Pacemaker Corp.

National Labor Relations Board - Board Decisions

May 15, 1958

120 N.L.R.B. 987 (N.L.R.B. 1958)

PACEMAKER CORPORATION 987
categories be recruited from the ranks of the Union' s weavers and
apprentices, as well as a refusal to accede to the new method of
operation.
Apart from the Union's manifest unwillingness to cooperate in
Lindsay's plans by supplying its members to fill the new jobs, there
is another factor that militates against the likelihood that such new
jobs would be filled by the same persons or class of persons as manned
the looms before the strike, namely, the weavers and their apprentices.
It seems to me unrealistic to suppose that the weavers, highly skilled
craftsmen , steeped in craft tradition, would have lightly submitted to
downgrading to unskilled or semiskilled work at lower rates of pay.
It appears far more probable that they would, at least initially, have
resisted such downgrading by seeking other jobs in their craft and
would have accepted the new jobs at Mentor only as a last resort, if
at all . Under these circumstances, it seems to me that any assumption
that the new jobs would from the outset have been performed by the
same trade, craft, or class of employees as filled the old jobs is not
warranted on the present record. It is my view, therefore, that the
question in dispute was in essence not only whether Lindsay should
break down the jobs at Mentor from skilled to less skilled work, but
also whether the Mentor looms should be operated, on the one hand,
by weavers and their apprentices, or on this other hand, by such per-
sons as would be willing to work under the new conditions, who would
not necessarily be of the same class as the former, but quite likely
would be of a different class.'
9 It is immaterial, in my opinion, that, in view of Lindsay's willingness to employ
union members on the new jobs at Mentor, the new class of employees might be members
of the Union ( assuming , which seems questionable, that the Union would admit non-
craftsmen to membership). That circumstance does not preclude a violation finding
here, since, as I read Section 8 (b) (4) (D), the dispute need only be between two
classes of employees , whether or not they are members of the same union . Nor is a
violation finding precluded by the fact that at the time of the strike the work in ques-
tion was being performed by the weavers, and the dispute related only to the future
assignment of such work to persons not yet identified . See Anning-Johnson Company,
113 NLRB 1237, 1242.
Pacemaker Corporation and International Union , United Auto-
mobile , Aircraft & Agricultural Implement Workers of Amer-
ica (UAW), AFL-CIO. Case No. 13-CA-2301. May 15, 1958
DECISION AND ORDER
On June 28, 1957, Trial Examiner Louis Plost issued his Intermedi-
ate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
120 NLRB No. 133.
988 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
mediate Report attached hereto. He also found that the Respondent
had not engaged in other unfair labor.practices alleged in the com-
plaint and recommended dismissal of those allegations.' Thereafter,
the General Counsel and the Respondent each filed exceptions to the
Intermediate Report with a supporting brief. The Respondent also
requested oral argument. The request is hereby denied, as the record
and briefs, in our opinion, adequately present the issues and positions
of the parties.
The Board, has reviewed the rulings made by the Trial Examiner
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 briefs, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the'Trial Examiner, with the exceptions, modifications, and
additions noted below.
1. Like the Trial Examiner, we reject the Respondent's contention
that this proceeding should be dismissed, or held in abeyance until an
election has been conducted in the representation proceeding insti-
tuted by the Union. As the Respondent points out in support of its
contention, the Union first filed a waiver. in this case in order to permit
the processing of its election petition but then filed amended charges
against the Respondent, which it refused to waive, thus bringing the
representation proceeding to a halt after the first day, of hearing.
However, the record does not support the Respondent's claim that the
amended charges were frivolous and constituted an abuse of the
Board's processes. Indeed, as appears hereinafter, matters alleged
as unfair labor practices in the amended charges are herein found
to constitute violations of the Act by the Respondent. In view thereof,
and as it was the Union's right to file amended charges and refuse
to waive them for purposes of the representation proceeding, the
Respondent's motion in this connection lacks merit, as found by the
Trial Examiner.
2. The Trial Examiner found that the Respondent did not dis-
criminate in regard to the tenure of employment of Perry Guilford.
We agree.
The Respondent found it necessary to lay off 29 employees for eco-
nomic reasons on November 16, 1956. Guilford was one of the em-
ployees selected for layoff at that time. The General Counsel con-
sel contends that Guilford's selection was motivated by discriminatory
considerations and, in this connection, he stresses the facts that (1)
Guilford, a drape hanger, was selected for discharge while Art Wil-
lard, who was hired as a drape hanger subsequent to Guilford, was
1 The Trial Examiner's recommendations to which no exceptions were filed, including
the recommendation that the complaint be dismissed insofar as it alleges that the Re-
spondent discharged David A. Grise in violation of Section 8 (a) (3) of the Act, are
hereby adopted without comment.
PACEMAKER CORPORATION 989
retained, and (2) the, Respondent generally considers seniority as a,
factor in selecting employees for layoff. However, the record makes
it abundantly clear that the Respondent, in selecting employees for
layoff, is more concerned with an employee's work record and ability
to do the job than with his seniority status. And the record fails to
establish that Guilford was in fact a more desirable employee than
Willard. Under all the circumstances, we do not find the complaint's
allegation of discrimination against Guilford to be supported by a
preponderance of the record evidence.
3. The Trial Examiner found that the Respondent, in violation of
Section 8 (a) (1) of the Act, (a) assigned employee Grise to cleaning
the plant lot for the purpose of humiliating him and expressing its
disapproval of his union activities, and (b) ordered employee Guil-
ford to refrain from discussing the Union on its property. We do not
adopt this 8 (a) (1) finding.
Regarding (a), the lot in question was needed by the Respondent
for use as an exhibit ground and had to be cleaned. Grise spent only
2 days in cleaning it, and suffered no loss of pay thereby. Uncon-
tradicted testimony shows that shortly after Grise worked on the lot,
perhaps the very next day, at' least one other employee and the
Respondent's president, vice president, and plant superintendent also
worked at cleaning the lot .2 With respect to (b), the record shows
that the Respondent's instructions to Guilford were to refrain from dis-
cussing the Union on company time rather than to refrain from talk-
ing about it on company property as found by the Trial Examiner.
Its orders to Guilford to cease such activity stemmed from the fact
that employees had complained to it that Guilford was bothering them
during working hours, one of the employees asking the Respondent to
put a stop to such interruptions. As to both (a) and (b), we find
that the facts do not warrant a finding that the Respondent's conduct
involved was motivated by antiunion considerations. Absent evi-
dence establishing that fact, the Respondent's actions cannot be held
violative of Section 8 (a) (1) of the Act .3
4. We find, as • did the Trial Examiner; that the Committee is a
labor organization within the meaning of the Act and that' the Re-
spondent.dominated its formation and administration, and contrib-
uted support to it, in violation of Section 8 (a) (2) and (1) of the
Act. In so concluding, we rely upon the following facts : The Com-
mittee was formed by the Respondent shortly after the advent of the
Union; the number of employees to serve thereon and the manner of
2 There is also testimony , denied by Grise, that another employee was assigned to
cleaning the lot at the same time as Grise This conflict in testimony was not resolved
by the Trial Examiner . The testimony that Respondent 's President Levitt said that
they had to "fight fire with fire ," when asked about the lot-cleaning assignment of Grise,
does not, as the Trial Examiner finds, stand uncontradicted in the record . Levitt him-
self denied making this statement.
3 See Delta Ftnishing Company, 111 NLRB 659.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.their selection was decided upon by the Respondent; the time, date,
and place of meetings, were fixed by the Respondent; employees who
served thereon were paid for attending meetings with the Respondent;
the meetings were chaired by Respondent officials; and grievances,
wages, and conditions of employment affecting employees generally
were discussed at the meetings.4
5. The Trial Examiner found that Clifford Black, Jr., was dis-
charged by the Respondent in violation of Section 8 (a) (3) and (4)
of the Act. For reasons set forth below, Members Bean and Jenkins
agree with this ultimate conclusion of the Trial Examiner while
Member Fanning believes that Black's discharge was violative of
Section 8 (a) (3) alone.
At a union meeting held on about October 18, 1956, Black and four
other employees were selected to represent the Respondent's employees
at the hearing on the Union's representation petition, scheduled for
October 19. On Friday morning, October 19, about 8 a. m., Black
asked Conrad, his group leader, for permission to leave work at 9: 30
a. m. to attend the hearing.. Conrad conferred with Plant Superin-
tendent Rude and then, about 8: 30 a. m., informed Black that Rude
had said that he was free to go to the hearing, but that he would be
leaving at his own risk. Soon thereafter, the Respondent received a
telegram from, the Union requesting that Black and the other em-
ployees designated to attend the hearing as employee representatives
"be permitted to attend the NLRB representation hearing 10: 00
a. m. . . . as UAW. plant representatives...." About one-half
hour later, Conrad reminded Black that it was about the, time he
wanted to leave, whereupon Black left the plant for the,hearing.
During the course of the hearing, at which the Respondent was repre-
sented by counsel, Black was served with a subpena and testified as
a witness for the Union.,
As October 19 was a payday, Black, upon the adjournment of the
hearing, returned to the plant to pick up his paycheck. The office was
closed and he talked to Superintendent Rude about the matter.
According to Black's uncontradicted and credited testimony, he and
Rude "decided that it would be better for me to wait and pick it up
at- the office Monday when I came back to work." On Monday, when
Black arrived at the plant, he asked Superintendent Rude for his
paycheck. Rude told him that he was being discharged because he
had "left and attended the hearing."
It is the Respondent's position that Black was discharged because
of "deliberate insubordination" in leaving the plant for the hearing.
This contention is not borne out by the record. Thus, Conrad's state-
ment to Black that he was free to go to the hearing although at his
4 Cabot Carbon Company, 117 NLRB 1633; Adhesive Products Corporation , 117 NLRB
265; P . R. Mallory & Co ., Inc., 107 NLRB 438.
PACEMAKER CORPORATION ' 991
own "risk,", considered together with his later reminder to Black that
it was time to leave for the hearing, do not, in our opinion, support
the Respondent's claim that Black was under orders to remain on
the job at the time he left for the hearing. - Furthermore, if Black
was insubordinate in leaving the plant, we think it significant that
Superintendent Rude, whose order Black allegedly disobeyed, ,and
who then had full knowledge of the facts which the Respondent
claims motivated it to discharge Black, •f ailed even to mention Black's
act of disobedience when Black returned to the plant after the hearing.
On the contrary, Rude told Black to wait for his paycheck until-he
returned to work on the following Monday. Under such circum-
stances, we are not persuaded that Black's discharge was motivated
in the manner claimed by the Respondent.
We believe that Black's discharge was discriminatorily motivated.
That this is so is indicated by the unconvincing character of the
reasons adduced to support the discharge, the timing of the discharge,
the Respondent's manifest concern about the advent of the Union, and
its efforts to discourage the self-organization of its employees. Mem-
ber Fanning is of the opinion that the motivating reason for Black's
discharge was his attendance at the representation hearing as a pro;
union adherent.. 'As Black was then engaged in a protected activity
under the Act,' Member Fanning finds that the discharge. violated
Section, 8.' "(a) (3) of the Act. Members Bean and Jenkins are
convinced by all the circumstances of the case that Black was dis-
charged because he both attended and gave testimony at the hearing.
They therefore hold the Respondent in violation of Section 8 (a) (3)
and (4) of the Act.
ORDER
Upon the entire record in the 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, Pacemaker Cor-
poration, Elkhart, Indiana, its officers, agents, successors, and assigns,
shall : °
1. Cease and desist from :
(a) Assisting, dominating, or interfering with the administration
of the Committee, or the formation or administration of any other
labor organization of its employees, and from contributing support
to it or to any other labor organization, and from otherwise inter-
fering with the representation of its employees through a labor
organization of their own choosing. ,
(b) Recognizing the Committee, or any successor thereto, as'the
representative of any of its employees for the purpose of dealing
5 English Mica Company, 92 NLRB 766, enfd. 195 F. 2d 986 (C. A. 4) ; Superior Com-
pany, Inc., 94 NLRB 586, enf. denied on other grounds , 199 F 2d 39 (C. A. 6) ; Chau-
tauqua Hardware Corporation, 103 NLRB 723, enfd. 208 F. 2d 750 (C. A. 2).
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the Respondent concerning grievances , labor disputes , wages,
rates of pay , hours of employment , or other conditions of employment.
(c) Discouraging membership in International Union , United
Automobile , Aircraft & Agricultural Implement Workers of America
'(UAW), AFL-CIO, or in any other labor organization of its em-
ployees, by discharging any of its employees or by discriminating in
any other manner in regard to their hire or tenure of employment,
or any term or condition of employment.
(d) Discharging or otherwise discriminating against employees
because they have given testimony under the Act.
(e) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right of self-organization , to form
labor organizations , to join or assist International Union, United
Automobile , Aircraft & Agricultural Implement Workers of America
(UAW), AFL-CIO, or any other labor organization , to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection , or to refrain from any
and all such activities ,.except to the extent that such right may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment , 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) Withdraw and withhold all recognition from, and completely
disestablish , the Committee, or any successors thereto, as the repre-
sentative of any of its employees for the purpose of dealing with the
Respondent concerning grievances , labor disputes, wages , rates of
pay, hours of employment , or other conditions of employment.
(b) Offer to Clifford Black, Jr., immediate and full reinstatement
to his former or substantially equivalent position without prejudice
to his seniority or other rights and privileges.
(c) Make said Clifford Black, Jr ., whole for any loss of pay suf-
fered by reason of his discharge, in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(d) 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 Clifford Black, Jr ., under this Order.
(e) Post at its plants in Elkhart , Indiana, copies of the notice at-
tached hereto marked "Appendix ." 6 Copies of said notice, to be
0 In the event that this Order Is enforced by a decree of a United States Court of
Appeals, there shall be substituted 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."
PACEMAKER CORPORATION 993
furnished by the Regional Director for the Thirteenth Region, shall,
after being duly signed by its authorized representative, be posted by
the Respondent immediately upon receipt thereof, and be maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to its employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that such notices are not altered, defaced,' or covered by any other
material. I .
(f) Notify the Regional Director for the Thirteenth Region in
writing, within ten (10) days from the date ofthis Order, what steps
the Respondent has taken to comply therewith.
CHAIRMAN LEEDOM and MEMBER RODGERS took no part in the con-
sideration of the above Decision and Order.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT assist, dominate, contribute support to, or interfere
with the formation or administration of any labor organization
of our employees, or otherwise interfere with the representation
of our employees, through a labor organization of their own
choosing. -
WE HEREBY disestablish the Committee as the representative
of any of our employees for the purpose of dealing with us con-
concerning grievances, labor disputes, wages , rates of pay, hours
of employment, or other conditions of employment.
WE WILL NOT discourage membership in International Union,
United Automobile, Aircraft & Agricultural Implement Workers
of America (UAW), AFL-CIO, or in any other labor organiza-
tion, by discharging any of our employees or by discriminating
,in any other manner in regard to their hire or tenure of employ-
' ment, or any term, or condition of employment.
WE WILL NOT discharge or otherwise discriminate against em-
ployees because they, have given testimony under the Act.
WE WILL NOT in any other manner interfere with,, restrain, or
coerce our employees, in the exercise of the right to^self- organiza-
tion, to form labor, organizations, to join or assist International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, (UAW), AFL-CIO, or any other labor
organization , • to bargain collectively through representatives of
483142-59=vol. 120-64
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their own choosing, and to engage in other concerted activities,
for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such, activities, except
to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of
employment, as authorized in Section 8 (a) (3) of the Act.
WE WILL offer to Clifford Black, Jr., immediate and full re-
instatement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of pay he may .have suffered
as a result of his discharge.
PACEMAKER CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a fourth amended charge duly filed by International Union , United Auto-
mobile, Aircraft & Agricultural Implement Workers of America (UAW), AFL-CIO,
herein called the Union , charging that Pacemaker Corporation, Elkhart, Indiana,
herein called the Respondent, had engaged in and is now engaging in certain unfair
labor practices ' affecting commerce, as set forth and defined in the National Labor
Relations Act, as amended , 61 Stat. 136, the General Counsel of the National Labor
Relations Board on behalf of the Board , by the Regional Director for the Thirteenth
Region , issued a complaint dated May 3, 1957, alleging that the Respondent had
engaged in and was engaging in unfair labor practices within the meaning of Section
'8 (a) (1), (2 ), ( 3),and (4) of the Act.
A copy of the charge filed by the International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America (UAW), AFL-CIO, in Case
No. 13-CA-2301 was duly served upon the Respondent on August 29, 1956. A
copy of the first amended charge was duly served upon the Respondent on Septem-
ber 28, 1956. A copy of the second amended charge was duly served upon the
Respondent on October 25, 1956. A copy of the third amended charge was duly
served upon the Respondent on November 30, 1956, and a copy of the fourth amended
was duly served December 15, 1956.
A notice of hearing was duly served on May 3, 1957, setting the hearing for
May 21; 1957, at Elkhart, Indiana.
With respect to the unfair labor practices the complaint (duly served with the
notice of hearing ) alleged in substance that the Respondent established and bar-
gained with an organization known as the Committee in violation of Section 8 (a)
(2) of the Act; that the Respondent discharged one Clifford Black in violation of
the provisions of Section 8 (a) (4) of the Act, and did discriminatorily "lay off
or discharge" employees David Grise and Perry Guilford in violation of Section 8
(a) (3) of the Act and engaged in certain other conduct violative of Section 8
(a) (I) of the Act.
On May 10 , 1957, the Respondent filed an answer in which it denied that it had
engaged in any of. the unfair labor practices alleged and further contended in effect
that under its established procedure and practices the Board was precluded from
proceeding under the complaint as issued.
This phase of the Respondent 's contention will be discussed at a later point herein.
Pursuant to notice a hearing was held'before Louis Plost, the duly designated
Trial Examiner, at Elkhart , Indiana, on May 21, 22, and 23, 1957. 'The General
Counsel , the Respondent, and the Charging Party were represented by counsel,
herein referred to in the names of their principals . The parties participated in the
PACEMAKER CORPORATION 995
hearing and, were afforded full opportunity to be heard, to, examine and cross-
examine witnesses, to introduce evidence bearing upon the issues, to argue orally,
and to file briefs and/or proposed findings of fact and conclusions of law with the
Trial Examiner.' The Trial Examiner granted an unopposed motion by the General
Counsel to correct an obvious scrivener's error in the complaint and also a like
motion to correct spellings. The Trial Examiner denied a motion to amend the
complaint and denied various motions to dismiss the complaint. A motion to con-
form all pleadings to the proof with respect to spellings and errors in matters not
substantive was granted. The parties waived oral argument. Briefs have been
received from the General Counsel and the Respondent.
As hereinabove stated the Respondent objected to the introduction of the formal
documents "as not being a true and full list of the documents that are necessarily
involved in this present hearing." The contention appears in the Respondent's
answer and is. argued in its, brief. In, support of the contention the Respondent's
attorney made the following statement inter alia: . -
The union involved, UAW-CIO, through its international representatives,
first filed on August 28,4956, a charge against the Pacemaker Trailer Com-
pany, to which an answer in proper form and sufficient number was filed by
the Respondent.
Subsequently in September, September the 26th, 1956, the first. amended
charge was filed, which incorporated the original charge as filed in the first
charge and added three other charges. To this likewise an answer was filed
by the Respondent in proper form and in sufficient number.
Subsequently on October the 4th, a petition was filed by the union asking
for an election, claiming that it had the sufficient number of employees enrolled
or for whom it claimed to, have the right to speak'as a representative.
The National Labor Relations Board advised the Respondent through com-
munication with counsel in a letter of October the 8th-October the 5th,
1956, . . . that the union was waiving the charges of unfair labor practice in
order to proceed with -a representation hearing.'. . The National Labor Rela-
tions Board indicated to us very definitely that the union was waiving its alleged
charges in order to have this election- hearing; that thereafter correspondence
and conversations occurred between the Respondent and the National Labor
Relations Board, which finally led to a hearing, .. .
The Respondent stated that a representation hearing was, thereafter convened at
Elkhart, Indiana, October 19, 1956, and testimony was taken, but before the hearing
was concluded the Union moved for a continuance which motion was granted after
the hearing officer conferred with the Regional Office by telephone.
The Respondent's statement continues, inter alia:
Over our objections the hearing was adjourned and was not then concluded,
.with a definite understanding that the hearing, would be resumed within a
few weeks, .
Instead of proceeding with the election we were notified by the National
Labor Relations Board that a second amended charge had been filed on October
25, 1956, that is, we received that charge on November, on October 26, I
believe, to which we also filed an answer in the requisite number of copies.
On that same day we received a telegram from Mr. Boetticher advising us
that-and I have the' original here and I shall likewise have copies made in
duplicate and file them-that the UAW-CIO, the complaining union, will not
waive -the charge and that, as Mr. Boetticher advised us, the hearing for the
determination of I the election, representation, would not be had until this
amended charge, second amended charge had been disposed of and'- that was
confirmed in a letter that we received, signed by Mr. Boetticher, in which he
advised us that the hearing would not be resumed November 1st, as had been
discussed before, and would be indefinitely postponed until determination had
been had of the second amended charge, which incorporated all the other
charges which had been previously made. Thereupon we objected strenuously
to this proceeding and we were advised by Mr. Boetticher in another telegram
dated October 29, 1956, that the indefinite postponement was not due to the
request'of the union, but based upon the Board's policy of not proceeding with
a representation case unless the outstanding charges have been waived or dis-
posed of. Therefore, our request for the resumption of the hearing was denied.
I The Trial Examiner set June 12, 1957, as the return day for briefs On request of
the Respondent, made after the hearing, the Chief 't'rial 'J^xaminer extended the time
until June 21, 1957.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the close of the Respondent's statement the following colloquy took place:
TRIAL EXAMINER: The gist of your motion then is that this proceeding should'
either be held in abeyance or dismissed by the Trial Examiner until such time
as an election is held?
Mr. DAVIDOW: Yes, that is precisely our position:
TRIAL EXAMINER: Does the General Counsel have anything?
Mr. PATTERSON: Yes, Mr. Examiner, the General Counsel, in terms of the
facts as recited by the attorney for the Respondent, the General Counsel is in
substantial agreement as to the facts as related. Obviously the General Counsel
disagrees with Respondent 's Counsel 's interpretation and conclusions from
those facts.
After further statements by the General Counsel and the Charging Party, the Trial
Examiner ruled on the Respondent's motion and stated the basis for his ruling as
follows:
TRIAL EXAMINER: Let me say that in my opinion the facts upon which you
stand have been adequately presented here for the Board's consideration; that a
question of procedure before the Board can, on these facts, be raised before the
Board in final argument and will, of course, be handled by myself in my report
of this matter to the Board, if I make a report.
I wish, however, that these documents, letters and so forth to which you made
reference and which you say you, which you said you did not offer because you
do not have copies, that you will offer them before the hearing is over, and I
assure you they will be given a place in the record.
Mr. DAvmow: Thank you.
TRIAL EXAMINER: I feel that I must deny your motion and in denying the
motion, I also feel that it will all be properly before the Board at the proper time.
Inasmuch as the transcript of the incompleted hearing in Case No. 13-RC-5220
was not before the Board the Trial Examiner asked that it be introduced as an exhibit
to the instant case, as are all the documents referred to by the Respondent as pertain-
ing to its contention. However, all such documents (the transcript included) were
admitted for the limited purpose of placing them before the Board in order to
preserve the Respondent's contention for the Board's consideration.
The Trial Examiner is of the opinion that all matters raised by the Respondent in
its contention that the proceeding should be abated refer entirely to administrative-
procedure not within the province of this Trial Examiner nor properly a part of this
proceeding; however, the Trial Examiner points out that the ordinary waiver merely
surrenders the right to use the pending charges of unfair labor practices as a basis-
for objections to the conduct of the petitioned election if held, and that in the instant
matters no waiver was filed to the amended charges upon which the complaint is-
based.
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 Respondent is, and at all times material has been , a corporation duly organized
under and existing by virtue of the laws of the State of Illinois , maintaining its
principal manufacturing establishment and its offices in Elkhart , Indiana.
The Respondent is engaged in the manufacture , sale, and distribution of mobile
house trailers . In the course , conduct , and operation of its business , it causes and
at all times material herein has caused large quantities of its manufactured products
to be shipped and transported in interstate commerce from its plant at Elkhart,
Indiana , into and through the States of the United States other than the State of
Indiana.
During the calendar year 1956 , the value of manufactured products sold and'
transported by the Respondent from its Elkhart, Indiana, factory to points outside
the State of Indiana was in excess of $50,000.
The Respondent concedes that it is and at all times material has been engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
IT. THE ORGANIZATIONS INVOLVED
International Union , United Automobile , Aircraft & Agricultural Implement
Workers of America (UAW), AFL-CIO, is, and at all times herein mentioned has
PACEMAKER CORPORATION 997
been , a labor organization within the meaning of Section 2 ( 5) of the Act, and
admits employees of the Respondent to membership.
The Committee is, and at all times referred to herein has been, a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Committee
The complaint alleges that the Respondent:
Beginning on or about August 28, 1956, and continuously thereafter for the
purpose of • thwarting UAW's organizational activities did instigate, form,
establish, bargain with and did provide financial and other assistance to the
Committee.
The record discloses that as early as July 1956, the Union was actively attempt-
ing to organize the Respondent's employees and that the Union's activity was fully
known by the Respondent. During August 1956 various supervisory officials in
conversation with rank-and-file employees clearly indicated that " an outside union"
would not be enthusiastically welcomed by the Respondent.
On August 28, 1956, the Respondent sent a letter to each of its production
employees, on its regular business letterhead stationery and signed by its president,
in which the employees were informed that "in response to suggestions" it had
received the Respondent had "worked out a new arrangement" for a committee
of employees and management to meet at regular intervals "for the purpose of
considering problems and suggestions to improve our production and sales."
After outlining a form of organization providing for rotating representation, the
letter concludes:
What is very important in this set up is that we who are concerned with this
business will meet together intimately, free from the domination of dictations
[sic] or outsiders; outsiders whose interest is not in maintaining friendliness
but to bring about hard feelings and bitterness between management and you.
We believe, yes, we know, that this effort of friendly cooperation will be so
successful as to make you and us glad to have such a system in operation.
The letter in full as a part hereof is attached hereto as Exhibit No. 1.
On September 3 the Respondent sent another letter to its employees telling them
that the first Committee meeting "was held with management"; that the question of
paid holidays had been discussed and that as a result of the meeting the Respondent
was granting its employees certain holidays with pay.
The letter closes:
The fine beginning thus far made gives promise of bringing about a full
and complete understanding among us all. And the wonderful part of this
lies in the fact that no outsiders, bosses or dictators can interfere with you
and us in insuring the future success of Pacemaker and its employees.
The letter appears as a part hereof as Exhibit No. 2.
Ted R. Neher, who was the Respondent's vice president until September 1956,
testified that he attended 2 meetings of the Committee and management during the
latter part of August 1956, held in the office of Morton Levitt, Respondent's president,
who presided, and attended by Respondent's officials and 6 rank-and-file employees.
Stanley L. Minton testified that: While a group leader in the Respondent's plant
he attended two meetings of the Committee, there being present officials and
rank-and-file employees; the meetings were chaired by Ted Plank, at present the
Respondent's personnel director; the matter of pay raises was discussed; and he
was paid for the time he spent at the meetings.
William H. Eggleston testified that as a rank-and-file employee he attended two
meetings of the Committee sometime in October 1956 , the meetings were held in
President Levitt's office; Levitt presided and announced at the first meeting that
.,we was gathered in there for any grievances or anything we had." The second
meeting attended by, Eggleston, according to his testimony, was, like the first, for
the purpose of handling "any grievances or any circumstances that arose in the
plant." Eggleston was paid for the time he spent in the meetings.
Perry Guilford testified that he attended one meeting of the Committee in
November 1956, in a company official's office. He (Guilford) brought up the
question of a pay raise for himself and was told by Brown, the chairman, "you are
up here for the benefit of the men out in the plant, not yourself."
Morton Levitt, the Respondent's president, testified that the Committee, herein-
before referred to, was set up by the Respondent in August 1956 to meet with manage-
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, the employee members being rotated according to their seniority so that "dif-
ferent men would be on it every other week," the names being posted by the
superintendent as they came up.
Levitt admitted frankly that he attended "five or six meetings ," and that the
subjects of working conditions, paid holidays, overtime apportioning, and various
grievances were raised by employee members and discussed with management at
the Committee meetings. Levitt testified:
Q. Would you say that any grievances or complaints that employees might
have affecting other employees were discussed at the meeting?-A. I believe
so. We-
Q. In other words. Pardon me. I am sorry.-A. They could discuss the
lighting or, for instance, this wash room you referred to; that would affect
more than just them
Q. More than the particular employee involved?-A. Yes.
Q. In fact, that was the purpose of the thing to consider problems gener-
ally?-A. Yes.
Conclusion as to the Committee
Section 2 of the Act provides:
When used in this Act-
(5) The term "labor organization" means any organization of any kind,
or any agency or employee representation committee or plan, in which
employees participate and which exists for the purpose, in whole or in part,
of dealing with employers concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or conditions of work.
Section 8 (a) (2) of the Act provides that:
It shall be an unfair labor practice for an employer-
* * * * * * *
'(2) to dominate or interfere with the formation or administration of any
labor organization or contribute financial or other support to it: .. .
There can be no doubt on the record in this case that the Committee was created
and functioned solely by reason of the Respondent's unilateral labor policy and
its desire to deal in this manner with its employees on matters arising from the
operation of its plant. The Committee existed and functioned only because the
Respondent willed it so. The Committee acted together with the Respondent on
such matters as grievances, working conditions, pay raises, and paid holidays.
Employees attending Committee meetings were -paid for their time. The meetings
were chaired by the Respondent's officials.
In view of the above virtually undisputed facts and in accordance with Board
and court decisions 2 the Trial Examiner finds that the Committee is a labor organi-
zation within the meaning of the Act. The Trial Examiner further finds, upon all
the evidence considered as a whole, that the Respondent had dominated the forma-
tion and administration of the Committee and has contributed support to it in viola-
tion of Section 8 (a) (2) of the Act 3 and Section 7 thereof.
B. The discharge of Clifford Black, Jr.
It is alleged:
Respondent, by its agents, while engaged in the operation of its business
described above on or about October 22, 1956, did discriminatorily discharge
its employee Clifford Black, Jr., for the reasons that he had joined and
assisted the U. A. W. and/or for the reason that he had given testimony in a
proceeding before the National Labor Relations Board on October 19, 1956.
Respondent has ever since failed and refused to reinstate Clifford Black, Jr.,
to his former or substantially equivalent position.
Clifford Black, Jr., testified without contradiction and credibly that at a union
meeting held before the scheduled Board hearing in 13-RC-5220, October 19, he,
2N L. R B v Standaid Coil Products Co., Inc., 224 F. 2d 465 (C. A. 1, 1955) ,
N L. R B v Sharples Che,nicaly, Inc, 209 F 2d 645 (C A. 6, 1954) ; Indiana Metal
Products Corporation v. N. L. R. B, 202 F. 2d 613 (C A. 7, 1953) ; N L. R. B. v. Saxe-
Glassman Shoe Corporation, 201 F. 2d 238 (C. A. 1, 1953) ; N. L. R. B. V. General Shoe
Corporation, 192 F. 2d 504 (C. A. 6, 1951).
3 Cabot Carbon Company, 117 NLRB 1633.
PACEMAKER' CORPORATION 999
together with four other employees , was designated to attend the hearing. Black
further testified that the morning of October 19 he told his group ' leader, Levon
Conrad, that he wished to leave at 9:30 in order to attend the hearing , that Conrad
replied that he would convey the request to Donald Rude , the superintendent, and
thereafter: •
Well, about 8:30 ,then Mr. Conrad came back . I was at my bench working
and he . told me what Mr. Rude had said to him; that I was ' free to go to the
meeting; that the company could not hold me, but I was leaving at my own
risk.
Q. Is that all that was said ''-A. At that time I asked him what he meant
by at my own risk and he said he couldn 't be sure, but he assumed it meant
I would be leaving with job in hand.
TRIAL EXAMINER: You would be doing what?
The WITNESS : I would be leaving with job in hand.
Black left the plant at 9:30 a. in . and remained at the hearing throughout the day.
He testified as a witness for the Union . About 11, a. in. while in the hearing room,
Black was served with a subpena to attend the hearing . The subpena was issued
by the hearing officer during a recess after Black had arrived and the hearing had
been in session for some time.
The day of the hearing was also payday at the Respondent 's plant. When the
hearing closed for the day, Black spoke to Superintendent Rude about the possibility
of his obtaining his paycheck before he went home ; however, Rude and he decided
that the feasible course was to wait until Monday, the next working day.
On Monday , October 22 , Black, on arriving for work, went to Rude's office, asked
for his paycheck, and was told by Rude that he was being discharged. Black
testified: °
Q. (By Mr. Patterson .) Did he give a reason?-A. Yes, he said it wasn't
because of any failure of my work, but because I had left and attended the
hearing. He said that their counsel had recommended that - I be discharged:
Black left the plant . He has not been offered reemployment.
Conclusion
It appears to the Trial Examiner that had the Respondent as a matter of discipline
intended to discharge Black because he insisted on leaving the plant, in the face
of the Respondent's threat of discharge, in order to attend the Board hearing in
which Black's union and the Respondent were involved, it would have done so at
the time Black announced his intention by word or act. Having made a threat of
discharge which was carried out after Black testified, it seems quite clear that the
discharge was deliberately made in the face of the protection afforded Board's
witnesses. By the time the threat of discharge was carried out, Black had become
a witness in a Board proceeding S and the original alleged cause of insubordination,
if it ever really existed, had become so intertwined with the activity protected by
Section 8 ( a) (4) of the Act as to be inseparable.
On all the circumstances herein the Trial Examiner finds that the complaint insofar
as it alleges that Black was discharged in violation of Section 8 (a) (4) of the Act
is amply sustained.
The Trial Examiner therefore finds that the Respondent discharged Clifford
Black, Jr., on October 22, 1956, in violation of Section 8 (a) (4) of the Act.
By discharging Black in violation of Section 8 (a) (4) the Respondent also violated
Section 8 (a) (3) of the Act .4
C. The layoff or discharge of Perry Guilford
The complaint alleges that the Respondent engaged in unfair labor practices within
the meaning of Section 8• (a) (3) of the Act by reason that it:
Did discriminatorily -lay off or discharge employees David Grise and Perry
Guilford for the reasons that they had joined and assisted the U. A. W.
Respondent has ever since failed and refused to reinstate David Grise and Perry
Guilford to their former or substantially equivalent positions.
Perry Guilford testified that he started work with the Respondent in May 1954,
was laid off, or discharged November 16, 1956, and during virtually his entire employ-
4 Sandy Hill Iron & Brass Works, 69 NLRB 355, enfd. 165 F. 2d 660 (C. A. 2) ; Under-
wood Machinery Company, 79 NLRB 1287, enfd 179 F 2d 118 (C. A. 1).
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment with the Respondent he worked at hanging drapes, curtains , and blinds, he
being the only employee engaged in this work except his helper who was hired as
such in April 1956 and whom he trained.
Guilford was active on behalf of the Union from its first effort to organize the
Respondent 's employees.
Guilford 's testimony details a list of alleged antiunion acts directed against him
by the Respondent , beginning in August 1956 and culminating with his layoff or
discharge in November . He testified that in "the beginning of August" Foreman
Robert Willard inquired of him if he had not attended a union meeting and upon
receiving a negative reply returned an hour later and told Guilford he "knew for
sure" that Guilford had attended the meeting. According to Guilford , "right after
dinner" of the same day Willard called him into a trailer in which he had been
working and pointed out a blind apparently ripped from the wall , asked if this was
the kind of work Guilford did and said that thereafter Guilford "would have it
harder."
Foreman Willard testified that this incident occurred during preparation of a, trailer
for a show or fair in August 1956 ; Morton Levitt, the Respondent 's president, dis-
covered that the drapes had been hung wrong, then changed them leaving the former
screw holes showing . Guilford was reprimanded.
President Levitt corroborated Willard.
Guilford further testified that "a week or so after this occurred , beginning of
August" he was called to the superintendent 's office where Ted R . Neher accused
him of "talking union business on company time" and of "agitating some of the
employees ." Guilford denied the accusation . He further testified that he confined
his efforts for the Union to periods before and after work off the Respondent's
property and to his "free time" in the plant during "breaks and noon hour." He
testified that "two or three days" after the above-recited occurrences Neher again
called him and in the presence of Foreman Willard again accused him of "talking
union business on company time."
Foreman Willard testified that Neher and he told Guilford "that he cannot be
bothering anybody about union stuff during working hours" and that on another
occasion he heard Neher tell Guilford the same thing.
There is nothing in the record to show that the Respondent had or enforced a
rule prohibiting general conversation or, solicitation for any purpose . Quite the
contrary.
Guilford further testified that during the week of the fair above referred to, which
according to him took place during the week of August 23 , 1956 , Vice President
Neher asked him not to wear his union button because certain customers of the
Respondent might ask for explanations and that he agreed to not to wear it because
of his liking for Neher . During the same fair week President Levitt asked him
"what he expected to gain" from a union but Guilford declined to discuss the subject.
Guilford testified that he was caught smoking in,the plant which was posted with
State fire marshal 's signs prohibiting smoking, and that he was told by Rich Billet,
at that time superintendent , "I can 't fire you . that is Mr. Levitt 's orders, you are
not to be fired ." According to Guilford "that was shortly before I got laid off."
Billet left the Respondent October 19 , 1956 , and now lives in South Dakota. Guil-
ford was laid off or discharged November 16, approximately a month after Billet
left. The record does not show how long before Billet left the smoking incident
occurred ; however , time is relative.
The above-related incidents, all occurring well before Guilford was laid off or
discharged , seem to the Trial Examiner to be rather flimsy trivia to dignify as unfair
labor practices . The most that can possibly be built of the above conduct is that:
Guilford was active on behalf of the Union , and the Respondent asked him if he was;
Guilford made an aggravating mistake for which he was reprimanded ; Guilford was
not discharged for smoking because, the Respondent 's president gave orders to the
contrary ; the Respondent sought to enforce a nonexisting "no talking, no solicitating"
rule as to him ; and all this occurred from 1 to . 4 months , prior to Guilford's layoff
or discharge.
In the opinion of the Trial Examiner this shadowy material does not possess
enough substance to affect the scale weighing the factors which really bear on Guil-
ford's layoff or discharge as alleged in the complaint.
With respect to his final layoff or discharge Guilford testified that "the Friday
before Thanksgiving" (November 16, 1954), Willard was distributing the paychecks
and asked Guilford to wait.
Then he come over and said , "I would like to talk to you." I said, "All
right." So we walked down the aisle a little ways there from where the other
fellows was, and he handed me my check and said, "I guess you knew this was
PACEMAKER CORPORATION 1001
coming sooner or later." I said, "Well, I don't know." I said, "There seems
to be a lot of fellows here that is a lot younger than I am that aren 't getting laid
off. What is the idea?" He said, "Well, I don't know. All I know you are
getting laid off. That is the way it is." I said, "Well, O.'K:" So he handed
me my check, which had -a slip 'on it saying I was temporarily laid off due to
cut-back in production, .. .
According to Guilford, after receiving his check he had the following conversation
with Floyd Trosper, a line foreman:_
.. Tasked him why I was getting laid "off and this guy Art Willard, who was
a much' younger man than I was, was staying on my job, and he said that, he
said, "Well, ,I guess you know the reason you are getting laid off, don't you?"
I said, "Well, I don't know. I think I'do, but," I said, "I just wanted to see if
you would say it," and he said, "Well, there is nothing in the book that says we
have to lay you off by seniority," and then I asked him, I said, "Well, how long
do you think the layoff might be for?" And he said, "Well, it could be in-
definite. There is nothing that says we have to call you back."
Trosper testified:
Well, he [Guilford] come from final finish, after Bob Willard, the foreman
over there had talked to him. He asked me how come he got laid off. I told
him I didn't believe that he had to ask me that question, because I figured he
would know, meaning from the past record he has had.
Theodore L. Plank , the Respondent 's personnel director, testified, using the Re-
spondent 's records , and without contradiction , that in 1956 the Respondent at one
point in 1956 had a total of 245 employees; at the time of the hearing the' Respondent
had 95 employees; on November 9, 1956, the Respondent laid off 25 employees; and
on November 16, the day Guilford was laid off, an additional 29 employees were laid
off. Some of these have since been recalled.
Conclusion
The Trial Examiner is not persuaded on the entire record considered as a whole
that the evidence sustains the allegation to the effect that the Respondent dis-
criminatorily discharged or laid off Perry Guilford because he joined and assisted
the UAW and will recommend that the complaint be dismissed insofar as it so alleges.
D. The layoff or discharge of David A. Grise
David A. Grise was first employed by the Respondent in October' 1955 and
allegedly was laid off or discharged November 16, 1956.
Grise testified that during his employment by the Respondent "I did just about
everything" and that 'his longest period of any one service was 6 months in the
sheet metal department.
Grise was one of the first of the Respondent's employees actively to participate in
the Union's organizing effort. He was openly very active on behalf of the Union.
This was known to the Respondent.
Grise testified that "right after July, right after vacation" he wore a large union
button while at work, and that on the first day he did so he was called to the office of
Line Foreman Floyd Trosper and there interrogated by Rich Billet, the plant super-
intendent . Grise testified:
Well, he wanted to know what I thought I would gain by trying to get a union
into Pacemaker; that he had worked there for quite awhile and he had worked
under union shops and he couldn't, see where he had gotten anything in the
union shops that hadn't already been gotten at Pacemaker. And-
Q. (By Mr. Patterson.) Was anything-sorry.-A. And that there wasn't
any more actually that Pacemaker could give right at the present time, .. .
Shortly after this, according to Grise, he was again called to Billet's office and
told he was to be transferred from the cabinet department where he was working.
Grise testified:
He said he was going to remove me from my job and I asked him why
and he said, well, they had more cabinet men than they needed; they would
put me elsewhere , so I asked him where and he said , "Well, we are going to
transfer you down to Plant 2 and so I asked him if I should pick up my time
card and he said, no, he said, we will send it down, but I better take my lunch
pail and tools, .. .
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grise went to Plant No . 2 as directed . Upon his arrival Donald Rude (then super-
intendent of Plant No . 2), whom Grise did not know at the time , gave him a broom
and ordered him to clean the loading dock . After he had spent some 10 minutes at
this work Rude returned and took him to an empty lot opposite Plant No. 1. He
testified that on the way to the lot Rude asked "what he was trying to do with this
whole thing" (the Union ) and then:
Don Rude said to me , "You think you are a smart little bastard , don't you?"
I said , "No, I don't think I am smart at all. I just know my rights and I am
trying to stick up for them ." He said , "You are a smart little bastard."
Rude escorted Grise to an empty lot opposite the Respondent 's Plant No. 1 and
told him , "I want you to pick up all the papers, sticks , match sticks, everything there
is in here , and clean it up in good shape." Grise testified:
Well, the second day there Don Rude came down and he said that he was
sorry for calling me that name and that he was just trying to get me mad so I
would take a swing at him. I said, "Well, I know better than that," but he said,
well, he was sorry; that Mort gave him a free hand to do what he thought was
best and that he had changed his mind; for me to report to Plant 2 the next day.
Donald Rude , presently the Respondent 's plant superintendent , testified to a
different version of the conversation Grise and he had at the time the latter was
put on the job of cleaning the yard . Rude testified:
Q. The day that you took him over to do the policing, Mr. Grise says that
you said , in substance , "You think you are a smart little bastard ." What had
happened during that trip , conversation , as you were walking away from
Plant 2?-A. He had complained about cleaning up the area and told me
that he didn 't like the place ; he was thoroughly disgusted with it and I was a
dirty bastard for taking him over there and putting him on a job that day.
Q. What did you say?-A . I said , "You are a wise little bastard ," or "smart
little bastard ," or something to that effect.
Rude further testified:
Q. . . . Now , he testified-I presume someone would raise this , but I will
get it over with-he testified that the day after, if I recall the testimony, and
somebody tell me if I am wrong-the day after or shortly after he was put back
in this Plant 1, that you apologized to him for the language you had used,
in the use of the word "bastard," is that right?
The WITNESS: I think he testified that I apologized to him the second day
he was in the lot working.
TRIAL EXAMINER : That is right.
The WITNESS: I don't have any recollection.
TRIAL EXAMINER - He also testified that somewhere along in there you said
to him that , words to the effect that you were trying to get him to swing on
you, when you talked to him ; get him to swing on you ; start a fight. Did
you make any such remark?
The WITNESS: No, I was trying to avoid something like that.
TRIAL EXAMINER: Did you say anything like that to him at all?
The WITNESS: No.
On the entire record and from his observation of the two witnesses while testifying
the Trial Examiner is persuaded that Grise's testimony as to the above -related
conversation between Rude and himself represents the accurate version thereof and
therefore credits his testimony with respect thereto.
Rude testified that Grise "was absent many times" and that although Grise
worked in Plant No . 1 under Billet while he (Rude ) was in Plant No. 2, he knew-
about Grise's absenteeism because he "worked together " with Billet who had to
get replacements for Grise , when absent "a lot of times"; however , Rude as to
actual time was very vague and evasive, testifying:
TRIAL EXAMINER: Do you know how many times Mr. Billet had to furnish
men to do Grise's work because he wasn't there?
The WITNESS: Every time he was off.
TRIAL EXAMINER: I know that, but do you know how many times?
The WITNESS: I wouldn't say as to the number, no.
TRIAL EXAMINER: Do you know when that occurred, month by month?
The WITNESS- Every month that I know of.
TRIAL EXAMINER : Can you name any month it occurred and how much in
each month?
PACEMAKER CORPORATION 1003
The WITNESS: This was something that ran. along nearly every. month. - It
was just a continuous thing.
As to the occasions on which he discussed Grise's absenteeism Rude's testimony
was far from probative. Rude testified:
TRIAL EXAMINER: Do you remember when in any month you had a con-
versation, the' first conversation with Mr. Billet regarding Mr. Grise?
The WITNESS: No.
TRIAL EXAMINER: And his absenteeism?
The WITNESS: I wouldn't know any of the dates or the months, because I
didn't figure that it meant too much. [Emphasis supplied.]
Immediately (on the very next question) Rude sought to change his testimony
as follows:
Q. (By Mr. Davidow.) In any event, at the time that you saw him in
August of. 1956 you were familiar with his record in general, with his record
of absenteeism?-A. Yes.
TRIAL EXAMINER: Is it your testimony now that one of the reasons you took
him to that parking lot to do that work was because of absenteeism on his part?
The WITNESS: No.
TRIAL EXAMINER: -It was not?
The WITNESS: No.,
TRIAL EXAMINER: All right, that is all.
Q. (By Mr. Davidow.) What is the explanation?-A. He was sent, we
transferred him to Plant 2 because of his absenteeism and put another man
on his job, Harold Glasper.
If Rude's testimony is accepted, the conclusion is that Grise was transferred
because of absenteeism but the cleanup job was not assigned him because of his
absenteeism.
The record discloses that at' the time of Grise's transfer the Respondent was
preparing for the trailer fair or exhibition mentioned above. Rude testified that
be assigned Grise to ' the yard-cleaning job because he had no other work available
at the time.
To sustain its contention of Grise's absenteeism the Respondent introduced an
"`absentee Record" covering various weeks during the period from November 29,
1955, to November 13, 1956. However, the record lists only 15 weeks, showing a
total of 434 hours worked and 166 hours absent.
The Respondent also introduced a letter sent to Grise warning him that absenteeism
would result in his discharge. The letter is dated October 8, 1956, about 2 months
after the transfer above referred to.
Former Vice President Neher was examined by the Respondent with respect to
Grise's absenteeism and testified:
Q. (By Mr. Davidow.) Did you know the work record of Mr. Grise on
absenteeism, was that ever made known to you?-A. The absentee record was
brought into my office.
Q. Did you know he was the worst offender, as far as absenteeism was
concerned?-A. As far as I recall, when the record was brought in to me, he
had 16 days off.
Q. Was there any employee that came near to that record?-A. I didn't
run the employee rolls, so I don't know what the work records were.
Q. Did you know whether or not he was warned if he did it once more he
would be fired?-A. It might have been. I don't know, sir.
Neher testified also: , . I
Q. Did you consider Dave Grise a good employee?-A. Yes, sir.
Q. Qualified employee?-A. Yes, sir.
On the entire record and from his observation of the witness the Trial Examiner
finds that David A. Grise was not transferred by the Respondent from Plant No. I
to Plant No. 2 because of his absenteeism and further finds that the transfer was
made for reasons not disclosed to him by the Respondent.
After he had worked 2 days on the lot Grise was ordered by Rude to report to
Plant No. 2 where he was put to work on a trailer. Grise testified credibly that:
During the 9 a. m. rest period 4 employees came to him and ordered him to leave
the plant which he refused to do, and some 50 employees then gathered about and
took up his cause with his assailants, telling them they and not Grise should leave;
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after some time Rude arrived on the scene and took Grise to the office of Vice
President Neher who sent Rude for Billet; and while. waiting for Billet the vice-
president told the employee that he "was sorry this all came up" and further,
according to Grise's undenied testimony:
Well, at one time he made the statement that if I just hadn't got mixed up in
this thing,- the sky would have been the limit to where I could have gone; that
I was a smart man-smart-I don't remember whether he said man or not,
but that I was hurting myself more than doing myself any good, and he said
I have gotten mixed up in this union business before. He said, "That is what
caused my ulcer," and that he had to have that, or would have to have it
operated on, .. .
Billet arrived *together with Rude and Foreman Trosper and after a "very lengthy"
discussion during which it was decided to retransfer Grise to Plant No. 1, Grise was
asked which of two jobs he preferred-"setting cabinets or saw-out"-and that:
... Well, I told him that I was definitely afraid of a saw; that I didn't; I
wasn't crazy about running one. I would if I had to, but there *ere two things
I said I never would run. One was a saw and the other was a punch press,
so he told me they wouldn't put me on a saw, so they took me out and put me
to cabinet setting, and I worked there the rest of the day. The following
morning I worked there and then Hank Eggleston was off on sick leave, I believe,
or at least he went to the doctor. He was off or something, and so they took
me off the cabinet setting and put me on the saw, and I worked on the saw the
rest of that day.
Grise further testified without contradiction that during that day he was given work
on three different saws and that thereafter until his layoff or discharge he was "more
or less shipped all over" and that:
Well, that is when I started being what I would call and what most everybody
would call as a swing man. I filled in whenever somebody was absent. I
filled in their job. I was doing a little bit of everything.
According to Grise he asked for swing man's pay as he was doing swing man's work.
He was not given it but was then put exclusively "on the shelling crew and remained
there until I was laid off."
Marvin Drumm, a group leader in the Respondent's plant, testified without
contradiction that in conversation with President Levitt regarding the Union's
attempt to organize the employees the following also was discussed:
Oh yes, that was at the time I believe Dave was put out sweeping Prairie Street
and cleaning up the lots around. I asked him if he thought it was fair that
he should take a man off cabinet making and put him out cleaning up the
streets and pulling weeds on the river bank and such. He told me that was
the case of extenuating circumstances; they would have to fight fire with fire.
William H. Eggleston testified that at one time Grise was injured in the plant.
Eggleston had the following conversation with President Levitt at the time:
He said, you see the boy got hurt back there. I held nothing against him,
against the union. Our mediators sent him to the doctor. I said, "What
happened?" and he told me.
TRIAL EXAMINER: Who was the boy that got hurt?
The WITNESS: Mr. Grise.
Q. (By Mr. Patterson.) Was anything further said?-A. Well, he said, he
made a remark, he said that boy was qualified for a lot better position, if he
keeps his nose out of the union. Them were his exact words.
Levitt testified that he told Eggleston who had asked him about Grise's injury:
That this fellow Grise has got a good head on him and he would get some
place in this trailer business if he wasn't all mixed up.
Levitt specifically denied that he said "anything about being mixed up with the
Union" because he had counsel's advice regarding his "behavior toward -the Union
and those who were union people there."
It may well be that Levitt did not-say that Grise was "mixed up with the Union,"
stopping short with the word "up" but it may also be true that Eggleston added his
own interpretation to the sentence, language being subject to various interpreta-
tions.
PACEMAKER CORPORATION 1005
Floyd Trosper, a line foreman, in the Respondent's plant, testified:
Q. (By Mr. Davidow.) Can you say whether or not either Grise or
Guilford did anything to get you angry at either one of them, so that-A. On
numerous occasions, yes.
Q. Tell us some of.them, if you will.
TRIAL EXAMINER: Who are we talking about?
Q. (By Mr. Davidow.) Tell us first about Grise and then about Guilford,
or tell us about'whom you are talking about.-A. Mr. Grise, numerous occa-
sions I had to reprimand him about spending so much time in the toilets,
smoking, which is a company policy, providing they got their work caught up,
and huddles' here and there, talking to numerous employees' holding up
production:
Trosper further testified:
Q. (By Mr. Davidow.) Can you tell us of any other occasions that you
talked to Grise?-A. On numerous occasions he would want to know about
different jobs in the shop or not. I told him that the qualifications of the job
was more or less that he was qualified to do those jobs or not; that if a time
come that we could get him on one of those, we would try him.
Q. He kept on asking you about jobs in different parts of the plant?-A. That
is right.
On cross-examination Trosper would not give the date of any reprimand he
delivered to Grise, or whether such reprimand occurred prior to November 1955,
January 1956, or April 17, 1956. He testified he never "wrote up" a reprimand
regarding Grise.
Trosper impressed the Trial Examiner as "a more than willing witness" whose
testimony he cannot credit.
Conclusion
On the record as a whole and from his observation of the witnesses the Trial
Examiner finds that the Respondent transferred David A. Grise from Plant No. 1
to Plant No. 2, and thereafter put him to work at cleaning a lot for the purpose
of humiliating Grise, to express its disapproval of Grise's union activity and
thereby also of the Union, and to demonstrate to the other employees that it could
and would take retaliatory action against employees who engaged in activity on
behalf of the Union. The Trial Examiner also finds that by the said conduct the
Respondent has interfered with, restrained, and- coerced its employees in the exer-
cise of rights guaranteed them in Section 7 of the Act.
Except that, as found herein, Grise was moved from job to job, acting in reality
as a "swing man" throughout the plant which classification , carrying higher pay,
was refused him, and whatever may be the meaning of Foreman Trosper's testimony
that Grise "got him angry" when "on numerous occasions" he sought to get a
better job, promised him "if a time came that we could get him one" but never
given him, and the further fact that on October 19 Grise (together with Guilford)
was refused permission to leave the plant in order to attend the Board hearing in
Case No. 13-RC-5220 until a subpena was actually served, there is no evidence of
any unusual conduct, or conduct which can be in any way interpreted as unusual,
directed against Grise by the Respondent from "late July or early August" until
November 16, on which day Grise was "laid off or discharged."
The General Counsel contends that Grise was separated from, employment
because of his union membership and activity. The record is clear that on the day
Grise was "laid off," not "discharged," according to the Respondent, 29 employees
were laid -off, and that the preceding week 25 others had been laid off. The
Respondent's employment roll dropped from a high of 245 in 1956 to a present
complement of 95. According to the Respondent the cut in employment, including
Grise's layoff, was caused only by "lack of work."
The record does not conclusively show discriminatory selection for layoff.
Although the treatment afforded Grise at the time he was transferred in August,
coupled with the further fact that apparently no disciplinary action was taken by
the Respondent against the four employees who sought to expel Grise from the plant,
and the manner in which he was granted permission to attend the Board's hearing,
,clearly shows the Respondent's antipathy toward the Union and raises serious doubts
not easily dispelled, the Trial Examiner on the entire record, and the evidence con-
sidered as a whole, finds that the General Counsel has not sustained , his burden of
proof in order to show that:
Respondent did discriminate, and is discriminating in regard to hire, tenure and
terms and conditions of employees [Grise] and did thereby discourage and is
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereby discouraging concerted activity for' mutual aid or protection, and did
thereby engage in and is thereby engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
The Trial Examiner will recommend that the complaint be dismissed insofar as
it alleges that the Respondent discriminatorily "laid off or discharged" David A.
Grise on November 16, 1956.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce 'among the several States, and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial'
Examiner will recommend that it cease and desist therefrom and take certain,
affirmative action which will effectuate the policies of the Act.
It has been found that the Respondent has discriminated in regard to the hire-
and tenure of employment of Clifford Black, Jr., in violation of Section 8 (a) (4)
and Section 8 (a) (3) of the Act because of his membership in and activities on.
behalf of the Union., It will therefore be recommended that the Respondent offer
him immediate and full reinstatement to his former or substantially equivalent
position, without prejudice to his seniority or other rights and privileges, and that
he be made whole for any loss of pay he may have suffered by reason of the dis-
crimination against him, by payment to him of a sum,of money equal to that which,
he would normally have earned as wages from the date of the discrimination to the
date of the Respondent's offer of reinstatement, less his net earnings during such
period.5 The back pay shall be computed in the manner established by the Board,6
and the Respondent shall make available to the Board its payroll and other records.
to facilitate the check of amounts due.
Having found that Respondent, Pacemaker Corporation, has assisted, supported,
and dominated the Committee named in the complaint, it shall be recommended that
said Respondent cease and desist from such conduct, and as a corollary to the finding
of domination 7 that it withdraw recognition from and completely disestablish the
Committee, as the representative of any of its employees for the purpose of dealing
with it concerning grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or conditions of work; and that the Respondent refrain from recognizing
said Committee, or any successors thereto, for any of the purposes defined in Section
2 (5) of the Act. "This will not prevent the employees, after the unfair labor
practices have been remedied and the conditions for a• free choice established, from
adopting representation from their own ranks or any other kind of representation, if
such is their genuine desire, unfettered by employer domination, interference,
assistance , or support." 8
Upon the foregoing findings of fact and upon the entire record in the case, the
Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Pacemaker Corporation, Elkhart, Indiana, is engaged in commerce within the
meaning of the Act and meets the jurisdictional standards set up by the Board.
2. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America (UAW), AFL-CIO, is a labor organization within the meaning
of Section 2 (5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Clifford
Black, Jr., the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Sections 8 (a) (4) and 8 (a) (3) of the Act.
4 By engaging in the conduct as set out in paragraph III, A, above, with respect
to recognition and support of the Committee the Respondent has rendered unlawful
assistance to said Committee, in violation of Section 8 (a) (2) of the Act.
5. By the discrimination inherent. in the discharge of Clifford' Black, Jr., and the
support afforded the Committee by the Respondent as herein found, and by the
15 Crossett Lumber Company , 8 NLRB 440.
6 F. W Woolworth Company. 90 NLRB 289
7 The Carpenter Steel Company, 76 NLRB 670-673
8 Ben Corson Manufacturing Co , at al., 112 NLRB 323, 346.
PACEMAKER CORPORATION 1007
Respondent's orders to Perry Guilford to refrain from discussion of the Union on
the Respondent's property in the absence of a rule prohibiting such conduct, and by
the transfer of David A. Grise and assigning him to work of cleaning a lot, the
Respondent has interfered with, restrained, and coerced employees in the exercise
of the rights guaranteed in Section 7 of the Act and has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
The Respondent has not violated the Act by the layoff of Perry Guilford and
David A. Grise.
[Recommendations omitted from publication.]
EXHIBIT NO. 1
AUGUST 28, 1956.
DEAR FRIENDS: In response to suggestions we have received, we have worked
out a new arrangement whereby both the employees and we of management will
be able to meet regularly, once a week, for the purpose of considering problems
and suggestions in order to improve our production and sales.
We fully realize that when two or more people are gathered together there is
opportunity for differences of opinion and sometimes misunderstanding. The ability
to meet together in the atmosphere of friendliness and earnest desire to find answers
to questions that may arise, can spell out a greater production effort with a better
and greater sales volume, all of which will pay off in more ways than one to all of us.
To that end we have worked out a program which will permit each week a meeting
of seven employees with management to discuss whatever questions or problems,
may have developed and to find solutions to the same. After the "first two weeks,
three or four of the committee will step out with three or four others replacing
them. The result of this will be that during a full year, everyone of our employees.
will have participated in the committee's activities, will know first-hand of the way
in which the matters are brought before the committee and settled, and, particularly,.
will afford everyone in the plant a chance to know members of management.
Unlike a union where politics is played, where cliques contend with each other
to see who will be top dog, where extravagant promises are made to gain member-
ship support with these promises rarely fulfilled; these committee meetings will take
place with men honestly and sincerely devoted to the solving of real problems with
the expectation that the experience will make for a better, finer and more friendly
relationship, and that material benefits will result in a finer competitive trailer readily
saleable. Surely, should this expectation be realized, the benefits will be shared
by all of us together.
What is very important in this set up is that we who are concerned with this
business will meet together intimately, free from the domination of dictations or out-
siders; outsiders whose interest is not in maintaining friendliness but to bring about.
hard feelings and bitterness between management and you. We believe, yes, we
know, that this effort of friendly cooperation will be so successful as to make you and
us glad to have such a system in operation.
Sincerely,
PACEMAKER TRAILER COMPANY,
(Signed) Morton Levitt,
By: MORTON LEVITT, President.
EXHIBIT NO. 2
SEPTEMBER 3, .1956.
DEAR FRIEND: In our last letter to you, we told you that a committee was being
organized that would meet with the management once a week for the purpose of
furnishing the means whereby you in the production end of the business would
work with us in the mutual exchange of criticisms, complaints and suggestions, to
the end that we would work out all problems to our mutual satisfaction and to the
common benefit of us all.
The first meeting of this committee was held with management on Tuesday,
August 28. Good will and mutual understanding were shown by all present. The
members of the committee brought to the attention of management the desire to
have holidays with pay. The committee was advised then that the matter would
be given immediate consideration and a decision would be made known to them
before Labor Day.
As you already know, as a result of this meeting and the discussion that followed,,
management has announced that the next three holidays beginning with Labor Day,
would be holidays with pay and that a further extension of this holiday-with-pay
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrangement would be , determined in the future by the business conditions of the
company. -
May we especially emphasize the friendly attitude that members of the committee
and the representatives of management showed one another in an earnest desire
to discuss and solve problems . As you have already been told, the membership
of this committee will change each week , so that before a whole, year is over,
everyone working for the company will have served on the committee and will have
had the experience and the satisfaction of having been brought into close contact
with management , learning to understand its problems , and being able intelligently
to help make decisions that will benefit everyone.
The fine beginning thus far made gives promise of bringing about a full and
complete understanding among us all . And the wonderful part of this lies in the
fact that no outsiders , bosses or dictators can interfere with you and us in insuring
the future success of Pacemaker and its employees.
Sincerely,
PACEMAKER TRAILER COMPANY,
(Signed ) T. R. Neher,
TED NEHER , Vice President.
Peerless Products, Inc. and Mary Britt and Mary Benson. Cases
Nos. 13-CA-2485 and 13-CA-2488., May 15, 1958
DECISION AND ORDER
On November 6, '1957, Trial- Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Inter-
mediate Report, Respondent's exceptions and brief, and the entire
record in-the case,' and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner to the extent consistent
herewith 3
' As no findings of violation are based on Dortch 's activity , we consider it unnecessary
to decide whether the rulings of the Trial Examiner denying Respondent 's motions to
amend its answer to deny Dortch's supervisory status were proper.
% Respondent 's request for oral argument is hereby denied as the record and brief ade-
quately set forth the facts and positions of the parties.
8 In our opinion , Britt did not quit, ' but was 'discharged in retaliation for her union
activity, including attendance at the Board's representation hearing. We do not believe
that Britt's conduct following the demand for repayment of '$15, or thereafter , was the
motivating factor in the discharge or in Respondent 's refusal to rehire her.
Neither the charges nor the consolidated complaint in this ' matter alleges violation
of Section 8 (a) (4) of the Act. However , at the conclusion of the second day of the
hearing, and after Respondent had already , in effect, admitted violation of ' Sec-
tion 8 (a) (4), the General Counsel moved to amend the complaint to allege such a vio-
lation. The Trial Examiner granted the motion . As 'a finding of violation of See-
120 NLRB No . .136.'' . • ' ' ,