 NLRB 1730, 1740.
02 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and order, and all objections thereto shall
be deemed waived for all purposes.
METAL CUTTING TOOLS, INC. 545
ORDER
Respondent, Metal Cutting Tools, Inc., its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in Lodge No. 1553, Interna-
tional Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, by unlawfully
discriminatorily discharging any of its employees or dis-
criminating in any manner in respect to their hire or tenure
of employment or any term or condition of employment to
discourage membership in any labor organization.
(b) Unlawfully giving employees the impression that it is
keeping under surveillance the union activities or other con-
certed activities of its employees engaged in for the purpose
of collective bargaining or other mutual aid or protection.
(c) Unlawfully interrogating its employees regarding their
union activities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights to
self-organization , to form labor organizations , to join or assist
Lodge No. 1553, International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the
purpose of mutual aid or protection as guaranteed in Section
7 of the Act or to refrain from any and all such activities.
2. Take the following affirmative action which will effectu-
ate the policies of the Act:
(a) Offer David Donahue and John W. Clemens immediate
and full reinstatement to their former positions or, if such
positions no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other rights and
privileges and make them whole for any loss of pay that they
may have suffered by reason of the Respondent's discrimina-
tion against them in accordance with the recommendation set
forth in the section of this Decision entitled "The Recom-
mended Remedy."
(b) Notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its Rockford, Illinois, plant copies of the at-
tached notice marked "Appendix. 1141 Copies of said notice, on
forms provided by the Regional Director for Region 38, after
being duly signed by the Respondent's representative, shall be
posted by it immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, defaced,
or covered by any other material.
", In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "POSTED
BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD"
shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF
THE UNITED STATES COURT OF APPEALS ENFORCING AN OR-
DER OF THE NATIONAL LABOR RELATIONS BOARD "
(e) Notify the Regional Director for Region 38, in writing,
within 20 days from the receipt of this Decision, what steps
have been taken to comply herewith."
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed insofar as it alleges violations of the Act other than
those found in this Decision.
"" In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 38, in writing, within 20 days from
the date of this Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
A Trial Examiner for the National Labor Relations Board
after a hearing in which all parties were permitted to in-
troduce evidence found that we discharged David Donahue
and John Clemens unlawfully and that by their discharges we
discouraged employees from becoming and remaining mem-
bers of Lodge No. 1553, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO.
WE WILL give these employees back their jobs or, if
their jobs no longer exist, substantially equivalent jobs.
WE WILL restore their seniority and pay them the
backpay they have lost because we discharged them
WE WILL NOT discharge any employees for the same
reason for which the Trial Examiner found that we dis-
charged the above-named employees.
WE WILL NOT unlawfully discharge employees for
lawfully engaging in union activities.
WE WILL NOT unlawfully give our employees the im-
pression that we are keeping under surveillance the
union activities or other concerted activities of our em-
ployees engaged in for the purpose of collective bargain-
ing or other mutual aid or protection.
WE WILL NOT unlawfully interrogate our employees
about their union activities.
The laws of the United States give all our employees these
rights: to organize themselves; to form , join, or help unions;
to bargain as a group through a representative they choose;
to act together for collective bargaining or mutual 'aid and
protection; and to refuse to do any and all of these things. All
of you are free to become or remain or refrain from becoming
or remaining members of the labor organization.
METAL CUTTING
TOOLS, INC.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after dis-
charge from the Armed Forces, in accordance with the Selec-
tive Service Act and the Universal Military Training and
Service Act.
This is an official notice and must not be defaced by any-
one.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced, or
covered by any other material.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Any questions concerning this notice or compliance with Office, Savings Center Tower, 10th Floor, 411 Hamilton
its provisions may be directed to the Board 's Subregional Boulevard, Peoria, Illinois 61602, Telephone 309-673-9282.