Plastic Age Co.

National Labor Relations Board - Board Decisions

Jan 6, 1955

111 N.L.R.B. 121 (N.L.R.B. 1955)

PLASTIC AGE COMPANY 121
5. By refusing on May 19, 1954, and at all times thereafter to bargain collec-
tively with the Union as the exclusive representative of her employees in the appro-
priate unit , the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
6. By said refusal to bargain the Respondent has interfered with , restrained, and
coerced her employees in the exercise of the rights guaranteed in Section 7 of the
Act and thereby has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2 ( 6) and (7) of the Act.
[Recommendations omitted from publication.]
PLASTIC AGE COMPANY, PLASTIC AGE REINFORCED PRODUCTS , INC., PLAS-
TIc AGE AIRCRAFT CORPORATION , AND PLASTIC AGE SALES , INC. and
INTERNATIONAL ASSOCIATION OF MACHINISTS , DISTRICT LODGE No.
727 , FOR LOCAL LODGE 758 . Case No. 21-CA1892. January 6,1955
Decision and Order
On July 21 , 1954, Trial Examiner William E. Spencer issued his
Intermediate Report in the above -entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices , and recommending that it cease and desist therefrom,
and take certain affirmative action as set forth in the Intermediate
Report attached hereto. The Trial Examiner further found that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the complaint be dis-
missed in that respect . Thereafter, the Respondent , General Counsel,
and the Union filed exceptions to the Intermediate Report together
with supporting briefs.
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report,' the exceptions and briefs , and the entire record in the
case and hereby adopts the findings, conclusions , and recommendations
of the Trial Examiner 2
1 The Intermediate Report contains certain minor misstatements of fact which do not
materially affect the correctness of the Trial Examiner 's conclusions . They are as fol-
lows: (a) The second meeting of the Plastic Age Employees Association was held on
October 17 rather than, as the record shows, on October 20; (b) Lane stated that "Mr.
Kramer" rather than "Mr. Harper " had satisfactorily answered a certain question at the
second meeting of the Association ; ( c) Lane, prior to the second meeting, had advised
Kramer to have nothing to do with the Association whereas Lane merely advised Kramer
not to permit the Association to have any further meetings on company time or premises ;
(d) the Union demanded a 2-year contract from the date of its certification whereas the
record shows that the Union demanded a 2-year contract but did not specify its proposed
effective date.
2 Without necessarily endorsing all the Trial Examiner 's rationale as to the elements of
"domination ," we agree that Respondent 's support to the Association here did not consti-
tute domination of that organization.
111 NLRB No. 18.
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby directs that the Respondent, Plastic Age Company,
Plastic Age Reinforced Products, Inc., Plastic Age Aircraft Corpora-
tion, and Plastic Age Sales, Inc., its officers, agents , successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Associa-
tion of Machinists, District Lodge No. 727, hereinafter referred to as
the Union, as the exclusive representative of employees in the certified
appropriate unit, with respect to rates of pay, wages, hours of employ-
ment, union security, and other conditions of employment.
(b) Discouraging membership in the Union, or any other labor
organization of its employees, by discriminatorily transferring or dis-
charging any of its employees, or by discriminating in any other man-
ner in regard to their hire or tenure of employment, or any term or
condition of employment.
(c) Sponsoring, promoting, assisting, contributing support to or
interfering with the administration of the Plastic Age Employees As-
sociation , hereinafter referred to as the Association, or any other labor
organization, or from otherwise interfering with the representation
of its employees through a labor organization of their own choosing.
(d) Interrogating its employees concerning their views and atti-
tudes on the Union, or any other labor organization; by bypassing the
Union in its representative capacity, by participating in a poll of
employees on the issue of union security, or any other topic constitut-
ing subject matter of collective bargaining; or in any other manner
interfering with, restraining, or coercing its employees in the exer-
cise of the right to self-organization, to form labor organizations, to
join or assist the Union or any other labor organization, to bargain
collectively through representatives of their own choosing, and to en-
gage in collective bargaining or other mutual aid or protection, or to
refrain from any or all of 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.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all its employees in the appropriate unit, de-
scribed in the Intermediate Report, with respect to rates of pay, wages,
hours of employment, union security, and other conditions of employ-
PLASTIC AGE COMPANY '123
ment, and, if an understanding is reached , embody such understanding
in a signed agreement.
(b) Offer to Walter D. Schmitz immediate and full reinstatement
to his former or substantially equivalent employment without preju-
dice to his seniority and other rights and privileges previously en-
joyed, and make him whole in the manner set forth in "The Remedy"
section of the Intermediate Report.
(c) 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 amounts of back pay due under the terms of
this recommended order.
(d) Post at its plant at San Fernando, California, copies of the
notice attached to the Intermediate Report marked "Appendix." 9
Copies of said notice, to be furnished by the Regional Director for the
Twenty-first Region, shall, after being duly signed by a representative
of the Respondent, be posted by the Respondent immediately upon
receipt thereof and maintained by it for a period of sixty (60) consecu-
tive days thereafter , in conspicuous places , including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken to insure that such notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director for the Twenty-first Region, in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS ]FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent "dominated" the
Association, discriminatorily discharged Barker, constructively dis-
charged McDaniel, and secured an oral report on a meeting of the
Union.
3 This notice , however , shall be , and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of a Trial Examiner" and substi.
tuting in lieu thereof the words "A Decision and Order " 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."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On the General Counsel 's complaint alleging that Plastic Age Company, Plastic
Age Reinforced Products, Inc., Plastic Age Aircraft Corporation , and Plastic Age
Sales, Inc., herein called the Respondent , has engaged in and is engaging in unfair
labor practices violative of Section 8 (a) (1), (2), (3), and (5) and Section 2 (6)
and (7 ) of the National Labor Relations Act, 61 Stat . 136, herein called the Act, a
hearing upon due notice to all parties was held before the duly designated Trial
Examiner at Los Angeles, California , on various dates between March 15 and May
13, both dates inclusive. All parties were represented at the hearing, and were
afforded full opportunity to be heard , to examine and cross-examine witnesses, to
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
introduce evidence bearing on the issues , to argue the issues orally upon the record,
and to file briefs and/or proposed findings. There were oral statements on the record
and briefs have been filed by the General Counsel and the Respondent.
With respect to unfair labor practices , the complaint , as amended , alleged in sub-
stance , and Respondent 's duly filed answer denied , that the Respondent : ( 1) Dom-
inated and interfered with the formation and administration of Plastic Age Em-
ployees Association , herein called the Association ; ( 2) refused to bargain with Inter-
national Association of Machinists , District Lodge No. 727, herein called the Union,
the certified representative of employees in an appropriate unit ; ( 3) discriminatorily
discharged 2 named employees and discriminatorily transferred a third causing her
resignation , and discriminatorily demoted 4 named employees ; and (4 ) engaged in
certain other specified conduct independently violative of Section 8 (a) (1) of the
Act.
Upon consideration of the entire record in the case and from my observation of
the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent 1 is engaged in the fabrication of plastic products at its plant in
San Fernando, California. During the 12-month period ending December 1, 1953, it
sold in excess of $25,000 in value of its products and shipped them directly to pur-
chasers outside the State of California.2 During the same 12-month period, Respond-
ent sold in excess of $100,000 in value of its products and services to primary con-
tractors for use in aircraft built for the United States Government. Respondent
admits that it is engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATIONS INVOLVED
International Association of Machinists, District Lodge No. 727, and Local Lodge
No. 758, affiliated with the American Federation of Labor; and Plastic Age Em-
ployees Association, unaffiliated, are labor organizations within the meaning of
the Act.
M. THE UNFAIR LABOR PRACTICES
A. The Association
1. The facts
Organizational activities among Respondent's employees began in late August or
early September 1953. There had been no prior organizational activity at this
plant, and Respondent's enterprise was of fairly recent origin, having been organized
in 1946 and changed to a corporate form of business in 1952. By letter dated Sep-
tember 8 and received by Respondent on or about September 9, the Union advised
the Respondent that it represented a majority of its employees and sought bargain-
ing rights. This letter was received on behalf of the Respondent by Robert M.
Sebring, a vice president and secretary of Respondent and its general plant manager.
Respondent's president, J. A. Kramer, was at that time in the Middle West and
Sebring promptly advised him by telephone of the Union's notification and urged
him to return to the plant. On September 10 Sebring interviewed several employees
and questioned some of them concerning their attitude toward the Union. To one
of these employees he stated that while he, Sebring, did not oppose the Union if that
was what the employees wanted, Kramer would fight it. To another he said that an
outside union was not needed at the plant and it was bad to have organizational
activities occurring at a time when Kramer was absent from the plant.3
1 There are four companies named in the complaint, but they are treated as a single
entity for purposes of this proceeding, their operations being substantially integrated.
2 This formerly satisfied the Board's formula for asserting jurisdiction. Now, how-
ever, the formula has been changed to require $50,000 in shipments outside the State.
The formula relative to furnishing goods and services to establishments substantially
affecting the national defense would nevertheless seem to require the assertion of juris-
diction here. Decisions conveying the revised formulae are not yet available to this Trial
Examiner
8 The various incidents occurring on September 10 are reviewed in detail In the section,
infra, of this report dealing with alleged discriminatory discharges They are introduced
here for their bearing on Respondent's neutrality, or lack of it, as between the Union
and the Association, and whatever impact Respondent's attitude may have had on em-
ployees with respect to the formation and administration of the Association.
PLASTIC AGE COMPANY 125
On his return to the plant shortly after September 10, Kramer addressed the
employees , as he was accustomed to do at intervals , made some reference to the
letter Respondent had received from the Union , and, according to the testimony
of employee Bruno Costa , stated that his office was always open to employee com-
plaints and that in his opinion the plant did not need an outside union . Kramer
testified that in this speech he "probably " said that in his opinion people never
needed a third disinterested party to deal with their problems, and that if the em-
ployees had a problem he would like to discuss it with them , but that the business
of organization was their own business . I think there is no doubt, and find, that
he conveyed , and intended to convey , his disapproval of the Union . The testimony
of Respondent's witnesses is that Kramer issued instructions to the supervisory staff
not to discuss the Union , "pro or con," with the employees but, assuming that such
instructions were issued , they were not published to the employees.
On September 23, pursuant to a consent -election agreement entered into on
September 16, an election was conducted by the Board 's agents among Respondent's
employees in an appropriate unit to determine whether or not the Union should
represent them for purposes of collective bargaining . The Union won this election
by a vote of 64 to 43.4 On being notified of the results Kramer commented that
he had never realized that three people (presumably the Union 's representatives)
could come into his office and in such a short period of time change his entire
operation of the plant . On October 1 the Union was certified as the employees'
bargaining representative.
On October 5 employees George D. Cushman and Olive Donica attached to
employees ' timecards in their rack in Respondent 's plant , notices bearing this text:
"Plasticage Company Employees Union request you register at toolroom window
for membership ." A box serving as a repository for signed cards was placed near
Respondent 's tool crib and remained there for at least 2 or 3 days . It appears
that employees were generally permitted to post notices around the time clock and
on the bulletin board , but it further appears that notices had not previously been
attached to timecards , for Sebring testified that when Kramer learned of this he
was quite angry and directed that an investigation be made of the matter . Further
than questioning the supervisory staff, it appears that Sebring made no investigation.
By notice dated October 5 , bearing Kramer 's name, the following rule was posted
in the plant: "There will be absolutely no posting of notices or literature on the
Time Cards without the approval from my office ." About a week later , without
permission of management , Cushman and Donica again attached notices to employee
timecards , this time bearing the text: "Your fellow workers want you to be present
at the election of officers . If you haven 't joined please do so now." This notice,
dated October 12, was signed : "Plastic Age Company Employees Union." Accord-
ing to Sebring he again attempted , without success, to learn the identity of those
responsible for placing the notices on the timecards . I have read his testimony on
this point carefully and am convinced that he made no more than a token effort
to obtain this information. While Cushman and Donica testified that they attached
the notices before working hours, it is clear that they did so without concealment
or effort at concealment , and it was the credited testimony of employee Bertha M.
Crews that at the lunch hour on the day the notices were attached, Sebring told a
group of employees that he did not know who was responsible for their posting,
whereupon she replied that there was no secret about it, that they were placed there
by Donica.
At the time the second notices were attached to the timecards , according to
Cushman , arrangements had not been made for a meeting in Respondent 's plant.
By letter dated October 12, addressed to Kramer , Cushman requested such a meet-
ing, and on being told by Cushman that the meeting was for the purpose of organ-
izing an association for recreational purposes and to "ease the tension" in the plant,
Kramer, after consulting his attorney , Lane , gave permission for the meeting to
be held on company time and premises . Kramer testified that it was not unusual
for meetings of employees to be held in this manner , but, obviously , he considered
this occasion to be unusual enough to call for a consultation with his attorney.
The meeting was announced over Respondent 's intercom system , was held in the
forenoon of October 12, and was attended by employees generally and Respondent's
supervisory staff, including its officer and plant manager, Sebring. Kramer himself
introduced Cushman who presided at the meeting , but did not remain in attendance
at the meeting.
4 About 148 employees were eligible to vote.
126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A second meeting , again attended by employees generally and Respondent's
managerial staff including Sebring but not Kramer, was held a week later, October 17,
in Respondent's plant but outside of working hours. This second meeting was
requested of Kramer by Kermit Rings who had been named temporary president
of the Association at the first meeting, and acting contrary to the advice of his
attorney , Lane, who , according to Kramer , advised him to have absolutely nothing
to do with the "Company Association " in any way , Kramer granted permission
for the meeting 'to be held inside the plant but refused permission that it be held
on company time because he "couldn't afford it."
Several witnesses testified on what occurred at these two meetings but the testimony
on the whole is of a patchwork character so that there is no certainty as to the
sequence of what was done and said . However, the principal features of the
meetings germane to these proceedings emerge with reasonable clarity. Cushman
testified that on convening the first meeting he stated that it was for the purpose
of forming an association to get back to better relations and to have good times.
Rings testified that Cushman stated, inter alia, that if the association could defeat
the Union at the end of the certification year, it could deal with management and
promote recreational activities . Employee Bruno Costa , an active member of the
Union, testified that Cushman said an "outside union would not be as good as a
company union" and gave an example of a "railroad in the east " which Cushman
said had been operating successfully under a "company union." Cushman did not
recall having made these remarks but did recall having an argument with Costa
which showed that he and Costa were not on the same side of the fence. I find
he made the remarks substantially as attributed to him by Costa. Richard H. Voss,
a foreman who attended the meetings , testified that he, Voss, made the comment
that it was his opinion that an association within the Company would be of more
value to the employees than the Union , and further testified that he made it clear
this was "just his own personal opinion ." Sebring testified that Cushman said the
meeting was to elect officers in order to start planning the activities they had in
mind, such as picnics , dances, and "something about a credit union." Questioned,
"Was there any discussion about meetings with management for the purpose of
discussing grievances?" Sebring testified , "I don't think it was put in that manner.
I do remember something , something being said that if they had any complaints
or had any problems that they could talk to Mr. Kramer about it, this group that
they elected to the committee . I don't believe they said grievances ." Costa testified
that Sebring asked if he was eligible to join the Association and when Donica replied
that he was, said , "Oh, goody, we [supervision apparently ] were kicked out of the
union meeting." Except in the partial conflict in the testimony of Costa and
Cushman, the testimony related above was undisputed and is credited . All wit-
nesses agree that at this first meeting a nominating committee was designated by
names called out and seconded from the floor and that this nominating committee
in turn named the temporary officers of the Association . There is no evidence
that any managerial employee or officer named or seconded the name of any
member of the nominating committee and none was named either to the committee
or as a temporary officer.
Kermit Rings presided at the second meeting. It appears from all the testimony
that the principal feature of this second meeting was an address delivered by an at-
torney independently retained by the Association , Harper by name, in which , accord-
ing to Rings, Harper advised that whereas the Association then had no authority
to bargain with management it "could make recommendations , however, to manage-
ment as to the way bargaining was being held on certain issues." It appears that
Harper spoke principally against compulsory union membership , declaring , as testi-
fied to by Sebring , "Every American person has the God-given right to choose what
he wanted to belong to." At the - conclusion of Harper 's speech a vote was taken on
whether or not there should be a union shop, with an overwhelming majority voting
in the negative . Rings thought managerial personnel participated in this vote; 5
Foreman Cummerford , present at the meeting , testified that he did not and did not
observe any supervisor who did. Concerning this matter of union security, Rings
testified , "I believe it was touched on there that the employees were hearing that they
only had 30 more days and it was a question of whether we could allow the security
clause, whatever had to be written into the contract , and we passed papers around
and voted on it." 6
6 At a later point Rings testified that supervisory personnel did not actively participate
in the meetings they attended.
6 The Union on October 16, the preceding day, had submitted its contract proposal to
Respondent , and this proposal included a provision for a union shop
PLASTIC AGE COMPANY 127
Respondent's attorney, Lane, who had been advised by Kramer that from what had
happened at the meeting of October 12 he was "led to have suspicions as to the in-
tentions of the Association," at Kramer's request observed the October 17 meeting
from an adjacent area. He testified that after the vote had been taken on the union
shop, Harper asked that he answer certain questions. At that time, according to
Lane, it appeared to him that the Association was "preparing or anticipating to act as
a labor union possibly," and he thereupon spoke to the employees with the idea of
impressing on them that they could not bargain with the Respondent. One employee
asked what length term of contract the Union was seeking and Lane replied a 2-
year contract but that further information would have to come from the negotiating
committee. Lane's answer to a question put to him by Harper, in connection with the
effect of a contract with the Union incorporating a union-security clause, was, as
he testified, "I told the assembled group that Mr. Kramer had, to my way of thinking,
answered it satisfactorily; that this also was a subject of negotiation between the com-
pany and the JAM." On the conclusion of his remarks, Lane left the meeting.?
Following the meeting of October 17, Rings requested further use of Respondent's
premises for Association activities and was refused. The officers designated at the
first meeting continued to function as such until regular or permanent officers were
elected by the membership of the Association in January 1954. These temporary
officers caused a constitution and bylaws to be prepared and submitted at an "open
meeting" held in December off company premises. It was not shown that any
managerial personnel attended this meeting but they were not barred from at-
tendance. The proposed constitution and bylaws were discussed but, according to
Rings, whose testimony is in every respect more reliable than Donica's, it was not
definitely decided to exclude managerial personnel from membership until a "closed
meeting" in January. The constitution and bylaws proposed by the temporary of-
ficers were adopted and permanent officers elected at a membership meeting in Janu-
ary. While there is no express exclusion of managerial personnel in membership
qualifications appearing in the constitution and bylaws, it is not doubted that such
personnel was in fact excluded from the time membership in the Association was
formalized. The "Object" of the Association, as described in its constitution, was:
A. To provide better working conditions and a closer unity between employees and
management; and B. To provide a cooperative, fraternal association among its mem-
bers. M. X. Harris was elected president at the January meeting.
2. Conclusions
The evidence is that the idea of the Association originated with Donica and that
she, on her own initiative, aided by Cushman, was responsible for its conception. But
while it is clear that the Respondent had no active part in these germinal stages, it
can hardly be said that the infant Association had achieved full birth prior to the
7 Lane's statements at this meeting, in the fuller context of his testimony, follow :
After the persons assembled there had taken a vote as to whether they were in
favor of a union shop several questions were posed to Mr. Harper which he pro-
ceeded to answer Then these was a question posed to him, the exact substance of
which I don't recall, but Mr Harper appeared to have difficulty answering it and he
turned over to my direction and said, "Well, the company attorney is standing over
there, he can probably answer that question for you."
At that time it appeared to me that the association was preparing or anticipating
to act as a labor union possibly. So I stepped into the area there where the meeting
was held and addressed the group with the idea in mind of impressing upon them
the fact that they could not expect to be recognized as a representative of the em-
ployees, nor could Mr Kramer have anything to do with them, or negotiate with them
in any form, in connection with wages, hours or working conditions.
At that time one of the employees, whose name is unknown to me, asked me what
length of term of a contract the union was asking , and I told him that the union
was asking for a two-year contract but that was a subject of negotiations that had
currently started between the company and the JAM, and that any further informa-
tion they would have to get from the representatives who were on the negotiating
committee representing the employees
The question, as I recall correctly that Mr. Harper had referred to me. was in con-
nection with the effect of Mr. Kramer' s signing a contract with the IAM which
incorporated a union security clause.
I told the assembled group that Mr. Kramer had, to my way of thinking, answered
it satisfactorily ; that this also was a subject of negotiation between the company
and the IAM, and I then removed myself from the meeting.
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
first meeting on Respondent 's time and property . True, notices attached to timecards
in violation of a newly promulgated rule gave it a name, and a name which was sig-
nificant of the true intent of its founders , but the naming of the infant , I am told,
oftentimes precedes its birth . It appears , however , that while it may not seriously
contest the fact that the Association ultimately achieved the status of a labor organiza-
tion within the meaning of the Act, Respondent argues that it did not come into
existence as such until after the second meeting on Respondent 's premises and, there-
fore , that any aid or support rendered it by the Respondent was rendered it in its ca-
pacity as a social organization designed solely to relieve tension and suture the frac-
ture in intraemployee relations caused by the advent of the Union . I presume we are
asked to believe that what was witnessed at the first two meetings was the birth pangs
and not the birth , but it seems to me that by the second meeting, at least , the intant
was crying lustily and with a distinctive note.
That the Association as it is presently constituted is a labor organization is hardly
open to doubt . True, its object as described by its constitution , if there were noth-
ing more , might conceivably form a basis for such doubt , though even there it is stated
that an object is "to provide better working conditions ." Not stated in its constitu-
tion but clearly established in all the reliable testimony is the object of ousting the
Union as bargaining representative at the first available opportunity and, in the
interim , of influencing the course of collective bargaining between the Respondent
and the Union. I further think and find that these "objects" of the Association have
constituted its raison d'etre from the very moment that it was conceived in the minds
of Donica and Cushman and that this was made so manifest at the two meetings
which were held in Respondent 's plant that the Respondent could not have enter-
tained reasonable doubts as to the character and purposes of this organizational
movement.
Donica testified that at first, and even as late as the two meetings in Respondent's
plant, the Association was intended solely for recreational purposes and for re-creating
conditions of harmony which had existed among employees prior to the advent of the
Union . Her testimony, however , was unreliable in several respects , and in none
more than this. It is obvious that of those who opposed the Union in the election of
September 23 there were some , such as Donica and Cushman, unwilling to bow to the
will of the majority and accept the Union as the duly constituted bargaining repre-
sentative of all the employees , and that their whole idea of relieving tension and re-
storing harmony was to eliminate the Union by supplanting it with the Association.
Cushman 's remarks at the first meeting clearly show the state of mind of those re-
sponsible for calling it, and the vote on the union shop taken at the second meeting
showed their determination not to wait until opportunity was afforded to challenge
the Union at the polls, to influence the course of collective bargaining. The char-
acter of this organizational movement is unmistakable.
The character and degree of Respondent 's support and assistance is equally clear.
Its tolerance of the Association 's activities was first shown when it promulgated and
then failed to enforce a rule against the attachment of notices to employee timecards,
and permitted cards supporting the organizational movement to be deposited in a box
inside its plant . If it did not know the character of these cards which labeled the
organizational movement for what it was, it could easily have ascertained such fact
and can hardly be said to have been blameless in its innocence of the nature of the
undertaking if it failed to do so. Inasmuch as the Union was privileged to post no-
tices in the plant although not to attach them to timecards , this incident standing
alone would have little significance and is accorded significance mainly in that it fits
into the context of a course of conduct which could not have been without impact
on the employee mind . It may well be, as Kramer testified , that at the time he
granted Cushman 's request for a meeting on company time and property , and later
introduced Cushman to the assemblage of employees , he was uninformed as to the
true intent and purposes of the organizational movement about to be set afoot, but the
impact of these acts on the employee mind is not lessened by his innocence of intent.
The fact is that a rival to the Union was initially organized by an election of officers
on Respondent 's time and premises and in the presence of managerial personnel, and
that Respondent 's president , Kramer , gave all the appearances of blessing this un-
dertaking when he appeared personally at this meeting for the purpose of introducing
Cushman . His presence for this purpose-and it is remembered that he left the
meeting immediately after the introduction-added a note of emphasis to what was
otherwise apparent , for the supervisory personnel were there in force, including the
plant manager and an officer of the Respondent. Nor was their attendance entirely
passive. Sebring made vocal his pleasure at not being excluded and Foreman Cum-
merford expressed his "personal" conviction that an association of employees was
better than an "outside" union . In the environment of this meeting and Kramer's
PLASTIC AGE COMPANY 129
own prior expression of disapproval of an outside union and suggestion that the em-
ployees present their grievances to him without the intervention of a "disinterested
third party," what employee would believe that Cummerford was not also express-
ing the viewpoint of management ? The second meeting , though held outside working
hours, further advanced the idea of company approval and support , as it could not
have failed to when management , in the person of Sebring and lesser supervisory
personnel , was present , and if not actively participating in a vote on the union shop,
a bargainable subject on which the Respondent was bound to bargain solely with the
Union as the duly constituted representative of all its employees , at least acquiescing
in such action , thereby adding substance to the idea expressed by the Association's
lawyer that while the Association could not bargain directly with the Respondent
during the Union's certification , it could nevertheless influence the course of collec-
tive bargaining by having a say in what was and what was not to be included in a
bargaining contract. The truth of the matter is that the Association at this point was
actually attempting to bargain directly with management in the person of Sebring,
who sat in on some of the negotiations with the Union , and Lane's later statement
to the effect that the Respondent could bargain only with the Union during the tat-
ter's certification year did not, and because of the nature of attendant circumstances,
could not offset the conviction that must have existed in the minds of the employees
that the Association had already made , and would continue to make, inroads into
the bargaining domain of the Union.
That the Association at the time of these two meetings was not formally consti-
tuted in that it had not yet a constitution and bylaws nor formal membership re-
quirements,8 and that after deliberations in later meetings off company time and prop-
erty, unattended by managerial personnel , it was decided to exclude such personnel
from membership , is by no means immaterial to a consideration of the issue but can-
not alter the fact that the initial drive and impetus that brought the Association into
being and made it a factor in labor relations within a week of the Union's certification,
was very substantially aided if not largely accounted for by company approval and
participation as set forth above . And temporary officers elected at the first meeting
in the presence of managerial personnel constituted the agency through which the
permanent organization was effectuated . Nothing is more clearly established in the
line of "company union" cases than the principle that acts of unlawful interference
and assistance rendered during the initial stages of organization are not dissipated
merely because in succeeding stages assistance is withdrawn and the organization
then appears to function independently.9
It is possible that had the Respondent made an outright disavowal of support and
repudiated the presence and participation of its managerial staff in the two organi-
zational meetings , it might be said that the effects of its unlawful interference and
support were thereby dissipated, but this it did not do and to now has not done,
beyond the declaration of its attorney that it could not bargain with the Association
during the Union 's certification year . Such a declaration , as already indicated, falls
far short of the kind of disavowal and outright repudiation required under the de-
cisions, for it left the Association free , under the aegis of the Employer, to perfect
its organization and strengthen it for the avowed purpose of unseating the Union at
the first available opportunity.
In reaching these conclusions I have not been inattentive to N. L. R. B. v. Brown
Co., 160 F. 2d 449, 454 (C. A. 1), cited in Respondent's brief. While there are
several points of agreement between that case and the case at bar, there are also
points of departure, for here we do not have a history of amicable bargaining re-
lationships between the company and the union which in the Brown Company case
the court relied on as a factor persuading it that the employees would not reasonably
believe that participating supervisors in fact represented the viewpoint of manage-
ment . And while participation of supervisory personnel was perhaps less demon-
strative here than in the Brown Company case, it embraced supervision of the highest
rank including an officer of the Respondent , and occurred in a setting or context
which unmistakably conveyed the impression of managerial support.
8 Presumably signed cards deposited in the box provided on company premises , favoring
the Association, had provided an informal membership roster.
ON. L. R . B. v. Link-Belt Co., 311 U. S. 584, at p. 600. "Despite the fact that during
and subsequent to the year 1951 facts showing active domination of the Association by
respondent do not appear in the record and it affirmatively appears that its activities then
were apparently in the interest of the employees, we are unable to say that these latter
activities of the Association erased the effects of the respondent 's earlier influence and
domination." N. L. R. B. v. Shedd-Brown Mfg. Co., 213 F. 2d 163 ( C. A. 7), enfg. as
mod., 102 NLRB 742 ; 103 NLRB 905.
130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing findings of fact and upon the entire record, I find
that the Respondent interfered with the formation and administration of the As-
sociation and contributed support to it, in violation of Section 8 (a) (2) of the
Act, thereby interfering with and restraining its employees in violation of Section
8 (a) (1) of the Act.
The issue of domination is more difficult, as it is often difficult to determine at
what point interference and support reach such proportions or carry such weight
that it may be said that a state of unlawful domination exists. It has been said, and
correctly, I believe, that "the test, whether a challenged organization is employer
controlled, is not an objective one but rather subjective, from the standpoint of em-
ployees," 10 and "the question whether the organization is employer-dominated de-
pends upon the state of mind of the employees." 11 It would seem to follow that the
intent or motive of the employer is not controlling where his acts are such as to have
reasonably induced a state of mind among employees that is "company dominated."
1 have found that the Respondent did not maintain a state of neutrality as between
the Union and the Association and that by its conduct, innocent of unlawful intent or
otherwise, it left no doubt in the employee mind that it favored the Association and
would welcome it as a successor to the Union as the employees' bargaining repre-
sentative. Did it thereby induce a state of domination in the minds of employees
such as requires the complete disestablishment of the Association?
I do not know of anything in the law which requires a labor organization to be
aggressive or which prevents it from -being supine or even subservient to management,
as long as the employees who constitute it have the freedom of choice guaranteed
them by the Act. It is not the proper function of this Board to educate in the meth-
ods and procedures of true trade unionism or to wet-nurse infant organizations into
an assumption of responsibilities traditionally associated with trade unionism. There-
fore, while it may be said, on the basis of the evidence before me, that the Associa-
tion appears to be dominated by "company thinking," and there is not the slightest
indication that it has either the independence or the will to "stand up to manage-
ment" should a conflict of interests occur, I am unable to attribute this to any act of
management which would reasonably give rise to fear of retaliation were support of
the Association withheld. The idea of the Association originated in the minds of
employees and while it may have been planted there by Respondent's expressed dis-
approval of having to deal with an outside union, the suggestion was accompanied
neither by threats nor promise of reward. It may well be the fact that minds may
be "dominated" by approval in the form of affirmative acts of assistance as well as
disapproval accompanied by threats, and I think it is the fact, but insofar as I am
able to understand recent decisions there must be some element of coerciveness which
constitutes fear, or at least a restraint akin to fear, or a more substantial degree of
assistance than is found here, to constitute "domination" within the meaning of the
Act.12 Accordingly, while by no means without doubts, I must recommend dismissal
of the complaint insofar as it alleges domination.
B. The refusal to bargain 13
1. Chronology
On October 1, 1953, the Union was certified as bargaining representative of
employees in what admittedly constituted an appropriate unit. It thereby became
the exclusive representative of all employees in the unit.
10 N. L R. B v. Thompson Products, 130 F. 2d 363 (C A 6).
it N L R B v Edwin D Wemyss, d/b/a Coca-Cola Bottling Co. of Stockton, 212 F. 2d
465 (C A. 9) See also N L. If. B v. Shaiples Chemicals, 209 F 2d 645 (C. A. 6).
2Wayside Press, Inc v. N. L R B., 206 F 2d 862 (C. A 9)
13 Under Section 8 (a) (5) of the Act it is an unfair labor practice for an employer "to
refuse to bargain collectively with the representatives of his employees, subject to the
provisions of Section 9 (a)."
Section 9 (a) of the Act provides : "Representatives designated or selected for the pur-
poses of collective bargaining by the majority of the employees in a unit appropriate for
such purposes shall be the exclusive representative of all the employees In such unit for
the purposes of collective bargaining in respect to sates of pay, wages, hours of employ-
ment, or other conditions of employment. . . .
. Section 8 (d), insofar as here relevant, provides: . . to bargain collectively is the
performance of the mutual obligation of the employer and the representative of the em-
ployees to meet at reasonable times and confer in good faith with respect to wages. hours,
PLASTIC AGE COMPANY 131
Beginning in October the parties met in negotiations on a contract . Respondent
was represented by its president , Kramer; its attorney , Lane; and , at times, its plant
manager and vice president , Sebring. The Union was represented by a committee
of five employees and certain officers of the Union including its principal negotiator,
C. C. Bogardus . On or about October 16 the Union submitted , in writing, a con-
tract proposal , and a few weeks later the Respondent submitted a partial counter-
proposal . Respondent's completed counterproposal was submitted in late November
or December . The last bargaining conference occurred on March 2, 1954.
The original complaint in this proceeding alleged a violation of only Section 8
(a) (1), (2), and ( 3) of the Act . The amended complaint , dated March 2, 1954,
had the additional allegation of a refusal to bargain . The issuance of this amended
complaint , it may be assumed , explains why apparently neither party sought a
resumption of bargaining conferences after March 2.
With respect to the alleged 8 (a) (5) violation , the amended complaint upon
which the hearing opened alleged as constituting a refusal to bargain : ( 1) A state-
ment by Kramer during negotiations that "he did not see what the employees would
get out of these negotiations because he would not give the Union anything that
he would not have given the employees anyhow"; ( 2) Respondent 's insistence that
any contract negotiated should terminate 1 year after the date of certification; and
(3) Respondent 's insistence that it would agree to no provision concerning union
security of any kind whatever.
The initial hearing was opened on March 15 and closed on March 19 . On March
24 the Respondent was presented with a petition signed by a majority of its
employees requesting that it break off negotiations with the Union . By letter dated
April 2, the Respondent notified the Union that it was acceding to the employees'
request and would no longer recognize or bargain with the Union.
Evidence upon a further amended complaint alleging an 8 (a) (5) violation
based on the aforesaid action of the Respondent was taken in a reopened hearing
on May 13.
2. Facts and conclusions
Preliminary to an examination of the Respondent 's own conduct with respect
to the specific allegations of the complaint , attention is given to Respondent's con-
tentions , as points of defense , that the Union was dilatory in both the making and
keeping of bargaining conferences ; responsible for unduly prolonged negotiations;
and insisted as late as March 2, 1954, on reopening discussions on contract clauses
previously agreed upon. Such matters, if established , would have significant bear-
ing on certain of the acts by which Respondent is alleged to have failed in its
bargaining obligations ; 14 and, further , as a separate but related issue, would reflect
to what extent , if any , employees who signed the petition requesting Respondent to
break off negotiations were motivated by dissatisfaction with the Union as their
bargaining representative.
Coming first to the matter of delays allegedly caused by the Union, the evidence
is that the Respondent sought more frequent bargaining conferences with the Union
than it was able to obtain , and desired to make the conferences more extensive.
After breaking off negotiations with the Union, Kramer, in an address to employees,
stated that he had been unable to get the Union to meet on an average of more
than once a week, and in the absence of a detailed chronology of the meetings that
actually occurred , it is assumed that meetings were held on an average of about once
a week. The exact duration of bargaining sessions is not in evidence , but it would
appear that they ordinarily lasted for some 4 hours. This is about as much definite-
ness as evidence adduced by Respondent permits, but I have no doubt that the
Respondent , as its witnesses testified , considered that the negotiations were unduly
prolonged because of the Union's refusal to meet more often and for longer periods
of time.
and other terms and conditions of employment, or the negotiation of an agreement, or
any question arising thereunder , and the execution of a written contract incorporating
any agreement reached if requested by either party, but such obligation does not compel
either party to agree to a proposal or require the making of a concession. . .
14 "Under unusual circumstances , a union niay , by contemporaneous action in connec-
tion with bargaining , afford an employer grounds for refusing to bargain so long as that
conduct continues . This is so because it cannot be determined whether or not an em-
ployer is wanting in good faith where measurement of this critical standard is precluded
by an absence of fair dealing on the part of the employees ' bargaining representative."
Phelps Dodge Copper Products Corporation , 101 NLRB 360, 368.
344056-55-vol. 111-10
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
What the statute requires is that the parties shall meet "at reasonable times," and
what constitutes "reasonable times" will necessarily depend on the circumstances of
each case. Obviously, there can be no rigid rule requiring parties to meet once a
week, or daily, or for 4 hours at a time or for 10, or any other number, since what
may be reasonable in one situation may not be reasonable in another. In Partee
Flooring Mill, 107 NLRB 1177, the Board held an employer did not engage in dila-
tory tactics amounting to a refusal to bargain although, as summarized by the dis-
senting Member, it delayed 5 or 6 bargaining meetings proposed by the union for
periods ranging from 10 days to more than 3 weeks. In that case the Board found
justification for the delays in the fact that the employer's negotiator was involved in
numerous other negotiations and the union, itself, on some occasions, was unable to
meet on dates proposed by the employer. From this decision it is assumed that in
determining what constitutes "reasonable times" we must take into consideration the
scope and nature of the parties' other business commitments. Here, while the Union
refused to meet as often and for sessions of the duration proposed and desired by
the Respondent, there were numerous meetings during the period in question, and it
appears that a reason given by the Union for not meeting more frequently was the
pressure of other business. Since the Union is in the business of representing em-
ployees, it must be assumed that its commitments which prevented it from meeting
more often had to do with such matters. In Wood Manufacturing Company, 95
NLRB 633, at p. 644, the Board absolved an employer of charges of refusal to bar-
gain , at least partially on the grounds of the union's "lack of diligence and failure to
appear for meetings." There is, however, little parallel between that case and this
one, for in that case, although agreeing to do so, after a certain date the union failed
to keep its bargaining commitments, presumably in the belief that further attempts
at bargaining were futile.
I can only conclude from evidence before me that there is no basis for assuming
that the Union's refusal to meet more often was the result of dilatoriness or "stalling"
or that it did not, under the circumstances of this case, meet at "reasonable times."
In any event, it is no part of the case against Respondent that it failed to meet with
the Union at all "reasonable times" prior to the date on which it broke off negotia-
tions altogether, and the Union's alleged dilatoriness had nothing to do with this
final act.
As to the duration of bargaining sessions, clearly this is a matter on which ex-
perienced negotiators and other experts in the field of labor relations may reasonably
differ. Progress or lack or it may call for long or short sessions, as the case may be,
and such matters depend somewhat on the temperament of the parties. As in the
matter of the frequency of bargaining conferences, the Respondent has afforded me
no basis for assuming that its proposal for more extensive sessions was any more
feasible than the Union's resistance to such proposals. There is no showing that the
sessions were of such short duration as to raise an inference of stalling or lack of
good faith, and further than that it would be fruitless to inquire.
As to Respondent's further complaints that much time was wasted during nego-
tiations in excursions by Bogardus into the realms of philosophy, economics, past
bargaining experiences, and current affairs, all generously interlarded with anecdotal
monologues (admittedly of high quality), it is not difficult to understand the Re-
spondent's impatience at the pace thus set by the Union's negotiator. So far as I
know it may all have been a deliberate war of nerves designed by the Union' s nego-
tiator to wear down the Respondent's resistance to such contractual provisions as
the Union deemed of paramount importance, such as the union shop. Assuming
such was the purpose, it has never, to my knowledge, been held that hard bargaining,
even though it come disguised in the habiliments of anecdotal reminiscences, is
antithetical to good-faith bargaining. Here, it is reasonable to assume that a con-
tract cementing the bargaining relationship was an end desired by the Union quite
as much as by the Respondent, and while I might well regard the bargaining tech-
niques of the Union's negotiator with disapproval and gigantic impatience were I
confronted with such, I am unable to conclude on the basis of the evidence afforded
me that those methods were antithetical to good-faith bargaining. The Board can
hardly constitute itself an arbiter of bargaining techniques, setting up a code of eti-
quette for bargainers as it were, further than to determine whether those techniques
are truly inconsistent with good-faith bargaining. Congress itself has guarded against
an overreaching of bureaucratic authority by providing that the bargaining obligation
does not "compel either party to agree to a proposal or require the making of a con-
cession." As to the Union's techniques specifically objected to, such an accomplished
monologist as the Union's negotiator might well think, and might well be mistaken
in thinking it, that oral essays on the theory and practice of collective bargaining,
including excursions into philosophical realms, provided an impressive and per-
suasive background for presentation and elucidation of the Union's bargaining pro-
PLASTIC AGE COMPANY 133
posals , and that anecdotal interludes were salutary for relieving tensions and creating
rapport between the parties. And while Respondent's Kramer impressed me as a
man of refinement and was a very persuasive witness, he also impressed me as a
man of keen intelligence , and as such must have known that nothing discourages a
tedious monologist more than a disinterested listener or a nonlistener. As he him-
self admitted, he was able, when he chose to do so, to turn discussion at the bargain-
ing table into what he regarded as an appropriate groove.
The tardiness of the Union's negotiators in attending bargaining conferences if
occurring repeatedly-and the testimony is that it occurred repeatedly-is obviously
no joking matter, but there may have been extenuating circumstances. It is reason-
ably inferred from the testimony that all bargaining conferences were held at Re-
spondent's plant in San Fernando, well outside the City of Los Angeles where the
Union has its offices. It is a matter of public knowledge that there are traffic prob-
lems to be met in driving from Los Angeles to Respondent's plant which are con-
siderable and vary from day to day. In view of these circumstances, it is not un-
likely that it was to Respondent's advantage that negotiations be carried on at its
plant even though it was disadvantaged by the Union's tardiness in keeping its
appointments. These factors are mentioned not in extenuation of the Union's
conduct or to afford a justification which the Union did not itself offer for the
consideration of the Trial Examiner, but as affording the most probable explanation
why the Respondent apparently never chose until now to make an issue rif the
Union's tardiness-and there is no evidence that it did. Certainly, the evidence
afforded me furnishes no basis for an assumption that the tardiness of the Union's
negotiators and what appears to have been an occasional failure to keep a bargaining
appointment was deliberate or for the purpose of obstructing the bargaining proc-
ess and, in any event, all that was required of the Respondent as to meetings was
the mandate that it meet at "reasonable times." "Reasonable times" obviously may
not be construed as requiring toleration by one party of his opposite's chronic and
unjustifiable tardiness in attending bargaining conferences.
As to actual negotiations, proposals and counterproposals were duly made and
some issues, such as the union shop, appear to have been discussed in extenso. It
is impossible to say with exactitude what progress was made, or to what extent, if
any, one party or the other receded from some positions initially taken. 'the Re-
spondent, at least, believed that agreement had been reached on a number and
variety of issues and, as previously stated, submitted a document containing what
it regarded as settled issues, only to find that the Union's negotiator insisted on
reopening each for further discussion. Tentative agreements disavowed at later
conferences, proposals made and later withdrawn, introduction of new and contro-
versial issues after negotiations have already been protracted, these and like maneu-
vers, viewed in context, have frequently been found material to the issue of good-
faith bargaining, but there is no evidence here which convinces me that the Union
actually agreed on numerous issues only later to disavow agreement and insist on
starting negotiations all over, though apparently this was Respondent's view of
the matter. It is well known that the drafting by one party of proposals that party
regards as agreed upon may, in the very process of being reduced to writing, dis-
close a lack of complete agreement, thereby prompting further discussion.15 It s
hardly conceivable that the Union would deliberately seek to bog down bargaining
conferences by an arbitrary change of position on items already accepted, with such
a vital issue as wages not yet adequately explored, and it is significant, in this con-
nection, that in one of the last conferences held the Union proposed calling in a
Government conciliator to assist the parties in composing their differences. This is
significant in appraising the Union's interest in getting a contract, but on the other
hand I do not view the Respondent's refusal to meet with a conciliator as indicative
of lack of good faith. With the issue of wages, and perhaps others, not fully nego-
tiated, the Respondent may well have thought such action was premature.
With these observations and conclusions, attention thus far directed primarily to
the Union's conduct vis-a-vis the Respondent in bargaining negotiations is focused on
Respondent's performance of its statutory obligations, for it is the Respondent and
not the Union that is charged here with a refusal to bargain, and the Union's conduct
has been viewed for its uses in enabling us fairly and intelligently to evaluate acts
and conduct of the Respondent complained of as unlawful.
15 "Regardless of whether hasty or unreasonable withdrawals of specific concessions
painstakingly achieved indicate bad faith in bargaining in a particular context, it does
not follow that a party to collective bargaining is, in all contexts, rigidly bound to each
and every tentative decision reached." R. J. Oil & Refining Co., Inc., 108 NLRB 641.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is noted at once that with reasonable promptitude after the submission of the
Union's contract proposal the Respondent submitted a counterproposal, and as has
already been noted the Respondent was at all reasonable times ready to meet in
bargaining conferences and in fact was insistent that the bargaining process be
speeded up. Without more, we could only surmise that the Respondent was eager
to get its bargaining relationship with the Union cemented with a contract which,
it might be hoped, would quiet the unrest among the employees about which the
Respondent claims to have been much concerned.
Coming to the specific allegations of the complaint, Kramer denied that he made
a statement during negotiations to the effect that he did not see what the employees
would get out of the negotiations because he would not give the Union anything
that he would not have given the employees anyhow, but admitted that he "did
make the observation that the things they were asking for were things that the
people already had or would get in due time." He testified that this statement was
not made in the "context" of bargaining discussions but during one of the frequent
"digressions" engagbd in by the Union's negotiator. There can be little question,
however, that the statement, whatever its precise wording, was made in the presence
of the Union's negotiating committee composed of five employees. While bargain-
ing sessions attended by employees may not be made the forum for intimidatory or
coercive statements otherwise violative of the Act, some latitude must be granted
for a free airing of opinions which may or may not be complimentary in tone, for
it is in an atmosphere of free and vigorous discussion of issues that satisfactory
agreements are most often reached. As an isolated matter I would not attribute
much significance to Kramer's statement, but it is not properly ignored in an evalua-
tion of a situation which involves, inter alia, the employees' own attitude toward
their bargaining representative. As to the exact nature of the statement, I find that it
conformed substantially to the wording in the complaint. If all the Union was ask-
ing for "were things that the people already had or would get in due time" were the
fact, the execution of a bargaining contract would appear to have been hardly more
than a formality, but after some months of bargaining the parties were unable
to agree on a contract, and if Respondent's testimony is accepted, as of the last bar-
gaining conference held the Union's wage proposal had not yet been explored.
Under such circumstances Kramer's statement as alleged, and as testified to by
Bogardus, rings truer than his own recollection of what he said.
The allegation of Respondent's insistence that any contract negotiated should
terminate 1 year after the date of certification raises a more substantial issue. It
appears that the Union proposed a 2-year contract dating from its certification as
bargaining representative. According to Bogardus, in this matter credited, Re-
spondent's written counterproposal left the proposed term of the contract blank
but Respondent took the position that it should be of 1 year's duration. Also ac-
cording to Bogardus, the Respondent at the next to the last meeting, on or about
February 25, through its attorney, Lane, changed its position on the duration of the
contract and proposed a termination date of the first week in October, approximately
1 year from the date of certification. According to Lane, his statement of Re-
spondent's position on the termination date occurred at the final meeting of March 2,
at which time he admittedly mentioned October 1 as the termination date. Further
according to Lane, this proposal stemmed from Respondent's "disgust and frustra-
tion" at what it regarded as the Union's "continual stalling and postponement and
cancellation of meetings," and after a session of 4 hours in which Bogardus had
insisted on an item-by-item discussion of Respondent's tentative draft incorporating
what Respondent believed to be agreed-upon issues. It was Lane's testimony that he
picked October 1 sort of "out of the air," whereas in prior discussions with Kramer
January 1, 1955, had been considered as an appropriate termination date.
On a reading of the entire testimony I am convinced that there was little, if any,
negotiation on the duration of the contract, extensive discussion on this no doubt
being deferred until substantial agreement had been reached on the more substantive
provisions. Lane's statement at the last bargaining conference did not, therefore,
necessarily represent a fixed or arbitrary position. Clearly, we do not have here an
insistence on a specified termination date as a condition precedent to contract negotia-
tions, such as was found in Henry Heide, Inc., 107 NLRB 1160.
As to Respondent 's insistence that it would not consent to a union shop there can
be no doubt. Union security is a bargainable issue and the requirement to bargain
in good faith applies to it the same as to any other issue appropriate to collective
bargaining. National Licorice Co. v. N. L. R. B., 309 U. S. 350, 360; N. L. R. B.
v. W. T. Grant Company, 199 F. 2d 711 (C. A. 9), cert. denied 344 U. S. 928. The
Act specifically provides, however, that the bargaining obligation does not require a
party to agree to a proposal or to make a concession, and while the cases frequently
PLASTIC AGE COMPANY 135
allude to a "closed mind" and an "adamant position " as indicia of lack of good faith,
such conclusions , it would seem , may not be bottomed solely on adherence to initial
bargaining positions . It is doubtful that parties normally have a completely "open
mind" on all topics which constitute the subject of collective bargaining at the time
bargaining conferences are started , and this is particularly true of such an issue as the
union shop , about which each party may have very strong and reasoned convictions.
Were we limited in our consideration of this issue to the actual bargaining conferences,
Respondent 's "persistent" or "adamant" position on union security might furnish little
ground for a finding that it was not bargaining in good faith , but incidents occurring
outside the bargaining conferences add complexity to this issue as well as to all
others going to the Respondent 's good-faith dealing with the Union . is I refer, of
course, to Respondent 's conduct with respect to the Association.
It may well be questioned whether it was possible for the Respondent to have
entered into negotiations with the Union with a bona fide desire to reach an agreement
on bargainable issues, to the end that bargaining relationships with the Union would
be stabilized , when, within a week of the Union 's certification , it extended the fa-
cilities of its plant and the paid-for time of its employees , for the organization of
what was nothing more nor less than a rival labor organization espoused by dissident
employees unwilling to accept the decision at the polls ; and further , when, immediately
following the Union's submission of its contract proposal, it extended the facilities of
its plant for a second meeting of this same organization and with its highest -ranking
managerial staff in attendance , at least acquiesced in the polling of employees on
the topic of union security . The fostering of one labor organization in the face
of a statutory obligation to bargain with another is , of all the objective tests by
which we strive to evaluate a subjective state of mind , one of the most impressive
and one not easily met by even so persuasive a course of conduct in actual negotiations
as is found here. It is observed that in stating his position on union security in the
course of bargaining negotiations , Kramer referred to the employees ' opposition to
such a measure and to very little else, and yet it does not appear that he personally
polled the employees in the matter or would have inasmuch as it would have been
unlawful for him to have done so, or that a sufficient number volunteered such infor-
mation that he would have been informed in that manner . What he did know,
and what Sebring certainly knew since he was present , was that at the second meet-
ing of the Association in Respondent 's plant and in the presence of Respondent's
managerial staff, the employees were polled on the subject . As already stated in the
preceding section of this report dealing with the Association , the real bargaining
on union security occurred at that time , only it happened not to have occurred
between the Respondent and the employees ' bargaining representative. I can only
conclude that the Respondent did not bargain in good faith with the Union on the
subject of union security , thereby violating Section 8 ( a) (1) and ( 5) of the Act.17
Coming finally to Respondent 's act in breaking off negotiations with the Union,
we find that this action was taken by the Respondent on presentation to it of a petition
signed by some 80 employees , or approximately 70 percent of all employees in the
appropriate unit, bearing the following text.
WE, THE UNDERSIGNED EMPLOYEES OF PLASTIC AGE COMPANY,
AFTER MUCH THOUGHT AND DISCUSSION, HAVE FINALLY DE-
CIDED THAT WE DO NOT WISH TO BE REPRESENTED ANY LONGER
IN COLLECTIVE BARGAINING BY THE INTERNATIONAL ASSOCI-
ATION OF MACHINISTS, LODGE 758, FOR THE PRIMARY REASONS
THAT WE FEEL THAT THE 1. A. M. DOES NOT REPRESENT A TRUE
MAJORITY OF THE EMPLOYEES OF PLASTIC AGE COMPANY, AND
THAT THE I. A. M. DOES NOT UNDERSTAND THE OPERATIONS,
CONDITIONS OR PROBLEMS AT PLASTIC AGE. FOR THESE REA-
SONS, AMONG OTHERS, WE HEREBY REQUEST THAT YOU DISCON-
TINUE NEGOTIATING WITH THE I. A. M. LODGE 758, AS WE DO NOT
WISH THEM TO REPRESENT US AS OUR BARGAINING AGENT.
11 "An employei ' s intiansigence on a particular issue has been found to evidence bad
faith in bargaining where the record as a whole has indicated that such intransigence
reflected an intention to avoid coming to any agreement." National Maritime Union of
America, 78 NLRB 971 , 981, enfd 175 F 2d 686 ( C A. 2), cert . denied 338 U. S 954.
17 The polling of employees on a bargainable issue is normally construed as an unlawful
bypassing ' of the bargaining authority , and this is true even where the motive for the poll
is to avoid a strike The Stanley Works , 108 NLRB 734 . I doubt that the situation is
materially different where the employer, though not initiating nor directing the poll,
acquiesces in such polling on company property and at a meeting attended by its highest-
ranking managerial personnel.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This petition was presented to Kramer at his office in Respondent's plant on March:
24, 1954, by Olive Donica, together with George Cushman, a prime mover in the or-
ganization of the Association, and Josephine Youngblood, formerly a member of
the Union's negotiating committee. Youngblood, while accompanying Donica, did
not herself sign the petition nor is it shown that she had any part in its preparation
or circulation. Questioned why Youngblood accompanied her on this occasion,
Donica testified, "I wanted a witness and I wanted a disinterested party which I
thought she was." 18
Kramer on receiving the petition questioned Donica whether supervisors had par-
ticipated in its preparation and circulation and whether it was circulated on company
time, and received answers in the negative. He was told by Donica that she initi-
ated the circulation of the petition and obtained most of the signatures by going to
employees' homes outside of working hours. Donica testified that she together with
Cushman obtained some 50 percent of all signatures appearing on the petition.
Kramer, though well aware that Donica and Cushman were instrumental in getting
the Association organized, made no inquiries as to whether the Association was in-
volved in its preparation and circulation because, as he testified, the petition itself
made no mention of the Association.
By letter dated April 2, Kramer addressed the Union as follows:
Please be advised that on March 24, 1954 a Petition was presented to me,
in my offices, by Mrs. Josephine Youngblood and Miss Olive Donica, both em-
ployees of this Company.
This Petition was signed by approximately 80 of the employees in the bar-
gaining unit of this Company, which unit you represent for the purposes of col-
lective bargaining. In essence, the Petition requested that this Company with-
draw recognition of your organization, as the representative of the employees,
for the purposes of collective bargaining.
Our records indicate, as of that date, there were approximately 114 employees
in the bargaining unit. Inasmuch as the Petition was signed by approximately
seventy percent of the employees in the bargaining unit, I feel, it is incumbent
upon us to accede to the demands and wishes of the substantial majority of our
employees.
We are fully appreciative of the fact that your organization is a certified rep-
resentative under the appropriate provisions of the existing law, however, we
feel that the interest and welfare of the employees are paramount under these
circumstances and should be given the greatest consideration We do not feel
that we can continue to negotiate with your organization when doing so would
be contrary to the express wishes of a substantial majority of the employees.
If we were to enter into a contract with your organization at some future date,
our employees would be compelled to accept the terms of a contract executed in
their behalf by a representative whom they had expressly disavowed.
On April 5, a date on which a regular monthly meeting with employees would
normally fall, Kramer addressed the employees and in the course of his remarks
referred to the petition, told them that after a "great deal of thought" he had decided
to accede to their wishes, and accordingly had terminated negotiations with the Union.
He also, according to his credited testimony, "reviewed" the 6-month period subse-
quent to the Union's certification; told of his desire to reach an early "solution"
in negotiations with the Union, and how he had found it "difficult" to meet with the
Union's negotiator more than on an average of once a week, with bargaining sessions
averaging 4 hours at each meeting; referred to charges filed against Respondent by
the Union "shortly after negotiations started" and amended several times since, the
nature of those charges and their status in litigation; and, apparently in explaining
why he was addressing them on these matters, told them that he had "been informed
by many of the people in the plant on passing through that they had been unable to
get any information as to what was happening during the negotiations or what was
happening in general to them and to the plant."
Upon completion of his remarks Kramer asked if there were questions, and dur-
ing the discussion which ensued Bruno Costa expressed the opinion that employees
had been coerced into signing the petition, whereupon Kramer asked that everyone
who felt they had been coerced in the matter raise their hands, or if they did not
want to do that in front of the employees, to see him in his office. According to him,
18 Youngblood did testify, however, that she was dissatisfied with the Union's represen-
tation and explained that she did not sign the petition because she thought it would be
"twofaced" to do so when she had served on the Union's negotiating committee. She left
the committee because of family illness.
PLASTIC AGE COMPANY 137
the fourth time he made this statement employee Alex Hollander raised his hand
and said he had been forced to sign the petition by Donica, whereupon there was
laughter.19 Kramer repeated his statement several times thereafter. He testified that
he "was pretty satisfied nobody was going to get up and say anything," and he was
right; nobody did. Following this meeting, still according to Kramer, he spoke to
some dozen employees who signed the petition with respect to whether they had
signed under pressure and all told him that they had signed voluntarily.
There is little evidence that those instrumental in circulating the petition em-
ployed threats or other coercive means in obtaining signatures to it. Aside from
Hollander's declaration at the meeting of April 5, there is Donica's admission that
in "quite a number" of discussions she had with prospective signatories to the peti-
tion the matter of layoffs was mentioned as "they" thought there would not have been
"that layoff" if it had not been for "this" Union; 20 and notes taken by Kramer's
secretary at the April 5 meeting which indicate that employee Jessie King said "some
of the women were just talking among themselves and wondering if they may get fired
if they didn't sign it [the petition]." On the other hand, in the context of Kramer's
statements which showed clearly his own disapproval of the Union's discharge of
its bargaining obligations and after Hollander's declaration had been ridiculed with
laughter, it can hardly be supposed that employees generally would feel free to ex-
press any concern they might have felt over the manner in which their signatures
to the petition were obtained. Be this as it may, did the issue turn on whether in-
timidatory methods were contemporaneously used in obtaining signatures to the
petition, I should think there would be insufficient probative evidence to establish
such fact, and while, contrary to Donica's testimony, the petition was circulated at
least partially on company time and premises, it is not inferred that this was done
with company knowledge and assent. Kramer's efforts to ascertain the bona fides
of the petition for the most part appear to have come after he had already broken
off negotiations with the Union, but this, too, is regarded as having significance
chiefly, if at all, in a general appraisal of his good faith or lack of it in dealing with
the Union. The basic issue is whether we have here a situation which qualifies the
Board's long-established 1-year rule, i. e., whether there are present such "unusual
circumstances" as to justify the Respondent's act on April 2, lust 6 months from the
date of the Union's certification in breaking off negotiations.
If the tests defining "unusual circumstances" in Henry Heide, Inc., 107 NLRB
1160, the most recent decision in the matter to reach my notice, solely were con-
trolling, obviously no "unusual circumstances" exist in this case, those tests being:
(1) Where the union representing the employees was dissolved; (2) where the
bargaining representative switched its affiliation from an international union to
another so that the identity of the bargaining agent was doubtful; and (3) where
the number of employees in the bargaining unit doubled or quadrupled in the space
of a year. However, in the Heide case there was an express reservation of decision
(none was required) on whether a loss of majority within the certification year may
also constitute "unusual circumstances." In any event, I think the discussion which
follows may be predicated upon the proposition that loss of majority within the
certification year does not per se vitiate the bargaining status of the certified agent
nor abrogate the employer's duty to bargain at least to the end of the certification
year, but must itself be attended by "unusual circumstances" in order to constitute
"unusual circumstances "
The so-called 1-year rule has by this time a history with which students and
practitioners in the labor relations field are quite familiar and therefore it is need-
less to burden this report with an extensive citation of cases, with accompanying
rationale, upon which it is grounded, and which demonstrate that it has as firm a
grounding in law interpretative of the Act as any decisional rule or policy issuing
from this Board. In a comparatively early case (1944) the Supreme Court enun-
ciated the principle that "a bargaining relationship once rightfully established must
be permitted to exist and function for a reasonable period in which it can be given
a fair chance to succeed" (Franks Bros. Co. v. N. L. R. B., 321 U. S. 702). Con-
gress itself gave indirect support to the 1-year rule when it provided in Section 9
(c) (3) of the amended Act that no more than one election should be held in the
same bargaining unit within a 12-month period; and only recently the Circuit
Court of Appeals for the Ninth Circuit, in which this case arises, after a detailed
review of authorities-to which interested parties are referred-reaffirmed this
19 Hollander quit his employment the next day Obviously, the ridicule he had suffered
was a motivating factor in his quitting
° Respondent's brief states that by layoffs the bargaining unit was reduced from ap-
proximately 148 to approximately 115 employees in the spring of 1954.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
principle. N. L. R. B. v. Ray Brooks, 204 F. 2d 899. Respondent argues, however,
that what is assured the bargaining representative by the decisions is a "reasonable
period" in which to function in its representational capacity, and that it may by
its own dilatory actions and bargaining techniques demonstrate in less time than a
year its inutility as bargaining agent to the end that an employer, upon proper show-
ing of revocation by the employees of the bargaining authority, may justifiably
(lawfully) break off negotiations within the certification year. , In short, Respondent
contends that here a 6-month period, rather than the customary 1-year period, con-
stituted, under the circumstances of this case, all the Union was entitled to in the
face of having its representative status repudiated by a majority of employees.
Upon the assumption that the petition upon which Respondent acted was bona
fide in every respect and represented the uncoerced desires of the employees, I
would, nevertheless, on the basis of decisions which I regard as controlling, dis-
agree with the Respondent in this position and find that the petition did not relieve
it of its statutory duty to continue to bargain with the Union and within the certification
year. It is established to my satisfaction that some and perhaps many employees
were dissatisfied with the course of negotiations between the Respondent and the
Union, and some of them, at least, believed that the Union was not as diligent as
it should have been in presenting and pressing its bargaining demands, nor as well
informed as it might have been on the particular problems existing in a compara-
tively new industry, but this is a situation which might arise in any case where em-
ployees without prior experience in collective bargaining are disappointed when a
contract advantageous to them does not eventuate after a few bargaining confer-
ences. Nor is it surprising, in a plant where the employees had no prior experience
in bargaining, that they, or some of them, should want and expect a more detailed
report on bargaining conferences than was afforded them, particularly when nego-
tiations did not quickly result in a contract, but are we to say that the Union has
lost its representative status because it imposed on its employee negotiating com-
mittee a rule of silence during the crucial period of negotiations? Obviously, this
is no more our proper concern than the actual bargaining techniques, wise or un-
wise, employed by the parties.
I have reviewed at some length alleged sources of dissatisfaction experienced by
the Respondent and shared to some degree, certainly, by employees, over what was
regarded as unduly prolonged negotiations, but aside from the frequency and dura-
tion of bargaining conferences which I have found to afford insufficient grounds for
a conclusion that the Union was deliberately stalling the bargaining process, the
time lapse between the submission of the Respondent's complete counterproposals
in late November or early December to the final conference on March 2, a period
of some 3 months, is neither surprising nor unusual when it is considered that
negotiations were on a contract covering the employees of a comparatively new
industry where such a contractual relationship had never existed before. The so-
called "reasonable period," customarily 1 year, relates primarily not to a judicious
or nonjudicious exercise of the bargaining authority, nor to such a matter as
diligence or lack of it in pursuing bargaining objectives, but to the securing of a
measure of stability in bargaining relationships. ". . freedom to choose a repre-
sentative does not imply freedom to turn him out of office with the next breath.
As in the case of choosing a political representative, the justification for the franchise
is some degree of sobriety and responsibility in its exercise." N. L. R. B. v.
Century Oxford Mfg. Corp., 140 F. 2d 541 (C. A. 2), cert. denied 323 U. S. 714.
Assuming, then, that the petition of revocation was solely attributable to the em-
ployees' dissatisfaction with their bargaining representative's discharge of bargain-
ing obligations, I conclude that this does not constitute "unusual circumstances"
terminating the representative status of the Union within the certification year, or
make lawful Respondent's act in breaking off negotiations. It should be borne in
mind that we have here not a temporary cessation of meetings or countermoves
to require a greater amount of promptitude and diligence on the part of the Union's
negotiators in making and keeping bargaining commitments, but a complete with-
drawal of recognition and severing of the bargaining relationship, based solely on
the Union's alleged loss of majority.
The assumptions of a petition uninfluenced by employer acts and conduct upon
which I have based the foregoing conclusions in order to reach the issue in its most
basic aspect are not, however, borne out by the facts. This petition issued from
the very people who immediately after the certification of the Union set afoot, with
substantial employer assistance, the organization of a rival union with the avowed
purpose of unseating the Union at the end of its certification year, and while there
is little showing that the Association, as such, sponsored the petition, its founders
PLASTIC AGE COMPANY 139
and present president did. Under such circumstances , the employees generally
would reasonably identify its sponsorship with the Association . When it is borne
in mind that the Association was formed primarily for the purpose of unseating the
Union as bargaining representative , and that it was attempting to influence and,
I think, did influence , the course of bargaining between the Respondent and the
Union by virtually vetoing the union shop at a time when negotiations on a contract
had not actually started, it is obvious that this dissident group was doing its utmost
to "unstabilize" bargaining relationships between the Respondent and the Union
before the latter had been afforded any opportunity whatever to discharge its obli-
gations as a bargaining representative.
Neither lack of diligence nor failure of the Union's negotiators to grasp imme-
diately the organizational structure and requirements of this new industry , if these
be facts, nor any of the alleged failures of the Union in its representational capacity,
could account for the origin of this organizational movement , and while a majority
of employees were induced to sign the petition of March 24 , less than 6 months after
the Union 's certification , it would be quite impossible to say how many of them did
so out of genuine disapproval of the Union as bargaining representative based on
actions taken or not taken in the course of collective bargaining ; or for causes over
which the Union had no control , such as layoffs; or how many were influenced by
such statements as Kramer 's before the negotiating committee that the employees
would get nothing through the Union they would not have had otherwise ; and how
many belonged to that dissident group which was ready to repudiate the Union
before bargaining started. And while much has been made here of the tensions exist-
ing among employees from the advent of the Union and continuing until the Re-
spondent broke off negotiations , and losses incurred by the Respondent due to these
tensions , it has never been supposed that the initial unionization of employees culmi-
nating in the certification of a bargaining representative would necessarily result
immediately in conditions of harmony and industrial peace, though it is thought that
through a reasonable stabilization of bargaining relationships such results may
eventually be obtained and secured . In the situation at hand , as previously noted,
increased and prolonged conflict and tension among employees was insured by the
Association 's organizational movement set in motion immediately after the Union's
certification , on company time and property , by employees unwilling to accept the
decision at the polls and determined to upset it at the first available opportunity.
Under such circumstances it would hardly serve the principle of industrial peace
through stabilized bargaining relationships to treat the petition of March 24 as a
bona fide repudiation of the Union or as having any effect whatever in shortening
what would otherwise be considered a "reasonable period" in which the Union would
be given a "fair chance to succeed." Franks Bros. Co. v. N. L. R. B., supra.
It is found that by breaking off negotiations with the Union on April 2, 1954, and
refusing thereafter to recognize and bargain with the Union as the duly constituted
representative of a majority of its employees in an appropriate unit , the Respondent
has engaged in and is engaging in unfair labor practices violative of Section 8 (a) (1)
and (5 ) of the Act.
C. Alleged 8 (a) (1) and (3) violations
1. Chronology; issues
On or about September 1, 1953, a first organizational meeting of the Union was
held at the home of employee Walter D. Schmitz, and following this meeting Schmitz
and other employees who had attended the meeting openly distributed union authori-
zation cards among Respondent 's employees outside and, to some extent , inside the
plant. On September 9 Sebring received the Union 's written notice of majority
representation and request for recognition and bargaining rights. On September 10
Sebring called several employees to his office , among them Schmitz and Leroy
Barker, alleged to have been discriminatorily discharged on that date , and Jenness
McDaniel, who was on that date notified that she would be transferred to another
department , the said transfer resulting eventually in her resignation. It is alleged
that the transfer , effectuated on September 24, the date the Union won a bargaining
election, was discriminatorily motivated and that her resignation , under the circum-
stances, was a constructive discharge . Respondent admits Barker's discharge but
asserts that it was for cause; claims that Schmitz was not discharged but quit; and
admits McDaniel's transfer but denies that it was discriminatory.21
zi A further allegation that four named employees were demoted because of union activ-
ities was dismissed at the hearing because not supported by substantial evidence.
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Interrogations
There can be no doubt that Sebring was aware of union activities among employees
at the time he interviewed several of them in his office on September 10 and that he
was disturbed by the information which had reached him . Of the questions put to
employees he interviewed on this date, some involved whether they were "dissatis-
fied" with their work and the causes of unrest in the plant , and while Sebring denied
broaching the subject of the Union in these conversations , I am unable to credit his
denial . It is the credited testimony of employee Barrie Edwin Sandy that Sebring
asked him what he thought of the Union , and when Sandy replied that whichever
way the matter went he would be with the majority, Sebring said in effect that while
he had no objection if the employees wanted the Union , Kramer would fight it. It
is McDaniel 's credited testimony that after broaching the subject of the Union,
Sebring said that he did not feel the Company needed the Union and it was a bad
time to have something like that going into effect with Kramer away from the plant.
Sebring also mentioned the matter of the Union to Barker , but the latter was unable
to recall what was said on the topic.
I have no doubt that one of Sebring 's purposes in the several interviews with em-
ployees on September 10 was to ascertain their attitude toward the Union , and in the
context of other unfair labor practices found herein and in consideration of his status
as an officer of the Respondent and plant manager , I find that his interrogation of
Sandy, accompanied as it was by the statement that Kramer would fight the Union,
was violative of Section 8 (a) (1) of the Act. While he broached the topic of the
Union in conversations with Barker and McDaniel , and it is a reasonable inference
that in doing so he was attempting to ascertain their attitudes toward the organiza-
tional movement , the evidence falls short of establishing that he engaged in the sort
of outright interrogation that constitutes a violation of the Act.
After attending a union meeting on the evening of September 10, employee Denton
returned to Respondent 's plant and volunteered to Sebring the names of some 30 or
40 employees who had attended the meeting. There is no evidence that Denton at-
tended this meeting and reported back at the request of management , or was interro-
gated by management . Since his action in attending the meeting and giving the
names of employees who attended was, as far as established in the evidence , volun-
tary, I cannot see where violation of the Act by Respondent lies. Obviously, how-
ever, Sebring was not "disinterested " in the sense that his version of conversations
with employees on September 10 would , if credited , lead us to believe , for had he
been so he would not have permitted Denton to volunteer the names of employees
attending the union meeting.
3. Leroy Barker
The discussion with respect to the alleged discriminatory discharge of Leroy Barker
will be brief because I am not persuaded that the General Counsel has established
by a predominance of evidence that Respondent had knowledge of his union activi-
ties. Respondent denies knowledge and Sebring, while admitting that he was aware
of union activity "all over the shop," denied , as did Barker's immediate supervisors,
knowledge of union activity in the department in which Barker was employed at
the time of his discharge . Barker attended the meeting at Schmitz ' house, and
thereafter distributed union cards among employees both inside and outside the
plant , with no effort at concealment , and personally solicited a few employees to
join and to attend the September 10 meeting . An inference of company knowledge
might be drawn from these facts alone, but I am not convinced that I should
draw it. No supervisor attended the meeting at Schmitz' house and there is no
other evidence from which it might reasonably be inferred that the Respondent
had knowledge of the identity of those attending it, and while the distribution of
cards was open there is no showing that managerial personnel observed Barker
engaging in any of this activity . That may well have been the fact , for Respond-
ent's plant is not a large one, but I do not think the size of the plant and the openness
of the activity , without more , constitute sufficient grounds for the inference of
knowledge . And while the reasons given for this discharge are subject to more
than one interpretation , they are not so flimsy or unbelievable as to raise an in-
ference of discriminatory motive. True, such circumstances as the timing of the
discharge , in connection with other matters occurring on September 10 together
with Sebring's questioning Barker if he was "dissatisfied " with his work , in con-
junction with his union activity , cloud the situation and arouse suspicions , but are
insufficient , in my opinion , to supply the missing element in the General Counsel's
case, and one essential to a finding of a discriminatory discharge-company knowl-
PLASTIC AGE COMPANY 141
edge of his union activity. I must recommend dismissal of the complaint with
respect to him.
4. Jenness McDaniel
The case with respect to Jenness McDaniel is more impressive because, among
other things, there is testimony which, if credited, would form the basis for an
inference that the Respondent had knowledge that she was active on behalf of
the Union as of September 10 and thereafter. A somewhat more detailed examina-
tion of the circumstances of her transfer is therefore required.
McDaniel when first employed by Respondent in October 1951 worked for
approximately 1 month in the cementing department where she developed an allergy
which caused a skin irritation or rash. At her request, she was transferred by her
supervisor, Helm Dorflinger, to the forming department where her work did not
bring her in contact with materials giving rise to the allergy. She remained em-
ployed in that department until her transfer on September 24, 1953.
As of September 1953, there were approximately 8 or 9 employees in the forming
department. It was under the immediate supervision of Foreman Jack T. Robson
and the general supervision of Dorflinger. A good deal of the defense testimony
with respect to the alleged discharge of Schmitz and McDaniel's transfer had to
do with what Respondent's witnesses described as unrest and disorder in this small
department. It appears that the initial state of fabrication of Respondent's products
occurs in the forming department and therefore the operation of other departments
is, to a considerable degree, dependent on its production. Sebring, who ordered
McDaniel's transfer, testified that prior to September 10 he had received reports
from Dorflinger of "misconduct" engaged in by McDaniel and Edna May, another
employee of the forming department, and had received a complaint from Framer
that the latter had observed McDaniel dancing in the department during working
hours. This testimony was corroborated by Kramer and Dorflinger, respectively.
On the morning of September 10, Sebring had a conversation with Foreman Robson
during which they discussed the "problem" of McDaniel and May and what steps
to take to correct the "condition" existing in the forming department.
In the afternoon of September 10, Sebring called McDaniel to his office and,
according to her credited testimony, told her that he was transferring her to either
cementing or the cleanup department where she had worked for brief periods on
temporary transfer from her regular work. McDaniel objected to the transfer and
referred to the allergy from which she had suffered while working in cementing.
She was not given definite notice of the transfer until September 23 and the transfer
was effectuated on September 24. The transfer involved no reduction in pay.
Shortly after the transfer, according to McDaniel, she was again afflicted with a
rash attributable to an allergy; she complained to Dorflinger and asked to go back
to forming but he replied that there was nothing he could do about it. McDaniel
testified that she was "upset" by not being returned to her "own" department and
thought it better to quit than to continue with an allergic condition. "There was
so much ill feeling," she testified, "so I just told Mr. Dorflinger I was quitting at
The end of the day." At Dorflinger's suggestion she saw Kramer in the latter's office.
Concerning her conversation with Kramer, she testified:
I told Mr. Kramer that I was quitting that night and he asked me why.
I told him for one thing I didn't like the attitude of the people that they had
taken since the union had gone in there. They all became bitter.
For another thing, I didn't like cleanup department. I wanted to go back to
forming. I asked why they kept two new girls in forming and kept me out.
Questioned on cross-examination, "Isn't it true you did not mention your health
to Mr. Kramer at the time you quit?" she testified:
I did tell Mr. Kramer at the time that I had the rash, that I had broken out
from working in cleanup again and he said, Jenness, there isn't anything I can
do for you or anybody else in the plant any more. Whatever happens to you
in the plant from here on the union has to take care of it.
McDaniel's resignation occurred on October 2, about a week following her
transfer.
The first union activity engaged in by McDaniel was in the forenoon of September
10 when, according to her credited testimony, she received some 12 union cards from
other employees and, in the absence of Schmitz, for whom the cards were intended,
placed them in his lunch pail. These cards were brought to her in the department
where she worked, during working hours, and McDaniel testified that Foreman Rob-
son, on observing her handling the cards, said, "I don't mind your doing it as long
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as you don 't get caught ." Robson testified that he did not recall such an incident
and denied knowledge that McDaniel was engaged in union activity . Admittedly, he
discussed McDaniel 's case with Sebring in the forenoon of September 10, and if
McDaniel 's testimony is credited it may be inferred , despite his denials, that he
reported the incident of the union cards to Sebring . Respondent contends , however,
that the decision to transfer McDaniel was made prior to September and Dorflinger
testified to that effect . I do not credit this testimony . Dorflinger testified that the
decision was based on the unsatisfactory condition of the forming department, the
"clique" that had been formed by McDaniel and Edna May, and the need for an
additional employee in cleanup . Obviously , if there had been a pressing need for
her services in cleanup , and the decision to make the transfer had been determined
prior to September 10, the actual transfer would not have been delayed until Septem-
ber 24. Furthermore , it is clear from Sebring 's testimony that no definite decision
had been made prior to his conversation with Foreman Robson in the forenoon of
September 10. Concerning this conversation , Robson testified that Sebring suggested
that both McDaniel and Edna May be transferred in order "to end the turmoil" in the
department , and that he , Robson , disapproved , but finally agreed to McDaniel's
transfer because he considered Edna May the more experienced employee. Finally,
McDaniel 's credited testimony establishes that as of September 10 Sebring had not
decided whether to transfer her to cleanup or to cementing.
Further doubt as to Respondent 's actual motivation in the transfer is raised by
the fact that at least 2 of the 4 or 5 female employees in the department had worked
there less than 6 months whereas McDaniel had been employed there, except for
brief periods of temporary work in cleanup , since November 1951 . However, one
of the leading reasons for the transfer was that McDaniel and Edna May, the 2 oldest
employees in the department , formed a "clique" and Robson testified that he had
some difficulty getting these 2 to work on "menial tasks ." The precise meaning to be
attached to the use of the word "clique " by Respondent's witnesses is uncertain. The
work of the 2 employees in question appears to have separated them physically from
other female employees in the department , and they doubtless were close friends,
but how this affected or could affect their efficiency is not clear . Despite Robson's
difficulty in getting them to work on "menial tasks"-a difficulty not satisfactorily
amplified in his testimony-he obviously regarded them as among his most efficient
employees and opposed the transfer of either . When it is borne is mind that he was
the one directly responsible for operations in the forming department , and any
changes made presumably would be to enable him to make his supervision of that
department more effective , Sebring's action in overruling him, though normally the
foreman is vested with authority effectively to make recommendations in such mat-
ters, is not satisfactorily explained by Respondent 's witnesses . There can be no
question that McDaniel participated in the lax deportment that characterized this
department , and on one occasion was observed by Kramer dancing during working
hours. Her explanation of this incident was ingenious but not wholly convincing.
Dorflinger 's testimony that he had frequently observed her engaging in such conduct
is, however , not credited, and it may be questioned how serious an offense this was
considered by management when it is observed that with the knowledge and permis-
sion of management a radio was kept on in the department during working hours,
and that although the incident witnessed by Kramer was reported to Sebring some
10 days prior to September 10, neither he nor Kramer nor anybody else in manage-
ment spoke to McDaniel about it or took any action with respect to it . It may also be
questioned why, if her deportment was such as to necessitate her transfer , Robson,
her immediate supervisor , opposed it.
As to Respondent 's knowledge of McDaniel 's union activity , there can be no
doubt that it had such knowledge after September 10, for she attended the union
meeting on the evening of September 10. Employee Denton rendered an account
to Sebring of those attending that meeting, and following the meeting she wore a
union button . In a department as small as forming and with the Union obviously
occupying the attention and concern of supervision as well as rank-and-file employ-
ees, such a display of partisanship could hardly have passed unnoticed . Also, it is
borne in mind that the transfer was not actually directed until the day the Union
won its victory at the polls and effectuated on the following day, and , admittedly,
between September 10 and the date of the transfer , McDaniel engaged in none of
the "misconduct" now relied on to justify her transfer . In any event , whether or not
it be found that Robson reported to Sebring his observation of McDaniel 's handling
of union cards in the forenoon of September 10, there is reason to believe that
Sebring on that date at least suspected that she was a participant in such activity. In
the conversation he had with Robson the latter specifically named McDaniel, along
with employee Schmitz, as being dissatisfied with wages , and as will be seen in more
PLASTIC AGE COMPANY 143
detail in the following section of this report dealing with the alleged discharge of
Schmitz, it was the kind of unrest that had to do with dissatisfaction with wages and
working conditions that Sebring dealt with in his conversations with the employees
of the forming department interviewed by him on September 10, and not their lax
deportment. In the light of all the testimony, it cannot be doubted that Sebring
equated "dissatisfaction" in the matter of wages and working conditions with union
activities, and this is borne out with respect to McDaniel specifically by Sebring's
reference to the Union in his conversation with her wherein he expressed his opinion
that it was a bad time to have a thing like that going into effect with Kramer away
from the plant.
Upon consideration of all factors, I am convinced that except for her union activi-
ties, or what Sebring believed to be her implication in union activities, she would
not have been transferred, and that in transferring her Respondent violated Section 8
(a) (1) and (3) of the Act. I am not convinced, however, that the said transfer
constituted a constructive discharge. I am unable to find that it imposed on her
working conditions so much more arduous or so much lower in the scale of skills
employed as to convert it into a constructive discharge, and her salary remained
the same. Since the brief periods in which she had formerly worked in cleanup had
not given rise to an allergy affecting her health, there is no compelling reason to
believe that in effectuating her transfer Respondent was deliberately subjecting her
to conditions which it knew would prove intolerable. Had that been its intent it
might well have transferred her to cementing where she had previously been afflicted
with the rash, and according to her testimony it was Sebring's suggestion on Septem-
ber 10 that she be transferred either to cementing or to cleanup. I am convinced
that in separating her from the group in the forming department which the Respond-
ent believed to be a core of organizational activity, the Respondent had accom-
plished its ends with respect to her.
Coming to the week following the transfer when, according to McDaniel, she
was again afflicted with a rash, we are met with something of a quandary, for it is
by no means clear whether such a rash was traceable to an allergy or to the fact
that she was upset because of factional hostility among employees over the Union,
and since she did not seek the advice of a physician we have no expert opinion on
which to rely. Too, it is by no means clear that her decision to quit rested on her
physical affliction. As she told Kramer on the occasion of her quitting, she "didn't
like the attitude of the people that they had taken since the union had gone in there.
They all became bitter." I credit Kramer's testimony that she made no mention
of suffering from an allergy or rash during this conversation in which she advised
him that she was quitting, and his further testimony that he was not personally
involved in the matter of her transfer and had no prior conversation with her
concerning it. In all, I feel that there is no predominance of evidence that she quit
because of conditions arising from her transfer, or that the change in her status from
forming to cleanup necessitated her quitting.22
5. Walter D. Schmitz
Schmitz was employed by the Respondent in February 1952, and continuously
from that date to on or about June 5, 1953, when he quit to accept other employ-
ment. During this period of his employment with the Respondent he worked in
Respondent's machining department under the general supervision of Helm Dor-
flinger, and the immediate though limited supervision of his group leader, LeRoy
Barker. When Plant Manager Sebring was informed that Schmitz was quitting, he
inquired of employees of the machining department whether they had complaints,
and specifically wanted to know of Schmitz why he was leaving. Schmitz replied-
that he had been offered a better paying job and that Dorflinger (to whom he re-
ferred as a son-of-a-bitch) was "riding him too much." Later that same day
Schmitz went to Sebring's office at the latter's request and at that time Sebring com-
plimented him on his work, inquired how much money it would require to keep
him in Respondent's employ, and suggested that Schmitz take a leave of absence
21 While I have credited Kramer in such respects as his testimony conflicts with Mc-
Daniel's, I have no such reservations concerning her insofar as her testimony conflicts
with Dorflinger's. McDaniel did not impress me as one deliberately fabricating her testi-
mony whereas Dorflinger did, and while I have not credited her in toto I have found major
portions of her testimony credible. "It is no reason for refusing to accept everything that
a witness says, because you do not believe all of it ; nothing is more common in all kinds
of judicial decisions than to believe some and not all." N. L, R. B. v. Universal Camera
Corp., 179 F. 2d 749, 754 (C. A. 2).
144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instead of quitting outright. "Try the other job and if you don't like it," Sebring
told Schmitz, "come back and we'd be glad to have you back." 23
Shortly prior to August 10, Schmitz informed Dorflinger that he would like to
have his old job back. He had been laid off at his most recent place of employment
because of a curtailment or cessation of operations. Dorflinger replied that there
was no opening in machining, but when Schmitz suggested there might be an opening
in the forming department, Dorflinger said he would check into the matter with
Sebring. Dorflinger testified that because of past difficulties with Schmitz he him-
self had reservations about rehiring Schmitz, but that he "went along with Mr.
Sebring" and "made room" for Schmitz in the forming department. Schmitz was.
rehired on August 10 and, according to his credited testimony, on the occasion of
his rehiring Dorflinger said, "Let's shake hands and be friends."
From the date of his rehiring on August 10 to the date of the final termination
of his employment on September 10, Schmitz was employed in the forming depart-
ment where he was under the general supervision of Dorflinger, then departmental
supervisor, and the immediate supervision of Jack T. Robson, foreman. As pre-
viously stated, the total personnel of this department numbered some eight employees.
About September 1, after talking to some of his fellow employes about forming
a union, Schmitz arranged with a representative of the Union to hold a meeting at
his, Schmitz', house for organizational purposes. This meeting was held on Septem-
ber 3 and was attended by some 8 or 10 employees. These employees received au-
thorization cards from the Union's representative and on the following day distrib-
uted them at Respondent's plant. The distribution occurred mainly before working
hours in the vicinity of a lunch wagon which was parked in front of Respondent's
plant, and the distribution was made openly. Cards bearing signatures were returned
to Schmitz for transferral to the Union. A second meeting for organizational pur-
poses was scheduled for September 10 and employees were notified of this meeting
at the time the authorization cards were distributed outside the plant. Schmitz re-
ceived such authorization cards as were signed by employees up to the time his em-
ployment was terminated, and some of these cards were handed to him in the form-
ing department. It is his credited testimony that he gave one of the authorization
cards to his foreman, Robson, who responded by saying that being a supervisor the
Union could not help him, but "it was all right to go ahead." 24
On the morning of September 10 Sebring called Schmitz to Kramer's office (Kramer
was then away from the plant), asked if he was satisfied with his job, and said he
had heard rumors that Schmitz was starting trouble. According to Schmitz, Sebring
then said that there was no room for people like that in Respondent's plant and
suggested that Schmitz "leave immediately." Schmitz inquired of Sebring if this was
on account of the Union and Sebring replied, no, that if the employees wanted a
Union that was what he wanted. Sebring then accompanied Schmitz to the office
of Gordon Grohman, Respondent's accountant, where Schmitz received his final pay
check.
Sebring's version of the termination of Schmitz' employment was in substantial
variance with that given by Schmitz. According to Sebring, Schmitz was not dis-
charged but quit. He testified that he had received reports which definitely showed
that Schmitz' attitude was "one of dissatisfaction and was causing a condition in
the Forming Department." "I told him," Sebring testified, "of the reports that I
had received of his particular dissatisfaction. his apparent lack of interest or atti-
tude or what you might, well, it would be attitude. I told him, I believe, of the gen-
erally, the unrest condition of the department that Mr. Dorflinger felt that Walt
[Schmitz] was the decided contributing factor, the feeling of dissatisfaction through-
out the whole department." According to Sebring, for the prior several weeks he
had been receiving unsatisfactory reports from Dorflinger on the forming department
"as a whole"; Dorflinger had reported "unrest, low production, and a noncooperative
attitude." On September 10 he had a discussion with Robson for the purpose of
"getting to the basis of his problems." Among other things, Robson said that there
was dissatisfaction with wages in the department and specifically mentioned Schmitz
21 These findings are based on Schmitz' credited testimony. Sebring did not recall the
inquiry whether Schmitz would remain if his salary was increased. Concerning the leave
of absence, he testified that Schmitz asked to take a leave of absence and that he, Sebring,
replied that if Schmitz wanted to come back at a later date he could apply and "we would
definitely consider rehiring him."
- 24 This finding is based on Schmltz' credited testimony . Robson did not recall Schmitz
handing him a union card or making the statement attributed to him by Schmitz. He
admitted , however, that he was aware of Schmitz ' union activity and knew that he passed
out union cards on more than one occasion.
PLASTIC AGE COMPANY 145
and McDaniel as employees dissatisfied with their wages. Sebring asked Robson if
he felt the Union coming into the shop had given the "people any problems ," or "if
that was one of his problems of trying to manage his department," and Robson
replied that possibly that had something to do with it. Returning to his conversa-
tion with Schmitz on September 10, Sebring further testified that he told Schmitz that
fiom reports he had received it was evident that Schmitz was dissatisfied with wages
and conditions , and if it were he and he was that dissatisfied with wages and condi-
tions at a place where he was working he would quit , whereupon Schmitz said , "0. k.,
I quit." According to Sebring , the only mention of the Union during this conversa-
tion was when Schmitz, following his declaration that he was quitting , added that if
Sebring thought he had anything to do with the Union Sebring was crazy.
Before turning to a more detailed recital of testimony adduced by Respondent for
the purpose of showing that Schmitz was an unsatisfactory employee, it is appro-
priate to reach a conclusion on the issue of whether Schmitz quit or was discharged,
for if he quit there are not , in my opinion , factors present which would reasonably
convert such a quitting into a constructive discharge . Accepting Schmitz ' testimony
that Sebring told him that there was no room for people like him in Respondent's
plant and suggested that he "leave immediately," it might be argued that such a
"suggestion" falls short of an outright discharge . I would be unable to agree. I
think such a "suggestion " from an officer of the Respondent and plant manager,
following on the heels of a statement that there was no room for people like Schmitz
in Respondent 's plant , was more than a mere suggestion. I think it was a discharge
and would reasonably be construed as a discharge by the employee so addressed.
Had not Sebring intended by these words to effectuate a discharge , he would have
amplified his statement upon finding that Schmitz so construed it.
That Schmitz had on a prior occasion voluntarily severed his employment with
Respondent adds nothing to our enlightenment in this matter . On that prior oc-
casion he already had an offer of other employment and he quit Respondent's
employ to accept an offer which involved a higher wage. There is no showing that
on September 10 Schmitz had an offer of other employment or was contemplating
severing his employment with Respondent . The showing is to the contrary . Subse-
quent to September 10 Schmitz filed various applications for employment elsewhere,
and the application which led to his subsequent employment was dated October 21.
Schmitz testified that on this application he stated as the reason for the termina-
tion of his employment that he had been discharged, but the application , later in-
troduced into evidence , actually states that his employment was terminated because
of "undesirable working conditions ." Such wording, obviously , is more consistent
with a voluntary than an involuntary termination of employment . Schmitz testified,
however , that an officer of the company with whom this application was filed, ques-
tioned him concerning the notation appearing thereon , and that he explained how
it had been his experience in filing prior applications for employment that when he
gave "discharged" as the reason for the termination of his employment with Respond-
ent he was unable to obtain further employment , and for that reason he had used
the term "undesirable working conditions ." I have no reason to donht this testi-
mony. It was undisputed, given in a forthright manner , and while neither his testi-
mony on what he put on the application in question , nor what actually appeared
there, reflects a full and accurate statement of the facts , it is at least understandable
why, in applying for employment, he did not state unequivocably that he had been
discharged from his last place of employment , and his present employer must have
considered his explanation satisfactory because following this explanation he was
hired.
The issue is one of credibility . And while in arriving at a decision on credibility
I take into account Schmitz ' failure to testify with full candor and accuracy as to
the application in question , I must also take into account what was an obvious
lack of candor and accuracy in Sebring 's testimony on a number of points, as
when he denied having raised the question of union activities in the discussions
which he had with several employees on September 10. As previously found,
Barrie Edwin Sandy , whom Sebring called to his office on September 10 and praised
for his work and promised advancement , testified that after making complimentary
remarks Sebring asked him what he thought of the Union . Upon observation of the
witnesses I have felt no hesitancy in crediting Sandy's testimony . I am also con-
vinced that Schmitz testified truthfully when he denied stating , as Sebring testified
he did , that if Sebring thought he had anything to do with the Union Sebring was
crazy, and credit Schmitz' testimony that on being told that he should leave the
plant immediately, he inquired if this was on account of the Union . Had Schmitz
been fabricating this testimony, I think it unlikely that he would have further testified
that Sebring answered in the negative and said that if the employees wanted a union
146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that was what he , Sebring, wanted . However , had Schmitz actually said that if
Sebring thought he had anything to do with the Union Sebring was crazy, it is
difficult to understand why he would volunteer such a remark, and an untruthful
one, if in fact he had just quit . Such a remark clearly would be more consistent
in the context of a discharge.
Groham , Respondent 's accountant , testified that Sebring directed him to make
out Schmitz' check because Schmitz had quit , whereupon Schmitz, who was present,
said nothing. J. W. Thomas , a leadman , testified that about a month after Septem-
ber 10 he asked Schmitz why he had quit and that Schmitz did not then say that
he had been discharged . Apparently neither did he say he had quit . Dorflinger,
in testifying , without once being questioned whether Schmitz ' employment was
terminated by a quitting or a discharge , made repeated references to Schmitz having
quit or having understood that Schmitz quit.
I attach no probative weight to Dorflinger 's numerous volunteered statements
with respect to his conclusions on the manner in which Schmitz ' employment was
terminated . The fact that he was so patently eager to volunteer this information,
together with his obvious and understandable bias with respect to Schmitz, would
raise doubts that Schmitz voluntarily severed his employment if none existed before.
Assuming the veracity of Thomas ' testimony , it is at most a very slight factor in
appraising Schmitz' denial that he quit , for Schmitz may very well have felt that
there was no occasion for volunteering the information to Thomas that he had not
quit but was discharged . A discharged employee looking for a job might well prefer
that it be thought generally that he had voluntarily severed his employment. As
corroboration of Sebring , Groham's testimony might be entitled to weight, if be-
lieved , though it is by no means certain that on the occasion of receiving his check
Schmitz would have corrected Sebring by asserting that he had not quit but had
been discharged . However, Schmitz testified that Sebring made no statement to
the effect that Schmitz had quit on the occasion when the latter received his check
in Groham's office, and I credit Schmitz' testimony .25 Sandy testified that when
he was interviewed by Sebring on September 10, Sebring said that Schmitz had
caused trouble in the forming department and in other departments where he had
worked, and that he had let Schmitz go . Sandy testified that following this state-
ment , Sebring "sort of paused for a minute and said that Walt quit ." As previously
indicated , I find Sandy to be a credible witness.
Upon consideration of the entire testimony germane to the circumstances attend-
ing the severance of Schmitz' employment , and particularly upon my observation
of the demeanor of the witnesses-other factors being pretty well balanced-I must
resolve the issue of credibility against the Respondent , and, accordingly , find that
Schmitz did not quit but was discharged . I am convinced that that is the truth of
the matter . We turn next to a consideration of whether he was discharged for
cause or for his union activities.
Admittedly , Schmitz was a skillful and highly competent employee . Wilfred H.
Stabenow , formerly in Respondent 's employ as a foreman , testified that Schmitz
machining was "an outstanding job," and the fact of Respondent 's reluctance in
parting with Schmitz on the occasion of his voluntary quitting in June 1953 bespeaks
his competency . If between his rehiring on August 10 and his firing on September
10 he became such an unsatisfactory employee that his dismissal was required, it
must have been on grounds other than ability to perform his work in an outstanding
manner. In reviewing the testimony of Dorflinger , Robson , Sebring, and others
testifying for Respondent in this matter, it is difficult to ascertain on precisely what
grounds Respondent claims it reached its decision that he was no longer a satis-
factory employee , for on the occasion of his dismissal Sebring spoke to him in such
general terms as his alleged "dissatisfaction" and as one primarily responsible for
"trouble" in the forming department . From the testimony of Dorflinger and Rob-
son, it would be gathered that one of Respondent 's chief complaints was that
Schmitz engaged in "horseplay" or "rough-housing" during working hours, to the
detriment of his own and the work of others.
The combined testimony of all the witnesses testifying on the topic makes it
clear that during the period of Schmitz' employment in the forming department,
that department was under very lax supervision and that its employees generally
enjoyed an unusual degree of freedom of movement and relaxation. With the per-
mission of management a radio was kept turned on during working hours, at least
2 Had it been required of Groham that he enter some notation on the company records
as to the cause for Schmitz ' severance from the payroll , his testimony would be more
persuasive , but no such requirement was shown and no records produced to show that a
notation had been entered in the matter.
PLASTIC AGE COMPANY 147
one female employee was observed by President Kramer executing a few dance
steps during working hours, and there was a certain amount of backslapping and
exchange of jokes, obscene and otherwise , as the employees went about their jobs.
Stabenow , during this period an inspector in Respondent 's employ, testified that he
had observed that all of the some eight employees of this department , including
Foreman Robson , engaged in quite a bit of smacking each other on the arm , pulling
out shirt tails, and swiping pencils. His own pencil , he testified , had been "swiped"
many times by Foreman Robson There is no question that Schmitz engaged in
this so-called horseplay , and while he denied that he was reprimanded for his
conduct by Robson, assuming that he was , as Robson testified , in view of the gen-
eral condition of the department as testified to by Stabenow and Sandy , credible
witnesses , such reprimands must at most have been mildly administered . Certainly,
he was never given to understand by anyone in management that his "rough -housing,"
if continued , would result in his discharge.
In the matter of Schmitz ' conduct generally , Dorflinger testified variously, and
not altogether consistently , that Schmitz engaged in horseplay in every department
in which he worked and that Schmitz did "fine" for about the first 2 or 3 weeks
after his rehiring so that at that time he concluded he had "done a good deed" in
consenting to Schmitz ' rehire. With little more consistency Robson admitted that
Schmitz was competent , cooperative , and tried to put in a good day's work, but
testified that he engaged in horseplay during working hours throughout the time he
was in forming , and that he , Robson, tolerated this only because he understood that
Schmitz was in the forming department on a temporary basis. Robson's further
testimony that Schmitz , in violation of plant rules , told obscene jokes in the presence
of female employees , loses significance in other credible testimony revealing that
this was a common practice in the department , participated in by Robson, and
Robson's admission that he never rendered a report on this matter to his superiors.
A consideration of the entire testimony convinces me that in lax deportment during
working hours Schmitz was no more an offender than other employees of the de-
partment , that such conduct was condoned by the department foreman, and that the
Respondent had no reason to believe and in fact did not believe that Schmitz was
responsible for this widespread breach in what might be regarded as normal plant
discipline . This is not to be construed as condonation by the Trial Examiner of the
conduct now complained of; neither this Trial Examiner nor this Board has any
authority to intervene in matters affecting plant discipline when nondiscriminatory
action is taken with respect to plant discipline . My finding is simply that Schmitz'
levity during working hours , admittedly good -humored at all times, did not precipitate
his discharge . If Dorflinger is believed , he engaged in such conduct in every de-
partment in which he ever worked in Respondent 's employ, and yet the Respondent
was reluctant to lose his services when he quit in June and willing enough to take him
back when he reapplied in August . It is also significant that there was no mention of
horseplay in the conversation that occurred between Sebring and Schmitz on the occa-
sion of the latter's discharge , and that Sandy who admittedly participated in the gener-
ally lax deportment was praised by Sebring on September 10 and promised
advancement.
Dorflinger 's further testimony that he considered Schmitz an undesirable employee
because of his "attitude ," and that it was the understanding on Schmitz ' rehiring
that he was to have a better attitude , is meaningful only to the extent that we are able,
on the basis of the evidence offered, to understand what is meant by "attitude" and on
this point Dorflinger 's testimony is more confusing than enlightening. At one
point he testified that by attitude he meant to include Schmitz ' use of foul language
and in this connection he referred to Schmitz ' having called him, Dorflinger, a son-
of-a-bitch and a "goddam foreigner." Schmitz denied that he used the latter epithet
but assuming , arguendo, that he did , such characterizations of Dorflinger were em-
ployed by him prior to his voluntary quitting in June and admittedly there was no
repetition of this or similar abusive language after his rehire in August . Dorflinger
also referred to a "lot of horseplay and rough handling of material ," and testified
that he reported to Sebring about Schmitz ' "horseplaying and all the nonsense that
goes with it." This matter has been dealt with in extenso above and requires no
amplification at this point , there being no question that Schmitz engaged in horseplay
and the "nonsense that goes with it." Dorflinger further testified that Schmitz gave
his leadmen trouble in machining , but Schmitz was not employed in machining after
his rehire in August, and Robson's admission that while in forming Schmitz was "co-
operative" would seem to dispel any doubts on this score . Finally, Dorflinger testified
that the "condition" in the forming department was bad and that this was mainly due to
Schmitz, and that he called Sebring's attention to Schmitz ' "agitation" and told
344056-55-vol. 111-11
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sebring that he held Schmitz responsible "to a great extent." This would seem to
bring us to the crux of the matter.
Asked to describe how the condition of the forming department was bad, the condi-
tion for which he held Schmitz responsible, Dorflinger testified, "Bad as far as attitude
.. . was concerned, agitation and kicking about this, kicking about wanting more
money and can't make enough money, there just wasn't any satisfaction in it." Se-
bring, in his interview with Schmitz on September 10, also referred to dissatisfaction
and unrest in the forming department. Obviously, these references were to some-
thing other than the admittedly good-natured "rough-housing" engaged in by Schmitz
and other employees in the department. It appears that Schmitz and other employees
had on occasion questioned their supervisors about a raise in pay, and it can hardly be
doubted that the organizational movement initiated by Schmitz reflected the desire on
his part and others to better their working conditions. I am convinced, on a reading of
the entire testimony, that repeated references by Sebring and Dorflinger to "unrest" and
"agitation" in the forming department actually reflected their concern over the organ-
izational movement, for except for the advent of the Union and the admittedly wide-
spread "agitation" among the employees pro and con the Union, the evidence discloses
nothing of a concrete nature significant of a change in Schmitz' conduct as an em-
ployee between the first 2 or 3 weeks of his reemployment, when according to
Dorflinger his conduct was satisfactory, and the date of his discharge a week or two
later. In short, there is nothing to explain why he was regarded as an employee
valuable enough that his quitting in June was reluctantly accepted by management
even though he habitually engaged in horseplay during working hours and referred to
his superior, Dorflinger, as a son-of-a-bitch, and was promptly rehired when he later
applied for reemployment, and served satisfactorily 2 or 3 weeks thereafter, but
then within a period of no more than 2 weeks sunk so low in the esteem of manage-
ment that he was discharged, except that in the last 10 days of his employment he
initiated an organizational movement and was the prime mover in it.
Both Sebring and Dorflinger denied knowledge of Schmitz' union activity but I
do not credit their denial. Robson admittedly knew that he was active in the or-
ganizational movement, as he must have when employees were returning their signed
cards to Schmitz in the latter's department. Considering Sebring's interest in and
alarm over the organizational movement taking place in Kramer's absence from the
plant, and the conversations that he had with Robson preceding Schmitz' discharge,
conversations during which Sebring admittedly asked Robson how the union activity
came to his attention and if he, Robson, felt that the Union coming into the shop
"was one of his problems of trying to manage his department," it is not credible
that Robson would not have imparted his knowledge of Schmitz' activity, Schmitz
clearly being the most active union adherent in the department, if not in the entire
plant.26
Obviously Respondent was not estopped by the advent of the Union from taking
such nondiscriminatory measures as it would normally take in remedying such an
unsatisfactory situation as appears to have existed in its forming department, but
neither could it lawfully use this condition of loose supervision and lax deportment
as a pretext for ridding the department of one it believed to be instrumental in
bringing the Union into the plant, and in this connection it is significant that
although, as Sebring admitted, Kramer had called his attention to the lax deport-
ment of employees in this department and falling production well before September
10, he took no steps to remedy the situation until after organizational activities
had started and he had received the Union's demand for recognition. There is no
question that the organizational drive caused unrest and gave rise to factional
disputes and hard feelings among employees, and this in turn may very well have
affected production, but short of a showing that Schmitz' union activities were
unprotected by the Act's guarantees they furnished no lawful cause for discharge,
and there is no such showing. I find that the Respondent discharged Schmitz
because of his union activities, thereby discouraging membership in a labor organ-
ization in violation of Section 8 (a) (3) of the Act, and interfering with, restraining,
and coercing its employees in violation of Section 8 (a) (1) of the Act a7
20 See the P,oaid's inference of knowledge because it would "strain credulity to imagine"
the nonexistence of such knowledge, in Pacific Telephone and Telegraph Company, 107
NLRB 1547 The inference of knowledge I believe to be even more securely grounded in
the instant case
n While I have reached my conclusions with respect to the Association independently
of findings of discrimination, it may be argued that the discrimination against Schmitz
and -McDaniel introduces an element of coerciveness into the situation regarding the As-
sociation sufficient, in connection with other findings of interference and assistance, to
PLASTIC AGE COMPANY
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
149
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent 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 and is engaging in certain
unfair labor practices, I shall recommend that it cease and desist therefrom and
take the following affirmative action designed to effectuate the policies of the Act:
1. Upon request bargain with the Union as the exclusive representative of its
employees in the unit found herein to be appropriate.
2. Offer to Walter D. Schmitz immediate and full reinstatement to his former
or substantially equivalent position without prejudice to his seniority and other
rights and privileges, and make him whole for any loss of pay he may have suffered
by reason of the discrimination against him by payment to him of a sum of money
equal to that which he normally would have earned in Respondent's employ from
September 10, 1953, to the date of Respondent's offer of reinstatement, less his
net earnings during said period. Loss of pay shall be computed upon a quarterly
basis in the manner established by the Board in F. W. Woolworth Company, 90
NLRB 289.28
3. Post appropriate notices as described hereinafter.
4. The unfair labor practices committed by Respondent are potentially related
to other unfair labor practices proscribed by the Act, and a danger of their com-
mission in the future arises from the Respondent's conduct in the past. The pre-
ventive purpose of the Act will be thwarted unless the remedial order is coextensive
with the threat. Accordingly, in order to make effective the interdependent guar-
antees of Section 7 and thus effectuate the policies of the Act, it will be recommended
that the Respondent cease and desist from in any manner infringing upon the
rights of employees guaranteed by the Act.
On the basis of the above findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. International Association of Machinists, District Lodge No. 727, and its
Local Lodge 758, collectively referred to as the Union; and Plastic Age Employees
Association, herein called the Association, are labor organizations within the
meaning of Section 2 (5) of the Act.
2. All production and maintenance employees of the Respondent, including
tooling employees, inspectors, and laboratory technicians, but excluding office clerical
employees, professional employees, guards, watchmen, and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
3. The Union was on October 1, 1953, and at all times since has been, the exclu-
sive representative of all the employees in the appropriate unit for purposes. of
collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing at all times to bargain in good faith on the issue of union security,
and by its action on April 2, 1954, in withdrawing recognition and breaking off nego-
tiations with the Union as exclusive representative of employees in the appropriate
unit, the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
5. By sponsoring, promoting, assisting, interfering with, and contributing sup-
port to, the Association, the Respondent has etigaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (2) of the Act.
6. By discriminating in regard to the hire and tenure of employment of Jenness
McDaniel and Walter D. Schmitz, thereby discouraging membership in the Union,
establish that it was company dominated and should be disestablished. I am not con-
vinced that discrimination with respect to Schmitz and McDaniel has that significance,
but I do regard the issue as one of substance.
21 Jenness McDaniel having quit her employment her reinstatement is not required, and
while her transfer has been found to have been unlawfully motivated, it did not involve
a reduction in pay and therefore the matter of back pay does not arise in her case.
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
7. By the foregoing conduct, by its interrogation of employees concerning their
views and attitudes on the Union, and its participation in a polling of employees on
the issue of union security, the Respondent has interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Section 7 of the Act,
and has thereby engaged in unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
9. The Respondent has not engaged in unfair labor practices by discharging its
employee, Leroy Barker; constructively discharging its employee, Jenness McDaniel;
securing an oral report on a meeting of the Union; or dominating the formation and
administration of the Association.
[Recommendations omitted from publication.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT discourage membership in International Association of Ma-
chinists, District Lodge No. 727, and its Local Lodge 758, or any other labor
organization, by discharging or transferring any of our employees, or by dis-
criminating in any other manner in regard to their hire or tenure of employment
or any term or condition of employment.
WE WILL NOT interfere with, assist, or contribute support to the Plastic Age
Employees Association, or recognize or deal with it as the representative of
any of our employees for the presentation of grievances or for any other purpose
relating to the subject of collective bargaining, unless and until it shall have been
certified as bargaining representative by the National Labor Relations Board.
WE WILL NOT refuse to bargain collectively with International Association of
Machinists, District Lodge No. 727 for its Local Lodge 758, as the exclusive
representative of all employees in the appropriate unit described below, with
respect to union security or any other topic appropriate to collective bargaining.
WE WILL NOT bypass the above-named Union in its representative capacity by
dealing with the Association or by participating in a poll of employees on the
subject of union security or any other topic appropriate to collective bargaining.
WE WILL NOT interrogate our employees concerning their views and attitudes
on the Union or any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist International Association of Machinists, District Lodge
No. 727, or its Local Lodge 758, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in col-
lective bargaining or other mutual aid or protection, or to refrain from any or
all of such activities except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as authorized by the
National Labor Relations Act.
WE WILL, upon request, bargain collectively with International Association
of Machinists, District Lodge No. 727, for its Local Lodge 758, as the exclusive
representative of all our employees in the appropriate unit with respect to rates
of pay, wages, hours of employment, union security, and other conditions of
employment, and, if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All production and maintenance employees, including tooling employees,
inspectors, and laboratory technicians, but excluding office clerical em-
ployees, professional employees, guards, watchmen, and supervisors as
defined in the Act.
WE WILL offer Walter D. Schmitz immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to any seniority
or other rights and privileges previously enjoyed, and make him whole for any
loss of pay he may have suffered as a result of the discrimination against him.
RADIOMARINE CORPORATION OF AMERICA 151
All our employees are free to become or remain , or to refrain from becoming or
remaining , members of any labor organization, including International Association
of Machinists , District Lodge No. 727, and its Local Lodge 758, except to the extent
that said right may be affected by an agreement in conformity with Section 8 (a) (3)
of the Act.
PLASTIC AGE COMPANY , PLASTIC AGE
REINFORCED PRODUCTS , INC., PLAS-
TIC AGE AIRCRAFT CORPORATION,
AND PLASTIC AGE SALES, INC.,
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.
RADIOMARINE CORPORATION OF AMERICA and THE RADIO OFFICERS'
UNION OF THE COMMERCIAL TELEGRAPHERS UNION, AFL, PETI-
TIONER. Cases Nos. 2-RC-6098 and 2-RC-6348. January 6, 1950-
Decision and Order
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before George Turitz,
hearing officer. The hearing officer's rulings made at the hearing
are free from prejudicial error and are hereby affirmed.'
Upon the entire record in this case, the Board finds : 3
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
In Case No. 2-RC-6098, the Petitioner seeks to represent a. unit of
the radio operators at all of the Employer's marine coastal stations.
In Case No. 2-RC-6348, the Petitioner seeks to represent a separate
unit of the teletype operators I at these coastal stations. The Peti-
tioner, in the alternative, would accept a single unit of the teletype
operators and radio operators. The Employer contends that the units
sought by the Petitioner are inappropriate because they are too
limited in scope. Rather, the Employer contends that the appro-
priate unit is one which would include the employees both at its
coastal stations and its marine service or MRI depots.4
1 The Employer' s motions to clarify our earlier decision in 75 NLRB 651 and to dismiss
the petition herein are disposed of in accordance with our decision herein.
2 The Employer 's request for oral argument is hereby denied as the record and the
briefs adequately present the issues and positions of the parties.
8 Also referred to as printer operators or printer clerics.
' The term MRI means maintenance , repair, and inspection.
111 NLRB No. 16.