Pines of America, Inc.

National Labor Relations Board - Board Decisions

Sep 9, 1969

178 N.L.R.B. 376 (N.L.R.B. 1969)

376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pines of America , Inc. and International Union of
Electrical , Radio and Machine Workers,
AFL-CIO, CLC and Employee Committee, Party
of Interest . Cases 25-CA-3292 and 25-RC-3880
September 9, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On June 6, 1969. Trial Examiner Owsley Vose
issued his Decision 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 attached Trial Examiner's Decision. The Trial
Examiner also found that the Respondent had not
engaged in certain other unfair labor practices
alleged in the complaint and recommended that
those allegations be dismissed. Thereafter, the
Respondent filed exceptions to the Trial Examiner's
Decision, a "request for review and dismissal of
proceedings and/or request for rehearing." and a
supporting brief, and the General Counsel submitted
a brief in support of the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that they
are free from prejudicial error.' The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case and hereby adopts the
findings, conclusions, and recommendations' of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act. as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner and
orders that the Respondent, Pines of America, Inc.,
Fort Wayne, Indiana. its officers, agents, successors
and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the election conducted
on November 21 and 22, 1968. in Case 25-RC-3880
be. and it hereby is, set aside, and that Case
25-RC-3880 be, and it hereby is, remanded to the
Regional Director for Region 25 for the purpose of
conducting a new election at such time as he deems
that circumstances permit the free choice of a
bargaining representative.
[Direction of Second Election' omitted from
publication.]
'In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wvman-Gordon Company.
394 U S 759 Accordingly, it is hereby directed that an election eligibility
list, containing the names and addresses of all the eligible voters, must be
filed by the Employer with the Regional Director for Region 25 within 7
days after the date of issuance of the Notice of Second Election by the
Regional Director The Regional Director shall make the list available to
all parties to the election No extension of time to file this list shall be
granted by the Regional Director except in extraordinary circumstances
Failure to comply with this requirement shall be grounds for setting aside
the election whenever proper objections arc riled
TRIAL EXAMINER'S DECISION
ST&il'MEN1 OF THL C&Sr
OW'SLLY VOSE, Trial Examiner: This case, heard at Fort
Wayne, Indiana, on March 25 and 26, 1969, pursuant to a
charge filed on December 3, 1968, and a complaint issued
on January 31, 1969. presents questions whether the
Respondent: (1) discharged Victoria Walker and Sidneue
Chin in violation of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended: (2) discharged
Laraine Combs in violation of Section 8(a)(3), (4). and (1)
of the Act. (3) dominated and interfered with the
formation and administration of the Employee Committee
in violation of Section 8(a)(2) and (1) of the Act; and (4)
further violated Section 8(a)(1) of the Act by
promulgating and enforcing restrictive employee rules.
including unduly broad no-solicitation and no-distribution
provisions, and by engaging in various other alleged acts
of interference, restraint, and coercion.
Upon the entire record' and my observation of the
witnesses and alter due consideration of the briefs liled by
the General Counsel and the Respondent, I make the
following.
'Respondent contends in part that the Trial Examiner unduly limited the
scope of cross-examination , and displayed bias, thus denying the
Respondent ' s constitutional right to a fair hearing Consequently,
Respondent requests a rehearing in the event the complaint is not
dismissed and the objections to the election are not overruled After a
careful review of the record , we conclude that the Trial Examiner acted
within his discretion in limiting the scope of cross-examination , and note
that the Respondent fails to suggest how its case was prejudiced thereby
Accordingly, we find no basis for granting a rehearing and reject the
charge of bias
'We agree with the Trial Examiner that Respondent ' s conduct interfered
with the election held in Case 25-RC-3880, but in doing so we rely solely
upon the preelection unfair labor practices occurring after the filing of the
petition on September 9, 1968 We adopt his recommendation that the
election be set aside and shall direct that a second election be held.
FINDINGS AND CONC LUSIONS
1. THL BUSINFSS OF fHL• RFSPONDLTT
The Respondent, an Indiana corporation, is engaged at
Fort Wayne. Indiana. in the manufacture, sale, and
distribution of children's pedal cars and related products.
During the year preceding the issuance of the complaint
the Respondent purchased and imported across State and
national boundaries more than S50,000 worth of parts and
The General Counsel's unoppos,d motion to correct the record is
hereby granted , except with respect to corrections suggested for pages 115
and 298
178 NLRB No. 58
PINES OF AMERICA , INC. 377
materials, and during the same period shipped across
State lines more than $50,000 worth of finished products.
Upon these facts I find that the Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act, and that it will effectuate the policies of the Act
to assert jurisdiction herein
American operations. As the Fort Wayne plant was
nearing completion Meyers spent much of his time at the
plant, supervising the hiring of employees and the
preparing of the plant to start production. Bruno Biernat
was sent down from Toronto to act as plant manager. At
the time of the events involved in this case Rex Slagle was
general foreman, and under him were Orren Cox, as
assembly line supervisor, and Larry Cearbaugh, foreman.
II. THE LABOR ORGANIZATIONS INVOLVED
The International Union of Electrical. Radio and
Machine Workers, AFL-CIO, CLC (hereinafter called the
IUE), is a labor organization within the meaning of
Section 2(5) of the Act. The status of the Employee
Committee as a labor organization is discussed below.
B. Sequence of Events
1. The IUE organizational drive commences on
August 21
III. THE UNFAIR LABOR PRACTICES
A. Introductory Statement
The Respondent's headquarters are a: Toronto,
Ontario, Canada. The construction of the Respondent's
Fort Wayne, Indiana, plant, the only plant here involved,
was completed near the end of July 1968. The first
employees were hired about the middle of July 1968 and
production was begun about the end of July. At the time
of the events involved in this case, the latter half of 1968.
the Respondent was unable to hire sufficient qualified
full-time employees to meet the needs and consequently
utilized the services of part-time employees and temporary
employees furnished by firms in the business of supplying
temporary help
The Respondent's Fort Wayne operations consist
primarily of assembling pedal cars which are made of
plastic and metal parts. The metal parts are manufactured
by related corporations in other countries and are shipped
to Fort Wayne. The plastic parts are made on injection
molding presses. one of which is very large, in the Fort
Wayne plant. The Respondent uses an assembly line
process in assembling its pedal cars.
Norman Meyers, the secretary-treasurer of the
Respondent, is the general manager of its North
During the week of August 12, 1968, Victoria Walker,
Kathleen Scott, Naomi Kennedy, and Sheila Gibson went
to the office of a local of the IUE in Fort Wayne to seek
information about organizing the employees at the
Respondent's plant. The group was advised to contact Ted
Nolan, an International representative of the IUE. On
August 21, Scott, Kennedy, and Gibson, accompanied by
Laraine Combs, met with Nolan in his office. After
informing the four employees of the procedure usually
followed in organizing plants such as the Respondent's, he
secured the permission of the four girls to notify the
Respondent by letter that organizing efforts were under
way and to name them as the IUE organizational
committee in the plant. This was done by letter dated
August 21, which was addressed to "Mr. Meyers, Plant
Manager, Pines of America." and sent by certified mail,
return receipt requested to the Respondent's plant. This
letter was received by the Respondent and acknowledged
by it by letter on the next day, August 22.'
2. The Respondent posts Shop Rules on August 23
and thereafter summons members of the IUE
organizing committee to the office for questioning
The next day after the Respondent was informed that a
union drive was in progress the Respondent posted a list
of 30 Shop Rules. Among these rules were the following:
NO. RULE FIRST
OFFENSE
SECOND
OFFENSE
THIRD
OFFENSE
FOURTH
OFFENSE
24. UnauLhorl7ed canvassing, soliciting or collecting Reprimand Three work, Discharge
contributions at any time on Company porperty. day layoff
25 Unauthorized distribution or posting of written or Written Three work Discharge
printed matter of any description on Company Reprimand day layoff
property
'After the receipt of this letter General Manager Meyers promptly issued and addressed to "Mr Norman Meyers, General Manager, Pines of
instructions to his secretary that registered mail addressed to him be America , Inc ," were returned to the sender by the post office bearing the
refused in his absence Pursuant to these instructions , seven letters, bearing notation "Refused" or some similar notation These letters span the period
the return name and address of the IUE, which were sent by certified mail from August 26 to November 15, 1968
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Twenty-one of the thirty rules provided for discharge as
punishment for the first offense.
Although Rules 24 and 25 broadly prohibit all
unauthorized solicitation and distribution of written and
printed matter on Company property, the Respondent did
not enforce these rules as written. Rather it gave them a
lawful application , permitting union solicitation on
Company property during nonworking time and allowing
union literature to be distributed in nonwork areas during
nonworking time
A few days after Meyers posted the new Shop Rules,
he summoned Laraine Combs to his office where he
questioned her in the presence of General Foreman Slagle.
Combs, it will be recalled, was one of the four employees
named as members of the IUE's organizing committee in
the IUE's letter to the Respondent dated August 21. After
asking her how she liked her job, Meyers told her that all
new employees were on probation for 90 days. Since the
plant had been in operation less than 90 days, this meant
that all employees were probationary employees. None of
the employees hired up to this point had been told about
any probationary period. Combs asked why the employees
had not been informed about the probationary period
when they were hired. Meyers angrily replied, as Combs
credibly testified, that "he was the one that ran the
company and that he would tell us how things would be
done."' Meyers then asked Combs whether she was
familiar with all of the Respondent's shop rules. When she
told him no, Meyers declared, "Well, you better read
them."
IUE Organizing Committee Members Sheila Gibson
and Naomi Kennedy were also called to the Respondent's
office thereafter where both were questioned about the
IUE. General Manager Meyers asked Gibson why she felt
that she needed a union. Meyers indicated displeasure
when Gibson explained that she wanted someone
competent to represent her. Plant Manager Biernat
inquired how Kennedy liked Pines of America. When she
replied. "Fine," Biernat asked Kennedy. "Why the
union " After she explained that the IUE meant more
security to her, Biernat stated that he had nothing against
the IUE. When Verla Bailey appeared in Meyers' office
on September 4 to explain why she had been late 2 days
in a row, Meyers took advantage of her presence to ask
her how she felt about the IUE Bailey told Meyers that
she was not interested then, and that as long as the
Respondent did right, she was not interested in any union.
3. The Respondent initiates the formation of the
Employee Committee
The formation of an Employee Committee was first
suggested on September 5, 1968. Before discussing the
On September 6, the Respondent posted the following notice on its
bulletin boards
September 6, 1968
ALL EMPLOYEES
Probationary Period
This is to remind all employees that the probationary period for all
employees is 90 days alter date of commencement Employees will not
be considered regular employees until 90 days of continuous service
Part time employees will not acquire regular employee status until such
time that they become full time employees
Yours truly,
N 0 Meyers
NOM/mc
facts relating to the Committee , however , it is pertinent to
consider a talk given by General Manager Meyers to the
employees September 4. Meyers first gave a brief history
of the Company and its activities around the world, and
then focused his attention on the IUE organizing drive
then in progress. After acknowledging that the employees
had the right to join or not to join a union , Meyers
frankly stated that "we do not want to have to deal with a
union representing our employees it it can possibly be
avoided." Then Meyers continued for some minutes with
a number of arguments , all permissible under the Act, as
to why the employees should not have a union represent
them.
The next day after giving this talk to the employees
Meyers summoned Kathleen Scott, another member of
the IUE Organizing Committee, into his office. As in the
case of Meyers' interview with Laraine Combs, General
Foreman Slagle was present during this interview. Meyers
first asked Slagle whether he had any complaints about
Scott's work. When Slagle said he was satisfied, Meyers
asked Scott if she had any complaints. Scott mentioned a
few and this led to a general discussion of conditions in
the plant. In the course of this discussion General
Foreman Slagle mentioned that in his previous
employment they had had an employee committee
consisting of representatives of various departments which
would meet with representatives of the employer. At these
meetings, Slagle explained, the parties discussed each
other's proposals and reached whatever agreement they
could. Meyers said that he thought this was a good idea
and asked Scott about her views concerning an employee
committee Scott said that she accepted the idea.
Immediately thereafter Meyers. Slagle, and Scott agreed
that an election of departmental representatives should be
held that very afternoon. Meyers suggested that Scott go
out and arrange for an election among the girls on the
injection molding presses She did so, and Slagle collected
the ballots from the employees on the presses.
Slagle arranged for the balloting among the assembly
line employees, the shipping employees, and the office
employees, collected the ballots after they were cast, and
thereafter counted them.
The next morning the Respondent posted on its bulletin
boards the following notice
September 6, 1968
TO ALL EMPLOYEES
Employee Management Meetings
Suggestion has been made by you to convene either on
a monthly or bi-monthly basis, meetings by the
designated and elected employees from the various
departments, and shifts for the purpose of meeting with
management in order to review on a regular basis on
matters such as problems pertaining to employees,
methods of increasing or improving efficiency, and to
discuss in general all points relating to harmonious and
mutual well-being of the Company and Employees.
This the management welcomes and expresses its
sincere hope that such meetings will he fruitful and
productive. In view of the tact that this Company is
new to Fort Wayne the cooperation and understanding
of' the Company's program, problems. and aims should
he, and must be, made known to all employees Should
you have suggestions we urge you to advise those
persons elected to bring them up at these meetings.
Complaints will continue to he handled by your
foreman, but may be channeled through your elected
representative to the foreman. Those persons nominated
PINES OF AMERICA. INC.
to representyou areas follows.
Listed below were the names of the various employees
who were elected as representatives or alternates on the
Employee Committee.
The first meeting of the Employee Committee was held
on September 6. Meyer-, presided. Meyers stated at the
outset that the purpose of the Committee was to exchange
ideas relating to efficiency and production and that his
goal was to make the plant "a model plant" with
"complete harmony and cooperation on both sides."
Various suggestions were made by the departmental
representatives for improving the efficiency of operations,
including the assigning of additional employees on certain
operations and the acquisition of additional mechanical
equipment. Other suggestions were made about ways of
improving conditions in the plant for the employees
The second meeting of the Employee Committee was
held on September 18. Meyers again presided. Among
other matters discussed were hourly versus incentive pay,
wage differentials for probationary employees, length of
lunch periods, periodic pay raises for shipping employees,
paid lunch periods for shipping employees, and bidding for
job openings on a seniority basis in the notes of the
second Employee Committee meeting, which were
prepared and typed by the committee member from the
office, the following appears:
Mr Meyers then brought up our production. It is not
what it should be and not what it must be. We have
been reviewing our operation program in the case of
Jaguar Custom and Deluxe Our production
requirements on a single shift minimum is 787 pieces on
a shift. This is based on so many operations for which a
person is required to do on the job. Cost per piece is
therefore based on the work that is done. The assembly
of chassis frame must produce minimum 787 chassis.
Anything above that gets 1 8 cent. The piece work
program will take the cooperation of everybody.
Everyone, will have a daily work sheet Time starting,
time ending How many pieces.
The foregoing is quoted because, as will become apparent
later in connection with the discussion of the discharge of
Victoria Walker, a misunderstanding arose in the minds
of at least some employees as to when the Respondent's
piecework system become effective. It is possible that
Meyers' comment about those assembling chassis frames
getting 1.8 cent per unit for all units assembled above 787
may have led to this misunderstanding
Both meetings of the Employee Committee were held
after working hours and the members of the Committee
were paid for the time spent attending.
4. The IUE files a petition for certification with the
Board on September 9; the ensuing propaganda
contest
On September 9, the IUE filed with the Board's
Regional Director at Indianapolis, Indiana, a petition for
an investigation and certification as bargaining
representative of the Respondent's employees.
The Respondent issued the first in a long series of
communications to the employees on September 9. This
was apparently before the Respondent received notice of
the filing of the IUE's petition. In this first written
communication the Respondent stressed what a handicap
having to deal with a union would be, pointed out the
generous working conditions which its employees in other
plants had without a union, suggested the possibility of a
strike resulting from its inability to meet unreasonable
379
demands, and reminded the employees of certain
companies which had been forced out of business by
unions. The letter concluded with an expression of hope
that "nothing will occur because of union activities or
have any other reason which might compel our
management to discontinue its long awaited program here
in Fort Wayne."
The Respondent sent its second letter to the employees
on September 26. In it the Respondent stated that it was
opposing the holding of any election by the Board because
of its belief that "the current work force does not
constitute an appropriate bargaining unit." It frankly
admitted in the letter that "We do not want a union in
our plant." After marshaling various arguments against
the employees having a union, it concluded with a plea for
more time in which to demonstrate to the employees that
it was not necessary for them to have a union.
The IUE was a little slow in getting started with its
counterbarrage of propaganda, but once it did, it made up
for lost time The IUE's communications were prepared
by International Representative Nolan and his approach
was largely a personalized one tailored to conditions in
the plant. One of the incidents played up by Nolan in his
first letter to the employees, which was sent out early in
October, involved Laraine Combs, a member of the IUE
Organizing Committee. Combs' discharge on October 22
is one of those involved in this case. The letter mentioned
two unnamed employees (one of whom was Combs) who
had been stopped by Foreman Larry Cearbaugh from
smoking cigarettes just outside the plant door near the end
of their paid lunch period Cearbaugh told them,
according to the IUE letter, that the Shop Rules
prohibited going outside the plant. The IUE letter
mentioned that subsequently, when they asked the plant
manager about this, he told them that it was all right to
step outside as long as they did not leave the plant
However, a short while later, according to the letter, the
plant manager went back to the employees and told them
it was a violation of Shop Rule 16 to go outside of the
plant.
Thereafter the Respondent and the IUE kept up a more
or less continuous barrage of letters, each attempting to
win the employees over to its point of view This
propaganda compaign was carried on right up until the
time of the election which was held on November 21 and
22, 1968 Needless to say, the comments of each
adversary about the positions of his opponent were
frequently not of a complimentary nature. However in my
opinion nothing was said in these letters during the
preelection campaign which exceeded the limits of Section
8(c) of the Act
In the election which was held on November 21 and 22,
24 votes were cast for the ILE, 30 votes were cast against
it, and there were 2 challenged ballots Thereafter the IUE
filed with the Board's Regional Director objections to
conduct affecting the results of the election. These
objections. insofar as they were not overruled by the
Regional Director, involve the same conduct which is
challenged in the complaint in this unfair labor practice
case, and the Regional Director accordingly directed that
the objections he consolidated for hearing with the unfair
labor practice case.
5. The discharge of Victoria Walker on September 20
It will be recalled that Victoria Walker was among the
first group of four employees to go to an IUE office in an
effort to gain information about organizing the plant.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter, she actively participated in the membership
drive in the plant, passing out leaflets and talking to her
fellow employees about the benefits of union membership.
After one occasion on which Walker had been observed
passing out leaflets, Plant Manager Biernat admittedly
asked her what she thought about the IUE. Walker
persuaded between 5 and 10 employees to sign IUE
authorization cards. These discussions occurred mainly in
the plant cafeteria.
That the Respondent was aware of Walker's strong
support of the IUE appears in the uncontradicted
testimony of Leo Walker concerning his prehire interview
with General Foreman Slagle on September 6. In the
course of this interview Slagle asked Walker what he
thought about the IUE. Walker replied that he was for
the IUE if it was in the shop. Then Slagle asked Walker
if he was any relation to Victoria Walker. When Walker
told Slagle that Victoria was his sister- in-law . Slagle
replied, according to Leo Walker' s undenied testimony, "I
guess you know she is giving us a lot of trouble on the
union deal."'
On September 17 Walker solicited Sidnette Chin to
sign a card in the cafeteria dust as the lunch period was
ending. General Manager Meyers was standing in the
doorway to the cafeteria as this happened. Chin handed
her signed card to Walker as they passed Meyers going
out the door.' After reaching her work station. Meyers
questioned Walker as to why she was late in returning to
work. -
A day or two later General Foreman Slagle directed
Walker to accompany him to Meyers' office. In the office
Meyers told Walker that several employees had
complained to him about her "pressuring" them into
signing IUE cards, by telling them "that if they didn't
sign the cards they could get fired." Walker angrily denied
this and urged him to bring in the complaining employees
so that she could confront them face to face Meyers said
that this was "not necessary, that he believed her, and told
her to go back to work.
On Friday, September 20, at the end of the break
period, Line Supervisor Orren Cox spoke to a group of
employees working on the assembly line, including
Victoria Walker. As Walker testified, Cox told the
employees "that if we kept up the good work that
morning, Monday we would go on piece work and we
would really begin to make money." Walker asked Cox
what he meant by "going on piece work," asserting that
the employees already "were supposed to be on piece
work " Cox replied, in Walker's words, that "all he knew
is that we were supposed to start piece work Monday."
Walker, who was upset by this information, reported
Cox's conversation with her to Kathleen Scott, who was
working on an injection molding press right behind
Walker's work station .' A few minutes later Walker
noticed Plant Manager Biernat walking down the aisle
towards her and she walked over to him Walker's
credited testimony concerning this incident is as follows:
'Prior to Leo Walker ' s interview with Slagle he had been interviewed by
Plant Manager Biernat Biernat asked Walker on this occasion among
other things, what he thought about the IUE Walker showed Biernat his
union card and indicated that he had been a chief steward at Hausman
Steel. Biernat stated , according to Walker's credited testimony. "that he
didn ' t care for the union being in there because it was so small it
would hurt the plant." Notwithstanding Walker's stated prounion position,
the Respondent hired him
'Meyers denied being aware of Walker's solicitation of Chin on this
occasion
`Scott testified that she also understood that the girls were on piecework
So when he got pretty close to where I was, the line was
shut down, so I stepped over to him and I asked him
what the big deal was on this piece work, and he said,
"What do you mean, big deal?" And I said, "Well, this
big deal about us starting piece work or the big deal we
were already supposed to be on piece work." and he
told me to stop shouting, and I told him I wasn't
shouting, and he turned around and walked away.
So I went back to my station.
Q. What if anything occurred after that')
A. Well, it wasn't but five or ten minutes later that
Orren Cox, my foreman, came to me and told me to
get my purse and come to the loreman's office with
him
Q. All right, and did you go to the office
A. Yes. Rex Slagle was in the office and Orren and I
went in.
Q. Was there anyone else present?
A. No, there was not. Orren Cox was silent for a few
seconds and then he said, "Well, Vicki, you hollered at
the wrong person this morning. I am going to have to
let you go," and I says, "Well, what do you mean?"
And he said, "Well," -I got to recall a minute. He said,
"I am going to have to let you go," and I asked him,
"Why," and he said, "Disrespect to the management,"'
Subsequently the Respondent mailed the following
memorandum to Walker at her home:
September 20, 1968
Vickev Walker
Termination of Employment
Dismissed on September 20th at 11:10 because of
Disrespectful behavior against Plant Manager.
In violation of Shop rule No. 15 she was shouting at
Plant Manager "What's the big idea of going on piece
work on Monday."
By doing so she was violating shop rule 16, Leaving
work position without permission.
Bruno G. Biernat
Plant Manager
BGB/mc
6. The discharge of Sidnette Chin on October 16
Sidnette Chin was not as active in support of the IUE
as the other employees whose discharges are involved in
this case. Chin was involved in the incident in the cafeteria
with Victoria Walker on September 17, in which she
turned over her signed card to Walker in front of Plant
Manager Meyers as he was standing in the cafeteria
doorway. Thereafter, according to her testimony. several
times a day Chin talked to her fellow workers about the
that day According to Scott, "every girl in the place thought that day that
we were working on piece work "
'Biernat's version of this incident is substantially in accord, as follows
A. As I recall, I was walking between the assembly line area and the
machine area down the line , and Mrs Walker stepped off the line,
approached me, and shouted at me, "What is the big idea' What is going
11on
Q Well, was anything further said'
A. There was a few words said , and as far as I recall I said, "What do
you mean, what is going on"" And she said , "Mr. Meyers promised that
there would be piece work on this particular day," and I said, "Mr
Meyers did not promise that as far as I know "
Q Now what was her general-- did she speak loudly9
A She shouted
Q. What did you do immediately subsequent to that9
A I went into my office and gave instructions for her dismissal
PINES OF AMERICA, INC. 381
advantages of having the IUE in the plant. On one
occasion Chin jokingly asked Line Supervisor Cox if he
wanted to join the IUE.
Chin started working for the Respondent on Thursday,
September 12. Chin was unable to go to work on Friday,
September 13, because the new babysitter whom she had
just hired' had gone into labor and could not take care of
Chin's children. Chin called Slagle and told him about her
problem and he told her to report the following Monday.
The Respondent's records show that Chin was not absent
again until Monday, October 14.
Chin had been ill all the weekend of October 12 with
the flu, and Chin's husband called in on Monday morning
to report her illness. On Tuesday, October 15, Chin
reported for work but asked Line Supervisor Cox to put
her near the restroom as she was still feeling a little ill.
Cox refused and put her on the assembly line. After Chin
had to leave the line and dash for the restroom once or
twice, Cox took her off the line and put her close to the
restroom. About 9:30 that morning, Chin's condition had
not improved, and she asked Cox if she could go home.
Cox told her to check out. Wednesday, October 16, Chin
was still ill and her husband called the plant that morning
and reported that Chin was still ill and was going to see a
doctor that day
While Chin was home sick on October 16 she received
a telephone call from General Foreman Slagle during
which he informed her that she was no longer needed, as
she was absent too much. The Respondent's files disclose
a copy of a memorandum from Slagle to Chin stating as
the reason for her termination that she was a probationary
employee and that her attendance was unsatisfactory.
The Respondent's attendance records which were
received in evidence in this case show that at least six
employees with comparable or much worse attendance
records in September, October, and November 1968 were
continued on the payroll despite such absences. These
absences were due to illnesses, hospitalization, deaths in
the family, or for unexplained reasons.
7. The discharge of Laraine Combs on October 22
Combs was the most active IUE supporter among the
Respondent's employees. She was among the group of
four girls who visited with IUE International
Representative Nolan in his office on August 21. And
Combs was named in Nolan's letter to the Respondent of
that day as a member of the IUE Organizing Committee.
Combs solicited signatures on IUE authorization cards in
the cafeteria on four or five occasions. Frequently, Combs
passed out IUE advertising materials, such as leaflets,
matches, and pens on Company premises. Combs was the
only IUE adherent who passed out IUE leaflets at the
door of the cafeteria. Combs also distributed leaflets in
the restroom, the parking lot, and the driveway. She did
this four or five times a week from the time the
organizing drive started, the latter part of August, until
her discharge on October 22,
Combs had singled herself out to Meyers as a staunch
defender of employee rights in the course of Meyers'
interview with her shortly after she was named on the
IUE Organizing Committee. It will be recalled that
Combs questioned Meyers about the Respondent's failure
to mention any probationary period to the employees at
the time they were hired, and succeeded in arousing
'Chin had to change babysitters when she went to work for the
Respondent because she had previously been working a different shift
Meyers' ire on this occasion. As found above. Combs was
involved in one of the incidents of harsh enforcement of
the Respondent's Shop Rules which was cited by the IUE
in its letter to the employees of early October. This
necessarily brought home to the Respondent the fact that
Combs was close to the power center of the IUE
organizing drive. General Foreman Slagle was well aware
of Combs' union activities. He frequently joked with her
and other employees about the IUE. On one occasion just
a few days before she was discharged Slagle asked Combs,
"What are you going to do it the union doesn't get in?"
Combs replied, "W"ell, I probably won't be here much
longer." Slagle made no response. Combs was one of two
employees present at the hearing in the representation
case on October 8.
Combs was hired on July 29 and was assigned almost
exclusively to jobs on or related to the assembly line. On
September 30, at the end of the first week that the
assembly line employees were being paid on a piecework
basis, Line Supervisor Cox called Combs into the office
and told her that she was not keeping up with production
and that he would have to transfer her to another
operation. That same day Cox prepared and filed in
Combs' personnel file the following memorandum:
September 30, 1968
Laraine Combs
Shop Rule No. 26'
You have been guilty of idleness and inattention to your
work. You should realize that on assembly line
incentive you not only hurt your chance for higher pay,
but also hurt the other people on your line.
Any further disregard of this rule will force me to give
you a three day layoff without pay.
Yours truly,
Orren Cox
Line Supervisor
OC/mc
Cox did not give Combs a copy of this memorandum.
The Respondent's own records of Combs' production
during the week preceding the September 30 reprimand
contradict the Respondent's claim that Combs' production
was poor. On Monday, September 23, Combs was
assigned to a team operation with Sharol Owen.
Operations 145-18 and 145-19, Make Up Inner Cartons,
and the team achieved a production of 648 cartons, which,
although less than the piecework quota, was more than
the 548 cartons completed on September 25, when Sharol
Owen was teamed, up with Rose May. On September 24
Combs was engaged for most of the day in a seat
operation, 98-8, on which she made over the base
'Shop Rule 26 in full is as follows
FIRST SECOND THIRD FOURTH
OFFENSE OFFENSE OFFENSE OFFENSE
26 Inattention to work , Written Three work Discharge
deliberate loitering or Reprimand day layoff
idleness.
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
production required and hence was paid an incentive
bonus. On September 25 Combs was assigned to a
nonpiecework operation, repacking helmets, and there is
no suggestion in the record that her production on this
operation was unsatisfactory. On September 26 and 27
Combs was teamed up with Rose May on Operations
145-18 and 145-19. Make Up Inner Cartons, and the two
employees turned 750 and 710 cartons, respectively. While
this production was not sufficient to entitle them to
incentive payments, their production on both days was
superior to that of Rose May and Sharol Owen when they
were teamed up together on September 25 on the same
operation. On this date May and Owen together
completed only 548 cartons One other team consisting of
Patsy Johns and Doris Cox worked on Operations 145-18
and 145-19 for 6-1/2 hours on September 24. The hourly
rate of this team was slower than either of the teams
performing this operation of which Combs was a member.
Thus, during the week preceding Cox's reprimand of
Combs and the filing of the warning notice against her,
Combs was a member of the better performing team for 3
days of the week, made more than her quota on the fourth
day, and was on an hourly rated job on the fifth day
There is no suggestion in this case that the poorer
producing employees, Owen, Johns, and Cox, were also
reprimanded. All three employees remained on in the
Respondent's employ after Combs' discharge This is the
production record on which the Respondent's decision to
reprimand Combs and place a warning notice in her file
necessarily was based. This follows from the fact that
Combs was reprimanded during the day on Monday,
September 30, before production figures were available for
that day. This record plainly did not dustily the action
taken against Combs.
On September 30, the Respondent assigned Combs to
another inner carton team operation, 98-16 and 98-17,
with Owen. This is a different operation from Operations
145-18 and 145-19 on which the team of Combs and
Owen had had comparative success the preceding
Monday On this 1-day operation Combs and Owen failed
to be as speedy as a team consisting of May and Owen
which had worked on this operation on September 24, the
former team producing at the rate of 104 units per hour
as compared with the 122 units per hour produced by the
latter team.
The next morning, October 1, Cox assigned Combs to
taping bumpers, Operation 98-15. After 3-1/3 hours,
however, during which time Combs had completed 700
bumpers, which is a very high rate of production, Cox
assigned Combs to another operation assembling motors.
Operation 145-27. Combs told Cox that she was doing
well over the rate on the bumper operation and asked why
he was transferring her. According to Combs' undenied
testimony, Cox started laughing and said, "Well, you are
making too much money." That afternoon Cox assigned
Ethel Martin to taping bumpers. In the 3-1/4 hours
Martin performed this operation that day she completed
only 394 bumpers.
Of the nine assembly line employees assigned to
perform the taping bumpers operation in the period from
September 24 through October 18, Combs' hourly
production rate that morning exceeded that of all eight
other employees, and in some cases, by a very substantial
margin. Despite Combs' proficiency on this operation, she
was reassigned to it only once, and then for only 40
minutes. Apparently Cox's assertion that Combs was
"making too much money" taping bumpers was not made
in jest
For the remainder of the day, October 1, and part of
the next day, Combs was assigned to Operation 145-27.
Assemble Motors, an operation on which she was not
proficient. However, Combs was slightly better on this
operation than Marcella McClure and Ruth Hootman,
who worked on this operation at or about the same time.
On the afternoon of October 2 Cox assigned Combs to
Operation 135-15, Make Up Cartons, and she worked
intermittently on this operation on October 3 and 4. By
the morning of October 3 Combs succeeded in exceeding
the production quota and hence was paid an incentive
bonus for this work on October 3 and 4. Edith Sells, the
only other employee assigned to this operation during this
period, with the exception noted below, had worked 3 full
days the preceding week on this operation, but had not
made the minimum quota I day.'" Sells had better success
in the following weeks, exceeding the production quota on
3 days and falling below the quota on 2 other days.
After assigning Combs to nonpiecework jobs on
October 7 and 8, commencing on October 9 and
continuing for the remainder of her employment. Cox
kept Combs for most of the time on two operations on
which she continued to have difficulty. l-rom October 9
through October 16 the Respondent assigned Combs
almost exclusively to Operation 500-14A, Assemble Tires
and Wheels, an operation on which only two employees
out of nine during this period were able to earn more than
the base rate
During the period Cox was keeping Combs on
Operation 500-14A, on which she was slow. Cox prepared
a document containing various comparisons of Combs'
production with that of other employees. The Respondent
introduced this document into evidence as Company
Exhibit 4. The first example contained on the document
purports to compare the production of two two-girl teams
on what it described as an "Inner Carton" operation, first
with Combs as a member of the team and the following
week with Owen substituted for Combs However, the
operations performed the second week were not the same
as those being done the first week and consequently no
fair basis for comparison exists The 3 days Combs
worked on inner cartons during the first week. September
23, 26, and 27, the operations were 145-18 and 145-19. As
found above, the team on which Combs worked at this
operation, whether she was teamed up with Owen, as she
was on September 23. or with May on September 26 and
27, was the top producer on this operation for the week,
the team production being 648, 750, and 710 units,
respectively. The Respondent in its comparison does not
note that on September 23, when May was teamed up
with Owen on Operations 145-18 and 145-19, their
production was but 548 units.
The following week, beginning Monday, September 30,
Operations 98-16 and 98-17 were being done on Monday
and Tuesday and the rest of the week, Operations 135-18
and 135-19 were being performed The different
operations numbers indicate that different products were
being packed. The higher production figures the second
week may merely reflect the fact that the products being
loaded the second week were easier to handle. The fact
that Combs when teamed up with Owen the first week did
better on Operations 145-18 and 145-19 than May did
when she was teamed up with Owen on precisely the same
operations suggests that the difference in the type, of
"Ethel Martin worked on thi, operation for 5-1/2 hours on O(.toher 2
She too failed to make the minimum production requirement and hence
was paid at a straight hourly rate.
PINES OF AMERICA. INC. 383
operations being performed in the first and second week
was significant, and indicates the comparison between the
2 week's production figures is entitled to little weight.
In the second example given on Company Exhibit 4,
which involves only about 8 hours of Combs' time, the
Respondent compares the production of Combs with that
of Barbara Bible on Operation 145-27, Motor Assembly.
Of the eight employees who worked on this operation
about this time, Bible had the fastest rate of production.
Needless to say, Combs' production rate on this operation
suffers from comparison with that of Bible.
The final comparison on Company Exhibit 4 also
involves Bible it compares Combs' production with that
of Bible on Operation 500-14A, Assemble Tires and
Wheels. This is the operation to which Combs was
assigned at the time Company Exhibit 4 was prepared.
Combs' rate of production was poor on this operation,
compared with Bible and several others. It would seem
more lair for the Respondent to have selected a more
average operator for comparison purposes, since obviously
the majority of the employees cannot equal the production
of the top operators. The fact that the Respondent chose
Bible as the employee with whom to compare Combs
suggests that the Respondent was not being wholly
objective in preparing Company Exhibit 4.
Having prepared Company Exhibit 4, the Respondent
was aware not only of tombs' comparatively poor
showing on this wheel assembly operation but also of
Bible's superior production record on this operation.
(Bible had the next to the highest production rate of all 10
employees who were assigned to this operation in
October.) Yet the Respondent continued to assign Combs
to this operation for 7 consecutive working days. taking
May, the fast producer, off the operation after 3 days.
The Respondent kept Combs on this operation for more
than twice as many hours as any other employee. Two
other employees, Patsy Johns and Mildred Fagan, who
when tried out on this operation on one occasion each
during this period had production rates even lower than
Combs, were not assigned to this operation again during
this period.
During the day on October 17 the Respondent finally
took Combs of[ of Operation 500-14A and transferred her
to Operation 100-21, another motor assembly operation
As found above, Combs previously had had difficulty with
Operation 145-27, which also was a motor assembly
operation. On Operation 100-21 Combs' production was
quite poor compared with the other two employees who
were placed on this operation about this time. Combs'
rate of production did improve gradually on the 3 days
she was assigned to this operation. At noon on October
21. the Respondent transferred Combs to Operation
500-5, Assemble Pedals, and on this operation Combs
developed considerable speed and earned an incentive
bonus. The next morning, the day of Combs' discharge,
Combs was placed on Operation 500-9A, Insert Inner
Cartons, and on this operation Combs not only earned an
incentive bonus. but her production was the higher of the
two employees on that operation that day.
At the end of the workday on October 22, Line
Supervisor Cox summoned Combs to the office where, in
the presence of General Foreman Slagle, he told Combs
that he was terminating her employment because her
production was so slow. Cox further stated that he had
tried Combs out on various operations, but her production
was still slow Combs mentioned the incident of his
removing her from taping bumpers on which she had been
making "well over rate" and reminded him of his
comment about her "making too much money." Cox
denied on this occasion having made any such statement."
Combs went on to say that she had made well over the
rate that day on the assembly line. Cox replied, "Well, we
don't get those until next week, so he wouldn't know
anything about it." With that remark, Cox handed Combs
her termination papers
C. The Respondent 's Contentions; Conclusions
Concerning the Respondent 's Unfair Labor Practices
1. The Respondent's promulgation of unduly
restrictive Shop Rules in violation of Section 8(a)(l)
of the Act
The complaint alleges that the Respondent on August
23 promulgated and thereafter enforced a set of Shop
Rules which were not only harsh in their application but
unlawful in scope insofar as they dealt with solicitation
and the distribution of written or printed matter on
Company property. The complaint further alleges that
these rules had the purpose and effect of obstructing and
interfering with the union activities of its employees.
With respect to the Respondent's no-solicitation and
no-distribution rules, they are unquestionably invalid as
written in that they prohibit all union solicitation and all
distribution of union literature on Company property.
Stoddard-Quirk Manufacturing Co.. 138 NLRB 615; Solo
Cup Co., 144 NLRB 1481; Pueblo Supermarkets, Inc.,
156 NLRB 654; Mock Road Super Duper, Inc., 156
NLRB 983. While there is no evidence that the
Respondent has enforced its no-solicitation and
no-distribution rules in an unlawful manner, this affords
no defense. As the Board stated in the Pueblo case, supra
(156 NLRB at 656):
The promulgation of an unlawfully phrased rule has an
inhibitory effect upon employees' exercise of their
statutory rights, regardless of the innocence of purpose
for the rule or the undisclosed limitations placed upon
its use and application. Furthermore, while as of a
particular date the offending rule may not have been
invoked against any employees who had engaged in
union solicitation or distribution of union literature, as
long as the rule is in existence it is susceptible to such
application and therefore tends to coerce, restrain, and
interfere with employees' right to engage in
self-organizational activities.
The allegations of the complaint that the Respondent's
Shop Rules as a whole were promulgated for the purpose
of obstructing and interfering with the union activities of
the Respondent's employees are, in my opinion, supported
by the evidence in this case. In reaching this conclusion I
do not rely on the fact that they may have been unduly
harsh. (I do not have a sufficient basis in this record to
make such a determination.) Rather I rely on, among
other items, the timing of their promulgation, immediately
after the Respondent was informed about the iUE
organizing drive, the Respondent's obvious hostility to the
IUE, the illegal scope of its no-solicitation and
no-distribution rules, and the Respondent's repeated
reliance on the rules in its dealings with IUE sympathizers
in the plant. The Respondent resorted to its Rules 15 and
16 in the case of Victoria Walker's discharge, although, as
shown below, they did not fit her offense. Similarly, in the
"While Cox, in the presence of the general foreman, denied having made
any such comment , he was not asked about it while on the witness stand I
believe that Cox made the statement , as Combs testified
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case of Laraine Combs the Respondent invoked its rules
on three occasions, first in connection with her stepping
outside the plant door to smoke a cigarette, then in
connection with her low production warning, and finally in
connection with her discharge. Upon all of the facts I
conclude that the Respondent hastily adopted the rules in
effect at its Canadian plants, with minor modifications, to
express its displeasure at the organizing activities then
commencing in the plant. and that its action was taken in
the belief that the existence of rules would somehow make
it easier to get rid of IUE supporters.'Z I further conclude
that the Respondent's invocation of the 90-day
probationary period was also motivated by the same
misconception. The taking of such action for antiunion
reasons in my opinion interfered with, restrained, and
coerced the Respondent's employees in violation of
Section 8(a)(1) of the Act. Master Transmission
Rebuilding Corp., 155 NLRB 364, 366, fn. 1, Modern
Settings, Inc, 158 NLRB 1584, 1589; King Radio
Corporation, Inc., 166 NLRB No. 70.
2. The Respondent's domination and interference
with the Employee Committee in violation of Section
8(a)(2) and (1) of the Act
The facts found above establish that the initial
suggestion for the formation of the Employee Committee
came from General Foreman Slagle, that the plan of
having departmental representatives and alternates was
decided upon by General Manager Meyers and General
Foreman Slagle, with the concurrence of Kathleen Scott,
that at Meyers' direction Slagle and Scott handled the
election of departmental representatives, and that Slagle
counted the ballots. 1 have further found that Meyers
presided at the meetings of the Employee Committee and
that the departmental representatives were paid for the
time spent attending these meetings On the foregoing
facts a finding that the Respondent has dominated and
interfered with the formation and administration of the
Employee Committee and has contributed support thereto
is fully warranted.
The Respondent contends that the Employee
Committee was a mere suggestion committee and was not
intended to function as a labor organization. Whatever
may have been the Respondent's intention, the facts
concerning the matters discussed at the Committee's
meetings on September 6 and 181- particularly the
discussion of wage differentials, incentive pay. periodic
pay raises,and bidding for job openings- leave no doubt
that the Committee developed into an organization which
existed in part, at least, for the purpose of dealing with
"grievances," "wages," and "conditions of work." and
therefore was a labor organization within the meaning of
Section 2(5) of the Act.
3. The Respondent's discriminatory discharges in
violation of Section 8(a)(3) and (1) of the Act
Victoria Walker - The Respondent stated on the
termination notice sent Walker after her discharge that
she was discharged for leaving her work without
"I am not unmindful of the testimony of General Manager Meyers that
the rules were too complicated to have been formulated in 1 day, and that
in fact they had been in the process of preparation for some time.
Elsewhere in his testimony Meyers stated that the Fort Wayne rules were
basically the same as those in effect at the Respondent ' s Canadian plants
under all the circumstances of the case , I cannot accept Meyers' testimony
that the rules had long been in the process of preparation
permission and shouting at the plant manager "What's the
big idea of going on piece work on Monday?" in violation
of Shop Rules 15 and 16. Shop Rules 15 and 16 are as
follows-
15. Use of abusive, threatening or profane language to
another employee or a Supervisor.
16. Leaving work or the factory during work hours
without permission.
Upon consideration of all of the facts of the case I
conclude that Walker's conduct on this occasion was not
the true reason for Walker's discharge. In the first place,
at the time Walker momentarily left her work position to
speak to Biernat, the assembly line was not running.
Walker frequently had had occasion to leave her work
position when the line was not running and nothing had
been said about it. Secondly, Walker's language may not
have been as respectful as Biernat desired, but it was not
really abusive, threatening, or profane. While Walker
undoubtedly spoke loudly on this occasion, it was not
possible to speak to Biernat in the immediate vicinity of
the noisy presses without raising her voice. The fact that
Biernat couched his explanation for Walker's termination
in terms of violating two Shop Rules suggests that he was
trying to build a case against Walker. In my opinion,
Biernat would not have been so quick to take offense at
Walker's tactless way of questioning him as to why the
employees were being deprived of incentive payments had
not he known that Walker was one of the leading
supporters of the IUE The Respondent's strong
opposition to having the IUE or any other union represent
its employees had been frankly stated in Meyers' talk to
the employees on September 4 This hostility to the IUE
was thereafter repeatedly given expression in the
Respondent's many letters to the employees. As found
above, the Respondent was unable to hire sufficient
qualified full-time employees to meet its needs. Yet the
Respondent abruptly discharged a satisfactory full-time
employee for having addressed a complaint to the plant
manager in an insufficiently respectful way The very
nature of the complaint must have revealed to Biernat
that there was a misunderstanding in the mind of at least
Walker. Yet, notwithstanding this knowledge, Biernat
chose to dispense with Walker's services without even
attempting to get to the bottom of what was upsetting her.
Biernat, I find, seized upon Walker's "disrespect" as a
pretext for ridding the Respondent of her services, and his
action in this regard violated Section 8(a)(3) and (1) of the
Act.
Sidnette Chin- According to the Respondent, Chin was
terminated because her attendance was unsatisfactory.
Chin was not absent at all from the second day of her
employment, when her absence was excused, until her
absence for less than 3 days because of illness
commencing on October 14 Chin's first day's absence on
this occasion was excused; Chin reported for work the
next morning and received permission to go home after
1-1/2 hours because of illness; on the morning of the third
day Chin's husband called in to report that Chin would
not be in because she was going to see a doctor about her
illness While at home this third day General Foreman
Slagle called her and notified her that she was being
discharged.
Under the Respondents Shop Rules 3 and 28, absence
for 2 consecutive working days without calling in and
giving good cause for absence called for a discharge. The
attendance records in this case affirmatively show that the
Respondent ordinarily treated illness as a good cause for
PINES OF AMERICA, INC. 385
absence. Consequently, Chin's absences during the period
from October 14 to 16 must be regarded as excused. As
found above, the Respondent retained in its employ at
least six emaloyees who had comparable attendance
records, including a few who had considerably worse
records.
While Chin was not as conspicuous in the IUE
movement as were Walker and Combs, from the time she
signed an authorization card on September 17 she actively
"talked up" the IUE in the plant. With the close
supervision which the Respondent gives its relatively small
complement of employees (65) it is difficult to believe that
information concerning Chin's support of the IUE did not
reach the Respondent's supervisors. In any event, Chin
jokingly invited Line Supervisor Cox to join the IUE.
Under all the circumstances, including Meyers'
opportunity to observe Chin turning over her
authorization card to Walker, I find that the Respondent
at the time of Chin's discharge was aware that she was an
IUE supporter.
Respondent's explanation that Chin was discharged for
unsatisfactory attendance is plainly spurious. In view of
the Respondent's obvious hostility to the IUE, its
discharge of Victoria Walker and, as found below,
Laraine Comas, because of their union activities, I
conclude that Respondent discharged Chin on October 22,
1968, in order to eliminate one more IUE supporter.
Accordingly, the Respondent's conduct in this regard was
violative of Section 8(a)(3) and (1) of the Act.
Laraine Combs- The Respondent contends that Combs
was discharged because of her low production rate. It is
true that on the two operations on which Combs spent
most of her time during the last 2 weeks of her
employment, Combs' production was poor. However, for
the reasons stated below I conclude that the Respondent
deliberately kept Combs on operations on which it knew
she had difficulty in order to furnish it with an excuse for
discharging her.
The Respondent's production records show that Combs
was a satisfactory producer on a number of its operations.
As found above, Combs excelled on the seat operation,
98-8; her hourly production rate on taping bumpers.
98-15, was the highest of all 10 employees who were
assigned this operation; and on Operations 145-18 and
145-19 she was consistently a member of the high
producing teari On Operation 135-15, Make Cartons,
Combs made over the quota after the first few hours on
the job. On the one occasion each on which Combs was
assigned to Operation 500-5. Assemble Pedals, and
Operation 135.10, an assembly operation, she received
incentive pay for over-quota production each time.
Thus, of the I1 operations worked on by Combs during
the last month of her employment her production was
satisfactory on 7 operations and poor on 4. The
Respondent's production records show, and it is also a
recognized fact of industrial life, that employees do not
perform different manual operations at the same rate of
speed. One employee may be a high producer on one type
of operation and slow on a different type of operation.
Another employee may work out just the reverse.
Employers normally take such differences in performance
into consideration in making job assignments . But the
Respondent did not do this in the case of Combs. Instead.
the Respondent kept Combs on Operation 500-14A, for 7
consecutive workdays although it had seven employees
who had shown greater proficiency on this operation.
While there are undoubtedly reasons why some of these
seven employees could not be placed on this operation, it
would appear that sound business considerations would
have dictated putting one of the others on this operation,
instead of keeping Combs, a known slow producer on this
operation, on it In view of the fact that the Respondent
could not hire enough competent full-time employees, the
Respondent's refusal to utilize Combs' services on the
operations which it knew she could competently perform
becomes all the more inexplicable.
The Respondent's treatment of Combs, however,
becomes understandable when Combs' role as the most
active leader of the fUh organizing movement and the
Respondent's pronounced aversion to having a union in
the plant are considered. The Respondent's various actions
against Combs follow a consistent pattern. Thus the
Respondent prepared a warning notice on September 30.
charging Combs with a breach of Rule 26 covering
"inattention to work, deliberate loitering, or idleness,
which in my opinion was completely unwarranted in the
circumstances of this case. Then about October 12 the
Respondent prepared Company Exhibit 4 which unfairly
compared Combs' work with that of others. Finally, on
October 22, the Respondent discharged Combs for low
production after keeping her an unduly long period of
time on operations at which it knew she was a slow
producer.
Such actions are consistent with a fixed determination
on the Respondent's part to build a record against Combs
for low production and to discharge her when in the
Respondent's judgment a sufficient record had been
compiled. This, I find, is what the Respondent did in
Combs' case. It utilized the record of Combs' alleged low
production, which it had taken pains to establish, as a
pretext for getting rid of this known union leader whose
activities, in the Respondent's view, presented a threat to
the Respondent's continued operation of the plant on a
nonunion basis. I conclude that the Respondent's
discharge of Combs on October 22 constituted a further
violation of Section 8(a)(3) and (1) of the Act.
I perceive no evidence of any significance indicating
that Combs attendance at the hearing in the
representation case was a factor in Combs' discharge.
Accordingly, the allegations of the complaint that Combs'
discharge also violated Section 8(a)(4) and (1) of the Act
will be dismissed.
4. The Respondent' s questioning of employees in
violation of Section 8(a)(1) of the Act
As found above, within 2 weeks after the Respondent
was notified that the IUE organizing drive was in
progress, the Respondent called all four members of the
Organizing Committee into the office and queried them as
to complaints or causes of dissatisfaction with their jobs
General Manager Meyers asked Sheila Gibson why she
felt that she needed a union and Plant Manager Biernat
made the same inquiry of Committee Member Naomi
Kennedy. During this same period, both Biernat and
General Foreman Slagle asked Leo Walker, in prehire
interviews, about his union sympathies. On September 4,
Meyers interrogated Verla Bailey as to how she felt about
the IUE. Meyers admitted that during this same period he
had personal interviews, the exact nature of which is not
disclosed, with every employee in the plant. While the
individual interviews standing alone do not assume serious
proportions, considering the scope of the interviews
against the background of unfair labor practices in which
they were conducted - the promulgation of unduly
restrictive shop rules for antiunion reasons, the formation
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the Employee Committee, and the discriminatory
discharge of three employees -these interviews take on a
coercive aspect, in my opinion, and require a finding that
they were in violation of Section 8(a)(1) of the Act
Iv. THE OBJECTIONS
The Regional Director ' s Supplemental Decision, Order
Consolidating Case, and Notice of Hearing presents for
my consideration in Case 25- RC-3880 four objections
which are based upon the same evidence as the allegations
of unfair labor practices contained in the complaint in the
unfair labor practice case, Case 25-CA- 3292 I have found
that the allegations of the complaint are full-, sustained by
the evidence , with a minor exception not here relevant,
and conclude that these unfair labor practices in the
August to October period interfered with the free choice
of the Respondent's employees in the election which was
held on November 21 and 22 and affected substantially
and unfairly the outcome of the election . It is therefore
necessary that the election be set aside and that a new
election be ordered, following the Respondent ' s taking
certain remedial action which is discussed below
CONCLUSIONS OF LAW
1. By promulgating and maintaining a rule broadly
prohibiting all union solicitation and all distribution of
union literature on Company premises, the Respondent
has engaged in interference, restraint, and coercion in
violation of Section 8(a)(l) of the Act.
2. By promulgating, maintaining, and enforcing strict
shop rules and by belatedly announcing a 90-day
probationary period for all employees, both for the'
purpose of discouraging union membership and of
facilitating the discharge of union sympathizers, the
Respondent has engaged in interference, restraint, and
coercion in violation of Section 8(a)(1) of the Act.
3. By coercively questioning employees concerning
union matters, the Respondent has engaged in
interference, restraint, and coercion in violation of Section
8(a)(l) of the Act.
4. By dominating and interfering with the formation
and administration of the Employee Committee, and
contributing support thereto, the Respondent has engaged
in unfair labor practices in violation of Section 8(a)(2) and
(I) of the Act
5 By discharging Victoria Walker, Sidnette Chin, and
Laraine Combs, the Respondent has discouraged union
membership by discrimination in regard to tenure of
employment, thereby engaging in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THF REMFDY
Having found that the Respondent has engaged in
unfair labor practices in violation of Section 8(a)(3) and
(1) of the Act, my Recommended Order will provide that
it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act
My Recommended Order will direct that the
Respondent rescind or modify its Rules 24 and 25 to
make it clear that its no-solicitation rule does not prohibit
union solicitation on company premises during break and
other nonwork periods and that its no-distribution rule
does not bar the distribution of union literature in
nonwork areas of the premises during nonworking time.
To remedy the Respondent's domination and
interference with the Employee Committee, my
Recommended Order will provide that the Respondent
withdraw all recognition from the Employee Committee
and completely disestablish it, if it has not already done
so.
I have found that the Respondent discharged Victoria
Walker. Sidnette Chin, and Laraine Combs in violation of
the Act. To remedy this unfair labor practice, my
Recommended Order will provide that the Respondent
offer each of these employees immediate and full
reinstatement to her former or a substantially equivalent
position, without prejudice to her seniority or other rights
and privileges, and make each whole for any loss of
earnings she may have suffered as a result of the
discrimination, by payment to each of them of a sum of
money equal to that which she normally would have
earned as wages from the date of the discrimination to the
date of the Respondent's offer of reinstatement, less her
net earnings during such period, with backpay and interest
thereon to be computed in the manner prescribed by the
Board in F W Woolworth Company, 90 NLRB 289, and
Isis Plumbing & Heating Co, 138 NLRB 216.
Because of the character and scope of the unfair labor
practices herein found, my Recommended Order will
provide not only that the JRespondent cease and desist
from the specific unfair labor practices found, but also
that it cease and desist from in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
Upon the foregoing findings and conclusions and the
entire record, and pursuant to Section 10(c) of the Act. I
hereby issue the following:
RECOMMENDED ORDER
The Respondent, Pines of America, Inc.. Fort Wayne,
Indiana, its officers, agents. successors, and assigns, shall:
1 Cease and desist from
(a) Promulgating, maintaining, or enforcing any rule
prohibiting its employees from engaging in union
solicitation on Company premises during nonworking
time.
(b) Promulgating, maintaining . or enforcing any rule
prohibiting its employees from distributing union
literature in nonwork areas of its premises during
nonworking time.
(c) Promulgating, maintaining, or enforcing rules
governing employee conduct or establishing probationary
periods for new employees for the purpose of discouraging
union membership or facilitating the discharge of union
sympathizers.
(d) Coercively questioning employees concerning union
matters.
(e) Dominating or interfering with the formation or
administration of the Employee Committee, or any other
labor organization of its employees, or contributing
financial or other support thereto. or recognizing the
Employee Committee or any successor thereto.
(f) Discharging or otherwise discriminating against
employees in regard to hire or tenure of employment, or
any term or condition of employment, in order to
encourage or discourage membership in any labor
organization.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to
self-organization. to form, join, or assist any labor
PINES OF AMERICA, INC. 387
organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that
such right may be affected by a lawful agreement
conforming to the provisions of Section 8(a)(3) of the
National Labor Relations Act. as amended, requiring
membership in a labor organization as a condition of
employment.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Rescind or modify Shop Rules 24 and 25 to make it
clear that its no-solicitation rule does not prohibit union
solicitation on company premises during nonwork periods
and that its no-distribution rule does not bar the
distribution of union literature in nonworking areas of
company premises during nonworking time.
(b) Completely disestablish the Employee Committee as
a representative of any of its employees for the purpose,
in whole or in part, of dealing with or discussing
grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work
(e) Offer to Victoria Walker, Sidnette Chin, and
Laraine Combs immediate and full reinstatement to their
former positions or to substantially equivalent positions,
without prejudice to their seniority or other rights
previously enjoyed, and make each whole for any loss of
pay she may have suffered by reason of the discrimination
against her, in the manner described in " the Remedy"
section of the Trial Examiner's Decision.
(d) Notify Victoria Walker, Sidnette Chin, and Laraine
Combs, if presently serving in the Armed Forces of the
United States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended. after discharge from the Armed Forces.
(e) Preserve and, upon request. make available to the
Board or its agents, 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 backpay due.
(f) Post at its plant at Fort Wayne, Indiana, copies of
the attached notice marked "Appendix."" Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's
authorved representative, shall be posted by it
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(g) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith."
"in the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify the Regional Director for
Region 25 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
IT IS ORDERLI) that the complaint insofar as it alleges
that the discharge of Laraine Combs violated Section
8(a)(4) of the Act be. and it hereby is, dismissed.
IT IS FURTHER ORDERED that the election conducted on
November 21 and 22. 1968, in Case 25-RC-3880 be. and
it hereby is, set aside, and that Case 25-RC-3880 be, and
it hereby is, remanded to the Regional Director for
Region 25 for the purpose of conducting a new election at
such time as he deems that circumstances permit the free
choice of a bargaining representative
[Direction of Second Election" omitted from
publication.
"In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have ai.i.css to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company.
394 U S 759, decided April 23, 1969, 70 LRRM 3345 Accordingly, it is
hereby directed that an election eligibility list, containing the names and
addresses of all the eligible voters, must be tiled by the Employer with the
Regional Director for Region 25 within seven (7) days after the date of
issuance of the Notice of Second Election by the Regional Director The
Regional Director shall make the list available to all parties to the
election . No extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances . Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
APPENDIX
NOTICF TO ALi. EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act. as amended, we hereby notify our
employees that:
After a trial at which all sides had a chance to give
evidence, it has been decided that we, Pines of America,
Inc, violated the National Labor Relations Act, and we
have been ordered to post this notice to inform our
employees of their rights.
The National Labor Relations Act gives all employees
these rights
To form, join, or help unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
Accordingly, we give you these assurances:
WE WILL NOT do anything that interferes with these
rights.
WF WILL NOT make, maintain, or enforce any rule
prohibiting our employees from engaging in union
solicitation on Company premises during nonworking
time.
WE WILL NO1 make, maintain, or enforce any rule
prohibiting our employees from distributing union
literature in nonwork areas of our premises during
nonworking time.
WE WILL NOT make, maintain, or enforce any work
rules or establish new or different probationary periods
for the purpose of discouraging union membership.
WL WILL NOT coercively question employees about
union matters.
WE WILL NOT dominate, assist, or recognize the
Employee Committee, or any successor thereto.
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT'discharge you, punish you, or treat you
differently in anyway because you join or favor a union.
WE WILL reinstate Victoria Walker, Sidnette Chin,
and Loraine Combs, with full seniority and other rights,
and WE WILUpay'them backpay, together with 6-percent
interest.
WE WILL rescind or change our Shop Rules 24 and 25
so as to make it clear that our no-solicitation rule does
not prohibit union solicitation on Company premises
during nonworking time and that our no-distribution
rule does not bar the distribution of union literature in
nonwork areas of the plant and premises during
nonworking time
You are free to loin International Union of Electrical.
Radio and Machine Workers, AFL-CIO, CLC, or any
other union, and, by majority choice, to select any union
to represent you in bargaining with us.
PINES OF AMERICA, INC.
(Employer)
Dated By
(Representative) (Titley
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana
46204, Telephone 317-633-8921.