Old King Cole, Inc. .

National Labor Relations Board - Board Decisions

Feb 5, 1957

117 N.L.R.B. 297 (N.L.R.B. 1957)

OLD KING COLE, INC. 297
Old King Cole , Inc. and International Union , United Automobile,
Aircraft & Agricultural Implement Workers of America,
AFL-CIO. Case No. 8-CA-1140. February 5,1957
DECISION AND ORDER
On June 27, 1956, Trial Examiner Thomas S. Wilson issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.'
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 Inter-
mediate Report, the exceptions and the brief and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
ORDER
Upon the entire record in this case , and pursuant to Section 10 (c)
of the National Labor Relations Act,•as amended , the National Labor
Relations Board hereby orders that the Respondent , Old King Cole,
Inc., Louisville , Ohio, its officers, agents, successors , and assigns , shall :
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile , Aircraft & Agricultural Implement Workers of America,
AFL-CIO , or any other labor organization , by discriminating in any
manner against its employees in regard to hire and tenure or any term
or condition of employment.
(b) Polling or interrogating its employees concerning their union
affiliations , sympathies , or activities ; promising employees benefits
in order to induce them to renounce their right to union representation.
I As the record , exceptions , and brief adequately present the issues and the positions of
the parties , the Respondent 's request for oral argument is denied
We note certain minor errors in the Intermediate Report which do not , however, affect
the correctness of the conclusions or our concurrence therein For example, the Trial Ex-
aminer stated (page 300) that Julia Capaldi got in touch with the 'UAW representative who
called at her home about June 8, 1955 The record shows that it was Nettie Heddleson
rather than Capaldi and that the (late was June 9, 1955 Further, in affirming the Trial
Examiner's ultimate conclusions, we find it unnecessary to rely upon and do not adopt his
statement that "the Respondent's making a rule against union solicitation on company
time without also including in that rule all the other solicitations which were also occurrin;
on company time and property would necessarily have been discriminatory and illegal."
See N. L. R. B. v Milwaakee Electric Tool Corporation, 237 F. 2d 75 (C. A. 7) September 26,
1956, denying enforcement of 112 NLRB 1135; Caterpillar Tractor Co v N L. R. B , 230
F 2d 357 (C A 7) setting aside order in 113 NLRB 553
Member Murdock, however, approves the above statement of the Trial Examiner See
United Steelwoi leers of America ( Nattone, Inc Intervenor ) v. N. L R. B.,. (C. A., D. C.)
39 LRRM 2103
117 NLRB No. 41.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self -organization , to form
labor organizations , or to join or assist International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
AFL-CIO, or any other labor organization , to bargain collectively
through representatives of their own choosing and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any such activities except
to the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of employ-
ment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action , which the Board finds
will effectuate the policies of the Act :
(a) Offer to Jack Griffiths, Julia Capaldi , Beatrice Griffiths, and
Nettie Heddlesoli immediate and full reinstatement to their former
or substantially equivalent positions , without prejudice to their senior-
ity or other rights and privileges , and make each whole, in the manner
set forth in the section of the Intermediate Report entitled "The
Remedy," for any loss of pay each may have suffered by reason of the
Respondent 's discrimination against him.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying , all payroll records, social-
security payment records , timecards , personnel records and reports,
and all other records necessary to analyze the amount of back pay due
and the rights of employment , under the terms of this Order.
(c) Post at its Plants 1 and 3 in Louisville , Ohio, copies of the
notice attached to the Intermediate Report and marked "Appendix
A." 3 Copies of said notice , to be furnished by the Regional Director
for the Eighth Region , shall, after being duly signed by the Respond-
ent's representative , be posted by the Respondent immediately upon
receipt thereof, and maintained by it for a period of sixty (60) con-
secutive days thereafter in conspicuous places , including all places
where notices to employees are customarily posted . Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered , defaced , or covered by any other material.
(d) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, as to what steps it
has taken to comply herewith.
a This notice is amended by substituting for the words "The Recommendations of a Trial
Examiner" the words "A Decision and Order," and by adding at the end of the first para-
graph after the words "labor organization" : "WE WILL NOT promise employees benefits
in order to induce them to renounce their right to union representation ." In the event that
this Order is enforced by a decree of a United States Court of Appeals, the notice shall be
amended by substituting for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
OLD KING COLE, INC.
INTERMEDIATE REPORT
299
STATEMENT OF THE CASE
Upon a charge and amended charges filed originally on August 1, 1955, by Inter-
national Union, United Automobile, Aircraft & Agricultural Implement Workers of
America, CIO,' hereinafter referred to as the Union, the General Counsel of the
National Labor Relations Board, herein called respectively the General Counsel2
and the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio),
issued its complaint against Old King Cole, Inc., herein referred to as the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3) and
Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136,
herein called the Act. Copies of the charges and the complaint, together with notice
of hearing, were duly served upon the Respondent and the Union.
Respondent duly filed its answer admitting certain allegations of the complaint but
denying the commission of any unfair labor practices.
Pursuant to notice a hearing thereon was held at Canton, Ohio, from April 16 to
19, 1956, inclusive, before the duly designated Trial Examiner. All parties appeared
at the hearing, were represented by counsel or by representatives, and were afforded
full opportunity to be heard, to produce, examine and cross-examine witnesses, to
introduce evidence material and pertinent to the issues, to argue orally upon the
record, and to file briefs and proposed findings and conclusions. At the conclusion of
the evidence the parties argued orally and on May 25, 1956, a brief was received
from the Respondent.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The complaint alleges, the Respondent admitted, and the Trial Examiner finds
that Old King Cole, Inc., is and has been at all times material herein, a corporation
duly organized under and existing by virtue of the laws of the State of Ohio. At all
times material herein, the Respondent has maintained its principal office and place of
business in Louisvile, Ohio, where it is now and has been continuously engaged in
the design, manufacture, and sale of displays and fuel cell mandrels. In the course
and conduct of its business operations, the Respondent annually causes and has
continuously caused its products, said products having a total value in excess of
$100,000, to be sold, transported, and delivered in interstate commerce to and through
States of the United States other than the State of Ohio, from its Louisville, Ohio,
plant.
Respondent is, and was at all times material herein , engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, AFL-CIO, is a labor organization admitting to membership
employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The facts
In November 1954, the Respondent opened a new plant known as Plant 3 in
Louisville, Ohio, located about 11/2 blocks from its Plant 1 where the Respondent
manufactured displays and its main office is located. During the period in question
here about 70 employees were employed manufacturing fuel cell mandrels for air-
planes in Plant 3 under Paul Streby as plant superintendent, Herman Valentine as
foreman of the tank building and shipping departments, and Clayton Gregory as
foreman of the finishing department. Neither plant was organized by any union.
For reasons only hinted at in this record, the employees of Plant 3 began thinking
about joining a labor organization sometime in early June 1955.3 At the request of
1 Now the AFT-CIO due to the recent amalgamation.
9 This term specifically Includes the attorney representing the General Counsel at the
hearing
'.All dates herein are in the year 1955 unless otherwise specified.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of the employees, employee Julia Capaldi through her husband, a union mem-
ber employed at the Canton Ford Plant, got in touch with David Sherwood, UAW
representative, who called on her at her home and explained union organization to
her about June 8, 1955. Union organization had begun.
On June 16, employees Capaldi, Nettie Heddleson, and Angeline Borger signed
union application and authorization cards and 4 days thereafter Jack Griffiths and
his mother, Beatrice, did likewise. During the period involved here approximately
six union meetings were held at employee Ada Manse's house or at Eagle's Hall
in Louisville which were attended by as many as 25 or 30 employees from the plant,
including those mentioned above, at which time more union cards were signed. At
one of these union meetings Sherwood told the employees that they should wear
union buttons at the plant openly as a protection against being discharged. A
number of the employees including all those aforementioned began to wear UAW
and CIO buttons in the plant during working hours. These same employees and
others began soliciting the other employees to attend union meetings and to join
the Union. This solicitation was carried on both during working hours as well as
during the rest periods and off hours. Certain of the other employees began
reporting to their foremen and other supervisors about these solicitations so that
the Respondent was soon aware of the union activity and convinced that some 9
employees, including Capaldi, Heddleson, and the 2 Griffiths, were responsible
for it.
Although Herman Valentine spent all his time among the employees of his
department and Streby testified that he spent at least 7 of the 8 hours of his day
among the employees of Plant 3, the testimony of these 2 witnesses for the
Respondent indicated that during this whole period until August 8, they personally
heard employees talking about the Union during working hours on only 1 or 2
occasions. Nor did either of them notice any undue amount of visiting and talking
among the employees during working hours until they began to receive reports
from employees that they had been solicited 'to join the Union. Indeed after
receiving such reports, neither personally noted any unusual changes in the work
habits of the employees of the plant.4
Perhaps this is not to be wondered at for the testimony of the Respondent's
witnesses fully confirmed the evidence given by the General Counsel' s witnesses
that there were no plant rules against talking, chatting, or visiting during working
hours and that "everybody" indulged in these pastimes at will. In fact one of the
Respondent's witnesses, Angeline Borger, who was prone to almost unlimited exag-
geration, testified that "everybody, mostly all of the employees" took as long as
"45-minute rest periods." In addition various and sundry employees, including the
wife of Foreman Valentine, solicited the plant employees to purchase practically
any type of merchandise one can imagine in the plant during working hours. The
list of goods for sale in the plant by employees included plastics, work pants,
clothes, shoes, cosmetics, shawls, household goods, linens, salt and pepper shakers,
and chances on punchboards. Vice-President Mike Valentine and his brother
Foreman Herman Valentine sold chances for a couple of Catholic funds and athletic
events in the plant. In addition there were biweekly check pools held in the
4 Streby testified on direct examination that the only employee he ever spoke to about
being away from his work was Jack Griffiths on 1 occasion 3 or 4 weeks before his discharge.
Later, however, when asked the same question by the Trial Examiner, Streby suddenly
recalled that he had warned Griffiths no less than four times about wandering around the
plant too much, the last time being on the Monday before the Thursday of Griffiths' dis-
charge Herman Valentine, on the other hand, after testifying that he had warned Griffiths
in all 7 or'8 times about being away from his work, suddenly testified that, as Jack Griffiths
was away from his work every 5 or 10 minutes duiing the last 2 weeks of his employment,
he had had to warn Griffiths about twice it day However, Valentine testified further that
Griffitlis had not become "radical" about leaving his work until these last 2 weeks of em-
ployment. In his testimony Valentine attempted to give the impression that Jack Griffiths
had no business in the shipping department or elsewhere in the plant but the facts showed
that it was Griffiths' duty to pick up carts from the shipping department and materials
from other parts of the plant In other regards also the testimony of both Streby and
Valentine was at least equally self-contradictory, exaggerated, and unreliable Capaldi,
Heddleson, and the two Griffiths all denied that either Stieby or Valentine had ever warned
them about spending too much time from their work or about talking about the Union on
company time In view of the unsatisfactory nature of the testimony of both Streby and
Valentine, as well as the straightforward nature of the testimony of the four above-men-
tioned employees, the Trial Examiner credits their denials of having received any such
warnings.
OLD KING COLE, INC. 301
plant where the money was collected and distributed during working hours to the
lucky holder of the paycheck containing the best poker hand among the numbers
printed on the check. Foreman Herman Valentine also participated in these .5
Obviously the Respondent's plant was operated in a very friendly, social atmosphere
without the strict adherence to rules of behavior so common in larger plants. In
fact there were no posted or published rules of any kind in the plant until August
1, 1955.
As noted the Respondent was cognizant of union organizational efforts soon
after its commencement.
The Respondent announced and put into effect as of July 5 a new, and presumably
higher, scale of wages.
On July 5 6 President Jackson had the employees of Plant 3 assembled about 15
minutes before the lunch-hour break. After all the employees had assembled, the
start of the meetings being held up for a period because some of the employees were
slow arriving, Jackson made the following prepared statement:
Old King Cole has always felt that what was best for all employees was best
for Old King Cole. Up to the present time it has never been necessary for
Old King Cole employees to deal with management through a third party in
an effort to make the employees wants known. However, if the majority of the
employees now feel that a third party is necessary to represent them, then
Old King Cole management is willing and ready to work with the third party
of the employees choice.
There are several things you should know and understand before you decide.
1. Once you decide to have a third party represent you, you cannot change
your mind if you don't like it. Once you're in, you're in.
2. Once you have a third party representing you, the third party and only
the third party discusses and settles all questions regarding employment.
3. Wages, Old King Cole has all ways felt that we would have the best and
happiest employees by paying the 'highest possible wages. This we have done
in the past and will continue to do in the future.
4. Seniority at the present time, seniority is based on length of service to
the company.
I would like to meet with a smaller representative group to discuss further,
any complaints you may have. Please select such a group and I will meet with
them on Wednesday, July 6th.
In order that I may know the opinion of the majority of you, would you
advise your foreman of how you feel, so that he may report to me.
Apparently while waiting for the few straggling employees to arrive, Jackson told
those present that he had heard something which made him "very unhappy," i. e., that
the employees were trying to organize a union, that he did not beheve that the
employees needed a third party to negotiate for them, but, if they thought they did,
he knew a man in Akron who could get them a union .7
Later that same day Jackson repeated this speech almost identically to the em-
ployees of Plant 1 except that he changed the last paragraph to read:
5 Herman Valentine admitted participating in these check pools only once and would only
say that his wife and his own selling activities among the employees were limited to "our
own time " Theie is credible evidence to the contrary. Due to the admitted participation
of both Mike Valentine, Herman Valentine and his wife in these activities in the plant and
on company time, the Tiial Examiner was not favorably rinpiessed by the Respondent's
expressed "surprise" at learning at the hearing of these things "for the first time" being
"carried on behind management's back" in the plant Nor AN as the Trial Examiner impressed
by the Respondent's claim that these activities were iestucted to a period from November
1954 to February 1955, for the uncontradicted evidence shows that the practice was con-
tinuing as late as Christmastime 1955
6 Althdugli President Jackson, Vice-President Worthington, Streby, and Foreman Valen-
tine all testified that they believed this speech was made on June 20 or June 30 instead of
July 5 as the witnesses for the General Counsel had testified, it was clearly established
that the speech was made in tact on July 5 when Respondent's witness Menendez testified
that he had gone on his vacation on July 4, had not heard the speech but had heard about
it upon his return to the plant on July 11 However, the actual date of the speech is rela-
tively unimportant
' Jackson denied having made the above-found statements "in his speech" as (lid other of
Respondent's officials and employees. With one exception lie did not deny having made
_such statements while awaiting the arrival of the last employees
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In order that I may know the opinions of the majority, would you please
take a slip of paper and mark it yes if in favor of a third party and no if not
in favor.
Also later that day Foreman Valentine with paper and pencil took a poll of each
employee in Plant 3 requiring a "yes or no" answer as to whether the individual
wanted a union. Of the four employees involved here, all answered the question
"yes" except Jack Griffiths who informed Valentine that after Jackson's speech he did
not know how he stood on the question. When employee Mary Santee refused to
vote, Valentine left but returned later to tell her that Jackson wanted the department
to elect two women and a man tothe committee which was to find out what it was
that the employees wanted and meet with him later.
That same evening just before quitting time the employees of Plant 3 gathered
at the clock preparatory to punching out and elected two women and a man to the
committee. Mary Santee, Nan Kessler, and Howard Adams who were elected to
this committee were all wearing union buttons. Valentine was sitting at his desk 50
feet away during this so-called-election.
Pursuant to instructions these three committee members conferred with their
fellow employees during the lunch hour on July 6 and learned what grievances and
what demands the employees had in preparation for the scheduled meeting with Jack-
son that day.
About 2:30 that afternoon Foreman Valentine informed Mary Santee that it was
time for her to go in with the committee to see Jackson in his office. Jackson who
was accompanied by Streby and Clayton at the meeting, told the committees from
Plants I and 3 that he wanted to know what the employees wanted. He then went
around the rooms ,'from one committeeman to the next, having each explain what
grievances or requests their fellow employees had made. After the members of the
committee had each explained what their constituents wanted, Santee asked Jackson
to announce which requests Respondent would grant as the employees wanted to know
the results but Jackson announced that he was going on a vacation for 2 weeks but
would announce his decision upon the 7 requested items upon his return. During
the meeting Santee stated that the' employees were not satisfied with the nonsecret
poll Valentine had taken and would like to vote again at a secret election. Jackson
said that the employees could have a secret vote if they wanted but "I have got the vote
right here and I am satisfied." As he concluded the meeting Jackson stated: "If you
went on with this union, . . . you won't meet with me again." 8
In a speech given to the assembled employees and confirmed in an almost identical
letter dated July 25 and sent to each employee, Jackson answered the requests made
by the committee as follows on July 20:
On Wednesday, July 6, Mr. Streby, Mr. Gregory and myself met with a group
of employees to discuss various conditions of employment which haveled to some
dissatisfaction in the past. These conditions as related to us by the group were
as follows:
1. A dust condition in the grinding room of the finishing department.
2. Pay for 6 holidays.
3. Maintenance man for fuel cell plant.
4. A hard and fast seniority rule based on date of original employment.
5. Insurance.
6. Automatic pay increase until top pay is reached.
7. One-half day's pay for employees sent home without working at least one-
half day.
On July 6, we advised the group that we would report back to you in two
weeks giving our answers to each of the above requests.
Those answers are as follows:
1. Dust conditions: We have ordered additional equipment, the installation
and proper usage of which should solve the problem.
2. Paid Holidays: We will pay 8 hours for Labor Day, Christmas Day, New
Year's Day, Thanksgiving Day, Decoration Day, and July 4th, provided the em-
ployee works the last scheduled 8 hours before the holiday and the first scheduled
8 hours after the holiday on his shift.
3. Maintenance: We are endeavoring to hire additional maintenance men as
soon as we are able to find satisfactory men, we will assign as many as required
to the fuel cell plant.
4. Seniority: We will establish at once a hard and fast seniority list based on
date of original employment.
2 The committee never again met with Jackson.
OLD KING COLE, INC. 303
5. Insurance: For a number of months we have been investigating various
kinds and costs of insurance and we will establish an insurance plan for all
employees.
6. Pay increases: We will set up a schedule of automatic pay increases until
top pay is reached.
7. We will pay one-half day's pay to employees sent home without working at
least one-half day.
Those are the things the group asked for, we have agreed without question to
comply with all of your requests, and in addition, we are setting up for the
benefit of all employees a profit sharing plan, the nature of which is still in the
planning stage. We have been considering this for some time and I don't know
yet just how it is going to work. I don't know any of the financial details, ex-
cept this, it will be based on the profits of Old King Cole, Inc., and those figures
will be taken from the financial statements which we are required by law to
make each year to the Department of Internal Revenue, and which are audited
by Certified Public Accountants.
At the July 6th meeting one of the group raised the question • "How do we
know you will do these things if we don't have a• contract?" That is a good
question which I can answer in this way, we have been in business for over
nine years and have provided continuous steady employment during that time.
From time to time we have posted various plant rules on the bulletin boards
and we have followed those rules without any contract. From time to time
we have agreed to give wage increases and vacation benefits, all of these things
have been done without a contract. Incidentally, wages have almost doubled in
the last nine years. By the same token we will, just as soon as possible write up
a detailed statement of the things which we have agreed to do in this letter and
that statement will be posted on all the bulletin boards. It will be a matter of
company policy and it will be followed in all respects. I should point out to
you, however, that after the profit sharing is worked out it must be approved
by the Department of Internal Revenue before it can go into effect. We will
attempt to obtain that approval as quickly as possible after the plan is worked
out.
Promptly after this speech had been given employee Angeline Borger removed the
union button which she had been wearing because, as she put it, she "agreed" with
everything Jackson offered. As she removed her button, Beatrice Griffiths told her
not to be "a fool" and do just what Jackson wanted but to keep on wearing her
union button as protection against being discharged.
Borger reported this episode to Foreman Valentine on company time along with
the fact that she claimed that Beatrice Griffiths had threatened "to beat hell out of
her" if she did not wear her button and that Griffiths had threatened "bloodshed" if
the Union did not succeed in the plant. Herman Valentine was so impressed with
the report that he instructed Borger: "Well, just pass it off and go back to your
work." 9 Borger also reported to the Respondent that Griffiths had threatened that
she, Borger, could no longer ride in their car pool if she did not wear her union
button. The fact is that Borger continued in the Griffiths' car pool until the Grif-
fiths were discharged despite the fact that there is no showing that she ever again
wore her union button after Jackson's speech of July 20.10
Also after Jackson's July 20 speech shipping clerk Menendez testified that he re-
ported during working hours in turn to Foreman Valentine, Plant Superintendent
Streby and later to President Jackson that Jack Griffiths had again solicited employ-
ees Haidet, Seaman, and himself in the restroom to join the Union and that, after the
three shipping department employees had affirmed the fact that they were not in-
terested in the Union as they considered Jackson's offer a very fair one, Griffiths had
stated: "The hell with Mr. Jackson," that he was going to do what the Union said,
N According to Herman Valentine's testimony. he immediately went to Griffiths and
"warned" her that theie should be no "bloodshed" but Griffiths denied to him ever having
made the remarks reported, even as she did on the witness stand The Trial Examiner
must credit the denial This is the only evidence of any warning being given to any em-
ployee allegedly having made a threat to be found in this report.
w As a witness Borger indicated an almost pathological determination to mouth all sorts
of accusations against the dischargees in broad generalizations. She brooked no inter-
ference from the rules of evidence, the Trial Examiner, counsel, or indeed, spectators in the
courtroom In carrying out her determination. She displayed an equal determination in
refusing all efforts to make her become specific as to statements, times, persons, and places.
Her bland generalizations and obvious exaggerations were not conducive to belief In the
honesty and sincerity of her testimony.
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that they were going to get a union in the plant or else somebody was going to get
"punched in the nose."
At the hearing Menendez testified that he reported this restroom incident to
Valentine and Streby the day it occurred and to Jackson "a few days" later. On
July 28, however, both Menendez and employee Haidet gave signed statements to
Respondent's labor relations consultant Rector in which both gave the date of the
incident as July 27. Mdnehdez was incorrect one time or the other.
Furthermore the written statement of July 28 related exclusively to Griffiths'
having "solicited" Menendez and one or two other employees three times in the
month of July during working hours either to join the Union or to attend union
meetings. While the statement refers to the restroom incident as being "an argu-
ment about us joining the union," the statement makes no reference at all to
"punching noses," "bloodshed" or "beating Menendez up" such as came out in the
oral testimony of Menendez and Jackson as well as other supervisors. If Menendez'
oral testimony is correct, this is a strange omission to have been made by Respondent's
labor consultant who was preparing the statements for the express purpose of
justifying a discharge. Especially is this so as the statement which refers to only
three instances of solicitation between July 6 and July 27 contains such sentences
as: "He has continuously pressured me, Richard Haidet and Kenneth Seaman to
join the union during working hours" and "he has continuously bothered me at my
work by arguing and coercing me in this manner" [emphasis added] so that it is
clear that the writer of the statement was not given to understatement. On the stand
Menendez testified that Jack Griffith's had approached him about the Union in all
"three or four times, possibly five." However, Menendez explained that he "was
getting tired of [Griffiths'] getting around trying to coax me into joining the Union
when I wasn't interested" and that he reiterated the same restroom incident to
President Jackson because he [Menendez] "thought [Jackson] was the man who run
the company. I thought I should tell him so if Mr Streby did not do something about
it, maybe Mr. Jackson would."
About July 26, after receiving reports that the two Griffiths, Capaldi, and
Heddleson were continuing their activities on behalf of the Union on company
time, Jackson in consultation with Streby decided to discharge all four of the
aforementioned employees.
On July 28, Jackson called in his labor relations expert, Harvey B. Rector of
Akron, told him of the reported incidents and that he, Jackson, thought "we should
discharge the people because there was nothing we could do to change their minds
and to get them back to work" and asked Rector for his advice on the situation.
Rector's advice "was that we should get these people who had made complaints
to me to put them in writing, which we did." Upon receipt of this advice Jackson
had 5 employees, including Menendez, report to his office on July 28 where Rector
spent the rest of the day taking statements from them regarding any union activities
engaged in by the 4 in question here including both that engaged in on working
time and on the employees' own time. The employee who gave Rector the longest
statement was shipping clerk Menendez whose statement accused Griffiths of "con-
tinuously pressuring" the three shipping department employees to join the Union
and "continuously bothering me at my work, by arguing and coercing me in this
manner." ii
At the end of the working day of July 28, Foreman Valentine sent Jack Griffiths
to Streby's office where Streby told Griffiths that he was discharging Griffiths and
handed him his paychecks and a dismissal slip stating the cause of discharge as:
"Union activities on company time." When Streby could only tell Griffiths that
he was being discharged for "union activities," Griffiths asked if he could go see
Jackson.12
"It must also be noted here that, while Menendez testified that Griffiths threatened to
punch somebody iu the nose and while Jackson testified that he checked alleged threats
by the Griffiths to "beat up" Menendez and found them to be correct from Menendez, the
statement of Menendez taken by Rector on July 28 contained not one single word about
any threats. Nor does this statement contain one single fact which would justify the use
of the Ovoid "coerce" despite Menendez' oral testimony to the contrary If Menendez' oral
testimony was correct. it is paid to believe that a labor ielations expert preparing a state-
ment to justify the discharge of an employee would delibeiately oniit such facts
1' Streby's account of this meeting differs in that, according to Stieby, after having been
told that lie was discharged for union activities on company time, Griffiths stated that he
"knew the rat that had turned him in," "a big, one-eyed Spaniard" and that "he'd get him "
The denial by Griffiths of this testimony is credited for reasons appearing throughout this
report.
OLD KING COLE, INC. 305
Following his discharge Griffiths and his car pool, including Angeline Borger, did
in fact go over to Plant 1 where, on his way to Jackson's office, Griffiths met up
with Menendez with the result that a fight between them . ensued in the course of
which Menendez was hit by Griffiths ' fist in the nose and eye drawing blood and
Griffiths received a bump on the head. When they were separated , Griffiths con-
tinued on to Jackson 's office where Jackson refused to speak with him and ordered
him out of the plant."
Griffiths and his car pool then repaired to the police station where Griffiths started
to file a charge of assault against Menendez but was advised against it by the police-
man on the desk on the ground that he would have little chance of winning if
Menendez had been cut and bled . Griffiths left the station without filing the charge.
At the end of work on July 29, Foreman Valentine called Julia Capaldi to his
office where he handed her a discharge notice stating the reason for the discharge
to be: "Union activities on company time." Capaldi inquired if he had proof
which Valentine said he had . As Capaldi stated that Valentine would have to prove
it, Streby walked into the room and Capaldi asked if she was being discharged on
account of her work, to which Streby answered : "No, your work is okay." 14
Although, according to the testimony of the Respondent , it had been determined
to discharge all four individuals here involved on or about July 26, Jackson explained
that the discharge of Capaldi was postponed a day because he did not have "satis-
factory proof of her activities" until July 29 . The "proof" which Jackson secured
the ifollowing day was a statement from one Mary Masterana , who did not appear as
a witness at the hearing , to the effect that on July 6 , Capadi came to her place of
work, handed her an application card and asked her to join the Union during
working hours.15
On August 8, Streby handed Beatrice Griffiths and Nettie Heddleson their dis-
missal notices giving the usual reason for the discharge : "Union activities on com-
pany time ." To Heddleson , Streby stated : "I don't like to fire anyone but I only
work here. . . . I don't know fwhy Heddleson was being discharged ] unless you
have been talking union on company time," that her work had been good but that
she would "have to let the Company and the Union fight it out." To Griffiths,
Streby stated : "I don't like to do this . but I have to . . It's my orders."
When Griffiths inquired if she had not been giving a good day's work , Streby
answered : "It isnt that. That is not why you are being fired . I would just as leave
you work for me as anyone out there." 16
17 Jackson testified at the heal ing that he called Menendez to his office at about 2 • 45
p in on July 28 and kept him there until 3' 40 (10 minutes after quitting time ) specifically
so as to keep Menendez from harm because lie. Jackson , had heard reports whose accuracy
he had clucked with Menendez to the effect that Jack and Beatrice Gm if iths had threatened
to "beat up" Menendez As previously noted none of these alleged threats are even men-
tioned in the statement taken by Rector from Menendez dated July 28. If Jackson ' s testi-
nionv is true, this seems a stiange oversight ale,cover it was on July 28, the same day as
the fight , that Menendez was giving his statement to Rector in Jackson 's office It, there-
fore , seems moie logical that Menendez happened to be in Jackson 's office on the afternoon
of July 28 in order to give his statement rather than for the reason advanced by Jackson
Fuithermoie as Menendez was the shipping elmk stationed in Plant 3 as Griffiths well
knew, it would appear moie logical that Griffiths would have looked for him at his place
of work in Plant 3, if lie hid been in tact looking for Menendez . iather than at Plant 1
for these is not one iota of testimony that Griffiths had any idea that Menendez was not at
his i egular place of woik
ii Valentine 's testimony chflers in that he testified that lie told Capaldi that lie had to let
her go because she was "leaving your job too much and you are throwing the burden on
your partner" whereupon Capaldi swore at him saying that she ought to slap his face On
the contrary , however , Streby who spent seven -eighths of the clay among the employees of
Plant 3 testified positively that lie had never seen Capaldi, Beatrice Griffiths, of Heddleson
ever leave their work to go to another employee's mold during working houis It is thus
a bit difficult to accept Valentine's testimony over that of Streby-especially as it is un-
denied that Stieby told Capaldi in Valentine 's presence that her work had been "okay."
Furthermore, confidence in the reliability of Herman Valentine was not enhanced by his
testimony of having ieceved iepoits on the union activities of the dischaigees here from
one Pearl Treadway who, by stipulation , was pioved not even to have been employed during
the period in question.
L, This same incident is mentioned in one of the other statements obtained by the Re-
spondent on Jul} 28
1' Sti ebv (lid not. 1eny making these statements In fact lie corroborated that opinion
when he testified positively that time only one of the employees lie ever spoke to about being
423784-57-vol 117-21 -
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On August 1 between the 2 sets of discharges the Respondent posted its first and
only set of plant rules which were divided into 3 classifications depending on the
seriousness of the offense , ( 1) "minor," ( 2) "major," and ( 3) "intolerable." Al-
though counsel for the Respondent disclaimed the fact that these rules played any
part in the discharges of Beatrice Griffiths or Heddleson , President Jackson stated
that the only rules which either of them could have broken were the following:
Major
3. Unnecessary conversations away from respective work stations are
prohibitive [sic].
* * * * * * *
6. Interfering with fellow employees on the premises at any time, such as
threats, intimidation , coercion, etc.
Violation of a major rule shall result in a 3-day layoff.
Despite the announced penalty, Beatrice Griffiths and Nettie Heddleson were
discharged.
Either between the discharges of July 28 and 29 and those of August 8 or after
all four discharges , Streby made the following announcement to the assembled
employees of Plant 3:
I just called you people together to have a little talk with you. I am not a
speaker so bear with me a little while will you, because what I have to say will
not take long. Management and myself think we have a good group of people
working in our plant, and we want to keep all of you working for us. So I
am asking you to stop union activity on company time. If you continue union
activity on company time I will be forced to discharge you, as you know we
have already discharged some I don't want to do that so please don't force
the issue. What you do outside of the building is up to you, so let's not have
any more union activity on company time.
None of the four discharged emplcyces have been reinstated.
B. Conclusions
1. Interference , restraint and coercion'
In its brief the Respondent argued that it was not guilty of interfering with, re-
straining, or coercing its employees in violation of Section 8 (a) (1) of the Act
because: (1) Jackson's speech of July 5 17 was a noncoercive speech and thus pro-
tected under the so-called free speech section of the Act, Section 8 (c); and (2)
there was nothing "coercive" about the poll taken for the Respondent by Foreman
Valentine on July 5 at which the foreman required each of the employees to vote
"yes or no" on the question whether he was in favor of union representation or not.
As to Jackson's speech of July 5 it may be conceded that the speech was "non-
coercive" in the sense that there were no threats of reprisal However Section 8 (c)
of the Act protects an employer in the expression of his "views, argument, or opinion"
etc., regarding unions to his employees only so long as those expressions contain
"no threats of reprisal or force or promise of benefits." The last three quoted words
away from wok was Jack Griffiths and that he only spoke to .Lack once about 3 or 4 weeks
before the discharge Howevei. Streby was highly inconsistent in his testimony. For
instance , he testified at page 304 of the iecord regarding the women dischargees "Well it
is about the same I mean, they were wandering back and foi th from mold to mold and
talking to people" w heieas 4 pages later in the recoid, at page 308. lie testified positively
by the single word "no" that he had never seen any of the 3 women involved here go over
to another employee 's mold It is difficult to put much , if any, reliance in a witness as
,nconsistent as flint
.1 Respondent 's brief refers only to a single speech which from the deseuption was that
of July 5 as it was m this speech that Jackson offered to deal with "third parties" if the
employees desired and also iequested a smaller representative committee to meet with hint
the following day, July 6 The bi ref makes no mention of Jackson 's second speech on
July 20 when lie announced the granting by the Respondent of all the employees ' demands
and, in addition , that the Respondent was instituting a profit - sharing plan He ended this
last speech by stating that these concessions would not be embodied "in a contract" but
would be posted in the plant "as a matter of company policy
OLD KING COLE, INC. 307
are important also. Speaking in the background of the new wage rates which went
into effect that very' same day, Jackson in effect told the employees that it was not
necessary for them to be represented by a third person and suggested his meeting
with a smaller representative group to discuss their complaints the next afternoon.
Jackson admitted that the purpose of his making this speech was to find out what
was wrong in the plant which created this desire for union representation and what
the employees wanted from the Respondent. Although not spelled out in the speech
placed in evidence, the committeemen and the employees were informed that it was
the duty of the committeemen to find out what grievances their constituents had
and what they wanted, a duty performed by their meeting with the employees at noon
on July 6. Both the committeemen and the employees recognized the Respondent's
implied promise of benefits to be granted to them through the suggested committee.
It is significant that the committee requested an immediate answer from Jackson at
the end of the meeting on the grounds that the employees would want to know the
results Jackson's promise was that implicit in the speech of July 5.
Jackson himself recognized the promise of benefit implicit in his July 5 speech by
announcing on July 20 not only the granting of all the demands made on behalf of
the employees by the committee but also the granting of a new profit-sharing plan
for the employees which had not even been suggested by the employees. Further-
more on July 20 Jackson made the quid pro quo for the benefits he had just an-
nounced crystal clear when he stated that these promised benefits would not be
embodied in "a contract" but would only be "a matter of company policy" posted
on the company bulletin board unilaterally by the Respondent. Hence, in order to
obtain these promised benefits, the employees would have to renounce their right
to union representation and their right to have their working conditions embodied in
a union contract. What Jackson was stating in effect was: "These benefits the
Company will unilaterally give you on condition that you employees renounce your
right to union re_resentation and to have your working conditions embodied in a
union contract." Respondent's witness Borger recognized this quid pro quo by
promptly removing her union button because, as she put it, "I thought everything
he offered was all right"-and so she removed her union button in recognition of
Jackson's condition. However, the two Griffiths, Capaldi, and Heddleson refused
to accept this illegal condition, expressed that refusal by word and deed, all of which
were duly reported to the Respondent, and were discharged for their pains. It is
significant that the statements taken by Rector refer exclusively to union activities
occurring subsequent to the speech of July 5.
The speeches of July 5 and July 20 were integral parts of a single act: an offer
of economic benefits in return for the renunciation of the right to union representa-
tion. As such these speeches do not qualify as an expression of any "views, argu-
ment, or opinion" etc. Therefore Section 8 (c) of the Act does not protect the
Respondent in this regard either. A verbal act is not protected under Section 8 (c).
These promised benefits conditioned as they were upon illegal restrictions on the
rights of employees guaranteed by the Act amount to interference, restraint, and
coercion upon the employees in violation of Section 8 (a) (1) of the Act. The
Trial Examiner so finds 18
Likewise in its brief the Respondent professed to see nothing "coercive" in having its
Foreman Valentine require each and every employee in Plant 3 to vote "yes or no"
on whether the individual was in favor of union representation, recording that vote
(but not the name of the voter, according to the Respondent's evidence) on a pad
of paper. Respondent appears to lay considerable stress upon the fact that no
names were recorded by Valentine. The employees themselves protested because the
poll was not taken by secret ballot. Even Foreman Valentine testified that there
had been no need for Jackson to tell him why he was ordered not to record names
for he himself could figure out how such a vote "would be used against a person"
if the names were recorded on paper.19 If such a poll could "be used against a
person" when recorded on paper, it could also "be used against a person" when
recorded in the memory of a supervisor Requiring an employee to disclose to a
company supervisor a desire contrary to that just previously expressed by the em-
ployer must necessarily be coercive and an interference with the employee's freedom
19 The Respondent's July 5 profession of willingness to deal with "third parties" if the
employees so desired, becomes puie pro forma lip service to the Act in the light of all the
facts.
ID Appaiently the later poll in Plant 1 was taken by recording the names of the emplovees
under headings "Poi" or "Against" which may well account for the fact that Jaek'on
testified that few, if any, of the employees in Plant 1 voted in favor of union repiesentation
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of choice . If the supervisor conducting the poll can recognize the danger, how
much more must the employee who is required to cast the ballot.
The Respondent appears to rely upon Blue Flash Express, Inc., 109 NLRB 591,
in making its argument that the taking of the poll on July 5 was not a violation of
Section 8 ( a) (1) of the Act . But, as the Respondent itself points out in its brief,
there was in the instant case "no request by any union for recognition ; no representa-
tion petition was pending." Thus, the stated justification for taking the poll in Blue
Flash is nonexistent here. The poll in the instant matter was a systematic poll
of every employee in the plant . It was not "an isolated incident" as it was stated to
be in Blue Flash. In fact in the instant case the poll was an integral part, together
with Jackson's speeches of July 5 and July 20, of Respondent's offer to confer benefits
on the employees in return for their repudiation of union representation . The pur-
pose of the poll was the same as the purpose of the benefits conferred , i. e., to secure
the renunciation of union representation by the employees. Thus the purpose of the
poll, like the speeches and the benefits conferred, was to interfere with the right of
the employees to bargain collectively through "representatives of their own choosing"
and, thus, is a violation of Section 8 (a) (1) of the Act. The Trial Examiner so
finds.
2. The discharges
The Respondent 's admission , contained both on the dismissal notices and in
Streby's speech, require the conclusion that each of the four dischargees was dis-
charged by the Respondent because of its belief that each of them had been engaging
in "union activities," a cause for discharge prohibited by Section 8 (a) (3) of the
Act. The Radio Officers' case 20 makes it clear that discharges for such a cause
necessarily "discourages " membership in a labor organization and violates Section
8 (a) (3) of the Act. But here, due to the dismissal notices and Streby's speech,
Respondent 's intention to discourage union activities was made patent to all employees.
As noted, the dismissal notices state the cause of discharge in each case to be "union
activities on company time." At the opening of the hearing Respondent maintained
only that the stress should be laid on the phrase "on company time." During oral
argument Respondent changed its position when it argued:
Now actually the union activity was more or less incidental. The important
thing was that the employees were engaging in something which interfered with
production and that was the reason they were discharged.
This change of position hardly jibes with Streby's speech-nor with the admitted
purpose behind Jackson's two speeches which was to find out what grievances the
employees had and what they wanted without even so much as mentioning any
alleged decline in production in the plant. Jackson recognized that "all was not right"
in the plant and that there were existing grievances at the time he made his first
speech. It was the union organizational drive which bothered Jackson-not the
alleged decline in production which had not bothered him while it continued from
late April through May nor until it became clear that the employees were
organizing.
While it is quite true that an employer has a perfect right to establish reasonable
rules regarding union activity on company time and property so long as such rules
are not in themselves discriminatory against such activity, the Respondent's change
in emphasis at the end of the hearing was necessitated by the fact, well established
in the evidence, that any rule which this Respondent attempted to enforce against
these four employees for engaging in "union activities on company time" must of
necessity have been discriminatory in fact because the Respondent not only
countenanced, but engaged in through its own official family, solicitations on
company time and property for practically any other cause one can conceive-
charities, personal merchandizing, gambling, and even idle social conversation,
athletics, and personal pleasure. In fact the Respondent itself did not hesitate to
use company time and property for antiunion solicitation. In order not to have
created a discriminatory no-union-solicitation rule, the Respondent would have had
to change its whole lax and friendly policy of operation in the plant. This the
Respondent failed to do, except insofar as union solicitation by these four employees
was concerned None of the other activities being carried on on company time
and property were stopped.21
20 347 U S 17
21 Foreman Valentine testified that lie stopped such other activities if and when lie saw
them However the evidence 12 undemed that such activities continued, despite Valentine's
testimony, at least until Cliiistnias 1955.
OLD KING COLE, INC. 309
As, therefore, the Respondent's making a vile against union solicitation on
company time without also including in that rule all the other solicitations which
were also occurring on company time and property would necessarily have been
discriminatory and illegal, Respondent's position by force of those circumstances
changed to the contention put forth in oral argument that the union activities on
company time "interfered with production." However, Jackson, as a witness,
testified that for some undisclosed reason these other activities occurring on com-
pany time and property somehow did not interfere with production. Jackson was
unable to explain this phenomenon
But be that as it may, in order to prove that this union solicitation interfered with
the production of Plant 3, the Respondent produced a graph of what it called the
daily ",production efficiency" of Plant 3. Jackson arrived at these daily "production
efficiency" figures by dividing the "market value" of the fuel cells produced at the
plant during the day by the direct labor payroll of the plant for that same day.
Jackson acknowledged the crudeness of this computation. An economist might
well object to the very bases thereof.
According to Jackson's testimony, his long experience with this method had proved
that if this problem in division resulted in a figure of 227, then production for the
plant was "normal," any higher figure indicated above normal production and
anything lower showed below normal production for the plant. Jackson's claim of
227 as "normal production" was not substantiated by the chart in evidence which,
however, commenced only as of March 1955, when the Respondent started to retain
these figures as permanent records, one result of a Board field examiner's investiga-
tion of this case.
A comparison of the facts and figures for 2 individual days selected at random,
one of very low "production efficiency" and the other of very high "production
efficiency" when some 50-odd tanks were manufactured on the first day and only
30-odd on the second day disclosed, the interesting fact that when cells for B-42
aircraft were being manufactured, "production efficiency" tended always to be
higher than on those days when no B-42 mandrels were being manufactured.
Thus it became apparent that "plant production efficiency" depended greatly on
what orders were being filled for apparently B-42 tanks were high in "market
value." One need not be a trained economist to perceive other fallacies and short-
comings in this admittedly crude yardstick on which Jackson relied in his operation
of Plant 3.
However, this graph with all its obvious shortcomings would still give some indi-
cation of the production of the plant. But the graph in evidence, even if taken at
full face value, fails to prove the Respondent's contention.
This graph showed "production efficiency" of Plant 3 to be:
(1) April 28-June 28 (with 2 single days excepted) : below normal.
(2) June 28-July 15: approximately normal, a few days above and a few days
below.
(3) July 15-August 2: steadily above normal efficiency.
(4) August 3-August 20: steadily below normal.
(5) August 21-January 19, 1956: relatively normal, both above and below.
(6) January 20, 1956, and thereafter: steadily above normal.
According to the Respondent's testimony, about the last of June upon his return from
his vacation, Jackson, noting the decline in production efficiency which began late
in April, called in Streby and Foreman Valentine and requested them to find out the
cause of this so-called decline. After checking the usual causes of such a thing, i. e.,
bad materials, absenteeism, etc., neither Streby nor Valentine was able to locate a
cause for the phenomenon. Thereafter, according to this same testimony, Streby
and Valentine began receiving reports from employees of being solicited to join
the Union on company time and property.22 Therefore, according to the Respond-
ent's argument, there being no other discernible cause, the decline must have been,
and was, therefore, caused by this union activity. Or, as stated in the Respondent's
brief, "the best answer to this is that something was interfering with production
efficiency and there is not even a hint of any other source of interference [other than
the union solicitations reported].23
22 It appears strange that these two supervisor s were personally unable to discern such
activities although purportedly looking for the cause of the production efficiency decline
until after these reports were received if there had been any substantial amount of such
solicitation.
27 Although the Respondent professed to know of "no other cause" for this decline in
production efficiency, the record here indicated an almost innumerable number of other
possible causes (1) Jackson knew of the existence of a number of unresolved grievances
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The trouble with this argument, of course, is that the slump in production began
on April 28 but union solicitation did not commence until after June '8 Chronology
alone proves that the slump was not caused by union solicitations. Respondent's
attorney candidly admitted at oral argument: "Now no one can say what caused it
[the fall in production efficiency] in early May." Counsel is only partially correct for
Jackson knew that the employees were dissatisfied with their existing working con-
ditions but did nothing about it until he announced the new wage rates to be effective
as of July 5. The responsibility for this dissatisfaction rests upon Respondent.
Despite Respondent's admission that no one could say what caused the April
slump , it then went on to argue: -
But we do know that the production efficiency started going down in May.
There could have been a dip for a while which wouldn't have been of any great
consequence, but that didn't come back up. It stayed in the red. And there
was absolutely no explanation of it unless it was this [union solicitation on
company tune].
In addition to the speculative quality of this argument, it is also subject to two
fallacies: (1) the unknown causes of the original slump still remained unresolved
so that the union solicitation which began on June 8 could have been only another
possible cause for the continuation of the decline; and-much more important-(2)
on June 28 Respondent's graph shows that production efficiency in Plant 3 became
and remained normal or above until August 2. Thus for a solid month prior to
the discharges of Jack Griffiths and Capaldi allegedly for interfering with production
by their union activities production was in fact normal or above for the first time
since April 28, a period of 2 months. Obviously, therefore, the union activities en-
gaged in were not interfering with production. The graph proves that Streby was
correct in telling the dischargees here that they were not being discharged because
of their work. Accordingly the Trial Examiner must find that the union activities
engaged in by the four involved here did not interfere with the production efficiency
of Plant 3 and also that Respondent did not discharge them, or any of them, on
account of any such alleged interference.
Furthermore Respondent's graph rather conclusively establishes the fact that Re-
spondent's witnesses patently exaggerated the extent and the effect of the union
activities of the dichargees. It is to be recalled that Foreman Valentine testified
vividly to the effect that, during his last 2 weeks of employment, Jack Griffiths
became "radical," left his work every "5 or 10 minutes," could not be found "half
the time" and had to be "warned" once or twice a day or more. Yet the graph
proves that during this same 2-week period described by Valentine as Griffiths'
"radical" period, production efficiency at Plant 3 was steadily above normal and
climbing higher. Ironically enough July 28, the day of Jack Griffiths' discharge,
proved to be the day of highest production efficiency with one exception until January
1956. In view of the reliance placed on the graph of Jackson in running his plant,
the Trial Examiner must accept the evidence of the graph over the oral testimony
of Valentine and others.
Respondent's brief charged:
It is clear from the evidence that a slowdown was deliberately instigated which
apparently was part of a deliberate plan to force the Respondent to discharge
these persons. Neither Jack Griffiths nor his mother deny Mrs. Deorkis' testi-
mony that Jack "told his mother he had a notion to kick her ass" for doing
certain work.
It is true that neither Griffiths denied that the remark was made. But the brief
failed to point out that in his testimony Valentine also objected to the fact that the
employees were leaving their work half finished at the end of the day which was
exactly what Griffiths was objecting to. The charge made in the brief is actually
in the plant and, indeed, had announced a pay increase effective as of July 5; (2) on July 6,
Jackson discovered at least seven other instances of unsatisfactory working conditions
existent in the plant , (3) according to Foreman Valentine, the plant was never busy during
the first hour of the clay , (4) according to the Respondent's witness, Angeline Borger,
"everybody" was given to taking "45-minute rest periods" , (5) according to the testimony
of other of the Respondent's witnesses, "all the employees" stood around their machines
engaged in idle chatting; (6) the evidence disclosed unmistakably, albeit supposedly to the
Respondent's "surprise," the existence of a number of individual enterprises being carried
on during working hours having nothing to do with the Respondent's work, (7) supervisors
and others were even engaging in athletic practice on company time
OLD KING COLE, INC. 311
based upon the testimony of Respondent's witness, Angeline Borger, whose credi-
bility has been commented upon unfavorably heretofore, and among whose gen-
eralizations was to be found the testimony that "we" often said to let those who were
not wearing union buttons do the work-but, upon being pressed, Borger could
recall only one instance of having heard any such remark made by anyone. Strangely
enough at the time of this supposed remark Borger was working with others wearing
the union button like herself. The old phrase "there is no partisan like a reformed
zealot" aptly characterizes Borger. On the testimony presented here, the Trial
Examiner could make no finding that the "slow down was deliberate" or that there
was a slow down.
The Respondent argued further:
As a result, warnings were given to 9 or 10 employees in the latter part of
June. The warnings had their effect and production efficiency improved in
July. Most of the employees warned heeded the warning. However, the 4
persons ultimately to be discharged . . . did not heed the warnings. In fact,
some of them went so far as to threaten, intimidate and coerce other employees;
threats of bloodshed were made. That these were not idle threats is evidenced
by the fact that Dave Menendez was attacked by 1 of the dischargees, Jack
Griffiths.
Like the attempt to blame the fall in production efficiency on union activities, the
evidence produced does not justify a finding that warnings were given to any of the
employees. Six of the 9 employees to whom warnings were supposedly given testified
and denied having received any such warnings . Admittedly Jackson issued no
warnings. Streby only claimed to have issued one warning to one employee, Jack
Griffiths, on one occasion 3 or 4 weeks before Griffiths' discharge on his direct
examination . Streby later changed this testimony to such an extent that he ended
by having warned Griffiths four times in a month's period, the last time being the
Monday prior to his discharge on Thursday. Streby's sudden, unexplained change
in testimony hardly enhances his credibility. During his testimony Valentine's warn-
ings to Jack Griffiths increased from 7 to 8 times over the period to once or twice a
day during Jack Griffiths' so-called "radical period" which coincided exactly with the
first sustained above-normal production efficiency period Plant 3 had experienced
since late April. Respondent's graph effectively contradicts Valentine's obviously
extravagant testimony. Accordingly, Trial Examiner must credit the denials that
any warnings were issued.
This finding is buttressed by the fact that neither Jackson, Streby nor Valentine
ever issued a warning based upon the alleged threats "to beat up," "to hit in the
nose," or of "bloodshed" which the Respondent supposedly received. If such threats
were in fact made, as claimed by the Respondent, it is inconceivable that Respondent
would fail to protect its employees from violence by warning the person responsible
for the threat. As previously noted, Menendez was called to Jackson's office on July
28 to give a statement against Jack Griffiths and not to protect him from Jack
Griffiths.
The Respondent was not excited about activities "on company time" for all the
above-noted extracurricular activities in the plant on company time continued un-
abated with the supervisors even practicing for the company horseshoe team during
working hours. The social chatting at work continued. The merchandising con-
tinued. The check pools continued.
But the evidence clearly demonstrates that Jackson was worried about the
threatened advent of a "third party" as exemplified by his speech of July 5. Admit-
tedly he wanted to find out what grievances his employees had and what they
wanted and thus forestall organization of the plant by granting benefits which
could be posted in the plant "as ,a matter of company policy" but not embodied in
"a [union] contract." The benefits granted on July 20, as recognized by Angeline
Borger in 'removing her union button, were conditioned upon the renunciation of
representation by a labor organization by the employees. Hence the benefits were
granted in return for the employees' abandoning representation by a union
organization.
But through reports received from employees Menendez, Isue, and Borger, Jackson
discovered that even after his speech of July 20, Jack Griffiths had said "to hell
with Jackson's offer," he was continuing his efforts for union organization; that
Beatrice Griffiths had told Borger not to be a fool and take off her union button
for that was just what Jackson wanted; and that both Capaldi and Heddleson had
continued their efforts to organize the Union after July 6. Thus it became clear
to Jackson that his promised benefits had not succeeded in causing these four em-
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees to renounce their efforts to obtain union representation. Hence even though
Respondent's production efficiency was either normal or above for the first time
in months and even though Streby found no fault with the work of any of the 4,
Jackson chose to discharge these 4 employees for continuing their activities on
behalf of the Union despite the benefits he had granted them conditioned upon the
abandonment of such efforts. Streby's speech confirms this finding.
Accordingly, the Trial Examiner is convinced and, therefore, finds that the Re-
spondent discriminatorily discharged Jack Griffiths on July 28, Julia Capaldi on
July 29, and Beatrice Griffiths and Nettie Heddleson on August 8, because of their
activities on behalf of the Union and in order to discourage membership therein in
violation of Section 8 (a) (3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section I,I, above, occurring in con-
nection with the operations of the Respondent described in section I, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices it
will be recommended that it cease and desist therefrom and that it take certain af-
firmative action designed to effectuate the policies of the Act.
It having been found that the Respondent discriminated in regard to the hire and
tenure of employment of lack Griffiths, Julia Capaldi, Beatrice Griffiths, and Nettie
Heddleson by discharging them, the Trial Examiner will recommend that the Re-
spondent offer to each of them immediate and full reinstatement to his former, or
substantially equivalent position, without prejudice to his seniority or other rights and
privileges, and make each whole for any loss of pay he may have suffered by reason of
said discrimination by payment to each of them of a sum of money equal to that which
he would have earned as wages from the date of the discrimination against him to the
date of the offer of reinstatement less his net earnings during such period, in accord-
ance with the formula set forth in F W. Woolworth Company, 90 NLRB 289.
In the opinion of the Trial Examiner, the unfair labor practices committed by the
Respondent in the instant case are such as to indicate an attitude of opposition to the
purposes of the Act generally. In order, therefore, to make effective the interde-
pendent guarantees of Section 7 ,of the Act, thereby minimizing industrial strife which
burdens and obstructs commerce, and thus effectuate the policies of the Act, it will be
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, AFL-CIO, is a labor organization within the meaning of Section
2 (5) of the Act.
2. By discharging Jack Griffiths on July 28, 1955, Julia Capaldi on July 29, 1955,
and Beatrice Griffiths and Nettie Heddleson on August 8, 1955, thus discriminating
in regard to their hire and tenure of employment and thereby discouraging member-
ship in International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, AFL-CIO, the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) and (1) of the Act.
3. By offering promises of benefits to employees to induce them to renounce their
right to union representation and by polling their employees as to their union
affiliations and sympathies; and by interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from ,publication.]
BORDO PRODUCTS COMPANY 313
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that-
WE WILL NOT poll or interrogate our employees concerning their union af-
filiations, sympathies, or activities in regard to International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO,
or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America, 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 purposes of collective
bargaining or othei mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such acts 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 to Jack Griffiths, Julia Capaldi, Beatrice Griffiths, and Nettie
Heddleson immediate and full reinstatement to 'his or her former or substantially
equivalent position, without prejudice to his seniority or other rights and
privileges, and will make each of them whole for any loss of pay he may have
suffered as a result of the discrimination against him
WE WILL NOT discourage membership in International Union, United Auto-
mobile, Aircraft & Agricultural Implement Workers of America, AFL-CIO, or
any other labor organization, by discriminating in any manner against our
employees in regard to their hire or tenure of employment or any term or
condition of their employment.
WE WILL NOT discriminate in regard to the hire or tenure of employment or any
term or condition of employment, because of membership in, or activities on
behalf of, any such labor organization.
All our employees are free to become or remain members of the International
Union, United Automobile, Aircraft & Agricultural Implement Workers of America,
AFL-CIO, or any other labor organization
OLD KING COLE, INC,
Employer.
Dated ---------------- By ----------------------------------------------
(Itepresentative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Bordo Products Company and International Union of United
Brewery, Flour, Cereal , Soft Drink and Distillery Workers of
America, AFL-CIO, Petitioner . Case No. 12-RC-12 (f ormnerly
10-RC-3590). February 5,1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Allen Sinsheimer, Jr., hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in the business of processing citrus
fruits. This case involved its operation at Winter Haven, Florida.
117 NLRB No. 39.