Reactive Metals, Inc.

National Labor Relations Board - Board Decisions

Dec 13, 1961

134 N.L.R.B. 1190 (N.L.R.B. 1961)

1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
debtedness herein and turn our attention toward effectuating pay-
ment of the sums so long due and unpaid.
RECOMMENDATION
Upon the entire record in this case, the National Labor Relations
Board recommends to the United States Court of Appeals for the
Eighth Circuit that the Order issued by the Board on December 19,
1957, be enforced with the modification suggestedherein, namely, that
the sums therein required to be paid by Respondent to each discrimi-
nates therein named shall be in full liquidation and discharge of all
backpay due in this proceeding in consequence of Respondent's dis-
crimination, with no other or further liability herein.
Reactive Metals, Inc. and Oil , Chemical and Atomic Workers
International Union . Case No. 8-CA-2367. December 13, 1961
DECISION AND ORDER
On September 5, 1961, Trial Examiner Phil Saunders issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in any of the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the Intermediate Report
attached hereto. Thereafter, the General Counsel filed exceptions
to the Intermediate Report and a supporting brief; the Respondent
filed a brief in support of the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Leedom].
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record. The Board affirms the Trial Ex-
aminer's rulings and adopts his findings and conclusions.
[The Board dismissed the complaint.]
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , with the Respondent and the General Counsel represented, was
heard before the duly designated Trial Examiner, in Ashtabula, Ohio, on May 23
and 24, 1961, on complaint of the General Counsel and answer of Reactive Metals,
Inc., herein called the Respondent or the Company. The issues litigated were
whether or not the Respondent violated Section 8(a)(1) and (3) of the Act. All
parties were afforded full opportunity to be heard, to examine and cross -examine
witnesses , and to introduce evidence pertinent to the issues. The General Counsel
presented oral argument at the conclusion of the hearing , and the Respondent filed a
brief.
134 NLRB No. 117.
REACTIVE METALS, INC. 1191
Upon the entire record , and from my observation of the witnesses , I hereby make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, at alltimes material herein, is engaged in the business of reduc-
tion of metal chlorides and the manufacture of metal products at its place of
business in Ashtabula, Ohio. Annually, the Respondent sells and ships products
valued in excess of $100,000 from its said place of business in Ashtabula, Ohio,
directly to customers located in States of the United States other than the State of
Ohio.
I find Respondent Corporation to be engaged in commerce within the meaning
of Section 2(6) and (7) of the National Labor Relations Act, as amended, herein
called the Act.
H. THE LABOR ORGANIZATION INVOLVED
Oil, Chemical and Atomic Workers International Union, the Charging Party and
herein called the Union, is a labor organization within the meaning of Section 2(5)
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Events
A union organizing campaign was carried on at the Company among its laboratory
employees during the spring of 1960.1 It was stipulated between the parties that a
petition in Case No. 8-RC-3849 (not published in NLRB volumes) was filed on
April 27, that on May 13 an agreement was executed by the Company and the
Union for a consent election, that on June 29 a board election was held among
the Respondent's laboratory technician employees, that 25 votes were cast in the
election-the Union received 6 votes and 19 were cast against-and the results
certified by the Regional Director on July 7 and 9, that no objections to the conduct
of the election or to the employer's conduct prior to the election were made, and
that no unfair labor practice charges in these instances were filed.
The record and the pleadings established that Cecil Easterday is the manager of
the quality control department of the plant, Harry Dawsey is assistant manager of
the department, Keith Dentner is a group leader in the department, and each are
acting in the capacity of a supervisor within the meaning of the Act? Former
employee Charles Wold is the only alleged discriminatee involved in this proceeding,
and it was established that Wold was discharged by the Company on January 13,
1961.
B. Background
The charge and complaint in this proceeding were duly served upon the Respond-
ent between February 21 and 23, 1961, and therefore, under the Act, the statutory
time limitations of 6 months prior thereto under 10(b), for alleged violations by the
Company, would be from on or about August 23, 1960. In the initial phase of
this case the General Counsel produced considerable background testimony and
events occurring in the spring of 1960, and this testimony was received and admitted
only to shed light on the true character of matters occurring within the permissible
period, as aforestated, and solely as background to explain ambiguous and equivocal
conduct and motives, and I make no findings relative thereto. Illinois-Ruan Trans-
port Corporation, 132 NLRB 216, Alumatic Windows, Inc., 131 NLRB 770, 152.
In this respect the General Counsel introduced testimony, through Union Repre-
sentative Newman, to the effect that alleged discriminatee Wold was his original
contact during the organization drive in the spring of 1960, and that Wold there-
after arranged 8 to 10 union meetings up to the time of the Board election on
June 29.
1 All dates are 1960 unless specified otherwise
2 At one stage of the hearing Technician Bailey Stump testified that Hobert Crane was
a company supervisor and on this basis attributed certain union sentiments and statements
to him Stump testified that Dawsey had told him that Crane was to be his assistant,
and that Crane was a member of a club open only to supervisors There was absolutely
no testimony on the actual duties or functions performed by Crane, and no corroboration
by anyone of Stump's testimony. On cross-examination Stump was totally discredited in
certain aspects of his testimony, and in the final analysts the record is completely void of
any credible evidence that Crane was a supervisor within the meaning of the Act
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee William Ferguson testified that in the spring of 1960, Supervisor Harry
Dawsey had inquired of him on occasions as to how the Union was going, who had
signed cards, and if he thought the Union would make it. Ferguson further testi-
fied that during the spring of 1960 he also had conversations with Manager Cecil
Easterday, and in the course of which Easterday informed Ferguson that he knew
who the leaders of the Union were, that he would see their cards, and that in
June or July Easterday told Ferguson that he had "stuck his neck out" for the
laboratory, that higher officials of the Company had said that the only way to stop
the Union would be to fire the ones involved, that there would not be any reprisals,
but if there was another union started "that anyone starting it would be going
out of the gate even if he [Easterday] had to go with them."
Alleged discrinnatee Wold also testified that he had union conversations with
Manager Easterday during the spring of 1960. Wold stated that on these occasions
Easterday had inquired if he knew who was talking and pushing the Union, and
that the day before the Board election in June, Easterday had inquired of Wold if
the Union would win, and that Wold then told Easterday, "that if anybody had to
go, why, it might as well be me. Because I was the one that was responsible for the
whole thing from the beginning ." Employees Francis Hogue and Keith Dietrich also
testified that in the spring of 1960 Manager Easterday and Supervisor Dentner in-
quired as to the status of the Union's organizational attempts, which employees
had signed cards, and who were the employees "pushing" the Union.
Manager Easterday also testified as to events in the spring of 1960, and stated
that there was a good deal of talk in the plant among employees about the Union,
that several employees talked to him about this matter, and that he tried to give
honest answers to these inquiries. Supervisor Dawsey admitted that about the time
the representation petition was filed in April, as aforestated, he had then told Man-
ager Easterday that he was suspicious about Wold being involved in the Union.
The record also reveals, on further background matters, that on June 24, 1960, a
few days prior to the Board election , a notice was posted on the company bulletin
board, signed by Plant Manager Coleman, and which in essence informed the
laboratory employees that the Company would not induce employees to join or
not to join the Union, that in the Board election neither the Company nor the Union
would know how the employees voted, that the secret ballot protects employees
from pressure of any group, and the notice further pointed out that if the Union
won the election the Company would be unable to deal individually with employees,
but this did not mean that the Respondent would penalize employees or be un-
friendly to them
The record also reveals that on June 26 Plant Manager Coleman talked to the
laboratory employees, and on this occasion stated, in part, that he did not like the
idea of a labor organization representing the technical professional employees, that he
would not make any promises or threats, that the Union would take in a substantial
number of dollars a year in dues and fees, that the Union had made fantastic claims
about the financial condition of the Company, but Coleman also told the employees
that he wanted to make it perfectly clear that employees were free to vote as
they saw fit, and that the decision was strictly up to them.
Further background evidence shows that in the spring of 1960 those laboratory
employees active for the Union were: William Ferguson, Ed Martin, Francis Hogue,
Keith Dietrich, along with alleged discriminatee Charles Wold. in April, Martin and
Wold appeared as union representatives at a hearing in connection with the petition,
and at the Board election on June 29 Dietrich represented the Union as an observer.
To complete the events of union activity to date, the record also established that a
union meeting was held at the home of Charles Wold on December 17, and that
this was the only activity since the Board election in June.
C. The alleged interference, restraint, and coercion; findings and conclusions
in respect thereto
The complaint sets forth that from on or about September 1, 1960, the Respondent
interrogated employees as to union activities, threatened its employees with dis-
charge, and that the Company did discharge employee Charles Wold because of his
union activity.
The General Counsel argues that extensive interrogation in December 1960 and
January 1961, motivated as it must have been by the Respondent's desire to detect
any possible revival of the Union's organizing efforts after the spring of 1960, and
the identity of those instigating it, was violative of Section 8(a)(1).
Employee William Ferguson testified that in the latter part of December, Super-
visor Keith Dentner inquired of him if the employees were going to start another
union, and also stated to Ferguson that the employees would not be able to go
REACTIVE METALS, INC. 1193
"OCAW," because the Union would not have them. Ferguson further stated that in
another conversation with Dentner in January 1961, Dentner inquired of Ferguson if
he felt that Wold's discharge would "kill" the Union.
Alleged discriminatee Wold stated that in December, Supervisor Dentner inquired
of him if he felt the Union was going to start up again, and also asked if Wold
thought the Union would have a chance this time, and if Wold was going to "push"
for the Union. At the end of December 1960 or the first part of January 1961, Wold
testified that Dentner again inquired of him if he knew of any more union activity
starting up, and if the employees were going to start pushing the Union. Wold
further testified that on January 12, 1961, Dentner inquired if he had heard anything
about the Steelworkers coming in , that Wold was also asked if he knew of any
other employees that would "push" for the Union in 1961.
Francis Hogue testified that in January 1961, Supervisor Dentner asked him if
the employees were organizing the Union again . Keith Dietrich also testified that
in January 1961, Dentner inquired of him if the employees were sorry the Union
got voted down, and further asked if there was any chance of the Union starting
again.
As to statements attributed to Manager Easterday by witnesses for the General
Counsel, Technician Bailey Stump testified that in December Manager Easterday told
him "That the reason we had the people that were involved in the Union last year
was because that he promised that he would back them up. That the Company
was after him to get rid of them at the time of the election." Easterday also told
Stump on this occasion that there would be no retribution against employees for
union activity. Charles Wold testified that he and Easterday engaged in a union
conversation during December, and that Easterday then stated to him that "If it
hadn't been for him [Easterday] sticking his neck out for the guys, why, the Company
pressuring him to get rid of some of the men who had started the Union, but he
stuck his neck out and put that thing on the bulletin board stating that there would
be no retribution. And he was going to stick by it."
Manager Easterday testified that the above statements attributed to him, to the
effect that he was under pressure to fire employees belonging to the Union, were
absolutely false, and stated that it would be a ridiculous statement to make, and in
all respects was positive that he did not make such a statement at any time.
Conclusions
I do not credit the statements attributed to Manager Easterday that he was under
pressure to discharge union employees. From my observation of Easterday on the
witness stand he gave clear, credible, and convincing testimony in denial of these state-
ments.3 It also appears highly unlikely to me that Manager Easterday would have
made such statements in light of the official company policy announced by Plant
Manager Coleman in his speech to employees, and the notice posted on the bulletin
board just a few days before the June election, as aforestated. By these means it was
announced by the Company that the employees would not be subjected to any pres-
sure, that no one would know how they voted, that employees were free to vote as
they saw fit, and that the final decision as to the Union was strictly up to them.
There is no credible evidence in the record to show that there was any official com-
pany deviation from this policy subsequent to the June election or within the 6
months' time limitations here.
It also appears highly unlikely to me that a major supervisor like Easterday, of
a highly important department, would thereafter contradict, on his own, the official
public pronouncement of the Respondent's plant manager, Coleman.
It is also noted that there is no credible testimony that the Company had any
knowledge of union activity from the June election until March 1961, when Board
agents interviewed company supervisors. The General Counsel's own evidence
shows that no organization efforts were made during this period with the exception
of one secret union meeting on December 17 of which the Company had no attribut-
able knowledge. On this basis, the timing in events do not even warrant a substan-
tial inference that the Company knew of union activity in December, and a threat by
3 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his or her
demeanor as I observed it at the time the testimony was given. Cf Bryan Brothers Pack-
ing Company, 129 NLRB 285. To the extent that I indicate hereafter that I reject in part
or entirely the testimony of any given witness, it is my intent thereby to indicate that
such part or whole of the testimony, as the case may be, is discredited by me Jackson
Maintenance Corporation, 126 NLRB 115, footnote 1.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Easterday to discharge employees because of union activity in this period, and under
these circumstances, would be highly unlikely.
However, even going further, and assuming arguendo that Manager Easterday
did make such a statement in December, then consideration must be given to the
entire testimony of employees Wold and Stump who attributed this statement to
Easterday, but who further testified that Easterday also told them on this occasion
that there would be no "retribution," and that he was going to "stick by it." With
such admitted assurances by Easterday, to Stump and Wold, it would indeed be a
most unusual interpretation to say that such a statement constituted a threat to dis-
charge an employee because of union activity.
Further, while the background evidence here might shed some light on the general
atmosphere in which this threat supposedly occurred, as argued by the General
Counsel, nevertheless, the background evidence as to events prior to the period herein
involved, also shows that the employees were told that they were free to vote for
or against the Union as they so desired, and that it was strictly up to them to decide
the matter in a secret election. Coupled with this fact, and for the other reasons
herein set forth, I find that there is lacking a preponderance of credible testimony
to substantiate the allegation that a company supervisor threatened discharge of
employees for union activities.
While the remarks attributed to Supervisor Dentner, within the permissible period
hereto, as aforestated, were not denied as Dentner did not testify, nevertheless, it
appears to me that these statements are in the category of casual, friendly, and iso-
lated instances of interrogation by a minor supervisor, and under these circum-
stances was not conduct which amounts to interference, restraint, or coercion within
the meaning of Section 8 (a) (I).
While the Company admitted in its answer that Dentner is a supervisor within
the meaning of the Act, nevertheless, pertinent evidence bearing on his specific status
established that Dentner is actually a working group leader in the melting and
evaluation department of the laboratory, and spends from 75 to 85 percent of his
time doing exactly the same type of work as other employee technicians of the
department. It was further established that Dentner has never recommended that
any employee be hired, fired, promoted, demoted, or that any employee's salary be
increased or decreased. Counting Dentner himself there are only four technicians
in this melting and evaluation group, and Dentner was not alleged discriminatee
Wold's group leader. Furthermore, Dentner is not charged with having threatened
any employee at any time, but only with having questioned them about union activi-
ties, and it is well settled that interrogations even as to union membership is not
per se unlawful. Blue Flash Express, Inc., 109 NLRB 591. In efforts to show
additional circumstances bearing on this allegation, the General Counsel brought
forth background testimony to show prior conduct of Dentner in the spring of
1960, as aforestated. In the same general period the Respondent then established
that the official policy of the Respondent was to permit the employees a free choice
in the June election as detailed earlier in this report. So in the final analysis here,
the subsequent interrogations of Dentner as alleged in the complaint, occurred with
a background of an announced company policy permitting the laboratory employees
a secret ballot and open choice as to whether they wanted the Union, and also
stating to the employees that no retribution would be engaged in.
In addition to the above, there is no credible evidence of any kind that the Com-
pany had instructed its group leaders to question employees about the Union, and
there is no evidence that the Respondent approved or condoned interrogations, or
that the Company had in any way changed its prior official position on the rights
of the employees to organize. It appears highly unlikely to me that a man who
works side by side with three other employees 80 percent of the time could be
held to be in violation of the Act under these circumstances, and also in view
of the general nature of his inquiries and the complete absence of any threats
involved therein.
The section of the Act under consideration here, merely makes it unlawful for
a supervisor to engage in interrogations which restrain or coerce employees in the
exercise of their rights. This could not possibly follow from casual conversation
about the Union by a low level group leader whose superiors had clearly told
all employees that the Company would not take any action against them for their
union activity.
On the basis of the above, it will be recommended that the allegations of the
complaint, with respect to interrogations and threatening employees with discharge,
be dismissed.
C
REACTIVE METALS, IN C. 1195
D. The alleged discriminatory discharge of Charles Wold; findings and conclusions
Alleged discriminatee Wold was hired by the Company as a laboratory technician
in July 1957, and has worked in the quality control laboratory continuously, until
his discharge on January 13, 1961. To properly evaluate the circumstances of his
discharge it is necessary to understand the functions of the plant and laboratory,
and the many exacting conditions which are required.
The record established that the two principal products of the Respondent are
zirconium and titanium. About 98 percent of the zirconium is sold to the Atomic
Energy Commission, and the end use is primarily in atomic nuclear reactors. The
titanium that the Company produces goes primarily into missile and aircraft
industries, and both are produced through a process known as sodium reduction.
It was also established that both are extremely high purity products with very critical
specifications, and that a good many of the foreign elements in the material must be
controlled less than 50 parts per million.
The technical analysis of the products and the process control tests are carried on
in the quality control laboratory. It is an absolute necessity in the operations of
the plant to have uniformity of material, and any mistake in the early processes
could cause serious difficulties.
In addition, the Atomic Energy Commission demands that the control laboratory
maintain a certain degree of accuracy on all analyses; this ability to detect sub-
minuscule quantities of contamination is tested by requiring the Company to analyze
cross-check samples "in the blind." If the laboratory analysis is outside the tolerance
limits for the level of foreign elements present, the Atomic Energy Commission dis-
approves the Company as a laboratory. The exactitude required by the Atomic
Energy Commission is illustrated by the fact that the Company recently was dis-
approved as a laboratory for copper, tungsten, silicon, carbon, magnesium, sodium,
and uranium because in some of these cases the company laboratory had reported
that less than 20 parts per million, or less than 0.00002, of these elements existed
in a sample of zirconium whereas in reality less than 10 parts per million, or less
than 0.00001, were present.
The record established that when Wold first joined the Company, he compiled an
excellent record of achievement. At that time the Company was in the process
of developing and establishing testing and analysis techniques, and Wold proved
himself highly capable of that type of development research work. He was also
instrumental in establishing some of the procedures presently in use. As a result,
his salary increased in the early years of his employment, and thus was still one of
the highest paid in the laboratory at the time of his discharge, in spite of the fact
that he has not received a salary increase since 1959. It was further established
that the quality control laboratory as now constituted is not a development or a
research laboratory, but rather a technical analysis product and process control
laboratory, as aforestated.
The Company contends that Wold was discharged for cause in that he was in-
capable of adopting the day-to-day routine in meeting the exacting standards and
the necessary procedures of the laboratory. In this respect the Company maintains
that Wold was careless in his preparation of "pellets," that Wold's performance
in running carbon tests was equally bad, that he ran carbon tests without first
running a "standard," that he had wrong answers on a batch of "chlorides" which
had been assigned to him, that he was slow in running samples on "sulphurs," that
he had been tardy and absent from work on many occasions, and that several times
Wold had been previously warned about his tardiness and work habits.
1. As to prior warnings
As background, Supervisor Harry Dawsey testified that in February or March he
had spoken to Wold and pointed out to him his absentee and tardiness record, and
further had told him that his failure to follow procedures was extremely dangerous .4
Wold admitted that in September and December he was called in by Supervisors
Dawsey and Easterday, and discussions followed as to work habits. As to the
September meeting the record reveals that Wold's absenteeism during the first part
of the year was mentioned, and Wold was informed also that his work had improved
considerably and that if this continued he would be recommended for a salary raise.
4Dawsey testified that after speaking to Wold and warning him of his work habits,
Wold would then become superior to any average laboratory technician, but subsequently
his work would again fall off, and would then be far inferior to any technician.
1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Easterday also stated to Wold, on this occasion, that his union activity in the spring
of 1960 had nothing to do with his not receiving a prior salary increase. Supervisor
Dawsey credibly testified that after a period of time subsequent to their September
meeting,- Wold had gone back to his old habits of not following procedures and
being late, that he had reported this to Easterday, and that in December another
meeting was had with Wold.
There is credible testimony that at the December meeting Wold was informed that
if he was tardy anymore he would be given time off, and that he was also informed
by Manager Easterday to either conform to laboratory procedures or to find a job
somewhere else. Easterday stated that again , at this December meeting, Wold
mentioned his union activity as the reason for the warnings, and in reply Easterday
stated, "Damn it, Charlie, this has nothing to do with the union."
2. As to being tardy and absent
Wold admitted in his testimony, that prior to September, he had been tardy
in reporting for work about 90 percent of the time. Wold further admitted that
between September and his discussion with company supervisors in December, he
was tardy about 50 percent of the time and that it varied from 5 to 10 minutes.
Between December and his discharge in January 1961, Wold testified that he was
tardy three or four times, but did not recall being tardy during the 13 days he
worked in January. Wold stated that at times other employees were also tardy.
William Ferguson testified that certain other employees working in the labora-
tory were tardy on occasions, admitted that Wold was frequently late, but that he
had improved in this respect between December and January 1961. Bailey Stump
and Charles Ball also testified that from their observations other technicians reported
late to work, and that several would be tardy two or three times a week; and
Stump admitted that he was frequently late.
Manager Easterday stated that there was a very slight improvement in Wold's
tardiness subsequent to his meeting with him in December, as aforestated.5 Easter-
day admitted that Stump had a high rate of tardiness, and that a few other techni-
cians were late on occasions. Supervisor Dawsey testified that there were three
times when he noted that Wold was tardy after the December conversation with
him. Dawsey stated that during this period Wold would only be late 2 to 5
minutes instead of 20 minutes, so that in this respect there was an improvement
in some degree.
Wold stated that in 1960 he was absent from his job about five times. Dawsey
credibly testified that Wold was absent 21/2 days in December.
3. As to the preparation of pellets
For purposes here the record established that Wold prepared pellets on three
occasions .6 Wold testified that on the first occasion, in early December, he had put
a vacuum on the pellets, and Dawsey then told him that this procedure had dis-
torted the pellets. Wold stated that he had weighed the mixture for each of 30 or
40 pellets made at this time. Wold further testified that a week or two later, he
again was instructed to make some more pellets, and was cautioned not to put a
vacuum on them. Wold stated that he then weighed up a certain amount of
pellets, but the next day Dawsey informed him that "They were off on weight
because they all looked different to him." Wold admitted that the pellets he made
on this second occasion did in fact look a bit different from each other, but stated,
"It depended really on how hard you tapped the die." Wold also testified that in
the latter part of December 1960 or early January 1961 he made pellets for the
third time, and was instructed by Dawsey to be careful with the weight.
Employees Ferguson and Stump testified that around Christmas time they had
worked with Wold in making pellets, and that Wold on this occasion was "weighing
them up." Stump testified that the size of the pellet has nothing to do with its
weight, and that this is so because the "harder you hit them the thinner they get."
Stump further testified as to pellets he himself had used in March 1961, and that
the pellets were taken from a "batch of pellets" that he had to use on this date for
an analysis. Stump stated that he picked 20 pellets at random and then weighed
6It was established that the Company keeps no records as to the time when laboratory
employees report to their shifts. They do not sign in nor is there any timeclock.
6 Testing for uranium at the laboratory is by the so-called pellet procedure whereby
0 5 of a gram of sodium fluoride is melted and fused, placed in a fluorimeter , and a beam
of light is bounced off its surface into a photomultiplier and a galvanometer which is then
calibrated and standardized to give the required reading.
REACTIVE METALS, INC. 1197
each one of them as he was curious to see the actual weights of the pellets that were
being used, and that Wold had told him that the weighing of pellets had something
to do with his discharge. Stump testified that 9 of the pellets weighed more than
0.5050 gram, 1 weighed less than 0 .4950 gram, that the greatest variance above
0.5050 gram was 0.0300, that he then used 60 pellets in his analysis, and the fact
that some of the pellets contained a variation of more than 0.005 gram had no
effect on this analysis. Stump stated that Supervisor Dawsey then told him that
this analysis was very good. Stump further testified that he did not know of any
occasion where the weights of the pellets had adversely affected the analysis.
Manager Cecil Easterday testified that the important point in making pellets is
the weight, and that if the weight of the pellet is too great it would give a false
reading on the ultimate measuring device in the final analysis. Wold's immediate
supervisor, Dawsey, testified that on the first occasion Wold had misunderstood
him and had put the pellets in a vacuum oven but that he was able to see that Wold
had not weighed all of them.? Dawsey credibly testified that on the second occa-
sion it was brought to his attention that the pellets had not been weighed prior
to compounding and he had "scrapped the whole lot." On the third occasion
Technician Tom Boyce actually made weights on the pellets prepared by Wold,
and then told Dawsey that they were in error. Boyce testified that when he weighed
some of the pellets prepared by Wold they had a variable of 0.35 to 0.38 and up
to 0.65 or 0.68 gram.
4. As to carbon tests and standards
As to carbon tests, the record reveals that the laboratory function in this respect
is to establish the carbon contamination in zirconium .8 The record also reveals that
a technician cannot run a carbon test by conductrimetric methods without running
standards .9
Wold testified that around December 23 he relieved an employee who was running
carbon tests, and that he was left with half an ingot of sample , plus one full
ingot to do on his own. It was established that there are 10 samples in an ingot
and that Wold on this occasion used the standard curve that had been set up by
the technician he had relieved. Wold testified that he ran the first four or five
positions that were left on the ingot started by the employee before him, and
that since the answers he got correlated with the previous ones, be felt safe in
assuming that his technique was approximately the same as the employee he had
relieved, and that he could use "his kind of curve." Wold stated that he had done
this before and that there was nothing unusual about this procedure. Wold
further stated that if the samples he ran had been out of line or did not correlate
with the ones that were already run, then he would have had to run a check
standard. Wold also testified that on the next day Dawsey had told him that he was
way off on one ingot, and inquired as to why he did not run a check standard.
Wold admitted, that when he started on the second ingot, he did not run his own
standard check.
Bailey Stump testified that the present policy of the Company on carbon analysis
is to run a full set of standards-"even when relieving someone." Stump thought
this policy was made in January, but stated that he had not been informed of
the policy before then, and also testified that when relieving another employee who
had begun a carbon analysis on an ingot , before the change in policy, he would
continue the analysis without running standards, and would do likewise in starting
on another ingot.lo
7 Dawsey testified that a pellet should weigh 0 5 gram of the material it is made out
of, and that a technician is allowed a tolerance of a plus or minus 0.005 gram prior to
compounding the pellet
8 The laboratory takes a sample of zirconium, cleans it, puts it into a crucible, then
places it into an induction furnace, passes oxygen over it, and the oxygen reacts chemically
to form carbon dioxide. The carbon dioxide is then passed into a conductrimetric cell,
and this cell in turn is electronically attached to an oscilloscope which reads out the result.
9 A standard is a material purchased from the Bureau of Standards which has a certified
carbon content. To correlate the calibrations on the oscilloscope with a known carbon
content, it is necessary to run through the carbon detection procedure with this material.
By running different weights of the material with the known carbon content, it is possible
to compute a curve which will equate a reading on the oscilloscope with a given carbon
content of the zirconium , thus establishing the amount of carbon in the zirconium.
is Wold and Charles Ball testified in respect to standards that there was a written regu-
lation on the bulletin board which stated , "that on oxygen you should run one every five
samples. On nitrogen one per shift . On carbon one per day."
1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manager Easterday testified that most laboratory technicians "do things a little
bit different," and as a result each one has to obtain his own correction factor.
Easterday further stated that there is an absolute requirement in the laboratory
that no technician run samples without standards, and that when employees work
for the Company they are always and continually instructed to follow procedures,
and to always run standards prior to an analysis.
As to this incident in question Supervisor Dawsey credibly testified, that Wold
analyzed 19 samples, 11 of which were wrong by 45 parts per million, and Dawsey
further stated that the samples were wrong because Wold did not run standards
before running the carbon tests. The testimony by Dawsey and company records
established that employee Crane had run off 2 samples out of 10 on an ingot when
Wold took over on his shift, and that Wold then completed this ingot by running
8 samples, that he then started on an ingot of his own and ran 10 samples along
with a miscellaneous, that Wold did not run standards before sampling the ingot
he started on his own, and that all the answers Wold got in this respect were
incorrect." Dawsey also credibly testified that Wold was required by written
procedure, and had been verbally instructed on several occasions, to run standards
prior to analyzing carbons. Technician Thomas Boyce credibly testified that he
later checked the samples that Wold had run on his own ingot, after Boyce had
established a standard and curve, and had found that the samples run by Wold
were 30 to 40 parts of a million high.
5. In respect to chlorides and sulphurs
Wold testified that in the middle of the week before his discharge Dawsey
had told him "to finish the chlorides." Wold stated that he then went through the
procedures, but all the answers he got were wrong. He then checked the machine
and solution and found them to be working properly, and concluded that the
weight was off by 1 gram. Wold testified that the chlorides had all been previously
weighed in degrees that they were to be dissolved in, and that the weights were
written down in the laboratory workbook.
The record establishes that in late December, Wold had been instructed by
Dawsey to run about 40 samples on sulphurs and had been given a written pro-
cedure on the same with specific instructions not to change the procedure nor
to modify the apparatus in any way, and if Wold had any questions to ask them
of Bailey Stump. Wold testified that a few days later Dawsey inquired as to why
he had not achieved more results, and that Wold then told Dawsey, "that there
was no possible way of doing it under this setup for the sulphurs. That the
dissolution time wasn't just up to par." Wold also testified that he had only
time to run 12 samples, and that this was a new procedure for him.la
Conclusions as to Wold
The General Counsel argues that the above reasons given by the Company
for Wold's discharge are pretext. I cannot agree, and I find that the General
Counsel has failed to prove by the required preponderance of the evidence that
the Respondent discriminatorily discharged Charles Wold.
Before evaluations of the specific reasons for the discharge I think it necessary
to discuss briefly Wold's union activity, with particular references to the period
6 months prior to the complaint, and on the basis as aforestated.
The background evidence shows that Wold was the most active employee during
the union campaign in the spring of 1960. However, Wold's own testimony dis-
closed that employees Ferguson, Dietrich, and Hogue were all working with him
"The sample results in the company logbook shows that on the first ingot, which was
run by both Crane and Wold, the figures recorded were 140, 140, 150, 150, 150, 160, 140,
140, 140, 150. On the samples of the ingot Wold ran himself-without making his own
standards-the results showed figures from 180 to 190.
12 The record also contained some testimony as to the circumstances under which a
former technician, Michael Gregory, was terminated. Easterday testified that Gregory was
discharged for not following laboratory procedures . Subsequently the parties stipulated
the following: "That, if Michael Gregory were called to testify in this proceeding, that
he would testify, that the termination of his employment, by the Respondent, in 1959, as
a laboratory employee, was not for cause but in a reduction in force in the laboratory
personnel complement."
REACTIVE METALS, INC . 1199
during this organizational period, but that these employees are still working for
the Company. It further appears, from the background evidence , that during the
spring of 1960 company supervisors made attempts to inquire into the union
activities, as aforestated. However, no objections were made in this period to the
Company's conduct prior to or during the June election, and no unfair labor
practice charges were then filed. In this interval the Respondent also made its
official position known, and announced to all concerned that employees were free
to make their own choice.
From the June election on, all witnesses agreed that there had been absolutely
no union activity whatsoever, with the exception of one secret union meeting on
December 17. Wold admitted in his testimony that no supervisors were told about
this meeting, and efforts were made to keep it secret. There is no evidence
whatsoever that the Company had any knowledge of this meeting, and there are
no surrounding circumstances which can credibly attribute or impute such knowl-
edge to the Respondent.
The undisputed evidence shows that in September, during a period where there
was no union activity whatsoever, Wold was called in by his supervisors and his
tardiness and work performances were discussed. Wold freely admitted that in
early December he again was called into the office, and there is ample and credible
testimony that on this occasion he was explicitly told to report to work on time
and to follow laboratory procedures. This discussion in early December with
Wold, was also held when there was no union activity, and it was further established
that the union meeting on December 17 occurred subsequently thereto. The record
clearly reveals, therefore, that before his discharge Wold received at least one
specific and clear warning by the Company that his work habits were not satis-
factory, and at a time when Wold was not then engaged in any union activity.
The difficulty Wold had in preparation of pellets on three specific occasions
is duly substantiated, and the strict and rigid requirements of exacting weights
in the procedure was also duly established.l3 When Wold prepared pellets on
the second occasion, as aforestated, the General Counsel argues that upon mere
visual inspection by Dawsey, he was able to tell that the pellets were not weighed
properly,.and that this would be an unusual ability in observation . The testimony
I credit on this occasion shows that the weight calculations of the pellets had been
previously brought to the attention of Dawsey, and further, there is no testimony
by any witnesses for the General Counsel, which contradicts the undisputed state-
ment of Dawsey that this entire batch of pellets had to be "scrapped." It appears
to me that this fact is ample support for the contention that the pellets were im-
properly weighed. On the third occasion, Wold admitted that Dawsey had in-
structed him to be careful with the weight of the pellets, and Dawsey's testimony
that Wold was again off on weight was substantiated by the accredited testimony
of Thomas Boyce, who attempted to use the pellets prepared by Wold, and after
weighing several found a variable of 0.35 to 0.65 gram. Boyce further credibly
testified that there were a dozen pellets too heavy or too low.
In attempts to discredit the exacting weight factors of pellets, Bailey Stump
testified that he subsequently used pellets with a variation of more than 0.005
gram without affecting his analysis, as aforestated. While it appears from this
testimony that a deviation of weight in some of the pellets did not react adversely in
this one instance, nonetheless, this testimony, in my opinion, does not sufficiently
minimize the absolute laboratory requirement for exacting weights, and, in con-
sideration of the total functions and responsibilities of the laboratory under normal
operating circumstances, it was conclusively demonstrated that such a requirement
is imperative and any weight deviation a serious breach of recognized and well-
established procedure.
Insofar as the laboratory procedures for running standards prior to carbon tests
are concerned, it appears to me that, while there might have existed some con-
fusion between the written procedures as posted and the verbal instructions, never-
theless, the credited testimony shows the Company had established a definite op-
erating policy in the running of standards. Certainly the extremely exacting re-
18 William Ferguson testified that he had been instructed to weigh pellets as close as
possible to 0 5 gram. Charles Ball testified that Dawsey had instructed him that weight
of the pellets was critical, and that he should weigh them as close to 0 5 as possible.
Dawsey testified that he did not blame Wold for the pellets he made on the first occasion
as there was a misunderstanding as to the vacuum.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quirements set by the Atomic Energy Commission as established and undenied in this
record warrants and necessitates such a policy. The testimony on this incident
shows that Wold's answers on the ingot he took over from Crane sufficiently cor-
related with one another, and, while there is testimony that Wold should have
then established his own standard, there appears to be no serious contentions in
this respect since the end results were not adversely affected. However, when
Wold then started running samples on the second ingot of his own, the Company
contends that he was required by laboratory procedures to definitely establish
his own standard and curve, as aforestated. Supervisors Easterday and Dawsey
credibly stated that this procedure was an absolute requirement, and it also appears
to me that even a few of the witnesses for the General Counsel on cross-examina-
tion, at least intimated the same in their testimony. For instance, employee
Charles Ball testified as to certain situations in which he would run standards on
carbon analysis, and in reply to a question as to what he himself would do when
starting a new ingot, replied, "If 1 have my line, go ahead and run it. If I'm
starting the shift and there is an ingot to run, I have to run a standard." On
cross-examination Bailey Stump testified that in taking over from another employee
he would run standards in finishing the samples out of the same ingot. Stump
then later qualified this to be the company policy since January. Wold in his
testimony admitted that it was "possible" that a supervisor had discussed the use
of standards with him prior to this incident in question, and in reply to whether
he followed proper procedure in not making a standard curve on this occasion,
replied, "As far as I know no policy had been established on it. There was a pro-
cedure which-the procedure starts from the very beginning of running an analysis.
But the policy regarding coming in the middle of an operation and finishing it,
as far as I know there was no such policy." I think a reasonable inference and
interpretation of this testimony by the alleged discriminatee himself, shows that
the running of standards prior to carbon tests had been discussed with him, and
that when "beginning" a carbon analysis, which Wold did after he had finished
the one Crane left him, the company procedure definitely demanded that a new
standard curve be made. Again considering the main duties and functions of the
laboratory, and the ultimate specifications under which it must produce any opera-
tions of this nature without exacting procedures would virtually render the labora-
tory worthless. I conclude and find that the Company had an established policy
with respect to running standards before making carbon tests, and that Wold did
not follow this procedure.
Insofar as the "chlorides" are concerned, Wold admitted that the answers he
got were incorrect, but had concluded that the weights were wrong. Wold also
stated that the weights had been recorded in the laboratory workbook. As far as
I can determine there appears to be no attempted explanations between the weights
as recorded, and the mere conclusion by Wold that the weights were wrong. If
there were further or other extenuating circumstances which justified Wold's con-
tention on this matter, they are not apparent in this record.
In the running of only 12 out of 40 samples on sulphurs, as aforestated, Wold
maintained that there was insufficient time to do all of the assignment under the
laboratory setup. It is noted that Wold was given a written procedure, and was
also instructed by Dawsey that if Wold had any questions to ask them of Bailey
Stump. Insofar as Wold went with the samples there is no evidence that he did
not follow the prescribed methods, but Wold admitted that this was a new pro-
cedure to him, and yet when he was able to only complete 12 out of the 40
samples, Wold made no attempt to consult with Stump, nor was there any explana-
tion given as to why he did not do so.
The record establishes without question that Wold had an extremely bad prac-
tice of being tardy for work Wold even admitted that prior to September he had
been late about 90 percent of the time, and also admitted that even after his
September discussion with supervisors about this matter, he was still tardy about 50
percent of the time up until December when he was again specifically warned, as
aforestated. Witnesses for the General Counsel testified that other employees were
also tardy on several occasions, and yet these technicians continue to work for the
Company. However, even assuming here that some comparisons on tardiness
can be made between laboratory technicians, and in full recognition that others
were also late, there is still lacking a composite comparison in their overall em-
ployment records with that established by the Company, in the numerous other
REACTIVE METALS, INC. 1201
respects, as stated herein, against Wold. Moreover, the credited and admitted
testimony shows that Wold was tardy to a greater extent than others, and it appears
to me that this is further corroborated when recognizing the company warnings
continually given to Wold about his tardiness.
In addition to the above, there are some references in the record that the Com-
pany also based its discharge on the grounds that Wold would speed when driving
his car through the plant gate. While this basis for the discharge is rather obscure,
nevertheless there is admitted testimony by Wold, which shows that company guards
had complained to supervisors on at least two occasions about Wold's speeding
in this respect.
In the final determination here, the record shows that Wold, when first em-
ployed, did an excellent job for the Company in their initial development pro-
gram, and at a time when there was very little routine or day-to-day operations.
Wold also had the unusual ability to set up equipment for special analyses, and
was also an expert glass repairman and blower. However, the record shows that
for the past year or so the laboiatory has not required this type of development
work, and that the functions have changed to daily routine jobs which necessitates
exacting procedures, and as a result laboratory technicians must now do the same
jobs over and over, and day after day. The record certainly reveals that Charles
Wold is not the type of a technician that would adjust himself to these routine
functions.
My findings here have been difficult for me to make, because in several instances
testimony by Respondent witnesses has substantiated and admitted, that in the
above initial assignments, and at certain other times following consultations, Wold
was an excellent, superior, and an unusually gifted technician. Certainly the Com-
pany, in this record, casts no adverse reflections against Wold for this inventive
ability in an area of the scientific field so urgently needed today, and likewise,
in this respect, no derogatory aspersions whatsoever are intended by this report.
However, if I were to find a discriminatory discharge here, based on the estab-
lishment of the facts in this record and the testimony I have credited, as aforestated,
I would have to ignore a warning given to Wold, weeks before his discharge; that
his work habits were not satisfactory; I would have to ignore that he failed to
conform to the critical work standards and procedure required in the laboratory;
I would have to ignore his own admission that prior to September he had been
tardy 90 percent of the time ever since he started working for the Company;
I would have, to ignore admissions that all employees knew it was the Company's
policy to leave them free in their choice of rejection of the Union; I would have
to ignore, that during the interval between the June election and the Board's inter-,
views, there was no union activity with exception of the one secret union meeting
on December 17; and I would have to ignore the admissions of at least two wit-
nesses for the General Counsel, including the alleged discriminatee himself, who
were told by Easterday in December that there would be no retribution for union
activity.
While the circumstances herein might raise a suspicion that the discharge was
discriminatory, it is well-established law by both the courts and the Board, that
mere suspicion or surmise cannot be considered as evidence to support a finding
of unfair labor practice.
1, therefore, find and conclude, that the General Counsel has failed to prove
by the required preponderance of the evidence that the Company discriminatorily
discharged Charles Wold in violation of Section 8(a) (3) and (1) of the Act. I shall
therefore recommend that the complaint be dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint within the meaning of Section•8(a)(1) and 8(a) (3) of the Act.
[Recommendations omitted from publication.]
630849-62-vol. 134--77
I,.