MPL, Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1967

163 N.L.R.B. 952 (N.L.R.B. 1967)

952 DECISIONS OF NATIONAL
Hence these employees are entitled to backpay from the
date Respondent's unfair labor practices made"
abandonment of the strike and request for reinstatement a
futile gesture . See Cowell Portland Cement Company, 40
NLRB 652, enfd. 148 F.2d 237 (C.A. 9) cert. denied 326
U.S. 735; N.L.R.B. v. Carlisle Lumber Co ., 99 F.2d 533
(C.A. 9); N.L.R.B. v. Sunshine Mining Co ., 110 F.2d 780.
As Respondent 's Neville Island plant is not presently
opened and operating the customary posting of notices is
not feasible . I shall therefore recommend that Respondent
mail a copy of the notice attached hereto as Appendix A to
the Union and to each employee employed by Respondent
at the Neville Island plant immediately prior to the strike
of March 1, 1965.
[Recommended Order and Appendix omitted from
publication.]
MPL, Inc. and District No. 8, International
Association of Machinists and Aerospace
Workers, AFL-CIO and Information
Committee, Party of Interest . Case 13-CA-
7366
April 7, 1967
DECISION AND ORDER
By MEMBERS BROWN, JENKINS, AND ZAGORIA
On November 8, 1966, Trial Examiner Samuel
Ross issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. He also found that the Respondent had not
engaged in certain other alleged unfair labor
practices and recommended dismissal of these
allegations of the complaint. Thereafter, the
Respondent and the General Counsel filed
exceptions to the Trial Examiner's Decision and
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner'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.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
LABOR RELATIONS BOARD
Recommended Order of the Trial Examiner and
hereby orders that the Respondent , MPL, Inc.,
Chicago, Illinois, its officers , agents, successors, and
assigns, shall take the action set forth in the Trial
Examiner 's Recommended Order.
i In adopting the Trial Examiner's finding of discrimination
with respect to Turner, Member Zagona does not rely on
Respondent's own use of working hours for purposes of antiunion
propaganda.
2 In view of our adoption of the broad cease-and-desist order
recommended by the Trial Examiner, we deem it unnecessary to
decide whether, as the General Counsel maintains in his
exceptions, Respondent engaged in certain additional 8(a)(1)
violations
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL Ross, Trial Examiner: Upon a charge filed on
February 24, 1966, and amended on February 28 and
March 8 and 18, 1966, by District No. 8, International
Association of Machinists. and Aerospace Workers,
AFL-CIO, herein called the Union, the General Counsel of
the National Labor Relations Board issued a complaint on
May 12, 1966, amended at the hearing on July 19, 1966,
alleging that MPL, Inc., herein called the Respondent,
engaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1), (2), and (3) and
Section 2(6) and (7) of the Act. In substance, the
complaint, as amended, alleges that during a campaign by
the Union to organize the Respondent's employees, the
Respondent engaged in interference, restraint, and
coercion of its employees in the exercise of their rights
guaranteed by the Act, constructively discharged one
employee and denied a wage increase to another because
of their support of the Union, and dominated and
supported a labor organization known as the Information
Committee. The Respondent filed an answer which denies
the commission of unfair labor practices.
Pursuant to due notice, a hearing was held in Chicago,
Illinois, on July 19, 20, and 21, 1966, before me. Upon the
entire record in the case, and my observation of the
witnesses and their demeanor, and after due consideration
of the briefs filed on September 9, 1966, by the
Respondent and the General Counsel, I make the
following:
FINDINGS OF FACT
1. COMMERCE
The Respondent, an Illinois corporation whose office
and principal place of business is located in Chicago,
Illinois, is engaged in the manufacture and sale of
hypodermic needles and related products. During the
calendar year of 1965, a representative period, the
Respondent in the operation of said business
manufactured and sold products valued in excess of
$500,000, of which products valued in excess of $50,000
were shipped directly from its plant in Illinois to places in
the United States located outside the State of Illinois.
Accordingly, it is found that the Respondent is engaged in
commerce and in operations affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
163 NLRB No. 125
MPL, INC.
II. THE LABOR ORGANIZATIONS INVOLVED
The pleadings admit and it therefore is found that the
Union is a labor organization within the meaning of
Section 2(5) of the Act.
The complaint alleges that the Respondent initiated,
dominated, and supported a labor organization known as
the Information Committee. The Respondent denies that
the Information Committee is a labor organization within
the meaning of the Act. This issue will be considered and
determined, infra.
III. THE UNFAIR LABOR PRACTICES
A. The Alleged Domination and Support of the
Information Committee
The record in respect to the formation and purposes of
the Information Committee presents no factual disputes.
On July 27, 1965, in connection with the removal of its
facilities to its current location , the Respondent invited its
employees to form a committee composed of eight
employees to be selected by lottery from volunteers. The
purpose of this committee, as expressed in the invitation to
form it, was to help the Respondent with ideas for making
decisions regarding the layout of the lunchroom in the new
plant , its color , and the type of food vending machines to
be installed . The committee was selected and called
Operations Roscoe Committee.' Respondent 's president,
Ted A. Rogers, was a permanent member of the
Committee . The Operations Roscoe Committee continued
to function until November 5, 1965, after the move to the
new plant was completed . During its existence, the
Committee ' s "efforts" admittedly included "many
different subjects [ which] ranged from evaluation of
working conditions and the establishment of plant rules to
the selection of lunchroom tables."2
On November 5, 1965, the Respondent 's president, in a
memorandum to its employees , suggested that a
"continuation of a similar committee would be of value to
[him] and the company as a whole." The memorandum
stated that a new committee would be formed which would
be known as the Information Committee . The stated
purpose of the new committee was "to provide a forum
through which all employees of MPL may air opinions and
questions , assist in making decisions regarding matters of
general employee concern and otherwise insure a
continued high level of two-way information exchange." In
addition , the memorandum outlined the qualifications for
membership in the Committee , the number to which it
would be limited , the method of selection of members, the
duration of their terms of membership , the dates when
regular meetings would be held, and the compensation
which would be paid members for time spent in
attendance at meetings.
In accordance with the memorandum, the Information
i The name apparently was derived from the street on which
the Respondent 's new plant is located
'GC.Exh 6
3 These subjects included : providing receptacles for the
disposal of sanitary napkins which were plugging the plumbing,
providing stools in sufficient number and proper height for
employees to sit on while working, selecting the type of food
vending machines to be installed in the employees ' lunchroom,
and the type of food to be dispensed , changing the workweek on
the third shift from Sunday through Thursday to Monday through
Friday, correcting a condition of excessive dust in one area of the
plant, and forming a credit union or providing an alternative
means to save part of employees ' wages through payroll
deductions.
953
Committee was formed and functioned. It held meetings
"at least" twice a month which were presided over by
Respondent's president, Ted A. Rogers, a permanent
member of the Committee. Respondent's personnel
director, Rozanne Overaker, also attended about half the
meetings. Minutes of the meetings were dictated by
President Rogers to his secretary and were transcribed by
the latter. Employee members of the Committee were paid
for their time spent in attendance at meetings. The
subjects discussed and considered at the meetings of the
Information Committee included complaints of employees
regarding working conditions and suggestions for their
elimination.3
Section 2(5) of the Act defines a labor organization as:
any organization of any kind, or any ... employee
representation committee or plan, in which
employees participate and which exists for the
purpose, in whole or in part, of dealing with employers
concerning ... conditions of work.
In the light of the matters presented and considered at
meetings of the Information Committee, it is clear that the
Committee is an employee representation plan which
exists for the purpose, at least in part, of "dealing with"
Respondent concerning "conditions of work," and
therefore it is found that the Information Committee is a
labor organization within the meaning of Section 2(5) of the
Act 4 Accordingly, since the Respondent initiated the
formation of the Committee, determined the number of
employees who served thereon and the manner of their
selection, decided the time, date, and place of meetings,
and paid the employees for attending, it is quite obvious
and found that Respondent dominated the formation and
administration of the Committee, and contributed to its
support, and thereby engaged in unfair labor practices
within the meaning of Section 8(a)(2) and (1) of the Act.
B. Interference, Restraint, and Coercion
1. The Union's organizational campaign
About the middle of January 1966,5 the Union began a
campaign to organize Respondent's production and
maintenance employees. In connection with this
campaign, Ernest P. Langosch, an organizer for the Union,
contacted some employees whose names had been
furnished to him and, commencing with January 20,
distributed leaflets to employees in front of the entrance to
the plant. The Respondent actively opposed the
organization of its employees by the Union, and responded
to the Union's literature with letters to its employees
decrying the need for union representation. On
February 15, the Union filed a petition for certification as
the representative of Respondent's employees.6 A consent
election was conducted by the Regional Director on
March 10 which the Union lost by a substantial margin.?
4 N L.R.B v. Cabot Carbon Company, 360 U S 203, Thompson
Ramo Woolbrtdge Inc, 132 NLRB 993, enfd . 305 F 2d 807
(C A 7); Pacemaker Corporation v. N.L.R B., 260 F.2d 880
(C.A. 7)
All dates hereinafter refer to 1966 unless otherwise noted
6 Case 13-RC-10811.
On March 15, the Union filed objections to the election On
May 17, the Regional Director sustained some of the Union's
objections and directed a second election to be conducted
However, the second election has not been held, presumably
because of the pendency of the Union 's current charges of unfair
labor practices by Respondent.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that during the Union's
organizational campaign, the Respondent interfered with,
restrained, and coerced its employees in the exercise of
their rights guaranteed by Section 7 of the Act, by
interrogating employees regarding their union
membership, activities, and sympathies, by maintaining
and enforcing an illegal no-solicitation rule, by
surveillance of its employees' union activities, and
creating the impression of such surveillance, by soliciting
employees to refrain from wearing the Union's buttons,
and by promising and granting benefits to employees to
persuade them to refrain from joining or assisting the
Union. The record in respect to these allegations will now
be considered and determined.
2. Surveillance and creating the impression of
surveillance
The record in respect to this allegation of the complaint
presents no factual disputes. The Respondent's second
shift ends work at two different times. Some employees
finish work at 11 p.m. and others at midnight. The third
shift works from 11 p.m. to 7 a.m. On February 17,
between the hours of 10:30 p.m. and midnight, when third-
shift employees arrive at the plant for work and second-
shift employees leave, Respondent's personnel director,
Rozanne Overaker, and its financial manager and
corporate secretary, Albert M. Anderson, Jr., stood on the
sidewalk outside the plant for about 1-1/2 hours observing
Union Organizer Langosch and the employees to whom he
spoke. On the next night (February 18), about midnight,
Foreman Richard Benak stood on the steps outside the
plant watching all of the employees as they left the plant.
The following night, February 19, at midnight, Foreman
Don Porstner stood in front of the plant for about 15 to 20
minutes, watching who was talking to Unioii Organizers
Langosch and Roberto Mendez. The weather on these
midwinter nights in Chicago was quite cold The
Respondent's officials and supervisors had not previously
engaged in watching employees enter and leave the plant
at the end of the second shift and the beginning of the
third. They were observed in this unusual activity by a
number of Respondent's employees. Obviously their
presence at the entrance to the plant while the union
organizers were engaged in organizing activity tended to
inhibit employees from speaking to the organizers.
Neither Benak nor Porstner were called by the
Respondent as witnesses, and no explanation was offered
for their observation of the organizing activities in front of
the plant. The Respondent did, however, attempt to
explain the presence of Overaker and Anderson at the
plant on the night of February 17 as follows -
Overaker testified that before her night visit to the
plant, she had received telephone calls and re, ,rts from
female employees who stated that they were "frightened
at coming to work" because of the presence of the
organizers in front of the plant Overai er further testified.
I felt there was no need for them to be frightened, that
certainly nobody was going to do any physical harm to
them. So I simply made it a point to stand out in front
of the building ... during one shift change at night to
show the girls that they really had nothing to worry
about.
Overaker's explanation, although at first blush
plausible, does not withstand close scrutiny. On cross-
examination Overaker was able to name only two of
Respondent's employees who allegedly had so
complained. None of the employees whose complaints
allegedly prompted Overaker to watch the Union's
organizing activities was called by Respondent to testify,
and no explanation was offered for the failure to do so.
Overaker admitted that Union Organizer Langosch "is a
good person" concerning whom Respondent's employees
had "nothing to worry about." Overaker also admitted that
she had assured the employees when they complained that
there was "no reason to be frightened." Many of
Respondent's employees arrive at and leave the plant
when the shifts change." No evidence was offered by
Respondent to show that any employees were absent from
work because of fear of the organizers, or for any other
related reason. Under all the foregoing circumstances, I
find it difficult, if not impossible, to believe that the
additional presence of Overaker, who weighed "all of 100
pounds," was motivated by a desire to reassure employees
that it was perfectly safe for them to go to work.
Anderson's explanation for observing the Union's
organizing activities on Februaiy 17 was quite different
from that offered by Overaker. Anderson testified that it
had been reported to him that "several employees had
expressed concern over the presence of union organizers
in front of the plant," and he personally "wanted to see
what was going on ... to see if there was any reason for
concern." However, according to Overaker's admission,
there was no valid reason for employees to be concerned
about the presence of the Union's organizers in front of the
plant. In the light of that admission, Anderson's
explanation that he observed the Union's organizing
activities, because he wanted to see if there was any
reason for concern, is not believed and is not credited.
In view of the foregoing credibility findings and the
failure of Respondent to offer any explanation for the
conduct of Foremen Benak and Porstner in watching the
Union's organizing activities on February 18 and 19, it is
found that the Respondent, by the above conduct, engaged
in open surveillance of the t, non activities of its employees
which reasonably and foreseeably tended to inhibit them
from exercising their rights, guaranteed by the Act, to
engaged in such activity Accordingly, it is found that
thereby the Respondent engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.'I
On March 1 and again on March 3, in connection with
its campaign to defeat the Union, the Respondent
delivered to its employees two antiunion letters signed by
Personnel Director Rozanne Overaker.i° The March 1
letter, on its face, indicates that the Respondent was
aware of the number of employees who attended, and what
transpired at the union meeting which took place the
previous Sunday, Februar, 27. The March 4 letter stated
in part:
We are truly sorry that you have had to work with
[union] spies and trouble makers.
These people [spies and troublemakers]
pretend to be MPLoyees like you-honest people
earning an honest living. They collect wages from
There are approximately 200 employees in the unit
° Winett, Inc , 135 NLRB 1305, 1313-14.
10 G C Exhs 3 and 4
MPL, INC.
MPL (and the union probably pays them too),
while they do everything they can to stir up
trouble and to find out anything they can which
the union organizer can twist for his own
purpose.
How do we know this? Several MPLoyees have told
us various incidents they observed. We've been able to
observe a few things ourselves. [Emphasis supplied.]
By these letters Respondent clearly created and conveyed
to employees the impression that not only their union
meetings, but also all their activity on behalf of the Union
were being kept under surveillance by Respondent.' i
Such conduct clearly tends to interfere with, restrain, and
coerce employees in the exercise of their rights
guaranteed by Section 7 of the Act, and thereby the
Respondent further engaged in unfair labor practices
within the meaning of Section 8(a)(1) of the Act.
3. The Respondent's no-solicitation rule
The Respondent has a no-solicitation rule in effect in its
plant .12 The rule, as described in a memorandum dated
March 4 from Personnel Director Overaker to an
employee, sets forth the following limitations on
solicitation in Respondent 's plant:13
To avoid any further misunderstanding, here are the
limits as they apply to your rights to distribute union
literature. As long as you are on your own time (that
is, when you are not being paid by the company) you
may pass out literature or discuss union activities in
nonworking areas. In our case, the only nonworking
areas would be the lunchroom or the washroom.
Our Company no-solicitation rule in general prohibits
any kind of solicitation on any company property,
whether it is in working areas or nonworking areas.
However, under the law, you may pass out union
literature on company property within the limits
described above, even if we could ask you not to
engage in other types of solicitation.
The rule as stated in the memorandum appears to
prohibit employees from orally soliciting for the Union in
working areas of the plant even when the employees are on
their "own time." Moreover, since the employees' own
time is defined as that for which they are not paid by
Respondent, the rule also appears to prohibit both oral
union solicitation and distribution of union literature in
nonworking areas of the plant during lunch and other
break periods for which employees are paid by
Respondent. However, under the Act, employees have the
right to engage in oral union solicitation during
nonworking periods without restriction as to the areas
(working or nonworking) in which they occur, and they also
have the right to distribute union literature in nonworking
areas during all nonworking time, whether or not they are
paid for such nonworking time by Respondent.14 Thus, the
Respondent's broad no-solicitation rule impinges upon the
rights of its employees and constitutes an unreasonable
impediment to self-organization. Moreover, even assuming
955
that the rule was not intended, by Respondent to be, and
was not, in fact, applied to prohibit union solicitation
during nonworking time, the reasonable, foreseeable
effect of the rule as worded is capable of such
interpretation by employees, and thus would tend to cause
them to refrain from exercising their statutory rights.15
Accordingly, it is found that the Respondent's no-
solicitation rule is unlawful and that by maintaining the
said rule, the Respondent interfered with, restrained, and
coerced employees in the exercise of their right to self-
organization, and thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
4. The alleged assault upon Union Organizer Langosch
On February 11 about 11 p.m. "just as the shift began to
change," Foreman Wayne Olson came out of the plant,
"grabbed" Union Organizer Langosch by the hand and
said, "These women are backing me, Ernie, you are
nothing but a troublemaker." Langosch walked away and
Olson became "a little vulgar and used a little profane
language." As women employees were leaving the plant,
Olson said, "Regardless of what my opinion is, I will meet
you in Wallie's [a nearby tavern] and buy you a bottle of
beer."'s
The General Counsel's brief, citing as supporting
authority the Board's decision in Watson Sea Food and
Poultry Company, Inc ,17 contends that Olson's conduct
described above interfered with and restrained employees
who observed it from engaging in organizational activity
because of "fear of some distasteful retaliation by this
supervisor." However, the Watson case, is clearly
distinguishable from this case, since it involved a vicious
assault on union organizers who were distributing
handbills outside a plant. Unlike the Watson case, there is
neither evidence of any assault on Langosch, nor of other
conduct which reasonably would deter employees from
engaging in union activity. Accordingly, the Trial
Examiner will recommend that the complaint, insofar as it
is based on this incident, be dismissed.
5. Incidents related to the wearing of union buttons
During the Union's organizing campaign, a number of
employees wore union buttons in the plant. The wearing of
these buttons was opposed by the Respondent's foremen,
and the following incidents occurred in this connection.
a. Incidents involving Foreman Richard Benak
Dorothy Goldman, who worked for Respondent for
about 5 years, signed a union authorization card and
commenced wearing a union button in the plant in January
or the beginning of February. Shortly thereafter, Goldman
was told by Foreman Richard Benak that he was going to
give her a raise of 5 cents per hour, and at the same time
Benak asked her "are you still going to wear the [union]
button, Dorothy?" Goldman testified that she regarded the
question "as a joke," and paid no attention to it
Employee Rosemary Garcia also wore a union button in
the plant, and thereafter, during her working hours, Benak
11 Precision Products & Controls, Inc , 160 NLRB 1119 15 Solo Cup Company, 144 NLRB 1481
12 The record is silent as to when this rule was established. 16 The findings above are based on Langosch' s uncontradicted
1 3 G C Exh 11 and credited testimony Olson was not called by Respondent to
14 Walton Manufacturing Company, 126 NLRB 697, Stoddard- testify
Quirk Manufacturing Co, 138 NLRB 615 17 117 NLRB 1369, 1379-80
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
asked her why she wanted a union. Garcia could not
remember what she replied to Benak, but he then said that
"if the Union gets in," there would be "a red line painted
across" the door to the washroom. Garcia replied that red
line or not, the girls would go to the washroom as often as
necessary.
Employee Barbara Brewer commenced wearing a union
button about the middle of February. The day before
Brewer wore her button for the first time, Foreman Benak
asked her if she was "for or against the Union," and told
her that he "was looking for someone who was
trustworthy" and that the continuation of his conversation
with her depended on the nature of her response to his
question. Brewer replied that she had not yet made up her
mind. Benak replied, "that didn't sound very good."
On the following day, approximately February 16,
Brewer wore her union button in the plant, and Benak
asked why she was wearing one and said that she, of all
people, should have no grievance against the Company.
Brewer agreed that she probably had no grievance, but she
said that other employees did, and that the only way to
correct the situation was "for the girls to stand together."
That same evening after "lunch," Benak asked the
employees to remain in the cafeteria, and said
sarcastically and in anger that, "he was very glad that
there were more employees in his department with union
buttons on than in any other department in the plant."
On February 17 about 11:15 p.m., a payday at
Respondent's plant, Foreman Benak went down the line of
employees in his department distributing paychecks. As
he did so, he told the employees, "those of you who belong
to the Union will not get paid until tomorrow, that is the
way the Company wants it." True to his word, Benak gave
checks only to those employees who did not wear union
buttons, and withheld doing so to employees who did wear
union buttons. Later, about 1 minute before the shift
ended 'at midnight, Benak distributed the remaining
paychecks to the employees who wore union buttons.
b. Incidents involving Foreman Don Porstner
On February 13, Foreman Don Porstner approached
employee Rosemary Garcia as she was working, "pulled
out" three or four union buttons , and asked Garcia if he
could have the one she was wearing . She replied that she
would like to keep hers, and asked Porstner why he
wanted it. Porstner replied that he "wanted to keep them
for souvenirs."
Subsquently, Garcia acquired "a great big [ union]
button" which she wore , and Foreman Porstner asked her
to give it to him. She refused and turned away to speak to
another employee. Thereupon, Porstner pulled out a union
handbill and, pointing to it , said , "It says right here `No
union talking during working hours ."' Porstner then said,
"I am telling you to go to work and shut up."
c. Concluding findings in respect to the union button
incidents
The complaint alleges and the General Counsel
contends that the incidents described above establish that
the Respondent unlawfully interrogated employees
regarding their union membership and sympathies,
solicited employees to refrain from wearing union buttons
18 Republic Aviation Corp v. N L.R B , 324 U S 793
and to withdraw their assistance and support from the
Union, and threatened and coerced employees with the
same objective. The Respondent, on the other hand,
denies that these incidents constitute interference,
restraint , or coercion within the meaning of Section 8(a)(1)
of the Act.
Viewed in the light of the Respondent's openly declared
opposition to the Union, it is fairly evident that the General
Counsel 's contentions regarding most of the foregoing
incidents have merit:
(1) In the context of Foreman Benak's statement to
Goldman that he was "going to" give her a 5-cent - an-hour
raise, his interrogation regarding whether she would
contin,!e to wear a union button carried with it the
implication that in consideration of the forthcoming raise,
Goldman was expected to cease at least outwardly from
expressing her espousal of the Union 's cause.
The right of employees in industrial plants to wear union
buttons while at work is well settled . 18 In view of
Respondent 's opposition to the Union and Benak's
undisputed authority to withhold a recommendation for an
increase in Goldman 's wage rate, his statement and
interrogation clearly tended to at least restrain, if not
coerce, her in the exercise of her right to wear a union
button. The Respondent's brief characterizes Benak's
"remarks" to Goldman as "trivial," and contends that
since she regarded them as a "joke," no restraint or
coercion was involved . In li,,ht of the many incidents
involving efforts by the Respondent's foremen , including
Benak , to dissuade employees from wearing union
buttons, I do not regard these "remarks " as either trivial
or a joke. It is well settled that the test of interference,
restraint, and coercion under Section 8(a)(1) of the Act
does not turn either on the Employer's motive, or whether
the coercion succeeded or failed, but rather on whether
the conduct reasonably may be said to tend to interfere
with the free exercise of employee rights under the Act. is
Viewed in the light of this test, Benak's statement and
interrogation is rega.ded as reasonably tending to restrain
Goldman from exercising her right under the Act to wear a
union button , and accordingly , it is found that the
Respondent thereby violated Section 8(a)(1) of the Act.
(2) There can be no question but that Benak's
statement to Garcia that if the Union came in visits to the
washroom would be curtailed , was the expression of a
threat to restrict a privilege previously enjoyed by
Respondent ' s employees, and therefore was coercive
within the meaning of Section 8(a)(1) of the Act.
(3) In the context of Respondent 's open and active
opposition to the Union, Benak 's interrogation of Barbara
Brewer as to whether she was "for or against the Union,"
and as to why she was wearing a union button , and his
statement to her which implied that employees who
favored the Union were regarded by him as not
trustworthy , also interfered with , restrained, and ' oerced
employees in the exercise of their right to join labor
organizations guaranteed by the Act.
(4) We come then to the incident when Benak
distributed paychecks to employees who did not wear
union buttons, and withheld like payment to union
advocates with the statement "that those of you who
belong to the Union will not , get paid until tomorrow , that is
the way the Company wants it." Quite obviously this
18 N L R B v Illinois Tool Works, 153 F.2d 811, 814 (C A 7),
American Freightways Co , Inc , 124 NLRB 146, 147
MPL, INC. 957
conduct by Benak dramatically conveyed to Respondent's
employees that union adherents would be treated
disparately and discriminatorily and thus tended to
restrain and coerce employees from exercising their rights
under the Act.
The Respondent contends, however, that the "remarks"
and "action" of Benak did not violate the Act because they
were "repudiated immediately" by Respondent's
Personnel Director Overaker and by its Financial Manager
Anderson, and because "the whole incident was regarded
as a joke by the girls in Richard Benak's shift." The
Respondent bases this contention on the testimony of
employee Wilma Sandstrom and Financial Mananger
Anderson. According to Sandstrom's undisputed
testimony, after she received her check at quitting time
(notwithstanding Benak's threat to withhold it until the
next day), she encountered Personnel Director Overaker
and Financial Manager Anderson on the sidewalk in front
of the plant, where, as found above, they were then
engaged in surveillance of the Union's organizing
activities. Sandstrom asked Overaker "if the company had
authorized a foreman to threaten to hold back checks,"
and Overaker said, "No." Sandstrom then told Overaker
"what Benak had done," and Overaker said, "none of the
foremen would do anything like that." Sandstrom
continued to talk about the check incident, and Anderson
said "he would talk to the foremen and see that they would
not do it anymore." Sandstrom admitted that while she
was complaining to Overaker and Anderson, "one girl kept
repeating. . . `Wilma he [Benak] was only teasing, he was
only joking."'20
Notwithstanding his promise to Sandstrom, Anderson
admitted that he did not thereafter discuss this incident
with Benak, and there is no evidence that any other official
of Respondent did so. Neither is there any evidence that
any of the affected employees, other than Sandstrom, were
told or in any way notified by Respondent that Benak's
statement and conduct in withholding the checks of union
adherents for about 45 minutes was not authorized, or that
it was contrary to Respondent's policy. Accordingly, I find
that the record does not establish that Benak 's statement
and conduct were repudiated by Respondent. Moreover,
there is no testimony in the record that at the time when
Benak made the statement and withheld the distribution
of paychecks, he did so in a manner which indicated that
he was "teasing" or "joking." Obviously Sandstrom did
not so regard this conduct, or she would not have voiced
her protest when she did. The fact that "one" or even
"several" of the affected employees later, after they had
received their checks, regarded it as a tease or joke, does
not diminish the immediate impact of the coercion on all
the employees at the time the incident occurred, or on
those employees who did not regard it as a joke even after
they tardily received their paychecks. For all the foregoing
reasons, the Respondent's contention that Benak's
statement and conduct did not violate the Act is rejected,
and it is found that thereby the Respondent engaged in
unfair labor practices within the meaning of
Section 8(a)(1).
(5) In respect to the conduct attributed to Benak, there
remains for consideration the incident when Benak
sarcastically and angrily told all the employees in his
department that he was "glad that there was more
employees in his department with union buttons on than in
any other department in the plant." I do not regard this
ambiguous statement, either alone, or in the context of
Benak's other unfair labor practices, as restraint or
coercion of employees in the exercise of their statutory
rights, and will therefore recommend the dismissal of the
complaint insofar as it is based on this incident.
(6) As described above, Foreman Porstner on two
occasions attempted without success to have employee
Rosemary Garcia surrender to him union buttons which
she was wearing. On one of these two occasions, Porstner,
showed Garcia a number of other union buttons already in
his possession, and thus clearly indicated to her, not only
that he had succeeded in persuading other employees to
surrender their buttons to him, but also that his purpose
was not to obtain "a souvenir" as he professed. Porstner in
effect was requesting Garcia to cease exercising her
statutory right to wear a union button and to espouse her
preference for the Union. Such requests by a supervisor,
especially in the context of Respondent's open and active
opposition to the representation of its employees by the
Union, clearly tended to restrain employees in the exercise
of their rights under the Act,2 ' and therefore violated
Section 8(a)(1).
6. Promises of benefits to induce employees to withdraw
their support of the Union
Caroline McEwan and Mable Ruble are two of the oldest
employees of Respondent in terms of length of service,
having worked for the Company about 5 years. In January
they signed authorization cards for the Union, and
commencing on or about February 16, they wore union
buttons in the plant. The mechanics employed by
Respondent in general were opposed to representation by
the Union. After McEwan and Ruble began wearing union
buttons, Steve Sostak, one of the mechanics who opposed
the Union, told Mrs. Ruble that she ought to be "on the
company's side," and he suggested that if she talked to
Brian Baldwin, the Respondent's chief executive officer,
she might change her mind about the Union. Ruble
expressed amenability to talking with Baldwin, and Sostak
said that he would try to arrange an appointment. Shortly
thereafter, Baldwin accosted Ruble and McEwan in the
plant and said, "I understand that you want to talk with
me." Ruble said, "Yes," and an appointment was then
made for Ruble and McEwan for February 18 at 2 p.m. in
Baldwin's office.
The meeting took place as scheduled. According to the
composite of the credited testimony of McEwan and
Ruble'22 Baldwin asked the two women what they
20 Anderson 's testimony in this regard , which was stnken
because it was not responsive to the question he was asked, was
that "several of the girls . started laughing at her [Sandstrom],
saying Rich [ Benak ] was only kidding and you know it "
21 Cf The Chas V Weise Co, 133 NLRB 765, 766, Beiser
Aviation Corp , 135 NLRB 399, 400
22 There is not much dispute in the record as to what transpired
at this and two subsequent meetings between Baldwin and these
two employees However, because Baldwin, although quite
obviously intelligent and literate , was an evasive witness who
frequently volunteered answers which are not responsive to the
questions posed to him, and gave testimony which was contrary to
Respondent 's records , and in some instances contrary to the
testimony of other witnesses of Respondent, his version of these
conversations is credited only to the extent that it accords with
McEwan and Ruble, or constitutes an admission against the
Respondent 's interest
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regarded "as wrong with the company," and for about 1
hour, they enumerated "what was wrong." Baldwin took
notes while McEwan and Ruble talked, and at the
conclusion of their recital, he said he had a list of 18
items .23 The complaints aired by McEwan and Ruble at
this meeting included: The failure of the Respondent to
follow seniority in the assignment of Saturday and
overtime work, as a result of which the same employees,
not including McEwan and Ruble, worked Saturdays;
older employees in terms of length of service were not paid
well compared with the pay received by newer employees;
the night-shift bonus of 10 cents per hour had been
reduced to 5 cents per hour; employees did not receive
wage rate reviews when they were promised; Ruble
wanted to have her job reevaluated and to be put on the
day shift; 24 and there was no way to bypass the foremen to
make complaints to the front office without the foremen
"making it bad for you out in the factory." At the
conclusion of McEwan's and Ruble's recital of the
complaints, grievances, and problems, Baldwin told them
that he would look into these matters, and that he would
like to have another meeting with them at a later date.
About 1 week later, Baldwin accosted McEwan and
Ruble in the plant and said that "he would like to discuss
things further with them" at his office at their
convenience. The two women agreed to meet him at his
office on Monday, February 29, and did so. On this
occasion, Respondent's president, Ted' Rogers, was also
present. According to the composite of the credited
testimony of McEwan and Ruble, Baldwin told them that
he had discussed their complaints with President Rogers
and that "he was going to personally take care of these
things." Relative to their complaint that it was difficult to
bypass the foremen and complain directly to the front
office, Baldwin said that the company would install "bark"
or suggestion boxes in the plant by means of which
employees could voice grievances or complaints, and
make suggestions for improvement of operation without
the foremen's knowledge.25 Baldwin asked McEwan and
Ruble if they wanted to be on the Information Committee,
which, as found above. was dominated and assisted by
Respondent. McEwan replied that she regarded the
committee as "a waste of time." Baldwin also told
McEwan and Ruble that "he didn't figure that we needed a
third party [ union]. That he thought we should take care
of it [the problems and complaints] our own self [sic] and
that he would take care of it [the items they had
discussed] ... they would be taken care of."
A few days later, about 1 week before the Board-
conducted election, McEwan and Ruble were told by
Foreman Benak that Baldwin wanted to speak with them
again, and they met-in the needle department near their
work stations in the plant during working hours. On this
occasion, Baldwin "talked in general about unions," said
that he had "belonged to a company that had a union in it
and it could be a mess," and reiterated that he would
personally take care of the problems and complaints which
McEwan and Ruble had brought to his attention.
Conclusions in Respect to Promises of Benefit
The General Counsel contends that the foregoing
testimony establishes that the Respondent promised and
granted benefits to its employees to induce them to
withdraw their support of the Union. The Respondent on
the other hand contends that McEwan and Ruble
"initiated" these "mild conversations," and that in the
light of previous like discussions, antedating the Union's
organizing campaign, "concerning production problems or
working conditions" between these employees and
Respondent's officials, they cannot properly be
characterized as unfair labor practices.
The Respondent's first contention that these
conversations were "initiated" by McEwan and Ruble is
not supported by the record, which shows only that they
agreed to speak to Baldwin at the suggestion of Sostak, an
antiunion employee who made the arrangements for the
first meeting. Moreover, it is clear from the record that the
second and third meetings were initiated by Respondent's
chief executive officer, Baldwin, and not by these
employees. Accordingly, this contention is rejected as
without merit.
In the context of the impending Board election at the
plant, and the open espousal of the Union by McEwan and
Ruble, Baldwin's statement to them that the employees
did not need a union, and his promise to take care of
McEwan's and Ruble's complaints, which included
matters personal to them, such as their inability to get
overtime work on Saturdays, a desire for job reevaluation,
a change of shift to day work, and their low rates of pay as
compared with the rates paid to newer employees, clearly
constituted a promise of benefits which was intended to
wean McEwan and Ruble away from further support of the
Union.26 Accordingly, it is found that the Respondent
thereby further engaged in interference with and restraint
and coercion of employees in the exercise of their rights
under the Act, and violated Section 8(a)(1).
C. The Discriminatory Discharge of James Kenneth
Turner
James Turner was hired by Respondent on January 3 to
work in the tumbling department on the second shift. In
February, Gary Holland became the foreman of that
department and Turner thereafter worked under his
supervision. Turner's job consisted of operating a
tumbling barrel which removed metal burrs from cannula
(pointed steel tubing which is used to make hypodermic
needles), washing the cannula after the tumbling process
is completed, drying them in an oven, and delivering this
material to the cannula manufacturing department.
Turner signed an authorization card for the Union, and on
February 22 he distributed similar authorization cards for
signature to other employees during the lunch hour.
After Turner resumed work on the night of February 22,
he had occasion to deliver a pan of cannula to the "work
area" where female employees of Respondent inspect the
cannula and bundle it. According to Turner's credited
testimony, "the girls" returned the union cards to him and
23 G C Exh 2 is the first of two pages of the notes taken by Respondent on March 3, 1 week before the Board-conducted
Baldwin of this meeting According to Baldwin, the second page election
of notes was lost during a plane trip 26 Northwest Engineering Company, 148 NLRB 1136, 1139-40,
24 Both McEwan and Ruble worked on the second shift. The Bendix Corp , Research Laboratories Division, 131 NLRB
25 These suggestion boxes, in fact , were installed in the plant by 599, 605 , enfd 299 F 2d 308 (C A 6), cert denied 371 U S 827
MPL, INC.
asked him whether he thought the Union "would get in."
Turner replied in the affirmative, and that ended the
conversation. As Turner turned around to leave, he saw
Foreman Holland standing about 25 feet away, and put the
union cards in his pocket. Holland walked up and asked
Turner what he had pocketed. Turner replied, "some
cards." Holland then said that he thought they were union
cards, and asked Turner whether he had been soliciting
for the Union. Turner said, "no," and "volunteered the
infotmaticr. that the girls had asked to see the cards."
Admittedly, Holland did not investigate to determine
whether or not the girls had initiated the conversation as
Turner claimed. Instead he told Turner that Respondent
had a rule against soliciting on company time, and said to
Turner, "Let's get back to work and I don't want any more
of this." No disciplinary action was taken by Respondent
until just before the lunch recess the next day, when
Turner, pursuant to instructions by Holland, went to
Baldwin's office. There and then, in the presence of
Baldwin, Holland, and Personnel Director Overaker,
Holland told Turner that he had been "talking to the girls
too much," and that he was transferring Turner to the job
of "hand blasting" which would "restrict" him from
moving about the plant. Holland then also gave Turner a
written "warning" which stated, inter alia:27
Dated: 2/22/66
and
2/23/66
Subject: Solicitation on Company Time
This memo is to confirm and record our discussion
of today. As we discussed, this is a warning that if the
situation stated above is not corrected, it will be a
cause for dismissal.
This memo has been issued because of the
following problems:
Talking to a group of girls, while on work time, with
union literature in hand. This is a violation of
company anti-solicitation rule, and is also lowering
your and fellow employees production by stopping
work to engage in conversation.
Sincerely,
Gary R. Holland
Received and acknowledged
Date:
Holland asked Turner to sign the warning notice but
Turner refused. Turner also told Holland that he would not
take the job of hand blasting because it required standing
in one spot. Holland replied that if Turner "didn't want the
hand blasting job," there was no alternative but to let
Turner go. Turner still refused and was then given his final
paycheck. Before he left, Personnel Director Overaker
wrote out a statement in longhand which Turner
"acknowledged," which stated as follows:28
To: Jim Turner
959
From: Personnel and Gary Holland
As a result of our meeting between you, Gary Holland,
Brian Baldwin and Rozanne Overaker, you have
decided to leave MPL, Inc. rather than accept the
duties we are assigning you to. These duties are in the
same job grade in which you are now classified. There
would be no loss of pay involved. You have stated that
you simply do not want to do the Hand Blasting job.
Since you have the potential, in our opinion, to be a
good employee, we are sorry that you feel you must
leave. We are paying you through the time you
worked tonight.
Acknowledged 23 Feb. 66
James Turner
The job of hand blasting to which Turner was ordered to
transfer on February 23 was an operation of very recent
origin in the Respondent's plant. The objective of this
operation is to "salvage" cannula which have "heel-burrs"
inside of the hollow tubing needles. It is performed with a
pressure blaster which discharges liquid at high velocity
from a nozzle or gun inside of a closed cabinet. The
operator guides the nozzle through a port in the cabinet
and directs the liquid stream through the cannula.
Admittedly, the hand blasting operation was first initiated
by Respondent in February, at which time an employee,
James Kimberling, was hired and trained to perform it.
Moreover, according to Turner's uncontroverted and
credited testimony, Turner had informed Foreman
Holland about the time Kimberling was hired that he did
not want the job of hand blasting, and the Respondent
therefore knew, when this job was offered to Turner, that
he would likely not accept it.29
The no-solicitation rule, the violation of which prompted
the order to Turner to work at an unwanted job, was one
which Respondent itself did not observe during its
campaign to defeat the Union. The record discloses
without dispute that Respondent, without disciplinary
action of any kind, permitted employees to distribute
antiunion literature in the plant and to pin paper slips on
employees bearing the letters "MPL." Indeed,
Respondent's chief executive officer, Baldwin, admittedly
engaged in such distribution of antiunion literature in the
plant during working hours, and in addition he called
employees together in groups and talked to them about
their lack of need for the Union.30 Obviously this conduct
by Respondent and the employees opposed to the Union
also interfered with production.
In view of all the foregoing, a strong prima facie case is
established that the order that Turner work at a job which
he was known not to want, and the refusal to continue his
employment unless he accepted the transfer, was a
constructive discharge of Turner which was motivated, not
by his alleged interference with production, but by
Respondent's opposition to the Union, and Turner's
known advocacy thereof.
G C. Exh 5 that during his employment, Turner worked at the hand blasting
2N G C Exh 10 operation for 4 hours Since Turner was otherwise a credible
29 Turner denied that he had worked at the hand blasting witness, this 4-hour period apparently was the training period
operation, but readily admitted that he had been trained to which Turner admitted
perform it by Kimberling The Respondent's work records show 30 Employee Mable Ruble so testified without contradiction.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This conclusion is buttressed by the incredible and in
some instances contradictory testimony of Respondent in
respect to the reasons motivating the order that Turner
transfer to the unwanted job. In this regard, Respondent's
chief executive officer, Baldwin, a witness for the General
Counsel under rule 43(b) of the Federal Rules of Civil
Procedure, denied that the order to Turner to work at the
hand blasting job was motivated by the incident which led
to the issuance of the warning notice. Baldwin testified
that to the contrary, the order was motivated by "a matter
of need ... we needed the production output of this other
job [hand blasting] and he [Turner] was requested to, by
Mr. Holland, to move over and perform this other task as
opposed to his previous task [tumbling]." According to
Baidwin, Turner was told that "we needed that work
[hand blasting] and ... we did not need the other work
[tumbling] at this particular time and that we had no other
job available." However, the Respondent's work records,
which were produced at the hearing, disclosed that before
Turner's constructive discharge, very little hand blasting
had been done, that what was done had been performed
and that there was no week in which 40 hours of hand
blasting had been performed by all of Respondent's
employees added together. These records also disclosed
that after Turner's termination, no hand blasting was done
until June (when Respondent hired a girl to perform that
operation). The quite obvious inference which these
records compel is that, contrary to Baldwin's testimony,
there was no pressing need on February 23 to assign an
employee to work full time on hand blasting, and a
continued need for the tumbling operation. In this regard,
it is significant that Kimberling, who had been hired and
trained by Respondent to perform hand blasting when it
was initiated, and who was still employed and apparently
willing to do that work, was not utilized on hand blasting
after Turner's termination. Thus, it is quite apparent that
no credence can be placed in Baldwin's testimony
regarding the need for the hand blasting work and the lack
of need for tumbling, and this reason for the order that
Turner's transfer to hand blasting is regarded as
pretextual to conceal the real reason therefor.
In further contradiction of Baldwin's testimony
regarding the motivation for the order that Turner transfer
to hand blasting, Foreman Holland admitted that the
reason therefor was to restrict him from access to and
contact with the other employees during worktime.
Holland testified that this was necessary because he
previously had once warned Turner orally about talking to
the girls and impeding their production, and that he had
received a complaint of similar misconduct from Art Mix,
another of Respondent's foremen. On cross-examination
about his failure to issue a written warning when Turner
allegedly committed the first offense of talking to the girls,
Holland first testified that no written warnings are issued
for first infractions. However, on further cross-
examination, Holland admitted that on the same occasion,
he had issued a written warning for another first offense by
Turner, which consisted of damaging cannula, either by
setting the oven temperature too high, or keeping the
31 See 2 Wigmore, Evidence § 385 (3d ed ), Whuin Machine
Works, 100 NLRB 279, 285, Hilma H Erikson, et at , d/b/a Detroit
Plastic Products Company, 121 NLRB 448, 499
32 Respondent's chief executive officer, Baldwin, testified that
he also observed this misconduct from about 40 feet away, and
that he saw Turner "giving what appeared to be a speech" to the
girls, which lasted for about 5 to 10 minutes. However, Turner and
cannula in the oven too long. It is thus quite evident that
Holland's testimony regarding the Respondent's policy of
not issuing written warning notices for first infractions
cannot be credited. Moreover, the written warning notice
issued to Turner on February 23 contains no reference to
any prior like offense, an omission which would not likely
have occurred if, aQ Holland testified, Turner was a
previous offender. In view of all these circumstances, I am
persuaded that Holland's testimony regarding Turner's
previous infraction of talking to the girls and hampering
their production is unworthy of credence. Moreover, Art
Mix, the foreman who allegedly complained to Holland
about similar misconduct by Turner, was not called as a
witness by Respondent, and no explanation was offered for
its failure to do so. Accordingly, I infer that Mix, if called,
would not have supported Holland's testimony about his
alleged complaint of misconduct by Turner.31
In respect to the incident of February 22 when Turner
allegedly hampered production by talking to the girls,
Holland gave no testimony regarding the length of time
during which he observed Turner, but from his account of
the incident, it could not have been more than 1 or 2
minutes. According to Turner's credited testimony
regarding the nature and content of his conversation with
the girls, it is fairly evident that it lasted no longer than
that, notwithstanding which, Turner estimated its duration
as from 2 to 3 minutes.32 In any event even assuming that
Turner was at fault in this incident, which, in view of the
absence of any investigation, the Respondent had no
reasonable basis to assume, the disruption to production
by Turner was quite evidently minimal, especially when
compared with that which the Respondent itself generated
in connection with its campaign to defeat the Union, and
that which it tolerated without discipline by employees
engaged in the distribution of antiunion literature.
In view of all the foregoing, including the failure of the
Respondent to investigate whether Turner was at fault in
connection with the February 22 incident before it
undertook to discipline him, I am persuaded and find that
the reasons advanced by Respondent for transferring
Turner to a job which it knew he would likely not accept,
and for refusing to continue his employment unless he
accepted the transfer, are pretexts, and that the real
motivation therefor was Respondent's opposition to the
Union, and to discourage employees from joining or
assisting the Union. Accordingly, it is found that thereby
the Respondent contructively discharged Turner and
discriminated against him in violation of Section 8(a)(3)
and (1) of the Act.
D. The Respondent's Alleged Discriminatory Refusal to
Grant a Wage Increase to Wilma Sandstrom
Wilma Sandstrom was hired by Respondent on
October 27, 1965, as a press operator. She signed an
authorization card for the Union on January 28, 1966, wore
a union button in the plant on and after February 16, and
was an observer for the Union at the Board election
conducted on March 10. As found above, she also
Holland both testified that they did not see Baldwin on this
occasion. Moreover, Baldwin testified that although present, he
did not see Holland In view of the above, the inherent
implausibility of Baldwin's testimony regarding the entire
incident, and the general unreliability of his testimony as found
above, I am persuaded that Baldwin did not witness the incident
at all Dyer v. MacDougall, et at , 201 F 2d 265, 269 (C A 2)
MPL, INC.
registered a complaint with the Respondent on
February 17, regarding Foreman Benak's withholding of
the paychecks of employees who wore union buttons.
On May 1, Sandstrom was scheduled for a regular 3-
month merit review of her wage rate. According to her
credited testimony, she was told by her foreman, Gary
Holland, that she was being rated "weak" on "Attitude
toward Company Policies" because of the "Union," and
because she had complained about the check withholding
incident. Notwithstanding that rating, Holland
recommended Sandstrom for a 10-cent-per-hour wage
increase which she received at that time.
The complaint, as amended at the hearing, alleges that
Sandstrom subsequently was denied a further wage
increase on July 1 because of her support and activities on
behalf of the Union. In respect to this allegation,
Sandstrom testified that on May 31, 1 month after her last
wage increase, she bid "on the job for hypo," and that she
was asked by her then foreman, Walter J. Faller, "to
please stay on the press." According to Sandstrom, she
told Faller that she "would have to have more money" as a
condition for remaining. Faller replied that he would look
at her file, and after doing so, he told Sandstrom, "Wilma,
you have a raise due in August," and he asked her, "would
you stay on the press if I would push your raise up one
month." Sandstrom agreed to Faller's proposal.
On July 1 Sandstrom said to Faller, "Wally, you asked
me to tell you about July 1st, you know when the raise is
due. Could I have the interview then?" Faller replied that
he was then busy but he would take it up with her the
following Tuesday, July 5. He asked Sandstrom to come in
20 minutes early to rate herself, something which she had
never done, and to her knowledge, no other employee had
ever done before. On the following Tuesday, Faller gave
Sandstrom a rating sheet, and she proceeded to rate
herself "good" and "excellent" on all factors. After she
finished, Faller told Sandstrom that he would rate her and
would notify her of the results later. Later that day, Faller,
her group leader Barbara Brewer, and Foreman Gary
Holland rated her. Her final rating was 351. That evening,
Faller notified Sandstrom that her rating was only three
points higher than that which she had at the time of last
increase, and that this score did not then warrant a further
raise.
An examination of Sandstrom's "merit review sheet" in
May when she received her last raise reveals that her
numerical productivity rating had been changed from 102
to 108, and that the total rating had been changed from 313
to 349. Faller explained that these changes in the earlier
rating were corrections of arithmetical errors which were
discovered when he reviewed Sandstrom's wage rate, and
there is no reason to believe otherwise. Faller denied that
he had promised Sandstrom a wage increase in July, and
he testified that he had promised only to review her wage
rate then.
Under the Respondent's wage policy, Sandstrom was
not automatically entitled to a raise in August, but only
was entitled to a wage review on that date. Whether or not
Sandstrom had been promised a raise by Faller effective in
July, or merely misunderstood the precise nature of his
13 Sandstrom's testimony, that she asked Faller in July for "the
interview," appears to indicate that she then expected a merit
review of her wage rate rather than an automatic raise, since, if a
raise had been promised , "the interview" would have been
surplusage.
961
promise,33 there is no evidence in the record from which a
conclusion reasonably can be drawn that the failure to give
her that raise was motivated by antiunion considerations.
The merit review sheet on which Sandstrom was rated in
July discloses that, on balance, Faller's final rating was as
high as that given her by her group leader, Barbara
Brewer, a union adherent who testified for the General
Counsel in this proceeding. From Sandstrom's own
testimony, no reference to the Union was made by Faller at
any time. Unlike Foreman Holland who had rated
Sandstrom "weak" on her "Attitude toward Company
Policies" because of the Union and her complaint about
Benak's withholding of paychecks, Faller's rating in July
on this item, which coincided with that given her by
Barbara Brewer, was "standard."34 Moreover,
notwithstanding his remarks to Sandstrom, Holland had
given her a raise in May. In view of the foregoing, I find
that the record fails to establish that Faller's failure to give
Sandstrom a raise in July was motivated either by
antiunion considerations, or by Sandstrom's activities on
behalf of the Union. Accordingly, it will be recommended
that the complaint in this respect be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, I will recommend it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having further found that the Respondent discriminated
against James Kenneth Turner by constructively
terminating his employment on February 23, 1966, I will
recommend that the Respondent be ordered to offer him
immediate and full reinstatement to his former or
substantially equivalent position, without prejudice to his
seniority and other rights and privileges, and to make him
whole for any loss of earnings suffered by reason of the
discrimination by the payment to him of a sum of money
equal to the amount he normally would have earned as
wages from the date of his constructive discharge to the
date of his reinstatement, less his net earnings during said
period, with backpay computed on a quarterly basis in the
manner established by the Board.35
I will also recommend that the Respondent make
available to the Board, or its agents, upon request, all
payroll and other records necessary to faciliate the
determination of the amounts due under this
recommended remedy.
In view of the nature and extent of the unfair labor
34 Faller's ratings of Sandstrom on all the other items were
either "standard" or "good."
as F W Woolworth Company, 90 NLRB 289. Backpay shall
include the payment of interest at the rate of 6 percent per annum
to be computed in the manner set forth in Isis Plumbing & Heat-
ingCo., 138 NLRB 716
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices committed, and because discriminatory
discharges go to the very heart of the Act,36 the
commission of other unfair labor practices reasonably may
be anticipated. I will therefore recommend that the
Respondent be ordered to cease and desist from "in any
other manner" infringing upon rights guaranteed to
employees by Section 7 of the Act, in addition to those
rights found to have been violated herein.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. District No. 8, International Association of
Machinists and Aerospace Workers, AFL-CIO, and the
Information Committee are labor organizations within the
meaning of Section 2(5) of the Act.
2. MPL, Inc., is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. By discouraging membership in a labor organization
through discrimination in employment, the Respondent
has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(3) of the Act.
4. By initiating the formation of the Information
Committee, and by dominating and contributing support to
its administration, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(2) of the Act.
5. By the foregoing conduct, by engaging in surveillance
of the union activities of its employees and conveying to
them the impression of such surveillance, by interrogating
employees regarding their union membership and
sympathies, by threatening employees with reprisals if
they choose to be represented by a union, by promising
and granting benefits to discourage employees from
continuing their support of the Union, by maintaining a
rule prohibiting solicitation on behalf of the Union in all
areas of the plant during nonworking hours, and the
distribution of union literature in nonwork areas of the
plant during nonworking hours, and by interfering with,
coercing, and restraining employees in the exercise of
their right to wear union buttons, the Respondent has
engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
6. The unfair labor practices enumerated above are
unfair labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend that the Respondent , MPL, Inc., its officers,
agents , successors , and assigns , shall:
1. Cease and desist from
(a) Discouraging membership in and activities on behalf
of District No. 8, International Association of Machinists
and Aerospace Workers, AFL-CIO , or any other labor
organization of its employees , by discharging or refusing to
reinstatement any employees , or in any other manner
as N L R B v Entwistle Mfg. Co , 120 F 2d 532 (C.A 4)
aT In the event that this Recommended Order is adopted by the
Board , the words "a Decision and Order" shall be substituted for
the words " the Recommended Order of a Tnal Examiner" in the
discriminating in regard to hire or tenure of employment,
or any term or condition of employment.
(b) Dominating or interfering with the formation or
administration of, or contributing financial or other
support or assistance to, the Information Committee, or
any other labor organization of its employees.
(c) Coercively interrogating employees regarding their
union activities and sympathies, threatening employees
with reprisals if they choose to be represented by a union,
promising or granting benefits to discourage employees
from joining or supporting District No. 8, International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization , engaging in
surveillance of the union activities of its employees or
conveying to them the impression of such surveillance, or
maintaining in effect a rule which prohibits employees
from soliciting on behalf of the said Union or any other
labor organization in all areas of the plant during
nonworking hours, or from distributing union literature in
nonwork areas of its plant during nonworking hours.
(d) 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
District No. 8, International Association of Machinists and
Aerospace Workers, AFL-CIO, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from engaging in such activities, except to the extent that
such rights may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized by Section 8(a)(3) of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Permanently withdraw from the Information
Committee or any successor thereto, all recognition as
representative of any of Respondent's employees for
treating or dealing with Respondent in respect to
grievances, wages, earnings, or other terms and conditions
of employment, and completely disestablish it as such
representative.
(b) Offer James Kenneth Turner immediate and full
reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him whole for
any loss of pay he may have suffered as a result of the
discrimination against him in the manner provided in the
section of this Decision entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, all payroll and other records as set
forth in the section of this Decision entitled "The
Remedy."
(d) Notify James Kenneth Turner if presently serving in
the Armed Forces of the United States of his right to full
reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training
and Service Act, as amended, after discharge from the
Armed Forces.
(e) Post at its plant in Chicago, Illinois, copies of the
attached notice marked "Appendix." 37 Copies of said
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
MPL, INC.
notice, to be furnished by the Regional Director for Region
13, after being duly signed by Respondent, be posted by it
for a period of 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.
(f) Notify the Regional Director for Region 13, in
writing, within 20 days from the date of this Decision, what
steps the Respondent has taken to comply herewith.38
I FURTHER RECOMMEND that the complaint be
dismissed insofar as it alleges that the Respondent
violated the Act by conduct other than that found to be
violative in this Decision.
31 In the event that this Recommended Order is adopted by the
Board , this provision shall be modified to read "Notify said
Regional Director , in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner 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:
WE WILL NOT discourage membership in or
activities on behalf of District No. 8, International
Association of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, by
discharging , or refusing to reinstate any of our
employees , or in any other manner discriminating
against our employees in regard to their hire or tenure
of employment or any term or condition of
employment.
WE WILL NOT recognize , treat, or deal with the
Information Committee , or any successor thereto, in
respect to grievances , wages, or terms or conditions of
employment , and WE WILL permanently withdraw all
recognition from said Committee or successor
thereto, as representative of any of our employees in
respect to such matters, and WE WILL completely
disestablish it.
WE WILL NOT coercively interrogate our employees
regarding their union membership, activities, or
sympathies, threaten them with reprisals for choosing
to be represented by a union, promise or grant
963
benefits to discourage our employees from supporting
District No. 8, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any other
labor organization, engage in surveillance of the union
activities of our employees or convey to them the
impression of such surveillance, or maintain in effect
any rule which prohibits our employees from
soliciting for a union in all areas of our plant during
nonworking hours, or from distributing union
literature in nonworking areas of our plant during
nonworking hours.
WE WILL NOT in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist District No. 8,
International Association of Machinists and
Aerospace Workers, AFL-CIO, or any labor
organization, to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, and to refrain from any or all such
activities, except to the extent that such rights may be
affected by an agreement requiring membership in a
labor organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act.
WE WILL offer James Kenneth Turner immediate
and full reinstatement to his former or substantially
equivalent position without prejudice to any seniority
or other rights and privileges previously enjoyed, and
make him whole for any loss of pay suffered as a
result of the discrimination against him.
WE WILL notify James Kenneth Turner if presently
serving in the Armed Forces of the United States of
his right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
MPL, INC.
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Building, 219 S. Dearborn Street,
Chicago, Ihinois 60604, Telephone 622-4167.
295-269 0-69-62