R. B. & W. Industrial Plastic Products, Inc.

National Labor Relations Board - Board Decisions

Aug 19, 1970

184 N.L.R.B. 966 (N.L.R.B. 1970)

966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
R. B. & W. Industrial Plastic Products , Inc. and Dis-
trict Lodge No . 40 of the International Association
of Machinists and Aerospace Workers, AFL-CIO.
Case 12-CA-4600
August 19, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN , AND JENKINS
On March 17, 1970, Trial Examiner Josephine H.
Klein issued her Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint
be dismissed in its entirety, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to certain findings
in the Trial Examiner's Decision and a supporting
brief. The Respondent filed a brief in opposition to
the General Counsel's exceptions and brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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
briefs, and the entire record in the case, and hereby
adopts the findings,' conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
' The General Counsel' s exceptions directed to the credibility resolu-
tions of the Trial Examiner are without merit The Board will not overrule
the Tnal Examiner 's resolutions as to credibility unless a clear preponder-
ance of all relevant evidence convinces us that they are incorrect, On the
entire record , such a conclusion is not warranted herein Standard Dry Wall
Products , Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPHINE H. KLEIN, Trial Examiner: Upon due
notice, this case was heard in Miami, Florida, on
December 9 through 12, inclusive, 1969,' on a
complaint issued against R. B. & W. Industrial
Plastic Products, Inc.,2 Respondent, on October 16,
184 NLRB No. 110
pursuant to a charge filed by District Lodge No. 40
of the International Association of Machinists and
Aerospace Workers, AFL-CIO ( IAM or the Union)
on August 1 1 and amended charges filed on August
20 and October 7. All parties were represented at
and fully participated in the hearing . At the close of
the hearing , the General Counsel made a short oral
argument . Since the hearing , Respondent has filed
a brief.
Upon the entire record ,3 consideration of
Respondent 's brief, and observation of the wit-
nesses, I make the following:
FINDINGS AND CONCLUSIONS
1. JURISDICTIONAL FINDINGS
A. Respondent, a Florida corporation with its
principal place of business at Miami Lakes, Florida,
is engaged in the manufacture and sale of plastic
products for industrial use. During the past 12
months, a representative period, Respondent, in the
course of its business operations, purchased goods
and materials valued in excess of $50,000, which
goods and materials were received directly from
points outside Florida, or from local suppliers who
had, in turn, received said goods and materials
directly from points outside Florida. Respondent is
now, and was at all material times, an employer en-
gaged in commerce within the meaning of Section
2(6) and (7) of the Act.'
B. The Union is, and was at all material times, a
labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The complaint alleges that Respondent violated
Section 8(a)(I) of the Act on six occasions
between April 30 and August 4, as follows: April,
30-threats of reprisals for participation in con-
certed activity; May 12-change in method of
reprimanding employees; May 16-promulgation
and enforcement of invalid no-solicitation and no-
distribution rule; July 1-grant of across-the-board
wage increase after a representation petition had
been filed; July 1-individual wage increases after a
representation petition had been filed; and August
4-threat of discharges or layoff of union adherents
after the Union had won the election. Respondent
admits that wage increases were granted on July 1,
but maintains that they were totally unrelated to
any union or concerted activity. Respondent denies
the other allegations listed above.
I Except as otherwise stated, all dates are in 1969
' This is the Respondent 's name as amended at the hearing
Respondent 's unopposed motion to correct the official report of
proceedings is hereby granted
National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519
29 U S C Sec 151, et seq )
R. B. & W. INDUSTRIAL PLASTIC PRODUCTS 967
In addition, the complaint alleges that on August
1 employee James Gannon was discharged for
union or other concerted activities. Respondent
contends that Gannon voluntarily resigned and that
Respondent had already decided to lay him off or
discharge him in the course of an anticipated
reduction-in-force.
Finally, it is alleged that on August 15 employees
Renon Garcia, Albert Garratt, Thomas Cole, and
Thomas Cochran were laid off because of union or
other concerted activities. Respondent asserts that
the layoffs were economically dictated and the cho-
ice of employees to be laid off was based solely on
honest business judgment. It is agreed that Garratt,
Cole, and Cochran have since been recalled and
are now again working for Respondent. Garcia, an
apprentice, is still in layoff status.
B. Chronology
Respondent, engaged in the production of preci-
sion industrial plastic parts, employs a total of
about 85 persons. Of these, around 10 to 15 work
in the tool room (interchangeably called the mold
department), where they make the metal molds in
which the plastic parts are thereafter formed
through an injection molding process. Moldmaking
is a highly skilled operation, requiring an ap-
prenticeship of from 2 to 4 years. Included among
the tool room employees Respondent has regularly
had one or two apprentices.
In April, the tool room employees became
generally dissatisfied with wages, benefits, and
working conditions. Employee Cochran consulted
the Steel Workers Union. However, his fellow em-
ployees were unimpressed by Cochran's reports and
no organizational activities were conducted for that
union. The employees then requested a meeting
with management. Pursuant to that request, on
April 18, employees Walter Stevens,5 Bob Hayberg,
and Lazaro (Henry) Martin met with Douglas
Dawson, Respondent's vice president and general
manager; Dale Smous, chief engineer, and Jack
Tischler,6 tool room foreman.
Concerning the April 18 meeting, Hayberg
testified:
... I said, "Some of the places, you know,
are paying more," and that we didn't want a
Union here, you know, but we just wanted
things to be better and I said, "There was some
talk of Union in the shop now and if we could
prevent it that we would."
We talked further about wages and benefits
and Mr. Dawson commented on that he
couldn't do nothing more for us, you know, at
the present and, you know, I started talking
about this Steel Workers Union because this
was the one we first looked into. So I had a
newspaper of the Steel Workers Union and he
asked me if I had that present and it was about
Steel Workers going into PMD, which is a shop
about four blocks away, and I said, "Yeah, I
have the paper." So he asked me to go out and
get it . It was in my car and I went out to the
car and got the paper and brought it in there
and they looked it over.
Stevens suggested that a wage increase of from 25
cents to 50 cents per hour might satisfy the em-
ployees. Dawson indicated that Respondent could
not meet that figure but would study the matter to
see what could be done for the next fiscal year,
beginning July 1.
On April 24, Jack Lohrman, president of
Respondent and executive vice president of
Respondent's parent corporation,' visited the plant.
Employee Stevens discussed with Lohrman the em-
ployees' continuing dissatisfaction and the fact that
there was some union talk going on. Lohrman said
that the Company was studying the situation and
would, as it had in the past, keep pace with other
companies in the area. Lohrman said that some of
the affiliated companies were unionized while
others were not, and that he personally saw no par-
ticular advantage in unionization.
With no definite response to their complaints
forthcoming from management by the end of April,
employees Hayberg and Martin suggested that the
tool room employees "go fishing" on May 1. When
this suggestion was accepted, Cochran asked em-
ployee Lou Miller to inform Foreman Tischler of
their plans and that it was "nothing personal."
Shortly thereafter Tischler walked over to
Cochran's machine . Cochran's uncontradicted8
testimony concerning the ensuing conversation
between him and Tischler was:
... I says, "A little bit of excitment is hap-
pening today," and Jack shook his head and
said, "Yeah. You coming into work tomor-
row'" and I says, "No, I am not." So Jack says,
"Well, listen I would hate to see you get shot
down as being some kind of a crusader or
anything." He said, "I wouldn't want to see
anything happen to you." So I said "What are
you trying to tell me?" He said, "Just be here
tomorrow." I said, "Well, I don't want to be
the only one being here tomorrow. I have to
work with these guys so if they take off I am
going to take off."
'Stevens, who testified under subpena on behalf of the General Counsel,
had been foreman of the tool room until around Thanksgiving Day 1968,
when he transferred to a specialized nonsupervisory job At the time of the
events here involved he was a nonsupervisory employee His employment
with Respondent was terminated on July 3, 1969 , in a disagreement about
his quitting time
"The transcript is hereby corrected to show the spelling of this name as
"Taschler" wherever it appears , since that is the spelling in his signature
on several exhibits
Russell, Burdsall, and Ward Bolt & Nut, of Port Chester, New York
" Although present at the hearing , Tischler did not testify
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next day, May 1, all the tool room em-
ployees, except Miller and Garcia,9 failed to report
to work. Apparently they all went fishing, except
for James Gannon, who visited the IAM office and
secured some authorization cards.
The next day, Dawson, Smous, and Tischler
together talked to each of the employees. Dawson
said that Edwin C. Griffith, Director of Industrial
Relations for Respondent's parent corporation,
would visit the plant the following Friday and "that
he was a nice guy ... and he wasn't going to take
any disciplinary action for [the employees'] taking
off that day."
Between May 1 and 9 all the tool room em-
ployees except Miller signed union cards, which
Gannon then delivered to the Union on May 9.10 As
promised, Griffith visited the plant and spoke with
the employees on May 9. The men presented their
problems and requests, covering such matters as in-
surance, retirement, wages, etc. According to
Cochran, Griffith "explained there was only a cer-
tain amount of money and in which area we wanted
this money, to have it put into, but there was
nothing definite, it was just rather vague." Griffith
indicated that Respondent's parent company would
investigate the matter, survey conditions in com-
parable companies, and then decide what improve-
ments would be instituted for the next fiscal year
He assured the employees that Respondent would
continue its policy of remaining competitive in the
labor market
On May 12 Respondent posted on the tool room
bulletin board a memorandum entitled "Supple-
ment to present policy book," concerning, inter
alia, disciplinary warning notices.
On May 27 Griffith again visited the plant. On
that day he informed the production workers that
they would receive a 5-cent-per-hour increase on
July 1, 1969, and another 5 cents on January 1,
1970. The next day Griffith announced similar
raises to the shipping department employees and
then told the tool room employees that they would
receive hourly raises of 10 cents on July 1, 1969,
and 10 cents January 1, 1970.
The Union's representation petition was filed on
May 28 and Respondent received service thereof
on May 29. Pursuant to a stipulation executed on
June 18,11 an election was held on August 1. The
Union won by a vote of 12 to 1.
Employee James Gannon's employment by the
Respondent was terminated as of the end of August
1, after the election. On August 5, employees Larry
Angle, Cole, Cochran, Hayberg, and Martin were
given disciplinary layoffs of 10 days (8 working
days) because numerous parts of molds on which
they had been working had disappeared and
" Dawson testified that only Miller reported for work that day However,
Garcia, who was then attending school and working part time for Respon-
dent, testified that, after consulting Cochran, he had worked on May I
10 Although the witnesses referred to May 8, May 9 appears to be the
correct date, since it was identified as a Friday
Respondent believed the employees had stolen
them. The original charge in this case, alleging the
termination of Gannon and the five disciplinary
layoffs as violative of Section 8(a)(3), was filed on
August 11, the same day that the certification of
the Union was issued.
On Friday, August 15, Cochran and Cole, who
were still on disciplinary layoff, and Albert Garratt
and Garcia were notified that they were being laid
off indefinitely for lack of work. An amended
charge, adding these four layoffs as allegedly viola-
tive of Section 8(a)(3), was filed on August 21. On
August 18, Angle, Hayberg, and Martin had
returned to work after the disciplinary layoffs.
On or about August 26 employee Angle quit,
whereupon Cochran was recalled to work as of
September 8. On September 8, Garratt was notified
to return to work on September 15. Cole was later
recalled as of November 3. As of the date of the
present hearing, Garcia had not been recalled.
A second amended charge was filed on October
7. For the first time violations of Section 8(a)( I)
were alleged. The allegations concerning the
disciplinary layoffs were eliminated.
Contract negotiations resulted in the execution of
a collective-bargaining agreement in November, be-
fore the present hearing.
C. The Alleged Violations of Section 8(a)(1)
1. April 30-Threat of reprisal for concerted
activity
As set forth above, after the moldmakers had de-
cided on April 30 to "go fishing" the next day, Tool
Room Foreman Tischler advised Cochran not to
absent himself from work. Respondent argues that
there is no specific evidence that Tischler knew
that any "concerted activity" was planned for May
1. Respondent maintains that it was never told why
the men were absent on May 1 "other than to go
fishing." According to Respondent, the evidence
shows only that Tischler may have known that
Cochran intended to be absent without cause or ex-
cuse. But the employees had previously registered
their collective complaints in a meeting between
their chosen representatives and management.
There was no contradiction of Cochran's testimony
that Tischler referred to Cochran as a "crusader," a
term which a foreman would hardly apply to an em-
ployee who he believed was simply contemplating
"playing hookie." Further, Cochran made clear the
concerted nature of the conduct by saying that he
did not want to be the only person reporting for
work. Thus, even though the employees may not
have specifically announced their May 1st "fishing
11 It appears that Respondent initially raised some question concerning
the propriety of a bargaining unit limited to the tool room and a hearing
was scheduled However, Respondent withdrew its objection and agreed to
an election in the small unit
R. B. & W. INDUSTRIAL PLASTIC PRODUCTS
trip" as a protest or demand , it did constitute pro-
tected concerted action . N.L.R.B. v. Washington
Aluminum Co ., 370 U. S. 9. Thus, Tischler 's advis-
ing Cochran to report to work to avoid being "shot
down" as a "crusader" amounted to a threat of
reprisal for engaging in protected concerted activi-
ty.
On May 2 , however , when the men returned to
work , Dawson , Tischler 's superior , assured them
that no disciplinary action would be taken; that
management was considering their complaints and
demands; and that Griffith , representing the parent
company , would discuss the matter with them the
following week . In the Trial Examiner 's opinion,
Dawson 's prompt reassurance , followed by Grif-
fith's visits and discussion of the employees' com-
plaints and demands, was sufficient to "dissipate
[ the] coercive effects of" Tischler 's isolated threat.
Livingston Shirt Corp., 107 NLRB 400, 403, Marr
Knitting , Inc., 90 NLRB 479; C. V. Uranga, 173
NLRB 635.
2. May 12-Institution of change in system of
reprimands
There is no dispute that on May 12 Respondent
posted on the tool room bulletin board a memoran-
dum containing the following paragraph:
1. WARNING NOTICE
Warning notices will be given at the discretion
of the supervisor for the following violations;
Defective work, low production, safety, con-
duct, lateness, absence, attitude, housekeeping,
disobedience, and carelessness. Three warning
notices within a thirty (30) day period leaves
said person subject to dismissal.
Dawson testified that the May 12 posted notice
was essentially the same as one which had been
originally posted in January, but that the May ver-
sion spelled out more specifically the precise
grounds for warning notices and possible discharge.
This testimony was not contradicted. Dawson
credibly explained his failure to produce the Janua-
ry notice by stating that he had removed it from the
bulletin board and made handwritten revisions and
that apparently it had been discarded by his secre-
tary after she had typed the revised version.
Respondent introduced into evidence numerous
warnings which had been given to employees in the
past. These were on a printed form which, under
the heading "Nature of Violation," listed nine mat-
ters, with boxes to be checked to indicate the dere-
liction involved. The nine items so listed are the
same as those in the May 12 memorandum, except
that the May memorandum inserts the additional
item of "low production." The evidence shows that
Respondent had given warnings on this form at
969
least as early as 1962 and as recently as March 24,
1969.
The General Counsel sought to show that the
prior warning system had been used primarily in de-
partments other than the tool room and that in the
tool room it was used only in connection with tardi-
ness and/or absence. However, while there ap-
parently had not been complete uniformity among
Respondent's departments, it does clearly appear
that the form had been used in the tool room for a
considerable period of time and had not been
limited to absence and tardiness.12 For example, in
October 1962 moldmakers Weisenberger, Vorsteg,
and Rizzo were given warning slips for "careless-
ness" involving clock-punching. Steve Hargrove, a
tool room employee, had been discharged on April
9, after having received written warnings for late-
ness on January 30 and for absence on February 27
and March 11 and 24.
Former Tool Room Foreman Stevens stated his
personal opinion that written warnings were "use-
less." He generally gave oral warnings and, accord-
ing to his experience, employees knew when their
performance was not satisfactory. . He had
discharged many employees for poor performance
without having issued written warnings. Evidently
department foremen had always exercised in-
dividual discretion in the use of written warnings,
and the May 12 notice specifically says that the is-
suance of written warnings is "at the discretion of
the supervisor."
Dawson testified that the May 12 posting was
preceded by a considerable recent increase in
misconduct and deterioration of performance.
While he provided little specific supporting
evidence, his conclusory statements were not chal-
lenged.
Dawson testified that the "fishing" incident of
May 1 also was a factor in his decision to post the
new notice on May 12. Since, as previously found,
the May 1 walkout was protected concerted activi-
ty, Respondent would not have been at liberty to
take disciplinary action for a repetition of such con-
duct. But the May 12 notice did not on its face pur-
port to cover such concerted absences and there is
no evidence that employees were ever told that
such conduct in the future would be cause for
discipline or be deemed to fall within the purview
of the May 12 notice.
Accordingly, on all the evidence, I find that the
General Counsel has failed to support the allegation
of the complaint that on "May 12, 1969, Respon-
dent changed its prior practice or reprimanding em-
ployees and instituted a system of written repri-
mands and/or began enforcing a hitherto unen-
forced system of written reprimands" in contraven-
tion of Section 8(a)( 1). The Rangaire Corporation,
157 NLRB 682, 707.
" The General Counsel introduced into evidence another printed form
maintained by Respondent for reporting absences
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. May 16-No-solicitation and no-distribution
rule
The complaint alleges that "Respondent, by
Foreman John Tischler, did promulgate and enforce
an unlawful no-solicitation and no-distribution rule
against its employees."
On May 16 Foreman Tischler told Cochran that
Respondent had a rule "about soliciting" and
Tischler had been told to warn Cochran because
the latter had been "seen soliciting and passing out
literature." Concerned about the posted notice to
the effect that three warnings within a 30-day
period might be ground for dismissal, Cochran later
asked Tischler to explain in the presence of em-
ployee Martin. Tischler said that Cochran had been
"soliciting, passing out literature" and the verbal
warning "would have the same effect as a written
warning." The next day Cochran spoke to Chief
Engineer Smous and, in effect, requested a bill of
particulars concerning the accusation against him.
According to Cochran, Smous said that Cochran
had not been "actually" soliciting, but that he had
been "seen talking to [an employee] outside [his]
department." Cochran testified that, as a result of
his conversation with Smous, he "was satisfied that
[he] didn't have to go in the office on this."
Hayberg had a somewhat similar experience at
the same time. After he had spoken to some
production workers about the Union, he was given
a "verbal warning" by Tischler "about soliciting
and passing literature out on company property."
The next day, however, Tischler told Hayberg that
he "wasn't passing out literature" but that he "had
to stay, in [his] own work area ..-.-not to leave [his]
work area."
Since November 1, 1965, Respondent has had a
printed "Employees Handbook." Dawson's uncon-
tradicted testimony was that the handbook had
been distributed to all employees when it was first
issued and thereafter had been given to each new
employee when he commenced work. That hand-
book contains the following "General Regulation":
Selling or Soliciting: No solicitation is per-
mitted for any cause during an employee's
working time. No distribution of literature in
working spaces is allowed. Solicitation by non-
employees is not permitted at any time or
place on Company property.
This rule, as written, is valid. The General Coun-
sel's evidence fails to establish that on May 16
Tischler purported to promulgate any new rule or
sought to extend the existing rule. According to
Cochran's and Hayberg's testimony, Tischler at
most accused them of having violated the existing
rule. Even if the accusation was unfounded,
Tischler's statements would not, without more,
amount to the promulgation of a new and invalid
" N L R B v Exchange Parts Co , 375 U S 405
" The increases were undoubtedly determined before that time, since
Griffith arrived at the plant from New York and informed the production
rule. In any event, both Tischler and his superior in
effect repudiated the original warnings in such a
way as to negative any possible implication that an
invalidly broad rule had been promulgated or
would be enforced.
4. July 1-Across-the-board wage increase
The complaint alleges that "[o]n or about July 1,
1969, after the filing of a petition for representation
... Respondent granted to all employees an across-
the-board wage increase."
There is no question that, effective July 1, the
tool room employees were given a 10-cents-per-
hour across-the-board increase. The Company had
never before granted across-the-board increases,
having instead granted only individual merit in-
creases. It is also true that July 1, when the raise
became effective, was after the representation peti-
tion had been filed. But these facts do not auto-
matically establish an Exchange Parts 13 violation
of Section 8(a)(I ).
The evidence is undisputed that Griffith an-
nounced to the assembled tool room employees on
May 28 that they would receive 10-cent-per-hour
wage increases on July 1, 1969, and January 1,
1970. The complaint does not allege, and the
General Counsel did not contend at the hearing,
that the May 28 announcement of the increases waE
violative of the Act. On the assumption that the
promise of wage increases was lawfully made, ii
necessarily follows that the actual grant of the wage
increase on July 1, in fulfillment of the prior
promise, was not unlawful. Indeed, had Respondent
reneged on its promise because of the intervening
representation petition, it would surely have beer
guilty of an unfair labor practice.
While the proposed wage increases were an-
nounced on the same day that the representatior
petition was filed, Respondent did not receive ser
vice until the next day. And there is no evidence
that Respondent had any advance notice. Since the
complaint specifically alleges that the increase wa,
granted "after the filing of a petition for representa
tion," it would clearly be impermissible to construe
it broadly enough to cover the "promise" of in
creases made on May 28.14
In any event, the evidence establishes that the an
nouncement of across-the-board wage increase,
was made, as promised, in response to the em
ployees' prior demands and was not motivated of
influenced by any union activity.
5. July 1-Merit increases
Little need be-or can be-said about the ad
mitted fact that several moldmakers were giver
merit wage increases on July 1. The record is
workers of their scheduled raises on May 27 The raises for all three de
partments presumably were decided on at the same time
R. B. & W. INDUSTRIAL PLASTIC PRODUCTS
replete with uncontradicted evidence that Respond-
ent has customarily granted merit increases at
frequent intervals, generally on the basis of quar-
terly reviews of performance records. The Act cer-
tainly does not require (or, for that matter, permit)
an employer to refrain from granting customary
merit increases because a union's petition for
representation is pending.
There is no evidence that the across-the-board
increases were intended or announced as a sub-
stitute for merit increases. In announcing the
general increases, Respondent said that they would
"bring the top rate of $4.50 on July 1 and $4.60 on
January 1, 1970," and that "a merit increase would
be granted when an employee would prove himself
improved in his productivity and performance." As
hitherto found, the across-the-board increases were
granted in response to the employees' articulated
dissatisfaction. To consider them as a substitute for
the established practice of granting periodic merit
increases would in major part negate their purpose.
6. August 4-Threat of future discharge or layoff
of union adherents
As is discussed below, James Gannon's employ-
ment was terminated on Friday, August 1, the day
of the Board-conducted election However, Gannon
reported for work on Monday, August 4. He was
not permitted to work and was required to remove
his toolbox from the premises. Dawson and Smous
escorted Gannon as he loaded his toolbox into his
car. Gannon testified as follows concerning the
conversation at that time:
... just before I left, I turned to Doug
[Dawson] and I said, "Doug, I have been with
you for six months and you know and I both
know that at no time during that six months
have I cheated you or done you wrong in any
way at all." [15]
He says, "Listen, we have got to do some
more weeding out of here before ewe get this
thing straightened out." At that time I said,
"Goodby," turned around, got in my car and
left.
... I told them that I intended to file an unfair
labor practice charge against the company.
Both Dawson and Smous denied that the former
had made the statement attributed to him by Gan-
non. However, I deem it unnecessary to resolve the
conflict since Gannon's testimony, even if credited,
does not establish a violation.
Dawson and Smous testified concerning the nu-
merous problems which had beset the Company in
"Gannon actually had worked for Respondent less than 4 months
There is no suggestion in the evidence that he had ever been accused of
"cheating" Respondent
'6 Since the parts have no value or utility except as components of the
molds, if, as Respondent believed, they had been taken by the employees,
the taking would be closer to vandalism than to theft
'r Root said that defacements of the walls had begun around the middle
of July Dawson indicated that it had been a problem considerably longer
971
the months before Gannon's termination. Dawson
said the May 12 notice concerning written warnings
had been prompted by deterioration in the em-
ployees' productivity and workmanship Parts of
molds first disappeared on July 7 and 8. Other acts
of vandalism,16 such as intentional damage to the
water fountain, occurred around the beginning of
July. As a result, Respondent called a meeting on
July 9, at which all the tool room employees were
warned of possible disciplinary action. Employee
derelictions continued, as evidenced by the ob-
scenities on the lavatory walls in the latter part of
Julys' and the subsequent disappearance of addi-
tional parts of molds.'
Under these circumstances, whether the Com-
pany's numerous complaints were justified or not, a
threat to "weed out" more employees would not
necessarily refer to union adherents. It is at least as
probable that Dawson would think of "weeding
out" lavatory muralists, slow workers, and vandals
as that he would threaten to discharge union ad-
herents, which he had given no indication of doing
prior to the election. Louisville Chair Company,
Inc., 146 NLRB 1380, 1381. Indeed, since the
Union had won the election by a 12 to 1 vote,
"weeding out" could hardly be thought of as an ef-
fective antidote if Dawson considered unionism as
the Company's problem. Gannon's employment
was not terminated until he had voted for the
Union after having previously proclaimed his inten-
tion of doing so. If Gannon believed the employees
to be "weeded out" were the union adherents, it
was he, not Dawson, who made that identification.
D. The Alleged Violations of Section 8(a)(3)
1. The termination of James Gannon
Gannon's employment was terminated at the end
of work on August 1, the day of the Board elec-
tion. The General Counsel maintains that the
termination of Gannon and the subsequent lay-
off of four other employees was "retaliatory ac-
tion by the Employer after the Employer had lost a
Union election 12 to 1." Respondent contends that
Gannon quit his employment and that he was not
permitted to retract his resignation because the
Company was already seriously contemplating an
economic layoff and Gannon was a most unsatisfac-
tory employee.
On or about July 27, after having received oral
warnings , Gannon was given a written warning for
"low productivity." On July 28 Gannon spoke to
In any event, Gannon confirmed that the problem was a real one "
there was writing more or less on the walls all the time I mean, it was just
on and off It was on and then they would wash it off and on and they would
wash it off "
'" Although the only specific subsequent disappearance of mold parts
shown in the record was around August 5, after Gannon's termination, the
evidence is clear that Respondent was constantly aware of such onduct as
a major problem
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dawson about the warning. Concerning this con-
versation, Dawson testified:
[Gannon] said that when he pushed himself
any harder he had stomach trouble, he could
not and would not work any faster and if the
company didn't like that then there was
nothing he could do about it. So I told James
Gannon that we could not continue to lose
money on the molds that he was building and
James Gannon said, "O.K., I have got another
job line[d] up at Security [Plastics Company];
I quit Friday." He said , " But I am going to
stick around to vote for the boys on Friday."
Gannon's version of this incident was that while at
work he was approached by Dawson, who ad-
monished him not to vote for the Union. Gannon's
testimony continued:
I told [Dawson] that I intended to vote for the
Union and the reasons why, and that the way
things were now the shop is a total mess and I
said, "Unless you all make some changes most
of the men figure it is going to continue " I
said, "I have been offered other jobs," . . . I
said, "I have had it with all of this dissension
and arguing in here."
. whenever he left he turned to me about
six feet away and said, "James, let me know of
any decisions that you make," and I looked at
him and I said, "I will let you know if I make
any decision at all."
On the same day, Franklin L. Root, head of
Respondent's quality control department, went to
the washroom. Finding the door locked or blocked,
he started to leave, when the door opened and em-
ployee Cole emerged. Root then proceeded into the
lavatory, where he saw Gannon. After Gannon de-
parted, Root noticed an obscene reference to
Smous written on two places on the lavatory walls.
Upon leaving the washroom, Root reported the in-
cident to Dawson and Smous. Shortly after lunch,
Cole was summoned to Dawson's office. Under
Respondent's rules, "If [a] grievance is a matter of
discipline the employee has the right to have one of
the employee group accompany him to discuss the
grievance with Management, if he so desires." Cole
chose to have Cochran present. Cole denied that he
placed the obscenities on the restroom walls. Then
Gannon, also accompanied by Cochran, was inter-
viewed. According to Dawson, Smous, and Root,
Gannon neither admitted nor denied the accusation
against him. Gannon testified that he was never
directly accused of the offensive conduct and there-
fore he said nothing.'9 According to Dawson and
Smous, Gannon said that he had secured a job with
Security Plastics Company and was quitting
Respondent's employ on August 1, after voting for
the Union in the election. Gannon testified that for
quite a while he sat silently, "looking at a plastics
book while they were talking about Union condi-
tions and shops that were Union and conditions in
shops that were not Union," but eventually he
became "irritated." His testimony continued:
A. . . . I said, "Listen, you have pulled me in
here on some kind of a trumped up silly,
ridiculous charge, made a veiled threat at me
for something that you know is not true and
that you can't prove." . . . I says, "As far as
suspending me, you know full well and you
know it now that if you suspend me today or
tomorrow I will go straight as my legs can carry
me to the National Labor Relations Board and
file an unfair labor practice charge against this
company." I said, "I will be back; it may take
me two weeks or two months or a year or a
year and a half, but I will be back and you can
depend on it."
Q. Was there any mention in that meeting,
sir, of Security Plastics?
A. In this particular exchange that we were
talking of, I don't remember how it came to be,
but at any rate I said, "You are not the only
place to work here. I have been offered jobs at
other shops, among others Security Plastics. So
you are not the only place to work."
Gannon and Cochran denied that Gannon had said
that he quit or used the work "quit" in any connec-
tion. However, in a pretrial affidavit given to a
Board agent, Gannon had previously said:
On Monday, July 28, 1969, 1 got the warning
slip and was also called into the office and
Smous told me in front of Tom Cochran and
Frank Root that they had been advised to
suspend me, but he had decided against it at
the time. He had told me just before this that I
had been suspected of writing on the toilet
walls. I told him that if he did not want me
there, I would eventually quit, but it would be
when I got ready and on my terms."
Cochran testified that in both the Gannon and Cole
meetings Cochran had stated the Union's position
that any employee seen writing on the walls should
be fired and Respondent's representatives said they
were satisfied that the misconduct was unrelated to
the Union. Cochran continued:
[Gannon] said if they didn't like his work or
anything that they could fire him. And he said
he had been -offered a job from Security
Plastics and Mr. Howard Cicel offered him a
job, but that was all that was said concerning
work.
On the basis of the demeanor of the witnesses, as
well as the conflict between Gannon's testimony
and his pretrial affidavit and the conflict between
Gannon and Cochran as to the interview about the
washroom incident, I credit Dawson and Smous and
find that on July 28 Gannon announced his resigna-
'' In view of the testimony of Gannon , Dawson, Smous , and Root, 1 dis-
credit Cochran 's testimony that Gannon was disturbed by the accusation
and firmly denied responsibility for the washroom graffiti
R. B. & W. INDUSTRIAL
tion as of August 1. However, he promptly recon-
sidered but was not permitted to remain. Thus his
termination was involuntary and will be considered
as tantamount to a discharge.
The complaint does not allege and the General
Counsel did not contend that the warning of July
27 was discriminatorily motivated or violative of
the Act. Respondent introduced into evidence a
survey of employee efficiency which showed that
between April 14, when he was hired, and July 23,
Gannon had spent 412 hours on work which Smous
had estimated as requiring 293 hours, with a
resultant efficiency rate of 59.4 percent, the lowest
in the tool room. The accuracy of this computation
was not questioned.20
It is true that on July 1 Gannon received a 5-
cent-per-hour "merit" increase in addition to the
10-cent across-the-board increase. Dawson testified
that the "merit" increase had been given only
because of Gannon's insistent protestations that he
had been promised such a raise when he was hired
in April. Gannon himself testified that when he was
told of the July 1 increase he was also informed
that Respondent was not satisfied with his produc-
tivity, which was said to be 85 percent, and that he
would have to improve. As previously noted, by
July 23, his overall efficiency had declined to 59.4
percent.
Gannon testified that both Lohrman and Dawson
spoke to him about the Union and that several
times Dawson "admonished" him not to vote for
the Union. Despite Dawson's denial, I find that he
did ask several employees not to vote for the
Union. However, no such statements are alleged to
have been violative of Section 8(a)(1) and there is
no evidence that any of them were made in a coer-
cive or threatening way. Gannon indicated that in
answer to such statements he stated his intention to
vote for the Union and his reasons therefor.
Around June 18, when the stipulation for an elec-
tion was executed, Gannon, along with other tool
room employees, started to wear IAM insignia on
his clothing and to display IAM decals on his tool-
box
Gannon appears to have been a leading union
proponent. He made the initial contact with the
IAM on May 1 and brought the authorization cards
to the plant and then delivered the executed cards
to the Union on May 9. However, he did not per-
sonally solicit any signatures on cards. It was
Cochran who was to appear for the Union at the
representation hearing which had been scheduled
for June 18.
Accordingly, while Respondent knew of Gan-
non's prounion sentiments, the evidence fails to
establish that Respondent had any reason to believe
that Gannon was any more active on behalf of or
sympathetic to the Union than any of the other
L0 The General Counsel made some attempt to establish that Smous was
not proficient at estimating However, at most it was shown that he made
occasional mistakes and that his estimates reflected the Company's policy
PLASTIC PRODUCTS 973
moldmakers, 12 of whom it will be recalled voted
in favor of it.
Nothing in Cochran's testimony suggested that
Gannon's union sympathies appeared to play any
part in the washroom interview. According to Gan-
non himself, Dawson and Smous clearly knew of his
prounion ardor on July 28 when they reprimanded
him but informed him that they were rejecting ad-
vice that he be suspended at that time. It is reasona-
ble to assume that if Respondent had been
motivated by an intention or desire to discourage
union adherence, it would have discharged him
then, 3 days before the election, rather than per-
mitting him to remain through the day of the elec-
tion.
While Respondent had expressed its opposition
to unionization, there is a total absence of
evidence, direct or circumstantial, to indicate that
such opposition played any part in the decision to
terminate Gannon, who adopted a truculent, "chip-
on-the-shoulder" attitude when warned about his
low productivity and when reasonably questioned
about the washroom defacement.
On all the evidence, I hold that the General
Counsel has failed to establish that Gannon's union
sympathies or activities played any part in his ter-
mination on August 1. On the contrary, the
evidence requires the conclusion that Respondent
was pleased to seize on Gannon's resignation
because it was seriously considering discharging
him or, at the very least, laying him off first in the
reduction-in-force it was then contemplating.
2. Layoffs of Cochran, Garratt, Cole, and Garcia
As of the end of business on August 15, em.
ployees Cochran, Cole, Garratt, and Garcia were
notified that they were being laid off until further
notice "due to a low level of work in our Mold De-
partment." The complaint alleges that these em-
ployees were laid off because they "joined or
assisted the Union, or engaged in other concerted
activities."
The General Counsel apparently does not con-
tend that the four employees were discriminatorily
selected for layoff; nor could any such contention
be supported. For example, Garcia, the only laid-
off employee who had not been recalled as of the
time of the hearing, had been totally uninvolved in
the concerted and union activities. He had worked
on May I when the other employees walked out.
He never wore union insignia or displayed IAM de-
cals, although the evidence indicates that the great
majority of the employees did so. So far as appears,
Garratt and Cole had done nothing more than wear
IAM insignia and displayed union decals on their
toolboxes, as had most of the tool room employees.
to emphasize speed over quality of performance somewhat more than em-
ployee Garratt, a meticulous worker, thought proper
974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cochran does appear to have been somewhat
more active than the rest. He was the employee
scheduled to appear for the Union at the represen-
tation hearing around June 18 and served as ob-
server for the Union at the election. However, there
is no evidence that this activity played any part in
the layoff decision. The survey of efficiency for the
period ending July 23 shows that, in descending
order, Cochran, Garratt, and Gannon had the
lowest productivity rates.21 In 1963 Respondent had
had an economic layoff, with the persons laid off
being selected on the basis of efficiency quotients
rather than seniority.
The fact that Cochran, Gannon, and Cole had
received "merit" wage increases on July 1 does not
indicate that their layoff on August 15 was dis-
criminatorily motivated. Cochran had been one of
only two tool room employees who had not been
granted a merit increase in January, but he had
been given one in April. Shortly before July 1 he
was informed that his efficiency was 95 percent and
that he would therefore receive a raise of 5-cent
per hour in addition to the general 10-cent in-
crease. However, when the efficiency survey was
brought up to date as of July 23, his rate had
declined to 72.7 percent and he was given a written
warning a few days later.
When Garratt was hired in April, he was told
that, if his work was satisfactory, he would be given
an increase in 30 days and would be raised to the
top rate rapidly, and that it was the Company's
general practice to increase the top rate by 5 cents
every quarter. On his early work for Respondent his
efficiency rate was very high, reaching 146 1/2 per-
cent at one time . He was granted a 5-cent raise in
May, at the end of 3 days' service, and again on
July 1. However, his efficiency rate declined so that
his overall rate through July 23 was 69.7 percent
with only Gannon's lower. He was given a written
warning for low productivity around July 27. While
Garratt raised some question as to the validity of
the computation, there is no reason to believe that
it reflected any discrimination against him, and, as
previously noted, the July 27 warning has not been
alleged as violative of the Act.
Cole received a 1'0-cent-per-hour merit increase
on July 1 in addition to the across-the-board in-
crease. Respondent does not maintain that Cole
was selected for layoff because of relatively poor
performance or low productivity.
According to Dawson's uncontradicted
testimony, Cole was a competent tool-and-die
x' "There no efficiency quotient figures for Cole and Garcia because
neither of them had made any molds by themselves and thus no meaningful
comparison could be made between the hours they spent on particular jobs
and the estimated hours for such jobs The efficiency ratings reflect only
those jobs on which individual moldmakers worked entirely alone, which is
apparently the usual operating method for experienced journeymen
22 By leading questions put to Dawson , the General Counsel suggested
that Cole had made molds by himself However, Dawson denied this and
Cole was not called as a rebuttal witness The absence of Cole's name from
the July efficiency survey corroborates Dawson's testimony In the contract
negotiations conducted in November the Union succeeded in having Cole
maker, but he was not an experienced moldmaker.
He had been hired when no journeyman mold-
makers were available and had worked for Respon-
dent essentially as a skilled helper and was not then
capable of constructing molds by himself." His
being given a merit increase as a helper in July
would not be inconsistent with a determination that
he was among the most expendable employees in
the course of an economic layoff.
On all the evidence, I find no substantial basis for
concluding that Garratt, Cochran, Cole, or Garcia
was discriminatorily selected for layoff on August
15.
The General Counsel's basic position appears to
be that the entire layoff was not economically dic-
tated but rather constituted "retaliatory action by
the Employer after the Employer had lost a Union
election 12 to 1."
No union animus on Respondent's part has been
shown. Although Respondent openly made known
its opposition to the Union, there is no evidence
that it engaged in a very vigorous antiunion cam-
paign, and I have hitherto found that Respondent
did not violate Section 8(a)( I) in the course of the
campaign.
The layoff was not effectuated before the elec-
tion, when it could be expected to help defeat the
Union; nor was it done "in the heat of passion" im-
mediately after the election. The General Counsel
has not come forth with even any speculation as to
why an employer would effectuate a layoff in
retaliation for union activity 2 weeks after the elec-
tion when it had not engaged in any unfair labor
practices during the extended pendency of the
representation petition, had consented to an elec-
tion, and had filed no objections to the election.
The fact that a contract was executed less than 4
months after the certification reinforces the conclu-
sion that Respondent was not bent on a course of
defeating or avoiding the Union.
Respondent maintains that the layoff was dic-
tated solely by economic considerations, based on a
substantial drop in work. The backlog as of the end
of July plus the amount of new orders received in
that month totaled $45,300, as compared with
$53,000 in June. The figures for July were the
lowest since August 1968, and additional mold-
makers had been hired at the end of 1968. Respon-
dent's evidence shows that the ratio of employees
to volume of business was higher in July than it had
been in any prior month of 1968 or 1969 and after
the layoff the ratio was generally somewhat higher
than the average for the prior period.23
classified as a moldmaker
Z' In its brief Respondent has tabulated the relevant data, and states the
following summary , inter alia "a The monthly ratios of men to thousands
of dollars of backlog and orders in seven of the 19 months immediately
prior to the month of the layoff were lower than that of the lowest month
since, and the lowest month since was November, by which time the men
laid off had all been recalled with the single exception of the appren-
tice . . d If the layoff had not occurred the average ratio would have
been .374, a 55 2% increase over the January 1968 through July 1969
penod pnor to the layoff "
R. B. & W. INDUSTRIAL PLASTIC PRODUCTS 975
To support his contention that the layoff was not
economically motivated the General Counsel
sought to establish that during the layoff Respon-
dent contracted out work which could have kept
the laid-off employees occupied. The evidence does
show that in August 743 hours of work were sub-
contracted. Of these, 9 hours covered a specific
kind of work which, according to Dawson's un-
disputed testimony, Respondent was not then
equipped to perform. Of the remainder, 610 hours
were in connection with two jobs which had been
considerably delayed by the disappearance of parts'
of molds (for which, as noted before, disciplinary
layoffs had been imposed). According to Dawson's
uncontradicted testimony, the customer, angered
by the delay, had demanded that the jobs be let to
another company. On August 11, Respondent sub-
contracted a job estimated at 78 hours. According
to Dawson, this job was let out because Respondent
"had nobody to put on this mold at that time."
Since Dawson testified that the decision to lay em-
ployees off for lack of work had been reached be-
fore August 1, when Gannon was terminated, and
the job let on August 11 was not completed until
September 3, one might reasonably question why
the job could not have been kept in Respondent's
plant for Cochran or Garratt to execute in the latter
half of August. Two jobs, together estimated at 46
hours, were let out on August 21, and not
completed until October 8. Dawson testified that
the molds there involved had not as yet been suffi-
ciently designed to start construction when the
layoff occurred.
Analysis of the data suggests the possibility that
Respondent might have retained one or more of the
laid-off employees by eliminating overtime and/or
abandoning its practice of subcontracting. How-
ever, that is no more than a conjecture.24 It certainly
cannot be said that the layoff was so unwarranted
by the economic facts as to lead inevitably to a
search for other, ulterior motivation. See The
Stayer Co., 154 NLRB 1289, 1291-92. The General
Counsel does not meet his affirmative burden of
proof simply by raising doubt as to the sufficiency
of the Respondent's demonstration of the economic
need for the layoff. Big Bear Stores Co., 155 NLRB
75, 94.
Presumably to negate the Respondent's claim
that the layoff was occasioned by a lack of work,
the General Counsel showed that between July 15
and 24 and August 9 and 18, inclusive, Respondent
advertised in the newspaper for moldmakers. The
L4 The General Counsel has presented no analysis even though at the
close of the hearing the Trial Examiner suggested that he "might serve
[his] cause well" by a brief "analyz[ing] some of the detailed evidence
such as the subcontracting and so forth to chow the inference [he] would
like drawn from the evidence "
25 The advertising is not alleged as violative of the Act There is no
Company has frequently run such advertisements in
the past. Dawson said that the July and August ad-
vertisements were run because the presence of the
Union suggested the possibility of a strike and the
Company was attempting to assure its ability to
continue operating if a strike eventuated.25 Applica-
tions received in response to the advertisements
were simply placed in Respondent's files and no ap-
plicants were interviewed or hired. I credit
Dawson's explanation and find that the advertise-
ments did not reflect any existing intention to hire
moldmakers. Thus the advertising is not incon-
sistent with Respondent's contention that the Au-
gust reduction-in-force was occasioned bsy a decline
in the volume of Respondent's business .2
On all the evidence, I conclude that the General
Counsel has failed to establish that the layoff of
four employees on August 15 was violative of Sec-
tion 8(a)(3). Sperti Sunlamp Div., Cooper-Hewitt
Electric Co., 162 NLRB 1148, 1155-57.
Three of the-employees, Cochran, Garratt, and
Cole, were recalled and reinstated as soon as the
economic facts justified such action. Garcia has not
been replaced and there is no evidence that his ser-
vices are now needed. So far as appears, Kathleen
Hayes, presently employed by Respondent as an ap-
prentice, is able to perform all the apprentice work
required. Accordcly, the allegation in the complaint
that Respondent discriminatorily failed to recall
any employees must be dismissed.
CONCLUSIONS OF LAW
1. Respondent, R. B. & W. Industrial Plastic
Products, Inc., is an employer within the meaning
of Section 2(2) of the Act, engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union , District Lodge No . 40 of the In-
ternational Association of Machinists and
Aerospace Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The General Counsel has failed to establish by
a preponderance of the evidence that Respondent
has engaged in any unfair labor practices.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law and the entire record in the
case, it is recommended that the complaint be
dismissed in its entirety.
evidence that the advertisements were designed to coerce the employees or
that they had any such effect
26 This finding is in accord with the General Counsel's Administrative
Ruling in Case SR-1071, summarized at 47 LRRM 1208, which Re-
$pOndent has cited
427-835 0 - 74 - 63