Pneumo Dynamics Corp.

National Labor Relations Board - Board Decisions

Dec 8, 1969

179 N.L.R.B. 926 (N.L.R.B. 1969)

926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
National Water Lift Company , a Division of Pneumo
Dynamics Corporation and District 117 of the
International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 7-CA-7141
December 8, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND ZAGORIA
On August 22, 1969, Trial Examiner Max
Rosenberg issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. He also found that the
Respondent had not engaged in certain other unfair
labor practices and recommended that said
allegations be dismissed. Thereafter, the Respondent
filed exceptions to the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, and the entire
record in the case, and hereby adopts the findings,
conclusions, and recommendations of the Trial
Examiner.
Labor Relations Board and an amended answor filed
thereto by National Water Lift Company, a Division of
Pneumo Dynamics Corporation, herein called the
Respondent.' The issues posed by the pleadings are
whether Respondent violated Section 8(a)(1) of the
National Labor Relations Act, as amended, by certain
conduct to be detailed hereinafter. At the conclusion of
the hearing, the parties waived oral argument. A brief has
been received from Respondent, which has been duly
considered.
Upon the entire record made in this proceeding and my
observation of the witnesses who testified on the stand, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE RESPONDENT' S BUSINESS
Respondent , a corporation organized under the laws of
the State of Ohio, maintains an office, manufacturing
plant, and place of business in Kalamazoo , Michigan,
where it is engaged in the manufacture, sale, and
distribution of hydraulic components and related products
for aircraft , space, missile , and ordnance equipment.
During the annual period material to this proceeding, and
in the course and conduct of its business , Respondent
purchased and caused to be delivered to its Kalamazoo
plant goods and materials valued in excess of $50,000
which were delivered thereto directly from points located
outside the State of Michigan. In the same period,
Respondent sold and distributed at its Kalamazoo plant
products valued in excess of $50,000 which were shipped
from said plant directly to points located outside the State
of Michigan . The complaint alleges, the answer admits,
and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2 (6)(7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act , as amended , the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, National Water
Lift Company, A Division of Pneumo Dynamics
Corporation , Kalamazoo , Michigan , its officers,
agents , successors , and assigns , shall take the action
set forth in the Trial Examiner ' s Recommended
Order , as modified herein.
In the last paragraph on the second page of the
Appendix attached to the Trial Examiner ' s Decision,
delete the period after AFL-CIO and substitute a
comma followed by "or any other labor
organization , or to refrain from doing so."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Trial Examiner: With all parties
represented, this case was tried before me in Kalamazoo,
Michigan, on June 10, 1969, pursuant to an amended
complaint filed by the General Counsel of the National
It is admitted and I find that District 117 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO, herein called the Union, is a labor
organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions
The amended complaint alleges that, commencing in
early November 1968, and continuing to date, Respondent
violated Section 8(a)(1) of the Act by (1) directing an
employee to remove a union badge from his person while
in the plant; (2) coercively interrogating an employee
concerning the wearing of union insignia; (3) coercively
questioning employees as to whether they possessed union
literature in their tool boxes at the plant; (4) directing an
employee to remove a union button from his apparel and,
when the employee refused to do so, forceably removing
said button without the employee's prior consent; (5)
warning an employee that it had no work for him if he
displayed a union badge and cautioning that he would
'The complaint and amendment to the complaint, which issued on April
17, 1969, and June 6, 1969, are based upon charges filed on January 28,
1969, and served on January 29, 1969, and amended charges filed on
March 6, 1969, and served on March 7, 1969
179 NLRB No. 158
NATIONAL WATER LIFT COMPANY
impair his future employment interests with Respondent
by continuing to wear the badge ; (6) suggesting to an
employee that if he was not satisfied working for
Respondent without Union representation the employee
should seek employment elsewhere, and, (7) scraping
union literature from an employee 's tool box Respondent
denies the commission of any labor practices proscribed
by the Act.
B. The Backdrop
The parties stipulated and I find that , on March 19,
1968, the Union filed unfair labor practice charges against
Respondent in Case 7-CA-6647. On September 10, 1968,
the parties executed a settlement agreement which was
submitted to the Board for its approval . By a Decision
and Order dated October 16, 1968, the Board gave its
blessing to the settlement stipulation . Thereafter, on
January 29 , 1969, the Regional Director for Region 7 sent
a letter to Respondent which recited that the latter had
satisfactorily complied with both the affirmative and
negative requirements of the Board Order and that the
case was closed because of said compliance
Meanwhile , the Union filed a petition in Case
7-RC-8975 on May 29 , 1968 for a representation election
among Respondent ' s employees and an election was
conducted on September 5, 1968. The ensuing tally of
ballots revealed that the Union lost the election by a vote
of 254 to 229 , with 8 undeterminative challenged ballots
cast . On September 12, 1968, the Union filed 12
Objections to conduct of Respondent which allegedly
affected the results of the election . Following a hearing on
the objections , a hearing officer of the Board issued his
report on objections on October 31, 1968 in which he
recommended that 2 of the 12 objections be sustained,
that the election be set aside, and that a second one be
conducted . These recommendations were adopted by the
Regional Director on November 22, 1968. However, on
December 4, 1969 , Respondent filed a request for review
by the Board of the Regional Director 's determination.
This request was granted and the second election was
stayed . By decision dated May 2, 1969, the Board
overruled the objections in their entirety, including the two
which the Regional Director had sustained , and certified
the results of the election.
On January 28, 1969 , the Union filed charges in Case
7-CA-7141 which triggered this proceeding . The original
charges alleged that Respondent violated Section 8(a)(1)
of the Act, an apparent reference to the bulk of the
allegations contained in the instant original complaint. On
February 25, 1969 , an amended charge was lodged with
the Board in this case alleging that Respondent had
terminated employee Cleo G. Prescott in violation of
Section 8 (a)(3) because of his activities on behalf of the
Union . Another amended charge was filed on March 6,
1969, claiming that Respondent had severed the
employment status of Ronald D . Love due to his union
activities . By letter of April 16, 1969, the Regional
Director informed the Union that , following his
investigation of the amended charges, he had reached the
conclusion that further proceedings thereon were
unwarranted and that he would not issue a complaint
regarding these matters.
C. The Evidence
9 27
It is undisputed and I find that following the Board
election of September 5, 1968, the Union continued
actively to press its campaign to enlist the collective
support of Respondent's employees, a circumstance which
soon came to Respondent's attention. In furtherance of its
electioneering, the Union distributed literature to
employees at the plant, as well as campaign buttons and
footprints bearing union slogans.
Ronald Hayward was employed by Respondent in the
drill department during the times material herein, and his
supervisor was Gerald Myers Hayward testified that,
following the Board election, he noticed the distribution of
Union literature in the plant. Hayward remembered that,
on or about January 16, 1969, while he was engaged in his
drilling tasks, Supervisor Myers approached his work
station to inquire "if I had any footprints in my tool
box," a reference to the union insignia which that labor
organization had distributed to the employees during its
organizational campaign. Hayward replied, "Oh, yes, I've
got some of those in my tool box" and, with this response,
Myers remarked "Okay" and walked over to another
employee in the department where he engaged in a
conversation which Hayward could not overhear.
According to Hayward's testimony, approximately 500 of
these footprints had been distributed by the Union to
employees throughout the factory During his
examination, Hayward related that he had received a
written warning from Respondent concerning littering the
plant floor with union literature, although he professed
that he had not done so Moreover, Hayward stated that
Myers did not apprise the former of the reason for his
questions regarding the possession of the union literature.
Richard Thayer also worked in the drill department
under the supervision of Myers When called to the stand,
Thayer reported that he, too, had noticed an upswing in
Union activity at the shop after the Board election.
Sometime in January 1969, Myers visited Thayer's work
station and asked "if I had any footprints or union
literature in my tool box, and I told him no, and he
turned around and left" without stating the purpose for
his inquiry.
In his testimony, Myers detailed his version of this
episode. On or about January 16, 1969, he was summoned
into the office of Night Shift Superintendent Frank
Betzner and learned of Respondent's plight regarding a
littering problem which had developed due to the Union's
distribution of the footprints. According to Myers,
Betzner "told me that Mr. Woodin [an employee] and
Mr. Hayward had been warned before for having these
footprints on the floor, and that they were back on the
floor again , and he asked me to go out and check the
people in my department to see who would have them
available that they could have possibly put them on the
floor, and I went out and done this, and asked each and
every one of my employees, except Mr. Woodin. He
wasn't on the job. But he did have footprints in the top of
his tool box Mr. Hayward said he did have, and he was
the only employee that did in the department." When
queried as to what question he actually put to the
employees on the tour of his department in search of
union literature, Myers answered that "I asked them
specifically if they had IAM footprints. Not any other
union literature, but specifically the footprints " Of
approximately 11 employees to whom Myers made his
inquiries , only 2, Hayward and Woodin, possessed
footprints. Concluding his testimony, Myers was asked
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what the employees responded when he interrogated them
about the union literature. Myers replied that they either
acknowledged or denied having these items in the plant.
However, Myers then volunteered the curious comment
that one employee "asked if he should have [a footprint],
and I said no." Having uttered this statement on the
stand, Myers was quick to add that he assured the
employee that "It's permissible for you to have" the
insignia . After another employee told Myers that the
employee could obtain a footprint for Myers, the latter
"told him to forget it."
Betzner testimonially reported that, around 8 a.m. on
January 16, 1969, an unidentified foreman visited
Betzner's office to impart the intelligence that he had
found some union literature in the form of footprints on
the floor of the drill department which he picked up and
handed to employee Woodin with the instruction that if
Woodin "had literature and stuff like that to keep it up
on his tool box or the benches, but not to litter the floor."
Approximately one-half hour later, Betzner entered the
drill department and observed footprints on the floor "in
Hayward's area and Woodin's area." Betzner gathered the
literature together and advised the two men that "I didn't
want rags or literature or paper or anything else on the
floor. We wanted to keep it neat." With this, he returned
to his office. At 9 a.m. on the day in question, Betzner
decided to return to the drill department. There, he again
discovered that footprints were strewn on the floor.
Confronting Hayward and Woodin, Betzner inquired
whether they were responsible for the littering and the
employees entered a categoric denial . Betzner thereupon
withdrew to his office and summoned the department
foreman, Myers. Betzner told Myers "I didn't like this
littering on the floor, and I would like to have him see
who had this type of literature ... in their tool box, or on
their person, or whatever." Betzner further informed
Myers that "I didn't want literature on the floor like this.
It was sort of cluttering up the place. And the men had
both been warned, and I would write them up a written
reprimand ." Betzner explained under questioning that he
instructed Myers to make the survey because "I wanted to
be sure that the right people - well, that they were the
right people. You don't write up a whole department,
where there are several people possibly doing this."
Betzner "checked the men in the department, and there
were only two men - well , there was only one - only
one who had any left - and when he talked to Mr.
Hayward he said , 'I don 't have any left,' and Woodin had
some left in his tool box." Upon receiving this
information , Betzner drafted a written warning regarding
littering the plant floor which was delivered only to
Hayward and Woodin because they were the only
employees in the department who possessed union
footprints "at that time."
The General Counsel contends that, on or about
January 16, 1969, Respondent, by its supervisors and
agents Gerald Myers and Frank Betzner , embarked upon
a campaign coercively to interrogate its employees in
order to ascertain whether they harbored union literature
and thus to impede their right to assist and support the
Union. Respondent, on the other hand, would have me
believe that its "search-and-collect" mission was geared
solely to accommodate its desire to rid the drill
department of a littering problem . To be sure, an
employer is legally privileged to monitor the working
areas of its plant to insure that hazardous or unsightly
conditions to not prevail in working areas.' However, I
am convinced that the activities of Myers and Betzner
were not aimed at this goal because their testimonial
recitations lack plausibility and do not hang together.
Thus, Hayward and Thayer testified that, when Myers
made his rounds on January 16, 1969, the latter inquired
whether the employees had any footprints or other union
literature in their toolboxes, without explaining the reason
for his investigation and without informing the men that
they had been suspected of littering the department.
Myers' testimony is not in conflict with that of Hayward
and Thayer on this point, for there is nothing in his
testimonial utterances that he apprised these employees
that his incursion into the department on this occasion
was prompted by any profusion of litter on the premises
and, indeed, Myers made no mention during his testimony
that the floor had ever in fact been cluttered with union
propaganda. Moreover, by his own admission, Myers'
survey was not limited to determining whether any
particular employee was a miscreant in scattering
pamphlets in working areas, for he acknowledged that he
warned an employee to desist from obtaining union
literature without advising the employee that this caution
was based upon an urgent housekeeping problem.
Furthermore, Myers confessed that he learned of
Woodin's possession of footprints, not because they rested
on the floor near his work station, but because the former
observed them in Woodin's toolbox. Finally, although
Betzner claimed that he became concerned through
reports of an unidentified supervisor that Hayward and
Woodin had littered the drill department with the
footprints, and that he consequently had warned both
employees about this matter on the morning in question,
Myers admitted that Woodin was not on duty during the
times material to this incident.
In sum, I am convinced and find that, on or about
January 16, 1969, Respondent undertook a studied effort
to determine which, if any, of its employees in the drill
department possessed union literature, not to curtail or
eliminate any hazardous or inhospitable conditions in the
plant caused by littering, but to pinpoint the Union
adherents or sympathizers through the systematic
interrogation of each employee in the department.
Accordingly, I conclude that, by this conduct, Respondent
interfered with and coerced its employees in the exercise
of rights guaranteed under Section 7 of the Act and
thereby violated Section 8(a)(1).'
Ronald Love was hired by Respondent in March 1967
and left its employ on February 17, 1969, at which time
he was classified as a buffer in the finishing department
and labored under Foreman James Lobretto. Love
testified that, following the Board election of September 5,
1968, he engaged in various activities on behalf of the
Union, including the distribution of literature and the
wearing of badges on his clothing while at work. In either
November or December 1968, he distributed some badges
to employees Stephen Shilts and Gary Curtis. About the
same time, Love also commenced to wear a badge on his
clothing. One evening during this period, Love was
approached by Foreman Lobretto while the former was
working with employee Henry Goins on the buffing jack.
Lobretto asked Love "what was wrong, and why I was
wearing the badge." Love replied that he was dissatisfied
with the way Respondent was running the department,
and that he had complaints concerning the assignment of
overtime and other matters which could best be resolved
by collective representation. Lobretto told Love that "I
'See Stoddard-Quirk Manufacturing Co, 138 NLRB 615, 619.
'Ibid.
NATIONAL WATER LIFT COMPANY 929
[Love] should have come to -him if I was that dissatisfied
with the way that things were being run." At the
conclusion of their conversation, Lobretto promised Love
that "he would see what he could do to satisfy my
complaints."
Shortly after this encounter, Love decided to remove
his badge due to Lobretto' s assurances and he did not
again wear another until sometime in January 1969. On
that occasion, Love spotted Night Shift Superintendent
Betzner and Foreman Lobretto engaged in a lengthy
conversation during which they periodically turned their
view toward Love. When the discussion ended, Lobretto
wended his way toward Love and, noticing the Union
badge appended to Love's' shop coat, Lobretto extended
his open hand toward - the insignia . After Love expressed
his puzzlement over Lobretto' s gesture , according to
Love's testimony, the foreman stated, "Get rid of it,"
referring to the union button. Love questioned Lobretto's
reason for this directive and the latter, without responding
to the inquiry, reached over, removed the badge from
Love's shop coat, and left the scene.
Love further testified that, a day or two following this
episode, he reported for work a few minutes late, again
wearing a union badge on his'shirt as well as his belt. This
was the first time that they had reappeared on his apparel
since Lobretto had removed them a few days earlier. Love
waited at his machine to receive his work assignment
while Lobretto conversed with another individual.
Standing nearby was Stephen Shilts, who operated a
degreasing device. Shortly thereafter, Lobretto approached
Love and caught sight ' of the insignia which Love was
wearing. At this juncture, Love -asked Lobretto "what he
wanted me to work on." Lobretto retorted, "Nothing as
long as you're wearing that - ," and walked off. Love
remained at his machine - for approximately 5 minutes
until Lobretto returned . Lobretto inquired "why I was
wearing the badges again . That he thought he had
satisfied my complaints." When Love rejoined that "it
was my prerogative to wear badges if I wanted to,"
Lobretto remarked that "It's upsetting the women in the
department and I 'm just not going to have it in my
department." Before departing, Lobretto remarked, "If
- - -you want to wear it, go ahead , but you're just
yourself up."
Love had still another conversation with his superiors
concerning his espousal of the Union's cause on February
3, 1969. On this occasion, he was called into Betzner's
office to discuss an adverse efficiency report which Love
had received. During the ensuing colloquy, Love testified
that Betzner commented , "You union guys, we didn't go
out on the street and drag you in here and give you a job.
You came in and asked us for a job. If you don't like it
you can go elsewhere . If you don't like it the way things
are run."
Finally, on February 6, 1969, Love reported to his
foreman, Lobretto, that he had injured his back on the
previous day and had obtained a doctor's certificate
excusing him from the performance of heavy work. Love
inquired whether Lobretto desired that Love punch out
and return home or begin working. After reading the
medical certification of injury, Lobretto telephoned
Betzner , after which the foreman and Love proceeded to
Betzner 's office. Also present was Herman Dyksterhouse,
Respondent's manufacturing superintendent. Love handed
the medical note to Betzner who perused it and passed it
on to Dyksterhouse. Upon reading the document,
Dyksterhouse stated, "This note comes at a most
convenient time, seeing as how you were just reprimanded
for absenteeism." Following an argument about Love's
absence from work, Dyksterhouse made the comment
"that when he was my age he was in the same
predicament with the union [at another plant], and what
he did about it was he quit and went elsewhere for
work...."
James Lobretto testified that, either in November or
December 1969, while he was making his rounds in the
finishing department which he supervised, employee Henry
Goins, who worked with Love, beckoned to Lobretto and
inquired whether Union representation was desirable at
Respondent's establishment. Lobretto counselled that
"this was up to the individuals. It was up to each
individual to make up their own minds whether they
wanted one or not." Lobretto then addressed his attention
to Love, who was wearing a union badge on his clothing
and who complained over certain inequities regarding the
assignment of overtime. After discussing Love's
grievances, Lobretto left the area with the impression that
Love was "satisfied with what I said to him." According
to Lobretto, Love thereupon voluntarily proceeded to
remove the union badge. So far as Lobretto's testimony
stands, he did not deny asking Love why the latter wore
the union badge
On January 17, 1969, Lobretto was engaged in
conversation with certain individuals when Love, who was
tardy for work, reported this fact to Lobretto. Lobretto
directed Love to proceed to his work station until the
supervisor concluded his business. Shortly thereafter,
Lobretto visited Love's duty station where he observed
that this employee was again wearing a union badge.
Lobretto expressed chagrin over this happenstance, stating
"I thought we had talked this out and had it settled. What
is wrong?" The men then engaged in another discussion
concerning the award of overtime work. At this point,
Lobretto reached out and removed the union badge which
was appended to Love's clothing. In Lobretto's words, "I
unpinned it. I did remove it from the company shop
coat." Lobretto's initial explanation for taking this action
was premised on the circumstance that "Some of the girls
were complaining and were very upset, and I asked him
[Love] if he would take it off because of this. The girls
were getting very upset and nervous. They complained to
me about him talking to them, and bothering them,
agitating them on company time." Respondent's counsel
again pressed Lobretto for the motive which impelled him
to relieve Love of the badge on this occasion, despite the
fact that he had admittedly seen Love wear this item on
prior dates. Lobretto thereupon altered his testimonial
stance and surprisingly remarked that the sole cause for
his action was due to the fact that the union button was
appended to a shop coat which constituted
company-property. Lobretto awkwardly sought to justify
this alternative reason by stating that management had
instructed him to remove union standards from the plant
bulletin board as well as machinery, and that he
"supposed this being a company, NWL shop coat, it was
the same thing." When asked whether any of his superiors
had ever instructed him to preclude the appendage of
union badges on Respondent's shop coats, Lobretto
initially replied in the affirmative. However, after further
prodding, he responded, "Management has instructed me
- literature on bulletin boards and so on - to take those
off. Not actually a shop coat, but I just assumed this
being NWL property it was the same as with the bulletin
board or the machinery." Finally, Lobretto conceded that
he had not been instructed by Respondent to remove
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union buttons from shop coats, and stated that he
believed that Love's wearing of the badge on Respondent's
clothing "was going to disrupt the women more than the
disruptions that had occurred prior to him just wearing it
on his personal" clothing. Concluding his testimony,
Lobretto denied that he informed Love that the latter
would not be given a job assignment because he wore
"that - - " on his body. However, the witness did not
deny Love's further testimony that Lobretto warned the
employee that he was "just yourself up" by
displaying the button.
Henry Goins was called as a witness by Respondent to
corroborate Lobretto's testimony regarding the events
which occurred in November or December 1968 when the
latter conversed with Love. According to Goins, while he
and Love were working together on that occasion, they
"began to discuss the pros and cons of the union , because
of my objection against the union, and him being for the
union. So naturally, we were pro and con, back and forth,
on it ." Lobretto, who was making his rounds of the
department at that time, was summoned by Goins who
solicited the former's opinion as to the desirability of
union representation. Lobretto replied that "he thought
every man had to make a decision for himself. He did not
give any personal opinions as to what - well, no direct
answer to the question I had asked him." Love then
reiterated his protests concerning the award of overtime
work and remarked that "he thought that [Respondent]
needed a union because of the unfairness that was
involved on the part of Lobretto" in assigning overtime.
When asked whether Lobretto ordered Love, who was
wearing a union badge during this discussion, to remove
the button, Goins initially replied "Not at this time. This
particular time, while I was there, is what I'm saying."
Goins subsequently brought himself to state that, to his
knowledge, Lobretto had never directed Love to discard
the union insignia.
Goins went on to relate that, later that evening, he
reported to Lobretto that Love had abandoned wearing
the badge. In Goins' words, this action resulted from the
fact that "During the course of me and Love's
conversation he told me that something I had said had
made sense to him, and I can 't recollect exactly what it
was, but he just felt that maybe there was some sense
involved in it, and he volunteered at this point to take his
button off." Goins alertly conveyed this information to
Lobretto who remarked , "Well, maybe we're finally
getting through to him, getting through to him the fact
that Water Lift is a good company without a union."
Betzner , during his visit to the stand, testified that he
spoke with Love on February 3, 1969, and this
conversation- occurred on the date that Respondent issued
a written warning to Love about his absenteeism.
According to Betzner, the purpose for this discussion was
"to see if we couldn't help him out. Get him straightened
out. Get him on the right track, so he would make a
better employee." During their conversation, Betzner
testified that "it seemed to be impossible to get to
[Love]," in consequence of which the warning was placed
in Love's file. When asked to unfold the entire
conversation with Love on this occasion by Respondent's
counsel, Betzner recited that he produced this employee's
personnel records and, after pointing out Love's history of
absenteeism to the latter, he made the statement "that I
guess everybody is really interested in here." This had
reference to the fact that "I told [Love] that as young as
he was if he was dissatisifed with everything that was
going on if he didn't agree with our disciplinary actions,
our way of running the shop, then he possibly would be a
lot better off if he worked in another shop, because a
fellow that age, he could spend four or five years in a
shop and really not get himself anywhere." Betzner added,
"I told him that he would be better off if he got a job that
he liked, because if you don't like your job it's a poor
place to work, in any shop."
Respondent's counsel interrogated Betzner as to
whether he had stated to Love that "You union guys, we
didn't drag you in here for a job. If you don't like it you
can get a job somewhere else." Betzner at first responded,
"No, no, I wouldn't say `union guys.' " Betzner was then
queried as to whether he made any reference in this
respect, and he replied, "Not to that effect, no. I said,
`We didn't drag you in off the street.' I might have said
this. `And if you don't like it, why, you should look for
another job where you would be better satisfied.' "
Unaccountably, Betzner then concluded his testimony by
steadfastly denying that he said anything about "dragging
anybody in off the street," and he denied that he made
any reference to Love's activities on behalf of the Union
during their conversation
In his testimony, Manufacturing Superintendent
Herman Dyksterhouse stated that he engaged in a
discussion with Love on February 6, 1969, relative to
Love's record of absenteeism. During their dialogue, Love
remarked that "we were within thirteen votes of getting a
union in the last time," a reference to the fact that the
Union had been defeated in the election conducted by the
Board on September 5, 1968, by that precise number of
votes. Dyksterhouse then candidly admitted that "at that
time I related to him that when I was about his age I also
worked at [another firm], which was under the union."
Dyksterhouse went on to state that he informed Love that
"I worked in the drafting room, but was dissatisfied with
my personal progress at [the former employer], and
because of that I took it on myself to quit and go
somewhere else and found something that I felt I could
advance in at my own pace And I said `apparently your
feelings toward the company are such that if I was you I
would do the same' " At the conclusion of his testimony,
Dyksterhouse denied telling Love that the latter should
quit his employment if he was dissatisfied by any lack of
union representation.
Stephen Shilts worked in the finishing department
under the supervision of Lobretto. He testified on direct
examination by the General Counsel and I find that,
during the period following the September 5, 1968,
election, he wore a union badge for one day in either
November or December of that year which he had
received from Love. Gary Curtis, who was working with
Shilts in the finishing department at the time, also had a
similar insignia on his clothing Supervisor Lobretto
approached the men and, according to Shilts' testimony,
Lobretto "asked us politely if we would take off our
badges. We asked why, and he said it upset the women in
the department." Lobretto repeated his request, and the
employees "obliged him and we took them off." Lobretto
testified that he observed Shilts wearing a union button on
this occasion. Lobretto asked Shilts if the latter "had any
gripes that I might be able to take care of, and he said no,
that he was just horsing around." Lobretto flatly denied
that he directed Shilts to remove the badge, stating, "No,
he removed it himself, voluntarily."
Shilts further testified that, while he was employed on
the buffing jack in January 1969, Lobretto came to Love's
work station and Shilts overheard Lobretto "ask [Love] if
he would take off his badge. [Love] asked him why, and
NATIONAL WATER LIFT COMPANY 931
he said that it upset the women there in the department.
And [Love] said he didn't think he had to. So Mr.
Lobretto reached over and'ripped it off his vest, and then
walked away" and deposited the button in the waste paper
basket. Shilts recounted that, at the time of this event,
Love wore the badge on his personal vest.
I credit Love's testimony and find that, in November or
December 1968, he distributed union badges to employees
Shilts and Curtis, and also began wearing a button during
that period. It is undisputed and I find that, sometime in
the course of those months, Lobretto spied the badge on
Love's person and inquired into why Love chose to attach
this insignia to his clothing , to which the latter replied
that he was dissatisfied with his conditions of employment
at the plant. After receiving assurances from Lobretto that
Love's complaints would be rectified, Love removed the
badge.
It is undisputed and I find that, on or about January
17, 1969, Love once more wore a union badge during his
work shift. I credit Love's testimony that Lobretto
approached Love and told the latter to get rid of the
insignia . When Love sought a reason for Lobretto's
directive, the foreman reached out and removed the
button without explaining why he took this action and
without obtaining Love's prior consent. Respondent
attempted to justify this conduct through the introduction
of Lobretto's testimony that his action was prompted
because of complaints by some of the female employees
that Love's display of the badge caused the girls to be
"very upset and nervous." While it is true that, under
certain circumstances, an employer may proscribe the
wearing of union insignia in his plant in order to maintain
discipline , I am not convinced , on the basis of Lobretto's
evasive and implausible testimony , that this was his
objective. Initially, Lobretto testified that he unpinned the
button from Love's clothing so that its appearance in the
shop would not upset the female workers. He then related
that the girls' complaints were bottomed upon Love's
"talking to them, and bothering them, agitating them on
company time," but he made no mention of Love's badge
as the irritant. Finally, Lobretto completely altered course
and recited that he had been advised by Respondent's
officials to remove union propaganda from company
property, such as bulletin boards and production
machinery and, inasmuch-as Love's button appeared on a
shop coat which belonged-to Respondent, he felt obliged
to implement this policy and order the removal of the
item from Love's coat. When pressed on this issue,
Lobretto again changed tack and confessed that he had
not been instructed by the company to detach the buttons
from these frocks. He concluded his testimony in this
regard by making the implausible observation that he
believed that the female employees would suffer through
greater unrest if Love wore the badge on a company coat
rather than on his own apparel.
In short, I find that, on or about January 17, 1969,
Lobretto directed Love to remove the union button from
his clothing and, when Love demurred, Lobretto forceably
detached it. I find that Lobretto's directive, and his
subsequent action in confiscating the badge, were not
prompted by any desire or design to eliminate unrest in
Love's department, but were calculated to impede Love in
his support of the Union.
I also credit Love's testimony and find that, a few days
after January 17, 1969, he once more reported for work
sporting union insignia on his person. While standing near
Shilts and awaiting a work assignment from Lobretto, the
latter appeared and noticed the buttons appended to
Love's clothing. When Love asked the foreman what tasks
he desired Love to work upon, Lobretto retorted that he
would assign no duties to Love as long as the employee
wore the button. I find that Lobretto again inquired as to
why Love displayed a union badge, and after Love replied
that it was his prerogative to do so, Lobretto warned that
Love was harming himself by such conduct. As heretofore
found, Lobretto did not testimonially deny that he
delivered this warning to Love, although he disclaimed
that he refused to assign work to Love because of the
button I do not credit Lobretto's disclaimer because, in
this area , as well as the other areas of his testimony, he
did not impress me with his candor as a witness.
Ibloreover, although Shilts was standing but a few feet
from Love and Lobretto when this conversation took
place, he was not called upon to corroborate Lobretto's
testimony even when he was summoned by Respondent as
a witness on its behalf.
I further credit the testimony of Love and find that, on
February 3, 1969, he was summoned into Betzner's office
and, during a discussion concerning the former's efficiency
report, Betzner exclaimed that "You union guys" had not
been dragged in off the streets and afforded employment
by Respondent, but that the "union guys" has asked for
and were given jobs, and Betzner suggested that if Love
did not like the way Respondent conducted its business
operations without a union he could seek employment
elsewhere. I was not impressed by Betzner's countervailing
testimony on this subject. He admitted telling Love that
"he would be better off if he got a job that he liked,
because if you don't like your job it's a poor place to
work, in any shop." When queries as to whether he told
Love that "You union guys" had not been "dragged" into
the plant by Respondent, Betzner at first responded, "No,
no, I wouldn't say `union guys'." Upon being asked
whether he made any reference to the subject, he then
stated, "Not to that effect, no I said `We didn't drag you
in off the street.' I might have said this. And if you don't
like it, why, you should look for another job where you
would be better satisfied." Finally, Betzner reversed his
field and steadfastly denied that he made any mention of
"dragging anybody in off the street."
I credit the testimony of Love and find that, on
February 6, 1969, Dyksterhouse suggested to Love that
the latter seek other employment opportunities if he
disliked working for the Respondent without
representation by a labor organization of his choice.
Dyksterhouse's denial that he advanced such a suggestion
is hardly persuasive, in light of his testimony that the
subject of the Union's loss at the polls was a topic of
discussion during his conversation with Love on that date,
and that he informed Love that he had quit his job at
another plant which became unionized in order to
"progress" up the economic ladder.
I also credit the testimony of Shilts, who impressed me
as an honest and straightforward witness, and find that, in
November or December 1968, Lobretto instructed Shilts
and fellow employee Curtis to cease wearing union
buttons while at work. As in the case of Lobretto's
parallel directive addressed to Love, I am persuaded and
find that Lobretto's actions were prompted, not by any
desire to curb disciplinary problems caused by the display
of the insignia , but to thwart Shilts' Statutorily protected
right to join and assist the Union in organizing
Respondent's employees.
Accordingly, I conclude that Respondent violated
Section 8(a)(1) by the following Acts:
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Through the conduct of Foreman James Lobretto,
coercively interrogating Ronald Love concerning his
reasons for wearing ' union badges in November or
December 1968 and on or about January 20, 1969.
2. Through the conduct of Lobretto on January 17,
1969, in ordering Love to remove a union button from his
apparel while at work and, when Love refused to comply
with the directive, by forceably relieving Love of the
badge.
3. Through the conduct of Lobretto on or about
January 20, 1969, in warning Love that Lobretto would
not make work assignments for Love if the latter
displayed a union badge , and in cautioning Love that his
future employment interests with Respondent would be
impaired if he continued to wear the insignia.
4. Through the conduct of Supervisor Betzner on
February 3, '1969, and,Supervisor Herman Dyksterhouse
on February 6, 1969, in informing Love on those
respective dates that he should seek employment elsewhere
if he was dissatisfied working for Respondent without
collective representation by the Union.
5. Through the conduct of Lobretto in November or
December 1968 in directing Shilts and Curtis to remove
union badges from their clothing while at work in the
plant.
Cleo G. Prescott had been employed by Respondent on
four different occasions . During his last tour of duty,
which ended on January 17, 1969, he worked in the
inspection department laying out machine parts. As
heretofore noted, Prescott's termination found its way into
an amended unfair labor practice charge which the Union
filed on February 25, 1969 against Respondent in Case
7-CA-7141, alleging that his separation was designed to
inhibit his activities in support of the Union, and which
the Regional Director subsequently dismissed as lacking in
merit . On November 21, 1968, Prescott dispatched a letter
to Respondent's General Manager, Harry Lammers,
requesting an appointment with the latter to discuss a
grievance which Prescott had unsuccessfully pressed with
lower echelon supervisory personnel. According to
Prescott, "I felt I had some grievances that I wanted to
get ironed out, so I started through the procedure that is
company policy," meaning that he had exhausted all
intermediate avenues under Respondent's existing
grievance procedures before contracting Lammers. As a
result of this communication, a meeting was set for
November 26, 1968 to' consider the matter.
When the session commenced in Lammers' office, with
only Lammers and Prescott in attendance, the General
Manager offered some coffee to Prescott which the latter
declined. At this juncture, and according to Prescott's
testimony, Lammers turned to the former and remarked,
"I guess you know you're fired when you leave this
room." Prescott rejoined , "I guess you know I've been
fired from better back doors than your front door."
However, Prescott testimonially conceded that Lammers
"looked at me and smiled" and Prescott confessed that
Lammers "acknowledged that he was kidding" when he
made his comments . Despite Lammers' obvious jocularity,
Prescott testified that he was not particularly impressed
by Lammers ' assurances because "I was pretty distraught,
to have carried the grievance procedure this far, and so I
fully thought I had put my job at stake.. ." Prescott
then admitted that he did not fear any imminent loss of
employment due to his grieving.
Prescott further recounted that, following discussion of
the grievance , Lammers inquired as to why Prescott "felt
I needed the badge I was wearing," a reference to the
Union committeeman's badge which he sported during the
conversation. Prescott replied that he decided to wear the
insignia "due to the trouble that I had had on the floor I
felt I couldn't negotiate for myself; that I needed support
from the union; and, consequently, if I was going to seek
their support then I had to actively support them."
Rounding out Prescott's testimony, he averred that, as he
prepared to depart from Lammers' office, the latter stated
that "he would like to see me remove the badge, but he
then said not because he asked me to, but because I
wanted to, and I returned to work; that this would be the
only way, by removing it."
Lammers testified that he received Prescott's letter in
November 1968 and arranged to meet with Prescott to
discuss the issues raised in that document. During their
conversation, which lasted over 2 hours, Prescott broached
a number of grievances which he harbored. Lammers
informed Prescott that the Respondent had already
retained an independent agency to conduct a survey of the
conditions at the plant which had given rise to many of
Prescott's complaints, and that the agency had come up
with certain recommendations which had been transmitted
to Respondent's Chicago office for consideration and
implementation. Lammers readily conceded that he
observed Prescott wearing a union badge during the
meeting. However, he flatly denied that he directed
Prescott to remove the union button from his attire.
According to Lammers, after the subject of the survey of
existing working conditions was brought to Prescott's
attention, Lammers commented that "things were
improving to such an extent at National Water Lift in the
area of supervision, and the problems that he had, that
probably within two or three weeks he [Prescott] would
not care to wear the union badge," to which Prescott
responded, "Oh, I don't believe that." Finally, Lammers
could not recall whether Prescott indicated during the
discussion that the only circumstance under which the
latter would remove the union insignia would be because
Prescott desired to do so.
The General Counsel contends that Lammers
"directed" Prescott to remove the union button from his
person during their meeting on November 26, 1968, and
that this order impinged upon Prescott's rights under
Section 7 of the Act to embrace and support the Union's
cause at the plant in violation of Section 8(a)(1). I am not
persuaded that a preponderance of the evidence adduced
on this issue warrants such a facutal finding.
Prescott voluntarily sought out Lammers' ear to
complain about certain grievances which the former
believed possessed validity and which he had
unsuccessfully attempted to process through his immediate
supervisors. Lammers promptly agreed to entertain
Prescott's complaints and, after listening to them for in
excess of 2 hours, he assured the latter that Respondent
had already embarked upon a study to rectify the matters
over which Prescott grieved. I credit Lammers' testimony
that, following the discussion regarding Prescott's
grieving , and after extending assurances that action had
been undertaken to mollify the existing conditions of work
which concerned Prescott,' Lammers' simply stated, as
Prescott freely admitted, that Prescott might voluntarily
decide to foresake wearing the union button because of
41 would note that the General Counsel does not contend that Lammers'
statements concerning Respondent 's efforts to correct various conditions of
employment in the plant in consequence of the survey which it conducted,
made to Prescott , constituted promises of benefit which offended the
provisions of Sec. 8(a)(1) of the Act.
NATIONAL WATER LIFT COMPANY
the impending improvement in working conditions at the
plant, and Lammers did not direct Prescott to remove the
button. Accordingly, I conclude that Respondent did not
violate Section 8(a)(1) of the Act by Lammers' conduct in
this regard and I shall recommend dismissal of the
complaint insofar as it alleges otherwise.
Larry Laxton worked for Respondent in the drill
department until he was laid off in March 1969. He
testified that a considerable amount of union activity took
place at the plant following the election of September 5,
1968, including the display of union buttons on employees'
attire, the distribution of union literature, and the
placement of union stickers on employees' tool boxes in
the shape of a footprint which bore the legend "Put Your
Best Foot Forward - Vote I.A.M." According to
Laxton, he had attached similar stickers to three of the
tool boxes which he owned, and he related that the
"majority of the personnel in our department" also
adorned their tool kits with similar insignia . It is Laxton's
testimony that he was instructed by the union
committeemen to keep a watch on his work shift over the
employees' toolboxes to discover who had been removing
the insignia without the employees ' consent , although the
record is barren of any evidence that, with the exception
of the box belonging to employee Richard Miller, any
other worker had experienced the defacement of the
emblems which were carried on the tool kits. Around the
middle of February 1969, while Laxton was the sole
employee on duty during his shift, he noticed Supervisor
Carl Merkle scrape a union sticker from Miller's toolbox.
Laxton dutifully relayed this intelligence to the union
officials.
Carl Merkle testified without contradiction and I find
that, early in 1969, he reported for work in the drill
department on the morning shift and noticed several
toolboxes lying around which belonged to men who were
employed on the preceding shift. On a prior occasion
when this had occurred, one of the boxes was accidently
kicked over by an employee and damaged, and this caused
a "hassle" between the offender and the owner.
Consequently, Merkle decided to place the tool kits out of
harm's way on that morning. While he was performing
this chore, he observed that a box belonging to employee
Miller who was not at-work at that time, contained an
insignia upon which certain obscenities had been scribbled.
Because these four-lettered Anglo-Saxonisms could be
seen by the female employees in the area, Merkle removed
the insignia and placed it in a wastebasket . It is Merkle's
undenied testimony that other pieces of union literature
which were attached to Miller's tool box, and which were
unembellished by obscenities, were left untouched.
Merkle's testimony is neither controverted nor
challenged that he removed a union sign from Miller's
tool box solely because it bore obscene inscriptions which
Merkle believed would be offensive to the sensitivities of
the female employees who worked in the area. It is also
undenied that Merkle did not molest the remaining
campaign stickers which were attached to the tool
container. Moreover, there is no probative evidence in this
record to establish that any of Respondent's supervisors or
agents stripped other union literature from employees'
tool boxes. In my opinion, Respondent was privileged to
efface the vulgarity which appeared on Miller's equipment
while it remained on company property in the interests of
preserving a degree of decorum in the plant . Accordingly,
I conclude that Respondent did not violate Section 8(a)(l)
by Merkle's conduct in this regard, and I shall therefore
recommend dismissal of this allegation from the
complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
933
The activities of the Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section 1, 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 thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
will recommend that Respondent cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and
conclusions, and upon the entire record made in this case,
I hereby make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. District 117 of the International Association of
Machinists and Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By interfering with, restraining , and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of
law and the entire record in this proceeding, and pursuant
to Section 10(c) of the National Labor Relations Act, as
amended, I recommend that Respondent, National Water
Lift Company, a Division of Pneumo Dynamics
Corporation, Kalamazoo, Michigan, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Instructing employees to remove union insignia or
badges from the clothing while at work in the plant.
(b) Coercively interrogating employees concerning their
reasons for wearing union badges.
(c) Coercively questioning employees as to whether they
possessed union literature on plant premises.
(d) Directing employees to remove union insignia from
their apparel while at work and forceably relieving
employees of these items when they decline to do so.
(e) Warning employees that there would be no work
available for them if they displayed union buttons, and
that they would damage their future employment interests
with Respondent if they persisted in displaying those items
on their persons.
(f) Informing employees that they should seek
employment with other employers if they were dissatisfied
with working for Respondent in the absence of Union
representation.
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise of
their right to self-organization, to form labor
organizations, to join or assist District 117 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organization, and
to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or
to refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find
will effectuate the policies of the Act.
(a) Post at its plant in Kalamazoo, Michigan, copies of
the attached notice hereto and marked Appendix.' Copies
of said notice, to be furnished by the Regional Director
for Region 7, shall, after being duly signed by a
representative of Respondent, be posted by Respondent
immediately upon receipt thereof and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered-by any other material.
(b) Notify the Regional Director for Region 7, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply
therewith.6
IT IS FURTHER RECOMMENDED that, except as
hereinabove found, all other allegations in the complaint
be dismissed.
'In the event that this Recommended Order is adopted by the Board, the
words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
'In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director, in
writing , within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
After a formal trial before a Trial Examiner of the
National Labor Relations Board at which all sides had the
chance to present evidence, it has been found that we
violated the law and we have been ordered to post this
notice to inform our employees of their rights
WE WILL NOT instruct our employees to remove
union insignia or badges from their clothing while at
work in the plant
WE WILL NOT coercively interrogate our employees
concerning their reasons for wearing union badges.
WE WILL NOT coercively question our employees as
to whether they possess union literature on company
property.
WE WILL NOT direct our employees to remove Union
insignia from their clothing while at work and forceably
remove these items from their clothing if they refuse to
do so.
WE WILL NOT warn our employees that there will be
no work available for them if they wear union buttons,
or that they will hurt their future employment chances
with our company if they continue to wear these
buttons on their clothing.
WE WILL NOT inform employees that they should
look for a job with other companies if they are not
satisfied with working for us without union
representation.
The law gives all our employees these rights:
To organize themselves.
To form, join or help unions.
To bargain as a group through a representative
they choose
To act together for collective bargaining or other
mutual aid or protection
To refuse to do any or all of these things
We assure you that WE WILL NOT do anything to
interfere with you in the exercise of these rights. Every
employee is free to become or remain a member of
District 117 of the International Association of
Machinists and Aerospace Workers, AFL-CIO.
Dated By
NATIONAL WATER LIFT
COMPANY, A DIVISION OF
PNEUMO DYNAMICS
CORPORATION
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 500 Book
Building, 1249 Washington Boulevard, Detroit, Michigan
48226, Telephone 313-226-3200.