Noma Lites Corp.

National Labor Relations Board - Board Decisions

Apr 10, 1968

170 N.L.R.B. 1262 (N.L.R.B. 1968)

1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Noma Lites Corp. and Local Lodge 1534, Interna-
tional Association of Machinists & Aerospace
Workers , AFL-CIO. Cases 17-CA-3195 and
17-RC-5337
April 10, 1968
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On November 27, 1967, Trial Examiner Melvin
Pollack issued his Decision in the above-entitled
proceedings, finding that Respondent had engaged
in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
further found that Respondent did not engage in
certain other unfair labor practices alleged in the
complaint and recommended that such allegations
be dismissed. The Trial Examiner also recom-
mended that the election held on March 22, 1967,
be set aside and the petition in Case 17-RC-5337
be dismissed. Thereafter, the Respondent filed ex-
ceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the
following additions and modifications.
1. As described more fully in the Trial Ex-
aminer's Decision, in January 1967, International
Association of Machinists & Aerospace Workers,
AFL-CIO (hereinafter called the Union), com-
menced an organizational campaign among em-
ployees at Respondent's plant at St. Joseph, Mis-
souri. Shortly thereafter the Respondent, having
become aware of the Union's organizational cam-
paign, embarked upon a campaign of its own to
discourage support of the Union which continued
up until the Board-conducted election and
thereafter.
The Union first requested recognition from the
Respondent on February 28, and on the same date
filed a petition in Case 17-RC-5337. An election
was held on March 22, which the Union lost. The
Trial Examiner found, and we agree, that the
Respondent engaged in extensive and serious viola-
tions of Section 8(a)(1) during the course of the
organizational campaign and subsequent to the
election itself; by unlawful interrogation of em-
ployees concerning their union sympathies, by
threats of reprisal for union activity including
threats of job loss and a threat to move the plant,
by a grant of wage increases by instituting a higher
bonus ceiling on incentive earnings to induce
employees to vote against the Union, and by
granting employees the day after the election, Good
Friday, as a paid holiday as a reward for having re-
jected the Union. The Trial Examiner also found,
and we agree, that Respondent violated Section
8(a)(3) by discriminatorily transferring three
known members of the union organizing committee
to nonbonus and less desirable work on or about
March 6 and 15.
2. In addition to the violations of Section
8(a)(1) found by the Trial Examiner, we find that
the Respondent also violated Section 8(a)(1) in the
following manner:
Respondent's March 10, 1967, posted notice to
employees.
The incentive payment plan established last fall
has been working well and is developing suc-
cessfully.
We agree that the 20 percent limitation on
bonus earnings was not necessary and it has
been accordingly raised to 50 percent. A
number of employees are now earning more
than 20 percent bonus.
Revisions of standards, both up and down,
have been made and will continue to be made
as required.
The company, in line with its desire to make
this plan as rewarding as possible to the em-
ployees in proportion to the extra effort they
put forth, has retained a firm of independent
consulting engineers to review our entire in-
centive plan and make whatever changes may
be required to assure the continuing success of
the program.
It is expected that, in the future, this plan will
provide even more extra earnings to the em-
ployees than before and that the company will
be able to realize even greater reductions of
costs to improve our ability to meet competi-
tion.
The Trial Examiner found that although the
notice was clearly intended to dissuade employees
170 NLRB No. 142
NOMA LITES CORP.
from supporting the Union , it did not contain a
promise of increased benefits and therefore was not
violative of Section 8(a)(1). We do not agree. Con-
sidering all of the factors herein, we find that
Respondent 's notice -of March 10 was directly re-
lated to its earlier notice of February 27 which the
Trial Examiner found contained a promise- of
benefit which was a violation of Section 8(a)(1) of
the Act. Respondent 's March 10 , notice not only in-
formed its employees that some of them were al-
ready receiving - increased earnings because of the
change in the bonus ceiling from 20-50 percent on
earnings announced on February 27, but also in-
formed 'them that the newly revised incentive wage
plan would provide "even more extra earnings to
the employees- in the future ." Contrary to the Trial
Examiner , we find that in calling attention to the
implementation of its earlier notice and coupling
that with the theme that employees could expect
even greater earnings in the future, Respondent
promised employees additional benefits . The fact
that such greater earnings were predicated in part
on greater effort by the employees does not alter
the fact that prior to the notice such greater effort
was not similarly rewarded. Viewing this announce-
mentoin the light of Respondent's other unfair labor
practices and considering the fact that it was made
during the Union's organizational campaign, we are
persuaded that this promise of additional benefits
was designed to dissuade employees from support-
ing the Union . The granting of benefits for such
purposes restrains and interferes with employees'
exercise of rights guaranteed in Section 7 of the
Act, and thus constitutes a violation of Section
8(a)(1)1
3. In agreement with the Trial Examiner, we
find, on consideration of all the circumstances of
this case , that Respondent 's refusal to recognize the
Union as the exclusive representative of its produc-
tion and maintenance employees violated - Section
8(a)(5) and (1) of the Act. We do so for the
reasons set forth below.
The Union's efforts to organize Respondent's em-
ployees began in January 1967 and came to
Respondent 's attention early in February. In a
patent effort to discourage its employees from
selecting the Union as-their representative , Produc-
tion Manager Ulmer threatened Marion Bruce, one
of the employee leaders of the organizing cam-
paign. with loss of his and his wife's jobs and
warned Bruce that the plant might be moved if the
Union was successful. In a further major move to
' Kawneer Company , 164 NLRB 983. Although no exceptions were filed
to the Trial Examiner 's finding that the March 10 notice was not a violation
1263
defeat the Union's campaign, Respondent an-
nounced a substantial improvement in its incentive
earnings program on February 27.
On February 28 Respondent became aware that
its effort to thwart the Union's campaign was ap-
parently unsuccessful . On that date, it received the
Union's letter demanding recognition and offering
to prove its majority status. Respondent 's first and
immediate response to the letter was the dis-
criminatory transfer of Patricia Detwieler, a
member of the Union's organizing committee and
named in its letter to Respondent as one of the per-
sons receiving a carbon copy, to Tamping work
which carried with it lessened opportunity to earn
incentive pay. On March 1 Respondent asked the
Union to give it until after March 10 to respond to
its recognition request . On March 6 it discrimina-
torily transferred Detwieler to nonbonus work.
On March 10 Respondent announced to its em-
ployees that it had further improved its incentive
earnings program . On March 13 Respondent wrote
a letter to the Union noting.that the Union had filed
a petition for an election and indicating that, for
that reason and because another union had made
an unsubstantiated majority claim the previous
year, Respondent felt it would be best to let the
Board decide the question concerning representa-
tion. At no time did Respondent dispute the
Union's majority claim , and Respondent does not
now dispute the fact of the Union's majority at the
time of request for recognition.
On March 15 after Respondent and the Union
had entered into a consent-election agreement
Respondent discriminatorily transferred two other
members of the Union's organizing committee to
nonbonus work. After the results of the election
were known , Respondent rewarded its employees
with a paid holiday for Good Friday, the day after
the election. `
It is plain from the foregoing recital of events
that Respondent resorted to a consistent and in-
sistent campaign of unfair labor practices in its ef-
fort, first, to thwart the union organizational drive,
and second , to wean the employees away from the
Union after it received substantial indication that
the drive had been successful despite its earlier un-
lawful efforts. Respondent 's contention that its un-
fair labor practices are insubstantial within the rule
of the Hammond & Irving decision is without
merit. Threats of job loss and plant removal, dis-
criminatory transfers to less remunerative work,
and grants of increased benefits for the purpose of
of Section 8(a)(1), the matter was thorougly litigated and to the extent
consistent herein we agree with the Trial Examiner 's findings.
2 154 NLRB 1071.
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subverting the election process, can by no stretch
of the imagination be deemed insubstantial inter-
ferences with employee exercise of Section 7 rights.
The timing of Respondent's unfair labor practices,
particularly its discriminatory transfer of Detwieler
immediately upon receipt of the Union's claim of
majority status, its March 10 announcement of
further improvements in its incentive system just
prior to its rejection of the Union's demand for
recognition, and the discriminatory transfers of
other members of the Union's organizing commit-
tee after it had consented to an election, considered
in the light of its failure specifically to question the
Union's majority status, persuade us that Respon-
dent acted to dissipate the Union's majority which
it believed existed, rather than simply to prevent
the Union from obtaining the majority it doubted
existed at that time. Accordingly, like the Trial Ex-
aminer, we conclude that Respondent at no time
after the Union's demand for recognition enter-
tained a good-faith doubt that the Union repre-
sented a majority of its employees, and that it insist-
ed upon an election in order to gain time to dissipate
the Union's majority.3 In so concluding, we have
considered respondent's claim that other evidence
in the record supports a conclusion that it doubted
the union's majority status. In other circum-
stances, such things as ready consent to an election,
a previous history of amicable dealings with an-
other union as the exclusive representative of its
employees, and an instruction to supervisors to
maintain a neutral attitude might well permit, if
they did not require, a different conclusion. They
do not do so here. Although we are satisfied that
substantial evidence supports our finding of an
8(a)(1) violation, we need not rest our imposition
of a bargaining order on that finding alone. It is
readily apparent that respondent's unfair labor
practices were calculated to prevent the union
from gaining additional strength and to dissipate
whatever strength the union had at the time of the
commission of the unfair labor practices. As there
is no question but that the union had been validly
designated by a majority of production and mainte-
nance employees as their exclusive representative
at the time it made its bargaining demand, respond-
ent may properly be held, in our view, to have
intended to undermine that status, in any event,
as its campaign of restraint and coercion made the
holding of a free election impossible, it cannot now
rely on a claim of good faith doubt of majority, a
claim not raised with the union at the time of the
demand, as grounds for avoiding imposition of a
/bargaining order as a remdey for its conduct. Such
order is required as a remedy for its 8(a)(1) viola-
tions as much as for its violation of 8(a)(5).4
4. In recommending that the election held on
March 22, 1967, in Case 17-RC-5337, be set aside,
the Trial Examiner found, and we agree, that the
Union's Objection 4 was meritorious. The record
establishes that the discriminatory transfer of
Detwieler to nonbonus work on March 6, and of
Bruce and Blum to the monowatt department on
March 15, occurred after the filing of the represen-
tation petition and before the holding of the elec-
tion . Moreover, we have found that Respondent's
notice of March 10 constituted an announcement
of additional improvements in the incentive system
in violation of Section 8(a)(1). For this additional
reason , we shall adopt the Trial Examiner 's recom-
mendation that the petition in Case 17-RC-5337
be dismissed.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent,
Noma Lites Corp., St. Joseph, Missouri, its officers,
agents, successors , and assigns , shall take the action
set forth in the Trial Examiner 's Recommended
Order, as herein modified:
1. Paragraph 1(b) of the Recommended Order is
deleted and the following substituted:
"(b) Threatening employees with discharge and
other loss of employment or threatening to move
the plant because of their union activity."
IT IS HEREBY FURTHER ORDERED that the petition
in Case 17-RC-5337 be, and it hereby is,
dismissed.
3 Accord. Consolidated Rendering Co. d/b/a Burlington Rendering v
N L.R.B., 386 F 2d 699 (C.A 2)
J. C Penny Co., Inc v N L.R.B., 384 F 2d 479 (C.A. 10); Consolidated
Rendering Co, d/b/a Burlington Rendering v. N.L.R .B, supra . See also
cases cited in footnote 11 of the Trial Examiner 's Decision.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MELVIN POLLACK , Trial Examiner: In this con-
solidated proceeding under Sections 9(c) and
10(b) of the National Labor Relations Act, as
amended (herein called the Act), the issues to be
decided are whether Respondent violated Section
8(a)(1), (3), and (5) of the Act, and whether the
Union 's objections to the results of an election con-
NOMA LITES CORP. 1265
ducted on March 22, 1967, should be sustained and
the election set aside.'
A hearing was held before me on September 12
and 13, 1967, at St. Joseph, Missouri. Briefs filed
by the General Counsel and the Respondent have
been carefully considered. Upon the entire record'
and my observation of the demeanor of the wit-
nesses as they testified, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent is a Missouri corporation engaged in
the manufacture and sale of decorative lights at its
plant located in St. Joseph , Missouri . During the
year preceding the issuance of the complaint,
Respondent's interstate purchases and sales each
exceeded $50,000. It is conceded , and I find, that
Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
Respondent corporation has manufactured
Christmas lights and decorations at the St. Joseph
plat for about 20 years. The plant was closed down
for a while in 1963 for business reasons . Ownership
changed in 1963 and again in August 1965 when
the plant was acquired by the present owners. The
International Brotherhood of Electrical Workers,
which had represented the plant employees for
many years, failed to retain its representative status
after the sale of the plant in 1963.
In May 1966 the United Steelworkers of America
began organizing at the plant. Sarah Jimenez re-
ported for work at the plant on September 8.
Jimenez credibly testified that Production Manager
Emil Ulmer told her that day that "they were trying
to organize a union in the plant, and if the Union
got in the plant, they would do what they done be-
fore, close the doors." In late October or early
November, General Foreman Norman L. Brandon
came up to Evelyn Bruce while she was doing Tamp-
ing work.3 According to Bruce, Brandon remarked,
"Well, I guess you know I took you off the hook."'
Bruce replied, "Well, I didn't know that you did,
but I know somebody did." Brandon then remarked
that he had heard that she had been passing out
cards in the restroom. Bruce denied this and also
denied that she had called another employee a vul-
gar name. Brandon said he hoped so "because
somebody was going to get fired." He added that he
had also heard that Bruce "was calling him names."
She said she had not heard that but that she had
heard she was calling Mr. Ulmer names. She said
she "hadn't done that either" and Brandon re-
marked, "I know you haven't."'
The Steelworkers in December 1966 abandoned
their efforts to organize the plant. Employee
Patricia Detwieler, who had been on the Steelwork-
ers organizing committee. called the Union in
January 1967 about organizing the plant. At a
union meeting held on January 30, Detwieler,
Marion and Evelyn Bruce,' Sarah Jimenez, Beulah
Blum, Mildred Clark, and Esther Mitchell were
selected as an organizing committee. The commit-
tee members solicited employees to sign union
cards and arranged and attended five or six union
meetings before the Board election on March 22,
1967.
Marion Bruce works in the compression molding
department where phenolic sockets are manufac-
tured. A few days after the January 30, 1967, union
meeting, Production Manager Ulmer asked Bruce
"to come outside" because he wanted to talk to
him.7 Bruce did so and Ulmer said he knew what
was going on and he did not think Bruce "had
made a very wise choice." He commented that he
did not know whether Bruce "was passing out cards
at this time or not" but that the Company could do
nothing about it so long as Bruce did not pass them
out on company time or interfere with any em-
ployee's work. He also said, according to Bruce,
that Bruce "had better watch" himself and that "in
view of this thing the plant could be moved."
About 2 weeks later, Ulmer again called Bruce
' Pursuant to a charge and amended charge filed on March 30 and June
30, 1967, respectively, the Regional Director for Region 17 issued a com-
plaint and notice of hearing on June 30, 1967 . Objections to the election
held on March 22 were filed on March 28, 1967. Finding that certain al-
legations of the objections were substantially identical with allegations in
the complaint, the Regional Director on July 3, 1967, ordered that the ob-
jections e consolidated for hearing with the complaint
2 The record is corrected in accordance with an "Errata Sheet" sub-
mitted by the parties, which is made part of the record.
3 Production workers in the main operate monowatt machines or do
lampmg work The monowatt operators attach Bakelite sockets to "harnes-
ses" of electrical wires The lamping workers operate machines to insert
lamps into the sockets except that they manually insert lamps into strings
which take more than 25 lamps.
Bruce testified that Brandon's remark referred to taking her off a
monowatt machine assignment Bruce said she found monowatt work dif-
ficult because she has weak eyes. It appears from her testimony that she
worked on monowatts in January 1966 " and again in October 1966 for
about 2 weeks.
s Brandon recalled talking to Mrs. Bruce about a report that she had
called another employee a nasty name and telling her that he hoped that it
was not true because management would not put up with "things like this
going on in the plant." To his "memory," that was the whole conversation.
Mrs Bruce's testimony about the conversation is detailed and is cor-
roborated in part by Brandon I believe she had the better recollection and
have therefore credited her version ofthe conversation.
B The Bruces are man and wife. Marion Bruce was reprimanded by Plant
Manager Jules Deutsch during the Steelworkers campaign in 1966 for sol-
iciting employees to sign cards on working time.
7 The machinery in the compression molding department is extremely
noisy.
350-999 0 - 71 - 81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out of the compression molding room. He said that
Bruce should remember that there was talk of
letting him go when he was "first employed,"8 but
that Ulmer was "one of them who had kept [him]
on the job." He added that Bruce should think
about the Company and his job, that he should re-
member his wife was working there, and that she
"could lose her job" because she was there
"through [his] good work." Some time after this
conversation, Ulmer told Bruce that other em-
ployees had complained to him about threats if
they did not sign union cards. Bruce replied that he
"didn't believe that any of us was doing anything
like that." s
An incentive pay system introduced at the plant
in 1966 limited eligible employees to a "ceiling" of
20 percent above base pay.10 By notice dated
February 24, 1967, Respondent announced a
change in the bonus ceiling from 20 to 50 percent
above base pay, effective February 20."
On the morning of February 28, Plant Manager
Deutsch received a letter from the Union advising
him that it represented a majority of the production
and maintenance employees, offering to submit
proof of majority status to an impartial person, and
requesting recognition and contract negotiations.12
The letter listed five persons as getting copies, the
last one being "Detwieler." Patricia Detwieler was
one of three employees transferred from bonus
work to nonbonus work that afternoon.
Respondent's president, Marvin Capin, by letter
dated March 1, asked the Union's "indulgence"
until March 10, for an answer to its request for
recognition , noting that Respondent was "in the
throes of the National Toy Show ... our most im-
portant selling show of the year."
On March 10, Assistant Plant Manager Sheridan
posted the following notice at the St. Joseph plant:
The incentive payment plan established last fall
has been working well and is developing suc-
cessfully.
We agree that the 20 percent limitation on
bonus earnings was not necessary and it has
been accordingly raised to 50 percent. A
number of employees are now earning more
than 20 percent bonus.
Revisions of standards, both up and down,
have been made and will continue to be made
as required.
The company, in line with its desire to make
this plan as rewarding as possible to the em-
ployees in proportion to the extra effort they
put forth, has retained a firm of independent
consulting engineers to review our entire in-
centive plan and make whatever changes may
be required to assure the continuing success of
the program.
It is expected that, in the future, this plan will
provide even more extra earnings to the em-
ployees than before and that the company will
be able to realize even greater reductions of
costs to improve our ability to meet competi-
tion.
In a letter to the Union dated March 13 President
Capin noted that the Union had filed an election
petition with the Board and said for this reason, and
because an unsubstantiated majority claim had
been received from "another union last summer,"
that he felt that it would be best to let the Board
"decide the question of bargaining rights by secret
ballot." The parties met that same day at the
Board's Kansas City office and executed a "Stipula-
tion for Certification Upon Consent Election.' The
election was set for March 22.
The Union held a meeting on the evening of
March 14. The next day, Respondent transferred
five employees including union committee mem-
bers Evelyn Bruce and Beulah Blum, from Tamping
work to the monowatt department. Bruce and Blum
unlike the other transferred employees had not in
past years been assigned to monowatt work "during
the season."
Foreman Brandon had been advised by an em-
ployee on the morning of March 15 that his son had
attended the union meeting the previous night.t3
Brandon telephoned his son that evening and asked
him for "information" about the union meeting.
Brandon's son replied, "Dad, I won't discuss it on
the phone with you at all."
The election was held as scheduled on March 22.
Of approximately 206 eligible voters, 91 voted for
and 109 against the Union, and 7 ballots were chal-
lenged. The next day, Respondent posted the fol-
lowing notice signed by Plant Manager Deutsch:
" Bruce has worked at the St Joseph plant for about 14 years.
s Ulmer confirmed Marion Bruce's testimony that he had told Bruce he
could engage in union solicitation on his own time but that he was not to
bother other employees at work, and that he had spoken to Bruce about
threats to employees over the telephone He denied telling Bruce that the
plant might move or that his wife could lose her job Bruce impressed me as
a more reliable witness and I have therefore credited his versions of the
conversations with Ulmer
10 Thus a production employee working a 40-hour week in 1966 at the
base rate of $1 40 an hour could earn a bonus maximum of $ 11 20 Patricia
Detwieler testified that in fact $ 8 was the maximum bonus given until the
ceiling was raised to 50 percent in February 1967
" Assistant Plant Manager William Sheridan testified that he prepared
the notice on February 24, and issued instructions to post it that day Plant
Manager Deutsch testified that the notice was posted on February 24
Patricia Detwieler testified that Production Manager Ulmer on February
27 or 28 came over to her while she was "on the line" and told her that the
bonus ceiling had been lifted to 50 percent and that "the sky was the limit "
Sarah Jimenez testified that no notices were posted on the plant bulletin
board on February 24 1 consider it most likely that the notice was posted
no later than Monday , February 27, and so find
12 The Union also filed a representation petition with the Board's Kansas
City office on February 28
" Addah Palmer, a group leader, told Sarah Jimenez on the morning of
March 15 to keep her mouth shut because Brandon was waiting for a
chance to bawl her out on account of what she had said to his son at the
union meeting Jimenez testified that she had challenged the right of Bran-
don's son to question Union Representative McEvoy about the signing of
cards by certain employees.
NOMA LITES CORP.
TO ALL NOMA EMPLOYEES:
In keeping with our policy of improving
working conditions, commencing Friday,
March 24, 1967, Good Friday will be an an-
nual holiday with pay.
The factory will be closed Friday, March 24,
1967, and employees will be paid for the full
day.
B. Analysis and Conclusions
1. Interference, restraint, and coercion
The General Counsel contends that Respondent
created an impression of surveillance of union ac-
tivity by Foreman Brandon's remark to Evelyn
Bruce during the Steelworkers campaign in 1966,
he had heard she was passing out union cards in the
restroom. This remark was made in a conversation
indicating Brandon's concern with employee re-
ports that Bruce had called another employee a vul-
gar name and was engaging in namecalling about
himself and Production Manager Ulmer. The con-
versation does not indicate that Brandon was con-
cerned with Bruce's union activity as such. I find
that Respondent did not engage in conduct creating
an impression of surveillance of union activity.
I have found that Production Manager Ulmer
spoke to Marion Bruce about his union activity
several times in February 1967, that he told Bruce
on one occasion that the union activity could lead
to the moving of the plant, and on another occasion
that Bruce should think about his job and should
remember that his wife, Evelyn, could lose her job
because she was employed "through [his] good
work." Ulmer's statement about the plant moving
and his remarks to the effect that Bruce's union ac=
tivity might cause him and his wife to lose their jobs
were clearly violative of Section 8(a)(1) of the Act.
I find no violation. however, in Foreman Bran-
don's conduct in calling his son on March 15, and
asking him for "information" about the March 14
union meeting. As the record indicates that Bran-
don and his son are on good terms and that Bran-
don dropped the matter when his son refused to
talk about the union meeting, I do' not consider an
inference warranted that the interrogation would
have tended to inhibit the son in the exercise of
rights under the Act.
I find merit in the General Counsel's contention
that Respondent about February 24, 1967, raised
the bonus ceiling of its incentive pay plan from 20
to 50 percent above base pay in order to discourage
support of the Union. Respondent introduced the
incentive pay plan into the plant by announcing on
August 4, 1966, that incentive pay would be tested
for the monowatt machine operators, with a ceiling
1267
of 50 percent above base pay. The incentive system
was thereafter extended to other production opera-
tions. On October 19, 1966, Respondent an-
nounced a reduction in the bonus ceiling from 50
to 20 percent, explaining that the reduction was
necessary because "this plan is new and there can
be errors in standards-tallies-time allocation, cal-
culations and changes in jobs and operations."
Assistant Plant Manager Sheridan testified that a
firm of industrial engineers retained to study plant
efficiency advised him in November 1966 to
remove the bonus ceiling as soon as possible
because `it was a killer on a bonus plan," but that
he replied in effect that he did not have the time
and staff necessary to work on and correct incen-
tive rates. Sheridan further testified that he decided
to restore the 50-percent bonus ceiling in February,
although there had been no time to check out in-
centive rates, because Plant Manager Deutsch ad-
vised him in January that employees were holding
back on production when they reached the 20-per-
cent bonus ceiling and because the industrial en-
gineers were pressing him to remove the eiling.'
It is apparent from Production Managr Ulmer's
conversation with Marion Bruce in early February,
that he knew at that time that a camp lgn to'or-
ganize the plant was under way. Inde d, Ulmer
testified that he received telephone calls at home
from employees who told him about the presence
of "certain girls, soliciting for the Union" at union
meetings and also about "what went on" at these
meetings. When the bonus ceiling was raised at the
end of February, several meetings had been held
and over 100 employees had signed union cards."
Although Respondent reduced the bonus ceiling
from 50 to 20 percent in October 1966, to protect
itself against errors in the rates tentatively
established for various production operations, when
it restored the 50-percent ceiling it had still not
checked out the accuracy of these rates. The
record is devoid of evidence that production levels
under the 20-percent bonus limitation were un-
satisfactory. On the contrary, it would appear from
Sheridan's failure to raise the bonus ceiling in
January 1967, when Deutsch allegedly told him that
some employees were holding back on production,
that he did not consider such action warranted at
that time. I therefore do not credit Sheridan's
testimony to the effect that he raised the bonus
ceiling late in February because it was adversely
affecting production.
In view of the foregoing, I find that Respondent
was aware that the Union was organizing the plant
and that it announced a raise in the bonus ceiling
on February 27 from 20 to 50 percent in order to
discourage support of the Union, thereby violating
Section 8(a)(1) of the Act. Cf. N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405.
1' The parties stipulated that at least 105 out of 206 eligible employees
had signed union cards by February 27, 1967.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheridan posted a notice on March 10, 1967, ad-
-vising the employees that a number of them were
now earning more than a 20-percent bonus, that
Respondent had retained a firm of consulting en-
gineers to review and make changes in the incen-
tive plan, and that it "expected" that the plan "in
the future ... will provide even more extra earnings
to the employees, than before." The notice pointed
out, however, that production standards would be
changed "both up and down," that employees
would be rewarded "in proportion to the extra ef-
fort they put forth," and that increased productivity
would permit Respondent "to realize even greater
reductions of costs to improve our ability to meet
competition." Although the notice was clearly in-
tended to dissuade employees from supporting the
Union, I find that it does not contain a promise of
increased benefits and hence that it is not violative
of Section 8(a)(1) of the Act.
Respondent granted the employees Good Friday
as a paid holiday the day after the election on
March 22. I do not credit Plant Manager Deutsch's
testimony that President Canin about December 9,
1966, approved his suggestion that the employees
be given Good Friday as an additional paid holiday,
that the holiday was to be announced a few weeks
before Good Friday, and th4t the announcement
was delayed in order not to interfere with the elec-
tion. President Canin announced a 10-cent-an-
hour-wage increase at the 1966 Christmas party. It
would seem that he would also have announced,
Good Friday as a paid holiday had a definite deci-
sion been reached on December 9, as Deutsch
testified. Respondent has advanced no explanation
for withholding the announcement at this time. I
find that Respondent gave the Good Friday holiday
to the employees to "reward" them for rejecting
the Union at the election. For this reason, and as
the grant of this benefit during the time for filing
objections to the election tended to interfere with
the holding of any rerun election," I find that
Respondent violated Section 8(a)(1) of the Act by
granting the employees Good Friday as 'a paid
holiday.
2. The transfer of Detwieler
Patricia Detwieler has worked at the St. Joseph
plant every year since 1953. She has worked exclu-
sively in the lamping department for the past 7 or 8
years. The lamping operation was put on inceitive
pay in September -1966. Detwieler earned a bonus
"every week" she was on bonus work. On February
28, a few hours after Plant Manager Deutsch
received the Union's letter requesting recognition
and contract negotiations, Detwieler, Dixie Berry,
and Shirley- Hess were taken off the automatic
lamping line and assigned to test certain - lamp
bases. Although Detwieler had performed various
jobs at the beginning and close of the production
year, she, had never before been taken off the
production line during the "season." Detwieler
worked 3 days testing lamp bases and received a
bonus of "a dollar something" for this work. On
Monday morning Detwieler, Berry, and Hess were
assigned to "rework" returned merchandise. Mrs.
Hess returned to her regular work 2 or 3 days later,
but Detwieler and Berry remained on "rework,"
which did not pay a bonus, until March 21. The
"regular" rework girl, Esther Mitchell," worked on
the lamping line during the period Detwieler and
Berry were on "rework."
Respondent claims that Detwieler's tr nsfer on
the afternoon of February 28 to testing w rk, which
paid a very low bonus, and her transfer a few days
later to "rework," which paid no bonus at all, were
unrelated to her union activity. It asserts that it had
no knowledge of Detwieler's union activity until an
election was arranged on March 13 at the Board's
K nsas City office, that employees were constantly
transferred from one job to another in accordance
w th varying production needs, and that Detwieler's
transfers on February 8 and March 6 were not
peculiar to her but were regular and normal in all
respects.
As previously noted, Detwieler was selected as a
member of the Union's organizing committee on
January 30, 1967, and thereafter solicited em-
ployees to sign union cards and arranged and at-
tended union meetings. Production Manager Ulmer
testified that employees informed him over the
telephone that "certain girls, soliciting, for the
Union" were present at union meetings and also
"what went on" at these meetings. The, Union's
request for recognition received by Plant Manager
Deutsch named Detwieler as one of the persons to
get a carbon copy. I find from these facts that
Respondent was aware that Detwieler, was an active
union adherent before she was assigned to test lamp
bases on the afternoon of February 28.
The record does not supportRespondent's claim
that Detwieler's February 28 and March b assign-
ments were routinely made in accordance with its
production requirements. Detwieler testified
without contradiction that she had never before
been taken off the production line during the
production " season." Such a record in a plant
where transfers are common can hardly be re-
garded as fortuitous. It appears far more probable
that -Detwieler's production record was such that
her supervisors were reluctant to take her off the
production line. Detwieler's record of earning a
bonus- each week she was covered by Respondent's
incentive system further indicates that she was an
'$ Ralph Printing & Lithographing Co., 158 NLRB 1353
16
Detwieler testified that Mitchell does "rework each year, off and on
throughout the year."
NOMA LITES CORP.
above average performer, yet Respondent kept
Detwieler on rework for 2 weeks although Esther
Mitchell, who was regularly assigned to such work,
was available.
Under all the circumstances , including Respon-
dent's opposition to the Union, Detwieler' s union
activity and Respondent's knowledge of this activi-
ty, and Detwieler's history of no prior transfers
from the production line during the production
season, I find that Respondent transferred
Detwieler from the automatic lamping line to less
remunerative work during a critical period in the
Union's organizing campaign in order to discourage
support of the Union, thereby violating Section
8(a)(3) and (1) of the Act.
3. The transfers of Bruce and Blum
Evelyn Bruce and Beulah Blum_ started to work at
the St. Joseph plant in 1953 and until transferred to
the monowatt department on March 15, 1967, had
worked regularly in the lamping department. Both
women, as was common at the plant, worked on
various jobs at the beginning and end of the year.
They were both assigned to monowatt work early in
1966 and also toward the end of that year. As
noted above (section III, A), 'Bruce " found
monowatt work more difficult than lamping and
was reassigned to lamping work after about 2 weeks
of monowatt work in October. Neither woman
prior to March 15, 1967, had worked regularly out-
side the lamping department. Before the March 15
transfers, Bruce earned bonus pay in 2 out of 7-1/2
weeks and Blum earned bonus pay in 7 out of 9
weeks spent on bonus work. The selection of em-
ployees for transfer is customarily left to Foreman
Brandon and the departmental group leaders, but
Production Manager Ulmer personally selected
Bruce and Blum for transfer on March 15, 1967.
Respondent asserts that it was not aware that
Bruce and Blum were on the Union's organizing
committee and that Ulmer transferred them along
with other employees to the monowatt department
on March 15, because of their previous monowatt
experience.
Bruce and Blum were selected as members of the
Union's organizing committee at the meeting held
on January 30, 1967. 1 am convinced from Ulmer's
conversations with Marion Bruce in February
(supra, III, A), and his acknowledgment that he
received telephone calls from employees about
what went on at union meetings and the presence
of "certain girls, soliciting for the Union" at these
meetings, that he knew or suspected the identity of
the employees on the Union's organizing commit-
tee. The record also shows that Foreman Brandon
17 Neither woman had in fact qualified for bonus pay in the monowatt
operation up to the time of the hearing in this case.
18 As the discriminatory transfers constituted substantial unfair labor
1269
received a report about the union meeting of
March 14, 1967, attended by both Bruce and Blum.
I find from these circumstances that Respondent
considered Bruce and Blum active union adherents
when it transferred them to the monowatt depart-
ment on March 15, 1967.
I do not credit Ulmer's explanation that he trans-
ferred Bruce and Blum to the monowatt depart-
ment "because of their experience." Unlike the
other women transferred to the- monowatt depart-
ment on March 15, Bruce and Blum had never
worked in that department during the "season," but
had worked regularly in the lamping department.
The transfers occurred after a union preelection
meeting and were effected by Ulmer, who ordinari-
ly left the selection of employees to be transferred
to Foreman Brandon and the group leaders. The
transfers were in practical effect demotions because
neither Bruce nor Blum could be expected to earn
as much bonus pay on monowatt work as on the
lampinn operation they had performed for many
years.'
For the foregoing reasons, I find that Respondent
transferred Bruce and Blum to the monowatt
operation on March 15, 1967, 1 week before the
Board election, in order to discourage support for
the Union, thereby violating Section 8(a)(3) and
(1) of the Act.
4. The refusal to bargain
Following receipt on the morning of February 28,
1967, of the Union's letter requesting recognition
and offering a card check, Respondent discrimina-
torily transferred Patricia Detwieler from the auto-
matic lamping line to testing work and then to non-
bonus work. Respondent thereafter insisted on a
Board election and, following the execution of an
election agreement, discriminatorily transferred
Evelyn Bruce and Beulah Blum from lamping work
to the monowatt department. I find from these facts
that Respondent at no time entertained a genuine
doubt that the Union represented a majority of its
employees, and that it suggested a Board election in
order to gain time to dissipate the Union's majori-
ty.18 As the Union in fact represented a majority of
Respondent's employees in an appropriate unit
when it requested recognition on February 28 and
thereafter, I find that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to recognize
the Union on and after March 13, 1967, as the col-
lective-bargaining representative of the production
and maintenance employees at the St. Joseph plant.
IV. THE OBJECTIONS TO THE ELECTION
The discriminatory transfers of Detwieler to non-
practices calculated to dissipate the Union 's majority status, I consider
Respondent's reliance upon such cases as Hammond & Irving, Inc., 154
NLRB 1071, and Aaron Brothers Co., 158 NLRB 1077, is misplaced.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bonus work on March 6 and of Bruce and Blum to
the monowatt department on March 15 occurred
after the filing of the representation petition and
before the holding of the election. 'I As this conduct
interfered with a free and untrammeled choice in
the election, I recommend that the election be set
aside.
The record establishes that the Union
represented a majority of the production and main-
tenance employees at the St. Joseph plant before
Respondent committed unfair labor practices cal-
culated to,destroy supportof the Union. To the ex-
tent that the election revealed a loss of union sup-
port thereafter, such loss must be attributed to
Respondent's unfair labor practices. Bishop and
Malco, Inc., d/b/a Walker's, 159 NLRB 1159. I
therefore further recommend, in view of the bar-
gaining order to be recommended in the unfair
labor practice proceeding, that the petition in Case
17-RC-5337 be dismissed.
CONCLUSIONS OF LAW
1. By increasing the bonus ceiling under its, in-
centive pay system and by granting an additional
paid holiday to discourage employees from support-
ing the Union, and by threatening employees with
discharge for supporting the Union, Respondent en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. By discriminatorily transferring Patricia
Detwieler, Evelyn Bruce, and Beulah Blum,
Respondent engaged in unfair labor practices af-
fecting commerce within the meaning of Sections
8(a)(3) and (1) and 2(6) and (7) of the Act.
3. By refusing to bargain with the Union as the
statutory bargaining representative of the produc-
tion and maintenance employees at its St. Joseph
plant, Respondent engaged in an unfair labor prac-
tice affecting commerce within the meaning of Sec-
tion 8(a)(5) and (1) and Section 2(6) and (7) of
the Act.
THE REMEDY
I shall recommend that Respondent cease and
desist from its unfair labor practices, and affirma-
tively, that it bargain with the Union upon its
request'20 and post appropriate notices.
Having discriminatorily transferred Patricia
Detwieler, Evelyn Bruce, and Beulah Blum,
Respondent will be ordered to make them whole
for any loss of earnings suffered by reason ,off the
discrimination against them, and to transfer Bruce
and Blum to their former positions in the lamping
department. Backpay shall be computed in the
manner set forth in F. W. Woolworth Company, 90
NLRB 289, with interest added thereto in the
manner set forth in Isis Plumbing & Heating Co.,
138 NLRB 716.
RECOMMENDED ORDER
Respondent, Noma Lites Corp., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Granting employees benefits under its incen-
tive pay system, additional paid holidays, or other
economic benefits in order to discourage their sup-
port of a labor organization.
(b) Threatening employees with discharge or
other loss of employment because of their union ac-
tivity.
(c) Discouraging membership in Local Lodge
1534, International Association of Machinists &
Aerospace Workers, AFL-CIO, or any other,labor
organization of its, employees, by discriminatorily
transferring or in any other manner discriminating
against any employee in regard to his hire or tenure
of employment.
(d) Refusing to bargain with the Union as the
exclusive bargaining representative of the produc-
tion and maintenance employees at its St. Joseph
plant.
(e) In any other manner, interfering with,
restraining, or coercing employees in the exercise
of their rights under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain collectively with the
Union as the exclusive bargaining representative of
the production and maintenance employees at its
St. Joseph plant.
(b) Make Patricia Detwieler, Evelyn Bruce, and
Beulah Blum whole for any loss of earnings they
may have suffered in the manner set forth in the
section hereof entitled "The Remedy."
(c) Offer to transfer Evelyn Bruce and Beulah
Blum to their former positions in the lamping de-
partment.
(d) Perserve and make available to the Board or
its agents, upon request, for examination and copy-
ing, all payroll records, social security payment
18 Detwieler was transferred to testing work on February 28, the same
day that the Union filed its representation petition . I have assumed that this
transfer falls outside the critical preelection period. See Ideal Electric and
Manufacturing Company, 134 NLRB 1275, Goodyear Tire & Rubber Co.,
138 NLRB 453,455
2O As the record establishes that the Union had a clear majority in an ap-
propriate unit of production and maintenance employe 0% at the St Joseph
plant when Respondent engaged in unfair labor practics aimed at destroy-
ing support of the Union, a bargaining order would be appropriate to
remedy Respondent's violations of Section 8(a)(1) and (3) of the Act,
even assuming no violation of Section 8(a)(5) N.L.R B. v. Delight Bakery,
Inc., 353 F.2d 344 (C.A. 6); Praseck, Aircraft Corp. v N.L'R B., 280 F 2d
575 (C A 3), cert denied 364 U S. 933, Editorial "El Impartial" Inc. v.
NLRB., 278 F 2d 184 (C.A 1), NLRB. v Joe Caldarera, dlbla Falstaff
Distributing Company, 209 F 2d 265 (C A. 8); D H. Holmes Company v.
N.L.R.B, 179 F.2d 876 (C.A. 5) Cf N L.R.B v. Flomatic Corp., 347 F 2d
74(CA.2)
NOMA LITES CORP. 1271
records, timecards, personnel records and reports,
and all records necessary to analyze the amount of
backpay due under the terms of these recommen-
dations.
(e) Post at its St. Joseph plant, copies of the
notice attached hereto and marked "Appendix."21
Copies of the notice, on forms provided by the Re-
gional Director for Region 17, as the Board's agent,
shall be posted, immediately upon their receipt,
after being duly signed by a representative of
Respondent. When posted, they shall remain posted
for 60 consecutive days thereafter in conspicuous
places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that these
notices are not altered, defaced, or covered by any
other material.
(f) File with the Regional Director for Region
17; as the Board's agent, within 20 days from the
date of service of this Trial Examiner's Decision, a
written statement setting forth the manner and
form in which it has complied with these recom-
mendations.22
IT IS FURTHER RECOMMENDED that the election in
Case 17-RC-5337 be set aside and that the petition
be dismissed.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
After a trial in which both sides had the opportu-
nity to present their evidence, the National Labor
Relations Board has found that we violated the law
and has ordered us to post this notice and to keep
our word about what we say in this notice.
WE WILL NOT give you economic benefits in
order to influence you not to support the
Union.
WE WILL NOT threaten you in any way over
the Union.
WE WILL NOT discourage union activity or
membership in Local Lodge 1534, Interna-
tional Association of Machinists & Aerospace
Workers, AFL-CIO, or any other labor or-
ganization, by discriminating against you if you
choose to engage in union activity or join
Local Lodge 1534, or any other union.
'WE WILL NOT discriminate against any em-
ployee for engaging in union activity. Since the
Board found that we did so when we tem-
21 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 Trial Examiner" in the 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 Ap-
porarily transferred Patricia Detwieler to non-
bonus work and when we transferred Evelyn
Bruce and Beulah Blum to the monowatt de-
partment, we will pay them for any loss that
they may have suffered because of the trans-
fers, and we shall offer to return Bruce and
Blum to their former positions in the lamping
department.
WE WILL bargain collectively, upon request,
with the Union as the exclusive representative
of our employees in the following appropriate
unit, concerning rates of pay, wages, hours of
employment, and other conditions of employ-
ment.
All production and maintenance em-
ployees, including truckdrivers,
warehousemen, elevator operators,
shipping clerks, and receiving clerks; ex-
cluding all office clerical and professional
employees, salesmen, guards, and super-
visors as defined in the Act.
WE WILL respect the rights of our employees
to self-organization, to form, join, or assist any
labor organization, or to bargain collectively in
respect to terms or conditions of employment
through said Union, or any representative of
their own choosing, or to refrain from such ac-
tivity, and WE WILL NOT interfere with,
restrain, or coerce our employees in the exer-
cise of these rights, except insofar as these
rights could be affected by any contract with a
labor organization, if validly made in ac-
cordance with the National Labor Relations
Act, whereby membership therein is a condi-
tion of employment after the 30th day follow-
ing the date of such contract or the beginning
of such employment, whichever is later.
NOMA LITES CORP.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone FR
4-5181.
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
22 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."