Rickert Carbide Die, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1960

126 N.L.R.B. 757 (N.L.R.B. 1960)

RICKERT CARBIDE DIE, INC. 757
violation of Section 8(a) (3) of the statute , and by its attempt , on April 30 , 1958, to
cause the Respondent Company to discharge her after reinstatement , again in viola-
tion of Section 8(a)(3) of the statute, the Respondent Union engaged in and con-
tinued to engage in unfair labor practices within the meaning of Section 8 (b) (1) (A)
and (2 ) of the Act , as amended.
7. The unfair labor practices herein found are unfair labor practices affecting
commerce , within the meaning of Section 2(6) and ( 7) of the Act, as amended.
[Recommendations omitted from publication.]
Rickert Carbide Die, Inc. and Carl Walter Beier
Rickert Carbide Die, Inc. and Joseph M. Fletcher , Jr. Cases
Nos. 7-CA-2283 and 7-CA-2309. February y 23, 1960
DECISION AND ORDER
On October 29, 1959, Trial Examiner Owsley Vose issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief.'
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed .3
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the modification indicated below'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
i The Respondent also requested oral argument . As the record, exceptions , and brief
adequately present the issues and positions of the parties , the request for oral argument
is denied.
2Pursuant 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 [-Members Rodgers, Bean,
and Fanning].
'The Respondent excepts to the Trial Examiner 's refusal to exclude the two alleged
discriminatees from the hearing room On motion of the General Counsel the Trial
Examiner excluded all other witnesses The determination whether witnesses should be
excluded from a hearing is a matter within the discretion of the Trial Examiner. We
find no abuse of discretion in this case especially in view of the fact that the two whom
the Respondent would exclude filed the unfair labor practice charges in this proceeding.
As persons filing a charge , each was a "party" within the Board's Rules and entitled to
participate fully in the hearing. Sec . 102 8 Rules and Regulations ; John L. Clemmey
Convpany, Inc., 118 NLRB 599, 600; Lewis Karlton, d /b/a Consolidated Frame Company,
91 NLRB 1295.
4 We do not adopt the Trial Examiner ' s remarks in footnote 11, as they are unnecessary
to the ultimate findings in the case.
126 NLRB No. 99.
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that Rickert Carbide Die, Inc., its
officers, agents, successors, and assigns, shall :
' 1. Cease and desist from:
(a) Discouraging membership in International Union, United
Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, UAW-AFIr-CIO, or in any other labor organization of its em-
ployees, by discharging, refusing to reinstate, or in any other manner
discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
(b) Threatening employees with reprisals if they engage in union
activities, or questioning employees as to their union sympathies or
activities in a manner constituting interference, restraint, or coercion
in violation of Section 8(a) (1).
(c) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from engaging in such activities except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized in
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer Carl Walter Beier and Joseph M. Fletcher, Jr., immediate
and full reinstatement to their former positions, or to substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges, and make each of them whole for any loss of
pay he may have suffered as a result of his discharge, in the manner
provided in the section of the Intermediate Report entitled, "The
Remedy."
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social se-
curity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amounts of backpay due
and the rights of employment under the terms of this Order.
(c) Post at its plant at Dearborn, Michigan, copies of the notice
attached hereto marked "Appendix." s Copies of said notice, to be
furnished by the Regional Director for the Seventh Region, shall,
after being duly signed by an authorized representative of the Re-
5 In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order "
RICKERT CARBIDE DIE, INC. 759
spondent, be posted by the Respondent immediately upon receipt
thereof and maintainedby it for a period of 60 consecutive days there-
after in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director for the Seventh Region, in writ-
ing, within 10 days from the date of this Order what steps it has taken
to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in International Union,
United Automobile, Aircraft, Agricultural Implement Workers
of America, UAW-AFL-CIO, or in any other labor organization
of our employees by discharging them or in any other manner
discriminating against them in regard to their hire and tenure
of employment or any term or condition of employment.
WE WILL NOT threaten our employees with reprisals if they
engage in union activities, or question our employees as to their
union sympathies or activities in a manner constituting inter-
ference, restraint, or coercion in violation of Section 8(a) (1) of
the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right of self-organi-
zation, to form labor organizations, to join or assist International
Union, United Automobile, Aircraft, Agricultural Implement
Workers of America, UAW-AFL-CIO, or any other labor or-
ganization, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the Act, or to refrain from
engaging in such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Sec-
tion 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
WE WILL offer to Carl Walter Beier and Joseph W. Fletcher,
Jr., reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and
privileges, and we will make each of them whole for any loss of
pay suffered as a result of his discharge.
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain or to refrain from
becoming or remaining members of International Union, United Au-
tomobile, Aircraft, Agricultural Implement Workers of America,
UAW-AFL-CIO, or any other labor organization.
RICKERT CARBIDE DIE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding, in which all parties were represented , was heard by the duly
designated Trial Examiner in Detroit , Michigan , on July 27 and 28 , 1959, upon the
complaint of the General Counsel and answer of Rickert Carbide Die, Inc., herein
called the Respondent . The issues litigated in the proceeding were whether the
Respondent's discharge of Carl Walter Beier and Joseph M. Fletcher , Jr., violated
Section 8 ( a)(3) of the Act, and whether certain other acts and conduct of the
Respondent constituted interference , restraint , and coercion, in violation of Section
8(a) (1) of the Act. Counsel for the General Counsel and Respondent presented
oral argument at the close of the hearing.
Upon the entire record and my observation of the witnesses , I hereby make the
following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent operates a machine shop in Dearborn, Michigan , where it manu-
factures carbide dies. During 1958, a typical year , the Respondent delivered dies
of a value in excess of $100,000 , to customers outside the State of Michigan. I find,
as the Respondent admits, that it is engaged in commerce within the meaning of the
Act, and that the assertion of jurisdiction is warranted.
II. THE LABOR ORGANIZATION INVOLVED
The International Union , United Automobile , Aircraft and Agricultural Imple-
ment Workers of America , UAW-AFL-CIO, herein called the Union , is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Carl Walter Beier
The Respondent hired Beier as a surface grinder hand at $3.50 per hour on
November 16, 1958. Beier was a member of the Union at the time he was hired.
Later in the month Beier joined Clyde Rickert, the Respondent 's president, and
Gordon Carr in a cocktail lounge. Can was an independent contractor who leased
space in the Respondent 's plant for his tool cutting machines.' During the conver-
sation between the three men, according to Beier , he brought up the fact that he
occasionally played cards with a neighbor who was an officer in Local 517 of the
Union . Whereupon Carr commented , "if anybody ever talks union at Rickerts that
they would close the door up and go out of business." At this juncture Rickert did
not say anything ? At another point in the conversation Beier mentioned the fact
'After the events involved In this case Carr was made foreman of the Respondent's
plant
2 When asked at the hearing whether he had said in effect "that anybody belonging to
a union could not or would not be able to work for Mr . Rickert," Carr replied, "I don't
remember saying that ." Carr also failed to remember any "social affair" in November
1958 at which Beier, Rickert , and Carr had been present . Rickert, although called as a
witness at the hearing , was not questioned about this incident . I find that the incident
occurred as set forth in the text above.
RICKERT CARBIDE DIE, INC. 761
that he was a member of the Union. Rickert replied that it did not make any
difference whether a man belonged to the Union as long as he did his work.
About the end of January 1959, a group of the Respondent's employees met in
the basement of Beier's house and discussed, among other things, the "speedup"
then in effect at the plant. It was proposed that they should talk to Rickert about
the timing of various jobs. Subsequently, some of the Respondent's employees
attended an organizational meeting which was held in the house of Ernie Marion,
a neighbor of Beier's, who was an officer in Local 517 of the Union.
Beier obtained some union authorization cards from Marion about the first week
in February. He took these cards into the shop, gave a few to Joseph M. Fletcher,
Jr., cthe other employee whose discharge is here involved, and both men solicited
other employees to sign. The Respondent employed about 12 men in its small
shop. Near the end of the following week Beier scheduled another union meeting
at Union Representative Marion's house for February 16, 1959. On February 13,
Beier informed other employees in the shop of the coming meeting.
At 3:30 p.m. that same day, February 13, Peter Enderle, the shop foreman, came
up to Beier at his machine and the following ensued, according to Beier's undenied
testimony: "Peter told me that I was all through, that I should pack my tool box.
I was fired. So I said `why?' and he said `Well, I don't know why you are being
fired.' He said `Mr. Rickert just told me to let you go."'
Beier immediately looked up Rickert in his office and asked him why he had
been discharged. Rickert said that Beier's work was "too slow" and that he was
not "cutting the buck," meaning not doing his share of the work. Beier replied,
"I thought I was making money and doing all right for you." However, Rickert
said that he did not want Beier working for him any more, and Beier left the shop.
B. The discharge of Joseph M. Fletcher, Jr.
Fletcher was first hired by the Respondent in December 1956 as a precision
grinder hand. He was laid off at the end of April 1958 and recalled at the end of
the following October. As Rickert explained, there were not too many internal
grinder mechanics available, consequently he instructed Foreman Karnish to look up
Fletcher and offer him a job.
Fletcher, as indicated above, was active with Beier in seeking employee signatures
on union authorization cards and obtained the signatures of two other employees.
When Beier was discharged, he turned over to Fletcher the cards which he had had
signed , seven in number.
At noon on February 17, several days after Beier's discharge, Beier called the
Respondent's shop and asked to speak to Fletcher. When Fletcher came to the
telephone in the Respondent's office, Beier asked him whether he could get the
names and addresses of the employees in the shop and bring them to him. About
2 p.m. that day Fletcher asked Dorothy Brennan, President Rickert's secretary, for
the names and addresses of the men. She asked what he wanted them for, and
when Fletcher refused to say, Mrs. Brennan inquired "what do you want them for?
Union organization, union activities?" When Fletcher repeated, "I just want
them," Mrs. Brennan went on to say "I will try and get them for you."
The next morning, Wednesday February 18, about 6:50 a.m., shortly before
starting time the following occurred, according to Fletcher's uncontradicted and
credited testimony: "Peter came up to me, Peter Enderle [Fletcher's foreman], and
said `You are done, Joe. You are fired,' or words to that effect, and I said `what
for?' and he didn't have any reason except to say `you are fired,' and I said `How
come you didn't call me last night , before this morning?' and he said `I didn't know
about it myself until 2 or 3 o'clock this morning."' After Foreman Enderle handed
him two checks paying him in full, Fletcher left the shop.
At noon that same day , Wednesday , February 18, Beier again called the Re-
spondent's shop and asked to speak to Fletcher. Mrs. Brennan answered the
telephone . Beier's credited testimony concerning this incident is as follows:
A. I asked Dorothy if I could speak to Joe Fletcher, and I heard her say
over the phone-speaking to somebody else-"Mr. Rickert, somebody wants to
talk to Joe Fletcher." Mr. Rickert got on the phone then and identified him-
self, and said "This is Clyde Rickert." . . . And he said "Joe Fletcher is no
longer employed here." He said "He was organizing the Union," he said, "and
he is not here any more. He has been fired," and he said "He won't be the
last one if there is any more union talk ," and I said then to Mr. Rickert , I said,
"I would-" -I could hardly believe what I was hearing, and I said "I would
like to talk to Joe Fletcher," and he said "That's who I am talking about, Joe
Fletcher." He said "He has been fired," and I said "Okay. Thank you," and
I hung up.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Do you recall if, during this conversation, anyone else was mentioned?
A. No, I don't recall him saying any other names other than there was
absolutely-that-no, there was absolutely no other names mentioned that I
can recall, but he did say "Fletcher has been the second one to be fired, but
he won't be the last."
Neither Rickert nor Mrs. Brennan, although called as witnesses at the hearing, were
questioned about this incident.
C. Rickert's activities after the discharges
Shortly after Fletcher's discharge Rickert called several of the men into the
office and questioned them as to whether they were satisfied with the Respondent's
treatment of them. When George Katros was called in he volunteered the fact that
he had been given a union card to sign. Whereupon Rickert asked "what happened."
Katros informed Rickert that he had torn the card up. Rickert then inquired
"what's wrong out there" and offered to "straighten" things out, saying "I don't
want a shop where there is conflict or anything like that." Thomas S. Jackson
was similarly questioned as to whether he was satisfied working for the Respondent.
Rickert asked Arnold Wallis, another of the employees "whose side I was on, if I
was on his side or if I was on the other side." Rickert then went on to say, "If
you are on the other side I don't want you here. . You know who I mean by
`the other side.' I don't mention no names." Wallis said that he was on Rickert's
side.3
Around the middle of April, about the time the men received notice that the
General Counsel's office would like to take statements from them regarding this
case, Rickert approached the machines of -Jackson and Charles Lively and com-
mented, "this s.o.b. Beier is suing me . . . but no God damn union is going to
get in here and run my shop." 4 On another occasion, Rickert similarly com-
mented, apparently with reference to Beier, that he was "a general all around
trouble maker and union organizer."
D. The Respondent's contentions concerning the discharges
1. Beier
President Rickert was solely responsible for the decision to discharge both Beier
and Fletcher. He did not consult Foreman Enderle, their immediate supervisor,
in connection with the discharges, nor did he confer with their former foreman,
Karnish. President Rickert testified in general terms that Beier and Fletcher were
discharged because they failed to cooperate with his efforts to improve the quality
and productivity of the shop. Rickert went on to say that prior to their discharge
he had reminded both Beier and Fletcher that they "definitely had to do a little
better job. That's all there was about it. Or I was going to make some changes."
Foreman Enderle and Foreman Karnish, his predecessor, also testified generally
about Beier's alleged slowness or lack of "drive" in his work.
To support his general testimony concerning Beier's slowness President Rickert
relied on certain cost sheets which he contended showed that Beier on a certain job
took an excessive amount of time doing surface grinding operations. Respondent's
Exhibit No. 19 is a worksheet giving the Respondent' s costs in connection with the
production in November and December 1958 of 58 pins for the Ford Motor Com-
pany. Under its contract with the Ford Motor Company, the Respondent received
$6.50 per pin. According to notations on Respondent's Exhibit No. 19, the cost
per pin on this job, on which Beier and four other emloyees worked, came to $12.66
per pin .5 Other cost sheets introduced into evidence, Respondent's Exhibits Nos. 20
and 18, allegedly covering the same operation performed by other employees showed
costs of $4.30 and $4.34 respectively, per pin.
3 Rickert was not questioned about this incident. Wallis' undenied testimony is
credited.
4 Neither Rickert nor Jackson denied Lively's testimony concerning this incident. I
credit Lively's testimony.
5In computing costs on this sheet the Respondent determined the actual cost of mate-
rials and labor, added, for overhead, an amount equal to 200 percent of the actual labor
costs, and to this total added a figure equal to 10 percent thereof for profit. The unit
figure was ascertained by dividing this grand total by the number of pins made.
RICKERT CARBIDE DIE, INC. 763
The other cost sheets, however, are not comparable. The markup for overhead
and profit on Exhibits Nos. 20 and 18 is computed in an entirely different manner
from that on Exhibit No. 19, i.e., by using a flat rate of $10 per hour for labor.
The material and tool costs vary considerably in the three exhibits. There was
also some difference in the tools used on the three jobs. From this I infer that
there was differences in the material used and the way the jobs were run, even
though the pins may have all be made pursuant to the same specifications as to size
and shape.
Unlike Exhibit No. 19, there is no breakdown on Exhibits Nos. 20 and 18 by the
various operations involved, such as lathe operations, outside diameter grinding,
surface grinding, polishing and finishing, giving the hours spent on each of these
operations. Consequently, one cannot determine, by comparing Exhibit No. 19 and
Exhibits Nos. 20 and 18, whether it was the surface grinding time which was
excessive, or the time spent by other employees on other operations. Nor can it be
determined by examining Exhibit No. 19 whether it was Beier or employee Jackson
who put an excessive amount of time on surface grinding operations. Both per-
formed this operation. Since Exhibit No. 19 does not show the number of pins
worked on by each man during the hours spent on this operation, insofar as Exhibit
No. 19 shows, it may be that it was Jackson who took an excessive amount of time
per pin. For the foregoing reasons I find Exhibits Nos. 18 to 20 to be inconclusive,
and they do not , on their face, establish that Beier took an excessive amount of
surface grinding time on the Ford pin job. There is no other specific evidence of
Beier's slowness.
Even assuming that Beier did take an excessive length of time to complete
the surface grinding operations involved in the Ford pin job, Exhibit No. 19 shows
that the bulk of the work was performed during his first week of employment.
The rest was done about the middle of December 1958, 2 months prior to his
discharge. The Respondent nevertheless continued Beier in its employment for
almost 2 months after the work was done, and about a month after Rickert,
according to his own testimony, studied the cost sheet and concluded that Beier had
put in too much time on this operation. Upon all of the facts of the case I reject
the Respondent's contention that Beier's slowness was a motivating factor in
Rickert's decision to discharge him.
Rickert's only other testimony bearing on the reason for Beier's discharge was
given in response to the question whether he was aware that Beier was coming in
late on various occasions. Rickert replied that he was, that he had spoken to
Beier about his attendance. Rickert did not mention Beier's tardiness to him when
the latter asked Rickert the reasons for his discharge. The record shows that it
was not until after Beier's discharge was drawn into question in these proceedings
that the Respondent seriously considered Beier's tardiness record. At this time
Foreman -Enderle was instructed to go through Beier's timecards and ascertain the
occasions on which he had been late. It appears from the timecards that in the
great majority of instances Beier was only a few minutes late, and that on only
three occasions during the entire period of his employment was he more than 15
minutes late.6 On these occasions he was paid only for the hours he actually put in.
The timecards also show that throughout his employment Beier consistently worked
long hours of overtime, and that in no full week (i.e., one without holidays) did
Beier put in less than 46 hours. The average number of hours actually worked by
Beier per week (excluding weeks with holidays and his first and last weeks which
were not full weeks) during the entire period of his employment was in excess of
56. In view of the long hours worked by Beier throughout his employment and the
informal atmosphere which generally prevailed in the Respondent's shop, I cannot
accept the Respondent's suggestion that Beier's tardiness was a cause of his discharge.
Foreman Enderle and Karnish, although they had nothing to do with the decision
to discharge Beier, also gave testimony concerning Beier's conduct on the job.
According to their testimony, Beier frequently left the plant during the workday,7
occasionally left his machine to talk to other employees in the shop, and ate at his
6 It should be noted that the Respondent's timeclock is divided into hundredths of an
hoar and not minutes
7 The Respondent's objection on this score apparently is that Beier, by leaving the plant
during the day, caused the shop to lose production However, Beier's timecards show that
he made up for any short absences during the day by working longer hours As noted
above, notwithstanding the hours Beier took off during the day, Beier averaged over
56 hours per week at the shop In these circumstances the Respondent cannot validly
complain that Beier unduly disrupted the Respondent's production.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
machine, contrary to shop rules. Rickert did not mention these alleged shortcomings
in his testimony concerning Beier's discharge . There is no showing as to the
extent, if at all, that Rickert himself was even aware of this conduct . Since the
foreman had no part in the decision to discharge Beier, their testimony concerning
these alleged shortcomings , which were not shown to be known to Rickert, is not
relevant on the only issue before me on this phase of the case , namely, the motivation
underlying President Rickert 's action in discharging Beier.
2. Fletcher
As noted above , as in the case of Beier, Rickert testified that the quality and
quantity of Fletcher 's production was not satisfactory . However, in Fletcher's case
Rickert, in addition , assigned a specific incident as precipitaing his discharge. Thus,
Rickert testified as follows: Late in the afternoon preceding Fletcher's discharge he
returned to the shop and was informed by the foreman (apparently not Enderle
whose normal shift ended at 3 : 30 -p m .), that Fletcher, in working on a so-called
"diesel" job, had scrapped three pieces of material . These pieces of material cost
$117.35 each . Rickert immediately directed Mrs. Brennan to make up Fletcher's
time.
Turning first to the "deisel" incident, Enderle , Fletcher's foreman , made no men-
tion of Fletcher's "scrapping" the "diesel" pieces at the time he discharged Fletcher.
It is difficult to believe , if the "diesel" incident loomed as large in Rickert's mind as
his testimony makes it appear , that Rickert would not have mentioned it to Enderle
in directing him to discharge Fletcher. Even at the hearing , although testifying at
length as to possible reasons for Rickert's discharge of Fletcher , Enderle did not
mention Fletcher's difficulties with the "diesel " pieces as a possible cause of his
discharge.
Fletcher testified that he did not recall scrapping any jobs the day before he was
discharged . He admitted , however, scrapping about six jobs during the entire period
of his employment, but he testified that they were "reworkable ." In the face of
Rickert's positive testimony that Fletcher scrapped three "diesel" pieces the after-
noon before his discharge, Fletcher's rather vague testimony that he did not recall
scrapping any pieces on the afternoon before his discharge does not convince me
that his work that last afternoon was entirely satisfactory . However, I am not
persuaded that the Respondent's loss as a result of Fletcher 's work that last after-
noon was as great as is implied in Rickert 's testimony that Fletcher "scrapped" three
pieces of "diesel" material costing $117 . 35 each .8 I find, in accordance with
Fletcher's testimony that all the jobs he scrapped were "reworkable ," that the
"diesel" pieces worked on by Fletcher on his last afternoon were not a total loss.
Under all the circumstances of the case , and particularly in light of the affirmative
evidence of the discriminatory motivation behind both discharges supra , I reject the
Respondent 's contention that the "diesel " incident precipitated Rickert's decision to
discharge Fletcher.
Foreman Enderle and Karnish also gave testimony supporting Rickert's general
testimony concerning the alleged inadequacy of Fletcher 's work . In brief, they
testified that they had spoken to Fletcher about having to improve the quality and
quantity of his production .9 While the testimony of the foremen indicates that
Rickert might have had grounds for discharging Fletcher, it does not bear on the
issue here involved-Rickert 's reasons discharging Fletcher at the time he did-since
the foremen had no responsible part in the discharge.10
In support of its claim of slowness on Fletcher 's part, the Respondent introduced
into evidence Respondent 's Exhibit No. 16 , which is a cost sheet covering three pieces
'As I understand the meaning of the term " scrapping a job" in machine shop par-
lance, it does not necessarily mean that the material is a total loss This expression is
also used in situations where the finished job does not meet the customer 's specifications
and has to be reworked at the shop 's expense in order to be made into a usable item.
9 Karnish testified that Fletcher had scrapped three jobs in a row on one occasion.
However, Karnish further testified that he did not think Rickert knew about the in-
cident, "it was just between Joe and me" Karnish 's observations of Fletcher's work
were not recent since he had been relieved of his duties as foreman some 6 weeks prior
to the discharges
10 Foreman Enderle testified further that he had observed Fletcher "sleeping" at his
machine on various occasions . This latter complaint , however, may be disregarded en-
tirely as a factor in Fletcher 's discharge , as Rickert 's own testimony affirmatively shows
that the only instance of Fletcher ' s sleeping on the job Rickert was aware of occurred
over a year earlier, prior to the time Rickert rehired Fletcher in October 1958.
RICKERT CARBIDE DIE, INC. 765
made for Chevrolet, Bay City, in December 1958. It shows among other things,
that Fletcher put in 421/2 hours on internal diameter ( I.D.) grinding operations in the
7-day period ending December 17, 1958. The sheet bears, above the initials of
Rickert, the notation , "No good, excessive I.D. time." This exhibit, at most, indi-
cates Fletcher took too much time on an operation which he completed over 2 months
before his discharge. Rickert's testimony shows that he became aware of Fletcher's
work on this job at least by the time he reviewed the cost sheet about 30 days after
it was prepared, which was almost a month before Fletcher's discharge. Yet it was
not deemed a cause for discharge at that time. The Respondent failed to produce
any other records showing more recent slow work on Fletcher's part. These cir-
cumstances, standing alone, raise doubts that Fletcher's slowness was in fact a factor
in his discharge. In view of the affirmative evidence of the antiunion motivation un-
derlying Fletcher's discharge, discussed supra, I find Respondent's contention in this
regard without merit.
While I have rejected the Respondent' s contentions regarding Fletcher's work, I
do not wish to imply that the Respondent had no valid grounds for complaint con-
cerning Fletcher's work. On the contrary, I find that the quality and quantity of
Fletcher's work on occasion fell below the Respondent's standards, and that his per-
formance on these occasions would have furnished good cause for discharge if, in
fact, the Respondent had discharged him from these reasons . However, as found
below, it was not Fletcher's work but his union activities which were the real reason
for his discharge.
E. Summary; conclusions concerning the Respondent's unfair labor practices
1. The Respondent's violations of Section 8(a)(3)
As stated above, Beier was the instigator of the union movement in the Respond-
ent's small shop in which about 12 men were employed. Fletcher was his
assistant in these activities. During the week beginning February 9, both men
sought the signatures on authorization cards of their fellow employees in the shop.
On Friday, February 13, Beier passed along to other employees in the shop word
of an organizational meeting to be held at a union official's home the following
Monday. At 3:30 p.m. that same day (February 13) Beier was abruptly discharged
by his foreman, who was unable to give him any explanation.
On the following Tuesday, Fletcher received a phone call from Beier in the plant
as a result of which he requested Mrs. Brennan, Rickert's secretary, to furnish
him with a list of names and addresses of the men in the shop. At that time she
queried him as to whether he wanted them for "union activities." Late that after-
noon, after Fletcher had finished work for the day, Rickert decided that Fletcher,
too, should be discharged and had Foreman Enderle discharge Fletcher when he
reported for work the next morning. Enderle was unable to give any explanation
to Fletcher as to the reason for his discharge.
The day after Fletcher's discharge, in the conversation with Beier over the tele-
phone, Rickert revealed the motivation behind these discharges. Thus, according
to the undenied and credited testimony, Rickert said on this occasion "Fletcher is
no longer employed here. . He was organizing the Union. . He has been
fired. He won't be the last one if there is any more union talk.... Fletcher
has been the second one to be fired but he won't be the last." ii
The Respondent's contentions regarding the discharge of the two men are not
persuasive in light of the foregoing facts. In Beier's case, the Respondent relied
primarily on his poor production on the Ford pin job, which dated back, for the
most part, to his very first week on the job. As to Fletcher, I have found that
Rickert exaggerated Fletcher's difficulties with the "diesel pieces" on his last after-
noon of work, and that the Respondent 's general complaints concerning the inade-
ii The hostility toward union activity and bargaining which is implicit in the above-
quoted remarks was foreshadowed by Rickert's failure to repudiate Gordon Carr's state-
ment, made in the presence of Beier, that the Respondent would "go out of business" if
"anybody ever talks union at Rickerts." While Rickert said on this same occasion that
it did not make any difference to him whether a man belonged to a union, I find that he
was speaking of bare union membership, and not the collective-bargaining rights which go
along with union membership. In other words, Rickert did not care if his employees
individually belonged to a union as long as they did not seek to bargain collectively with
the Respondent regarding wages, hours, and other terms and conditions of employment
in the shop.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quacy of Fletcher's work, although not without some foundation, were not a
motivating factor in Rickert's ultimate decision to discharge him.
In view of the entire sequence of events in this case, and the undenied testimony
of Beier concerning Rickert's comments over the telephone which clearly reveal
the antiunion motivation underlying the two discharges, I find that Fletcher and
Beier were discharged by President Rickert in an attempt to nip the incipient union
activity in the bud and to prevent the organization of the shop. By discharging
Fletcher and Beier for this reason, the Respondent has violated Section 8(a) (3) and
(1) of the Act.
2. The Respondent's violations of Section 8(a)(1)
In his telephone conversation with Beier on February 18 Rickert stated that
Fletcher had been "fired" and that "He won't be the last one if there is any more
union talk." This was an open threat of discharge for engaging in union activities
and was clearly violative of Section 8(a) (1) of the Act.
Subsequently, in the course of questioning various employees about their satis-
faction with conditions at the plant, Rickert asked employee Wallis whose side he
was on, the Respondent's or "the other side," and then went on to say, "If you are
on the other side I don't want you here." In view of the background in which this
incident occurred, I find that Rickert, in referring to "the other side," had reference
to the Union. By questioning Wallis concerning his union sympathies in a context
of a veiled threat of discharge, the Respondent has further violated Section 8(a)(1)
of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices I will
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer Beier and Fletcher immediate
and full reinstatement to their former or substantially equivalent positions without
loss of seniority or other rights and privileges, and make each of them whole for any
loss of pay he may have suffered by payment to him of a sum of money equal to that
which he would normally have earned as wages from the date of the discrimination
to the date of the Respondent's offer of reinstatement, less his net earnings during
said period, and in a manner consistent with Board policy set out in F. W. Woolworth
Company, 90 NLRB 289. I shall recommend also that the Respondent preserve
and make available to the Board or its agents, upon request, for examination and
copying, all payroll records, social security payment records, timecards, personnel
records and reports, and all other records necessary to analyze the amounts of
backpay due under the terms of these recommendations.
The Respondent's unfair labor practices are such as to indicate an attitude of
opposition to the purposes of the Act generally, and accordingly the commission
of these and other unfair labor practices in the future is reasonably to be anticipated
from the Respondent's past conduct. In these circumstances, the preventive pur-
poses of the Act may be thwarted unless the remedy is coextensive with the threat.
To effectuate the policies of the Act, therefore, it will be recommended that the
Respondent cease and desist from infringing in any manner upon the rights guaran-
teed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, UAW-AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employees
Carl Walter Beier and Joseph M. Fletcher, Jr., thereby discouraging membership in
the above-named labor organization, the Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]