Scott's, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1966

159 N.L.R.B. 1795 (N.L.R.B. 1966)

SCOTT'S, INC. 1795,
tute a separate unit appropriate for the purposes of collective-
bargaining within- the meaning of Section 9 (b) of the Act :
A11 journeymen and apprentice sheet metal workers, excluding office
clerical' and professional employees, guards, all other employees, and
supervisors as defined in the Act.8
[The Board dismissed the petition in Case 14-RM-310.]
[Text of Direction of Elections omitted from publication.]
8 With respect to the Employer in Case 14-RC-5422, in accordance with the apparent
agreement of the parties, we exclude all employees covered by our prior certification to an-
other labor organization in Case 14-RC-4273.
9 An election eligibility list, containing the names and addresses of all the eligible voters,
must be filed by the Employers with the Regional Director for Region 14 ^Nithin 7 da,',
after the date of this Decision and Direction of Elections The Regional Director shall
make the list available to all parties to the elections No extension of time to file this
list shall be granted by the Regional Director except in extraordinary circumstances.
Failure to comply with this requirement shall be grounds for setting aside the elections
whenever proper objections are filed. Excelsior Underwear, Inc. 156 NLRB 1236
Scott's, Inc. and International ' Union of Electrical °, Radio, and Ma-
chine Workers , AFL-CIO and Employees" Committee , of Scott's,
Inc., Party in Interest. Cases 7-CA-4743 and 4743 (2). June 30,
1966
DECISION AND ORDER
On November 23, 1965, Trial Examiner John H. Eadie issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take,
certain affirmative action, as set forth in the attached' Trial Exam-
iner's Decision. The Trial Examiner also found that the Respondent
had not engaged in certain. other unfair labor practices and recom-
mended that these allegations of the complaint be dismissed. There-
after, the Respondent and the General Counsel filed exceptions to the
Trial Examiner's Decision and supporting briefs, the Respondent
filed a brief in reply to the General Counsel's brief, the Charging-
Party filed cross-exceptions and a supporting brief, and the Respond-
ent filed a brief in answer to the, cross-exceptions.
Pursuant to the provisions of- Section, 3 (b) of the National. Labor
Relations Act, as amended, the National Labor Relations Board has.
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria-].
159 NLRB No.. 146.
243-084-67-vol . 159-115
1796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings of the Trial Examiner made-at
the hearing and finds that no prejudicial error was committed.,, The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this consolidated proceeding, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner, with the fol-
lowing additions and modifications.
1. As described more fully in the Trial Examiner's Decision, in
March 1964, International Union of Electrical, Radio and Machine
Workers, AFL-CIO (hereinafter called the Union), commenced an
organizing campaign among the employees at Respondent's two
plants in Holland, Michigan, and at its plant in Douglas, Michigan.
Almost immediately thereafter, and for a period of about 4 months,
the Respondent embarked upon, a vigorous campaign in opposition to
the Union. The Trial Examiner found, and we agree, that the
Respondent engaged in extensive violations of Section 8(a) (1) of
the Act during the course of this antiunion campaign, including
interrogation of employees concerning their interest and activity in
the Union, threats of loss of jobs and existing benefits, coercion of
employees to signify their opposition to the Union, and promises of
benefits for rejection of the Union. However, in addition to the
violations of Section 8(a) (1) found by the Trial Examiner, we find
that the Respondent also violated Section 8 (a) (1) in the following
two respects.
(a) Willis Vandenberg is in charge of labor relations for the
Respondent and is also a vice president of Crampton Manufacturing
Company, of which the Respondent is a subsidiary.2 During April
and May 1964, Vandenberg made speeches to assembled employees at
Respondent's three plants. According to several employees, whose
testimony is reported at length by the Trial Examiner, Vandenberg
spoke of the movement of work away from Grand Rapids Brass,
another subsidiary of Crampton, to the Respondent's plants after a
union won bargaining rights at Grand Rapids Brass. Thus, employee
Bolles testified that Vandenberg said that at Grand Rapids Brass,
"they had twelve hundred people working there when he first started
and they had a union and now that they have the union there were
about four hundred working there now," and that "they found they
could do their jobs cheaper here than in Grand Rapids . . . .Em-
ployee Thomas testified that Vandenberg spoke to employees about
the piecework rates provided for in the contract at Grand Rapids
1 We hereby correct the inadvertent error in Section D, 7, of the Trial Examiner's
Decision Employee Bolles was discharged on May 14 and not on July 14 , 1964 , as 'stated
at one point by the Trial Examiner I
z Crampton , which is a subsidiary of Gulf and western , Inc, has as subsidiaries the
Respondent ; Grand Rapids Brass, discussed below ; and several other companies.
SCOTT'S, INC. 1797
Brass and said "That's where we got our work from. They
don't have piece work any more. Union shops don't have piece
work." Thomas testified further that Vandenberg said that "if we're
going to have to pay higher wages down here why can't we just keep
it all in Grand Rapids?" According to the testimony of employees,
Vandenberg also referred to improvements in terms and conditions
of employment that had been instituted at other plants in the Cramp-
ton chain where the unions had not been able to organize the employ-
ees, and that if the Union did win at the Respondent's plants, there
would be new work rules and stricter enforcement of existing plant
rules. Employee witnesses also testified that Vandenberg remarked
that if the Union got in, the Respondent might have to hire Negroes.
Also, according to employee witnesses, Vandenberg stated that at
Crampton employees discovered how they could achieve their goals
with a committee instead of paying dues to a union, and the "com-
mittee" was still operating at a Crampton plant although the "Labor
Board had made them post notices apologizing for the committee and
other things they had done . . . . They slapped our hands, just like
we were naughty little children. They just don't label it a committee
any more."
Vandenberg's testimony, also quoted at length by the Trial Exam-
iner, does not specifically deny any of the foregoing testimony by
employees, except for the allegations about race. Vandenberg admit-
ted that he made statements regarding the loss of jobs at the plant
where a union won bargaining rights, but said that he made it clear
that the work was removed from the plant for economic reasons.
Without making any credibility findings, the Trial Examiner
found that Vandenberg's speeches were not violative of the Act.
However, the foregoing testimony by employees regarding Vanden-
berg's speeches was, except as noted above, not denied by Vanden-
berg, not contradicted by other testimony, and not discredited by the
Trial Examiner, and we credit it. On the basis of this evidence, we
"find that Vandenberg's speeches violated Section 8(a) (1) of the Act.
The thrust of Vandenberg's remarks was that employees would lose
their jobs or would be penalized if the Union won bargaining rights
at the Respondent's plants. Thus, Vandenberg's statements that there
would,be new work rules and strict enforcement of existing rules if
the Union came into the plant constituted a direct threat of reprisal;
and his comments concerning -the transfer of: work and the con-
comitant loss of jobs after the organization of the General Rapids
Brass plant constituted an implied threat that the Respondent would
follow the same course of action at this plant if the Union won. We
further find that Vandenberg's statement that in an earlier proceed-
ing at Crampton the Board "slapped our hands just like we were
1798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
naughty little children" and that the committee was still operating
but was not called a "committee" would clearly convey to employees
the idea that the . guarantees of the Act could be circumvented
with impunity. This statement, we find, cast Board protection of
employee statutory rights into disrepute and thus clearly violated
Section 8 (a) (1) of the Act.
(b) In disagreement with the Trial Examiner, we also find that-
the Respondent violated Section 8(a) (1) of the Act by granting to^
employees a general wage increase of 5 cents an hour on Septem-
ber 28, 1964.
As noted, in March 1964, the Union commenced its organizing
campaign and during the ensuing several months the Respondent
committed extensive violations of Section 8(a) (1). On March 30,
1964, the Union filed a petition seeking to represent the employees in
Respondent's plants and in June 1964, when the Union filed the
charges in the instant case, it also filed a request to proceed with the-
election in the representation proceeding. Following issuance of a
Decision and Direction of Election on August 3, an election was
scheduled for September 10. However, before September 10, the-
Union asked to withdraw the request to proceed and the Regional
Director notified the parties the election was being postponed indefi-
nitely. On September 28, the wage increase was granted.
The Respondent sought to justify the timing of the wage increase-
on the grounds that it was granted as part of the regular periodic-
review of working conditions at the Respondent's plants, that it had
withheld the increase because of the pending election but decided to
announce the increase when it appeared the election would not be
held in the near future. However, this explanation is refuted in part
by the Respondent's own records, which show that since 1957 the-
Respondent had made periodic adjustments in wage rates at approx-
imately 2-year intervals, and that it had most recently increased
wages on December 30, 1963, only 9 months prior to the September-
1964 increase, which the Respondent suggests was a delayed increase.3
Nor is it material that the Respondent did not grant the wage increase
until after the Union had withdrawn its request to proceed with the-
election. In the first place, the representation proceeding was still
pending when the increase was granted. In any event, at the time,
the Union was still engaged in organizing the plant and the increase,
even if it would not interfere with an election, would tend to inter-
fere with the Union's organizing campaign.4 Indeed, the Respond-
ent, in letters to employees announcing the wage increases, referred
to "trouble from the outsiders" and announced that it was considering-
other benefits to be given "as soon as our problem with the outsiders.
8 Western Saw Manufacturers, Inc., 155 NLRB 1323.
4 N.L.R.B. v. Exchange Parts Company, 375 U.S. 405
SCOTT'S, INC. 1799
is behind us." This statement made it plain that the Respondent
granted the wage increase in order to interfere with the Union's
organizing campaign.,
2. The Trial Examiner found and we agree, that the Employees'
Committee was a creature of the Respondent and that the Respond-
ent violated Section 8(a) (2) and (1) of the Act by dominating and
interfering with the formation and administration of this committee.
3. The Trial Examiner found, and we agree, that the Respondent
violated Section 8(a) (3) and (1) of the Act by discharging employ-
ees Hoggard, Smith, and Bolles; by laying off employees Bounds,
Collins, Hiscock, Cecil Herrell, and Smith; and by transferring
employees Cecil Herrell and Childress from one job to another. The
Trial Examiner also found, and we agree, that the Respondent did
not violate Section 8(a) (3) and (1) by discharging employee Noblin;
by laying off employee Smith for a third time on June 9, 1964; and
by transferring employees Charles Herrell and Thomas. We also
agree with the Trial Examiner, for the reason stated below, that the
Respondent violated Section 8(a) (3) by laying off employee Jimmer-
son, but did not violate the Act by constructively discharging him.
'Contrary to the Trial Examiner, however, we find, for the reasons
stated below, that Respondent further violated Section 8(a) (3) and
(1) of the Act by discharging employees Swain and Acklin, by lay-
ing off employee Clifford Harmsen, and by refusing to transfer
'employee Thomas back to her previous job. -
In considering the allegations that the Respondent violated 8(a)
(3), it is essential that we keep in mind the larger context of the
Respondent's union animus. Thus, as we have already noted, soon
after the Union commenced its organizing campaign, the Respondent
for a period of about 4 months engaged in extensive violations of
Section 8(a) (1). We note particularly that according to the unde-
nied testimony of employees, President Scott remarked to several
employees that "You guys are going to eat them [union] badges
before this is through"; that "we are going to get rid of all you
badge toters, sooner or later, it is only a matter of time 21; that
"those boys wearing the badges" would be discharged; that "If the
Union got in" the badge wearers would be looking for jobs "a year
from now" ; and that he told employee Jessie Smith that button-
wearers Bound, Collins, Cecil Herrell, and Tillery would be dis-
charged. Also, when employees sought explanations why they were
being laid off out of seniority, Scott replied that seniority did not
5 The complaint alleges that the Respondent committed other unfair labor practices in
violation of Section 8(a) (1) in addition to those found herein and the General Counsel
and the Union filed exceptions to the Trial Examiner 's failure to find such violations
However, we find it unnecessary to consider or pass on such incidents and shall make no
additional findings regarding these allegations , as in our opinion such findings would
merely be cumulative and would not affect the remedy.
1800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mean anything "any more," that he would show the employees "a
thing or two before this was all over" and that "we are at war and
we have to fight fire with fire." Further, as we have already found,
Supervisor Vandenberg made speeches threatening employees with
reprisals if the Union came into the plant, and the Respondent
unlawfully increased employee wages in order to interfere with the
union organizing campaign.
That these statements were not idle threats is amply borne out by
the widespread discriminatory activity carried out by the Respondent
against union supporters. Thus, we have found that the Respondent
engaged in various forms of conduct violative of Section 8 (a) (3)
against a large number of employees. All of these employees dis-
criminated against had signed union cards, were leaders in the orga-
nizing campaign, and wore badges identifying themselves as union
members. Further, most of these employees were members of the
union organizing committee and openly distributed union leaflets on
one or more occasions at the Respondent's plant. Although union
animus is properly a consideration in determining motive for an
employer's actions against his employees, it is equally clear that an
employee's participation in an organizing campaign will not shield
him from disciplinary action that is justified by misconduct on his
part. With these considerations in mind, we turn to an examination
of specific instances of the Respondent's allegedly discriminatory
conduct.
A. James Swain
Swain was known to be an active member of the Union's organiz-
ing committee, and he appeared on behalf of the Union at the repre-
sentation hearings in April 1964. In the middle of April, the
Respondent's President Scott saw Swain wearing a union badge and
told him that he was in "trouble" and that "if you get a Union in
here and we give you a job that you can't run we can say out, and out
you are, out the door." Also in April, Becksvoort, Swain's supervi-
sor, told Swain that if employees would forget about the Union the
Respondent would "come up with some kind of better way of treat-
ing their employees." The Trial Examiner found, and we agree, that
the statements of Scott and Becksvoort violated Section 8 (a) (1).
Prior to leaving for his scheduled vacation beginning May 4,
Swain asked his supervisor, Britton, for permission to extend his
vacation an additional 41/2 days, but Britton denied the request on
the ground that Swain was needed at the plant. Nevertheless, Sv,-ain
did not report for work for the second half of the shift on May 11,
when he was due to return, nor did he report for work on May 12.
When Swain returned on May 13, Foreman Britton merely gave him
SCOTT'S, INC. 1501
a warning notice for his May 12 "absence without calling in," excused
his absence of May 11, and allowed him to return to work except for
a brief disciplinary layoff because he had received more than three
warning slips in a short period. On May 14, despite Britton's action
Respondent discharged Swain by sending him a telegram stating he
was discharged "because you did not return to work at once when
your vacation was over."
The Trial Examiner found that the Respondent's discharge of
Swain did not violate Section 8(a) (3). Although acknowledging
that Respondent was lax in enforcing its rules before the advent of
the Union and that it became strict after the union campaign started,
that the record was replete with evidence of union animus, that
Swain was a leading adherent of the Union, and that the Respond-
ent's foreman "generally" makes the decision to discharge an em-
ployee but that in Swain's case Becksvoort, the supervisor, changed
Swain's disciplinary layoff to a discharge without consulting the
foreman, the Trial Examiner found that Swain was discharged for
failing to notify the Respondent of his absence on May 12. The
Trial Examiner also referred to the facts that Swain had a poor
attendance record during 1963, that he had been absent from work
several times during 1964, and that he had falsified his piece count.
It is clear that the Trial Examiner's findings relating to Swain's
misconduct prior to May 1964 are irrelevant since Becksvoort, who,
as noted, decided to discharge Swain, testified without contradiction
that Swain was discharged because he returned late from his vaca-
tion without notifying the Respondent, and the telegram on May 14,
informing Swain of his discharge, referred only to his late return
from his vacation. Indeed, the fact that prior to the advent of the
Union the Respondent tolerated Swain's shortcomings as an employee
would, if anything, tend to support the conclusion that the Respond-
ent's discharge of Swain was not, as claimed, because he returned late
from vacation, but rather because the Respondent meanwhile had
learned of Swain's union activity.
The sole issue before us, therefore, is whether Swain's late return
from his vacation was the real reason for his discharge. Becksvoort
testified that there was a "plant rule" that "anyone who doesn't
return when vacation time is up without notifying the company
would be a discharge [sic]." However, the record contains no testi-
mony other than Becksvoort's self-serving declaration regarding such
a plant rule and there was no evidence that anyone other than Swain
had been discharged for violating such rule. On the contrary,
employee Horne testified without contradiction that he had stayed
away several additional weeks after his 1964 vacation without being
1802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disciplined, and he testified about other employees who, like Swain,
stayed away from work although told they could not do so, and who
were not disciplined. Employee Lipe also testified that she regularly
took extra time off after her vacation, and that she was not disci-
plined for doing so.
In view of the foregoing, particularly the important part played
by Swain in one union campaign, the Respondent's union animus,
including the evidence that its enforcement of plant rules became
stricter after the advent of the Union, and the fact that Swain was
treated disparately, we find that the Respondent discharged Swain
because of his union activity, in violation of Section 8(a) (3) and (1).
B. Bill Acklin
Acklin was also known to be an active member of the union organiz-
ing committee. During the organizing campaign, Supervisors Con-
way and Becksvoort told Acklin to take off his union button and
throw it away because it would not do him any good. Acklin was
absent from work from May 25 through 27. When Acklin attempted
to return to work, he was told that he did not have a job because of
the Respondent's policy that anyone absent 3 consecutive days with-
out notice was considered a "quit."
In finding that Respondent did not violate Section 8(a) (3) in
discharging Acklin, the Trial Examiner relied on the Respondent's
records which, according to the Trial Examiner, showed that 48
employees had quit their jobs during 1963 and 1964 and that the
Respondent had refused to rehire them; and that "9 of these were
employees whose employment was terminated `as quits' after absences
of 3 days." However, the record clearly does not support this find-
ing. The documents relied on show only that the 48 employees had
quit; the documents do not indicate that any were terminated because
of the 3-day rule allegedly in effect at the Respondent's plant. On
the contrary, the record is replete with testimony concerning numer-
ous instances of lengthy and unexplained absences by employees who
were not terminated for that reason. Thus, for example, employee
Lipe testified that no "quit" rule existed at the plant and that she
knew of no instance of an employee who had been refused permission
to return to work after a 3-day absence.
In any event, even assuming that there existed a rule that employ-
ees absent for 3 days without notice would be terminated, the record
shows that Acklin had given notice. Thus, Acklin testified without
contradiction that on May 25, the first day of his absence, he told
employee Tillery, with whom he normally rode to work, to inform
Supervisor Conway that Acklin would not be at work because he had
to mind his children while his wife was sick, and that he could not
SCOTT'S, INC. 1803•
call in personally because he had no telephone. Tillery testified that
he notified Conway that Acklin would be absent, and Conway ad-
mitted as much, although their testimony was in conflict as to what
was actually said.
In view of the foregoing, particularly the Respondent's union ani-
mus, its knowledge of Acklin's extensive union activity, and the fail-
ure of the Respondent to rebut the General Counsel's prima facie
case by showing that Acklin was discharged for cause, we find, con-
trary to the Trial Examiner, that the Respondent discharged Acklin
because of his union activity, in violation of Section 8(a) (3) and
(1) of the Act.
C. Clifford Harmsen
Although employee Harmsen was not active in the campaign, he
had signed an authorization card. In April, Respondent's Supervisor
Becksvoort questioned him about his views on the Union and told
him if the employees did not bring in the Union, the Respondent
would be financially able to provide a retirement plan and better
working conditions. The Trial Examiner found, and we agree, that
this statement violated Section 8(a) (1). At about the same time,
Supervisor Reed asked Harmsen what he thought of the idea of a
shop committee, and Harmsen replied that he thought a "good" com-
mittee would be all right. According to Reed, Harmsen also said
that he was not for the Union, although some people thought he was.
Sometime between May 7 and 14, after employee Earl Dean Smith
was laid off for the first time, Harmsen spoke to Supervisor Becks-
voort, saying that Smith had been laid off "kind of out of line."
Becksvoort answered that "Seniority didn't mean a thing here, any-
more" and that "anybody trying to run the shop can get laid off." In
another talk with Becksvoort a few days later also on the subject of
employees being laid off out of seniority, Becksvoort said, according
to Harmsen, that "these guys just get in your hair, you have got to
get them out of here," to which Harmsen replied "If I was laid off
because of this I believe I would quit." Harmsen himself was laid
off out of seniority on May 21.
The Trial Examiner found that the layoff of Harmsen did not vio-
late Section 8(a) (3) because the General Counsel had failed to prove
that the Respondent knew of his union activity. However, in view of
the repeated conversations between Harmsen and the Respondent's
supervisors protesting other discriminatory layoffs it seems clear that,
despite Harmsen's protestation, the Respondent arrived at the conclu-
sion that Harmsen was a union supporter and treated him in the same
way as other prounion employees.
Harmsen's layoff, as noted, was not in accord with seniority. The
Respondent claimed that it had not followed seniority in the past in
1804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making layoffs . However, while the Respondent 's records show and
there was some testimony that there had been instances in the past of
employees being laid off out of line , the record indicates that such
were the exception rather than the rule. Further, the Respondent's
President Scott admitted that seniority did not mean anything
"anymore."
In view of the foregoing , we find, contrary to the Trial Examiner,
that Respondent violated Section 8 ( a) (3) by laying off Harmsen on
May 21.
D. Kathryn Thomas
The Trial Examiner found that the Respondent did not violate Sec-
tion 8 ( a) (3) and ( 1) by transferring employee Thomas on April 28,
1964, from her job as highlighter to one in which she spent part of
her time doing silk screening . The Trial Examiner found the trans-
fer was made in response to Thomas' request in January 1964 that
she be transferred to another job because of a personal conflict with
another employee . We agree with this conclusion . However, we find
that the Respondent 's refusal to transfer Thomas back to her old job
on her request was because of her union activity , in violation of
Section 8(a) (3).
Thomas was a member of the Union 's organizing committee, dis-
tributed union literature , wore a committee button , attended the rep-
resentation proceedings at the request of the Union , and attended a
"training school" of the Union April 23-25. On May 8, Thomas
asked Foreman Jones why she was not back on her former job of
highlighting , as she had requested and Jones replied, according to
Thomas' undenied testimony , "I don't want you in there any more
.... When we can get the turmoil settled around here-if we have
a local or if we don 't-I might put you back in there . . . ." On
May 9, Thomas asked Supervisor Roe the same question , and accord-
ing to the unrefuted testimony of Thomas, Roe replied , "that's hard
to say, . . . we are on opposite sides of the fence . . . I don't care
whose toes I step on, and that includes you, too." Roe also told her
that she was a "hard worker," but that she was "being stubborn," and
he referred to her union button as "good advertising ." On May 11,
Thomas remarked to Roe that she was not wearing a union button at
that time, but that she was still on a job other than highlighting.
Roe replied , "I expected a change in heart. Not only in appearance
... you need not expect miracles overnight."
On the basis of the -foregoing , particularly since the Respondent
made it clear to Thomas that although she was originally transferred
at her own request, its refusal to honor her further request that she
return to her prior job was a refusal for her union activities, we find
that its refusal to transfer Thomas back to her job in May 1964 vio-
SCOTT'S, INC. 1805
lated Section 8(a) (3) and (1) of the Acte However, as the rec-
ord indicates that Thomas was returned to her former position on
June 22, and that she suffered no financial detriment because of the
Respondent's unlawful refusal to transfer her in May, we shall
neither make any provision for backpay for Thomas, nor require that
the Respondent reinstate her to the former position.
E. 0. B. Jimmerson
Jimmerson participated in the union organizing campaign by wear-
ing an organizing committee button and distributing union leaflets
about three or four times. Jimmerson was laid off from June 22
until 30, although about half the employees retained in his depart-
ment had less seniority than he, and he was replaced during that time
by a junior employee who had previously been making boxes and
doing odd jobs. Jimmerson testified that he was told the reason for
the layoff was lack of work. However, Jimmerson was laid off not
according to seniority. The record indicates that prior to the advent
of the Union, the Respondent generally followed seniority in making
layoffs, and the Respondent's President Scott admitted to employees
that seniority didn't mean anything "anymore." Jimmerson's layoff
occurred during the course of a union organizing campaign that was
being strongly resisted by the Respondent. Jimmerson, and others
like him who were laid off, were leaders in the organizing effort with
high seniority ranking, and these layoffs followed threats of reprisal
against employees active in the Union. In view of the foregoing, we
find, in agreement with the Trial Examiner, that Jimmerson was laid
off not because of lack of work but rather because of his union activ-
ity, in violation of Section 8 (a) (3) and (1) of the Act.
Soon after Jimmerson returned to work from his layoff, he was
assigned to a job as polisher. This job was paid on an hourly basis of
approximately $1.90 an hour, plus a piecework basis, at a rate set by
the Respondent. If a polisher produced the requisite number of
pieces to meet the standard set by management, he would be paid an
amount in addition to his hourly rate, so that he could normally earn
approximately $3 an hour. Jimmerson and others had at various
times in the past been assigned to this particular job. When on
July 8, Jimmerson complained to Supervisor Reed that the rate was
too low for that job and that "nobody in the shop . . . could make
out on it," Reed replied, according to Jimmerson's credited testimony,
"You're going to make out on it like this . . . we're going to starve
the union out." Jimmerson then said he was going to "quit" and
Reed replied, "That's up to you. It would probably be the best."
Jimmerson then punched out and left the premises.
6 See Vacuum Plating Corporation , 155 NLRB 820.
1806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the Trial Examiner that Jimmerson was not con-
structively discharged on July 8 because of his union activity.' While
Supervisor Reed's statements that the Respondent would "starve the
Union out," contained a threat of reprisal violative of Section 8(a)
(1), this statement, standing alone, would not establish that Jimmer-
son was constructively discharged unless it was also shown that his
assignment to this job was discriminatory. This was not shown. We
shall therefore adopt the Trial Examiner's recommendation and dis-
miss this allegation of the amended complaint.
THE REMEDY
The Board has a particular duty under Section 10(c) of the Act to
fashion remedies for the unfair labor practices committed and thus
effectuate the policies of the Act." We have found that the Respond-
ent has engaged in a wide-ranging course of conduct that was admit-
tedly calculated to defeat the Union by all available means. In imple-
mentation of this program, the Respondent engaged in extensive
interrogation, threats of reprisal, and promises of benefit, violative of
Section 8(a) (1) ; it indicated its disregard of Board action protect-
ing statutory rights, thus further violating Section 8(a) (1) ; and it
discriminated against a large number of employees by discharge, lay-
off, or transfer because of their union activity, in violation of Section
8(a) (3). We find merit in the Union's contention that, under the
circumstances of this case, the serious violations of the Act committed
during its organizational campaign call for something more than the
usual remedial action. It would be an anomaly to preclude an
employer's benefiting from misconduct which destroys a union's
majority 9 but to allow it to act with comparative impunity to prevent
such majority status from ever being attained.
We are not, however, persuaded by the Union's argument that a
bargaining order is warranted here. It is possible that but for the
Respondent's unlawful conduct the Union might ultimately have
attained majority status. However, the record before us does not
7 Member Brown would reverse the Trial Examiner's conclusion and would find that
Jimmerson was constructively discharged in violation of Section 8(a) (3) When Jim-
merson complained about the inability of employees to "make out" on the work assigned.
he was told "You're going to make out on it like this . . we're going to starve the union
out" , and when Jimmerson said he was going to quit, he was told "that's up to you it
would probably be the best " These comments can only mean that Respondent was as-
signing union adherents to less lucrative tasks in the hope this would cause them to leave
(i e , the words "starve the union out" can carry no other implication) and that Respond-
ent was pleased that Jimmerson isas acting according to its plan
5 Phelps Dodge Corp. v. N.L R B, 313 U S. 177, 194 N L R B. v. Link-Belt Conn nan y.
311 U S 584; International Association of Machinists , Tool and Die Makers Lodge No. 3S
(Serrick Cori) ) v. N L.R.B , 311 U S. 72 ; N L.R.B. v. Pacific Greyhound Lines, Inc., 303
U.S. 272; N.L .R B. v. Pennsylvania Greyhound Lines, Inc ., 303 U S. 261 ; Williams Motor
Company v N.L.R.B., 128 F 2d 960, 964-966 (C.A. 8).
° Franks Bros Company v. N L.R.B , 321 U.S. 702.
SCOTT'S, INC. 1807
contain proof that the Union ever had a majority in the appropriate
unit. The Union filed charges alleging that the Respondent had
unlawfully refused to bargain with it as majority representative of
a unit of employees at the Respondent's two plants in Holland, Michi-
gan. After an investigation, the General Counsel issued a complaint
alleging, inter alia, that Respondent violated Section 8(a) (5) (Case
7-CA-4743(2) ). During the course of the hearing the Respondent
contended for the first time that the eligibility list it had earlier sup-
plied to the General Counsel was inaccurate, as it had omitted the
names of several employees who had been on layoff status or leave-of-
absence status at the time. Also during the hearing, the General
Counsel was unable to authenticate several authorization cards sub-
mitted by the Union. The General Counsel then moved to withdraw
the Section 8(a) (5) allegation of the complaint on the ground that
"at the time the Union demanded recognition and thereafter, it can-
not be established that the Union represented a majority of the
employees in the appropriate collective-bargaining unit." The Trial
Examiner allowed time for the parties to file objections to the Gen-
eral Counsel's motion, and, after receiving no objections, he granted
the motion. In view of these circumstances and in consideration of
the majority principle in Section 9(a) of the Act, we are not con-
vinced that the policies of the Act require, or even permit the issuance
of a bargaining order here.'°
We have concluded, however, that the -following would be appro-
priate as a remedy for the Respondent's massive and deliberate viola-
tions of the Act in this case. First, we think it appropriate that the
Respondent inform each employee of his statutory right to, be free
from interference, coercion, and restraint. Therefore, we shall require
the Respondent to mail to each of its employees a copy of the notice
herein after the notice is signed by Respondent's representative, in
addition to posting copies thereof at all places in its plants where
notices to employees are customarily posted. Also, to assure notifica-
tion to employees of the Respondent's intent to remedy the unfair
labor practices committed and to refrain from committing other
unfair labor practices in the future, we shall require the Respondent
to convene during working time meetings of employees in the various
departments of the plants in Holland and Douglas, Michigan, and
read to them a copy of the attached notice."
11H. W. Elson Bottling Company, 155 NLRB 714, J P Stevens Co , Inc, 157 XLRB
869. In view of this conclusion , the Respondent 's motion to dismiss and strike cross-
exception to Trial Examiner 's Decision is hereby denied
11 The requirement that the Respondent mail copies of the notice to all employees will
insure that those employees not present when the notice is lead during working hours
will be adequately informed of the Respondent's intention to refrain from engaging in
unfair labor practices . II W. Elson Bottling Company , supra , J P Stevens Co., Inc,
supra.
1808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As Respondent violated the rights of those employees who had not,
yet had a chance to formulate their desires with regard to representa-
tion as well as the rights of those who had done so, we deem it appro-
priate that employees be afforded further opportunity to engage in
organizational efforts. To this end, we shall require that, upon
request of the Union made within 1 month of this Decision, the
Respondent immediately grant the Union and its representative rea-
sonable access for a 3-month period to its bulletin boards and all
places where notices to employees are customarily posted. Further,
in order to redress the imbalance created by Respondent's action in
delivering a coercive speech to its employees assembled on company
time and premises, we shall require that the Union be given an oppor-
tunity to present its views under similar circumstances. Accordingly,
we shall require that, upon request of the Union, Respondent shall
make available to the Union and its representatives, at a mutually
agreeable time within 3 months of this Decision, suitable facilities
such as are customarily used for employee meetings so that the Union
may speak to the employees assembled on company time. Such facil-
ities shall be made available for 1-hour meeting at each of Respond-
ent's plants 12
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Scott's, Inc., Holland, Michigan, its officers, agents, suc-
cessors, and assigns, shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their membership in
or activities on behalf of the International Union of Electrical, Radio
and Machine Workers, AFL-CIO, or making threats of reprisal, or
promises of benefit because of such activity, or coercing employees to
signify their opposition to the Union.
(b) Granting wage increases to encourage employees to abandon
the Union for bargaining purposes and to defeat the Union.
(c) Dominating or interfering with the administration of the
Employees' Committee of Scott's, Inc., or dominating or interfering
with the formation or administration of, or contributing financial or
other support to, any other labor organization of its employees.
(d) Discouraging membership in the Union, or in any other labor
organization of its employees, by discharging, laying off, transferring
to lower-rated jobs, refusing to retransfer to their former positions,
or otherwise discriminating against employees in regard to their hire
and tenure of employment or any term or condition of employment.
12 H. W. Elson Bottling Company, supra
SCOTT'S, INC. 1809
(e) In any other manner interfering. with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the Union, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the extent that such
rights 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 we find will effectu-
ate the policies of the Act :
(a) Offer Robert Hoggard, Earl Dean Smith, Bill Acklin, James
Swain, and William Bolles immediate and full reinstatement to their
former or substantially equivalent positions without prejudice to
their seniority or other rights or privileges, and make them and
Charles Bounds, Bobby Joe Collins, Cecil Herrell, Clifford Harmsen,
O. B. Jimmerson, Richard Hiscock, and Arthur Childress whole in
the manner set forth in the section of the Trial Examiner's Decision
entitled "The Remedy."
(b) Notify Hoggard, Smith, Acklin, Swain, and Bolles, if pres-
ently serving in the Armed Forces of the United States of their right
to full reinstatement upon application in accordance with the Selec-
tive Service Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed Forces.
(c) Withhold all recognition from the Employees' Committee of
Scott's, Inc., as the representative of any of its employees for the
purpose of dealing with the Respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment,a or other terms
and conditions of employment, and completely disestablish said
organization, or any successor thereto, as such representative.
(d) Preserve and, upon request, make available to the Board or its
agents, for examination and copying, all payroll records, social secu-
rity payment records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay due
under the terms,of this Order.
(e) Mail a copy of the attached notice marked "Appendix" is to
each employee, and post copies thereof at its plants in Holland and
Douglas, Michigan. Copies of said notice, to be furnished by the
Regional Director for Region 7, shall be signed by a representative of
is 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 "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order "
1810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company. Thereafter, a copy shall be mailed to each of its
,employees by the Company, and additional copies shall be posted by
it and be maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Company
to insure that said notices are not altered, defaced, or covered by any
other material.
(f) Upon request of the Union made within 1 month of this Deci-
sion, immediately grant the Union and its representatives reasonable
access for a 3-month period to its bulletin boards and all places where
notices to employees are customarily posted.
(g) Convene during working time, by departments and by shifts,
all its employees, and cause a responsible official of the Respondent, at
department supervisor level or above, to read to the employees the
contents of the attached Appendix.
(h) Upon request of the Union, make available to the Union and
its representatives, at a mutually agreeable time within 3 months of
this Decision, suitable facilities such as are customarily used for
employee meetings so that the Union may present its views to the
employees assembled on company time. Such facilities shall be made
available for one 1-hour meeting at each of Respondent's plants.
(i) Notify the Regional Director for Region 7, in writing, within
10 days from the date of this Order, what steps have been taken to
comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
relates to the matters not found herein to be unlawful.
APPENDIX
i 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
of Electrical, Radio and Machine Workers, AFL-CIO, or any
other labor organization of our employees, by discharging, lay-
ing off, transferring employees to lower-rated jobs, refusing to
retransfer employees to their former positions, or otherwise dis-
criminating in regard to their hire or tenure of employment, or
any term or condition of employment.
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities on behalf of the above Union or make
threats of reprisal or promises of benefit because of such activity,
or coerce our employees to signify their opposition to the Union.
SCOTT'S, INC.
"
1 1811
WE WILL NOT grant wage increases to encourage employees to
abandon the Union for 'bargaining purposes and to defeat the
Union.
WE WILL NOT dominate or interfere with the formation or
administration of any labor organization, or contribute financial
or other support to it.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization,, to form labor organizations, to join or assist the
above Union, or any other labor organization, to bargain collec-
tively through 'representatives of their own choosing, to engage
in concerted activities for the purposes of 'collective, bargaining
or other 'mutual aid or protection, or to refrain from' any or all
such activities, except to the extent that such rights may be
affected by an agreement requiring membership in•a'l'abor'orgarii-
zation 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.
WE WILL offer Robert Hoggard, Earl Dean Smith, Bill Acklin,
James Swain, and William Bolles immediate and full reinstate-
ment to their former, or substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges;
and make them and Charles Bounds, Bobby Joe Collins, Cecil
Herrell, Clifford Harmsen, 0. B. Jimmerson, Richard Hiscock,
and Arthur Childress whole for any, loss, of pay suffered as a
result of the discrimination against them. - -
WE HEREBY disestablish the Employees' Committee of Scott's,
Inc., as the representative of any of our employees for the pur-
pose of dealing with us concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
employment, and WE WILL NOT recognize the said Employees'
Committee or any successor thereto for any of the above purposes.
WE WILL, upon request of the Union made within 1 month of
this Decision, immediately grant the Union and its representa-
tives reasonable access for a 3-month period to our bulletin boards
and all places where notices to employees are customarily posted.
WE WILL, upon request of the Union, make available to the
Union and its representatives, at a mutually agreeable time
within 3 months of this Decision, suitable facilities such "as are
customarily, used for employee meetings so that the Union may
present its views to the employees assembled on company time.
Such facilities shall be made available for one 1-hour meeting at
each of our plants.
1812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are flee to become or iemain, or iefraln from
becoming or leiriauimg, members of any labor organization
SCOTT'S, INC,
Employer
Dated---------------- By--,----------------------------------
(Representative ) (Title)
NOTE -Notify the above-named employees if presently serving in
the Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Serv-
ice Act and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
If employees have any question concerning this notice or compli-
ance with its provisions, they may communicate directly with the
Boaid's Regional Office, 500 Book Building, 1249 Washington Boule-
vard, Detroit, Michigan 48226, Telephone 226-3244
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges' filed by International Union of Electrical , Radio and Machine
Workers, AFL-CIO, herein called the Union , the General Counsel of the National
Labor Relations Board issued a complaint dated September 3, 1964 , in Case
7-CA-4743, and a complaint dated March 15, 1965, in Case 7-CA-4743 (2),
against Scotts , Inc, herein called the Respondent The complaints , as amended,
allege that the Respondent had engaged in unfair labor practices affecting com-
merce within the meaning of Sections 8(a)(1), (2 ), ( 3), and (4) and 2(6) and
(7) of the Act 2 The Respondent filed an answer in which it admitted the juris-
dictional allegations of the complaint but denied the commission of any unfair
labor practices
A hearing was held before Trial Examiner John H Eadie, at Holland, Michi-
gan, on various days, starting on October 19, 1964, and ending on May 20, 1965
On August 31, 1965, the General Counsel and the Respondent filed briefs with me
Both from the entire record m the case and from my observation of the wit-
nesses, I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a Michigan corporation , having its principal office, plant, and
place of business at 611 Ottawa Street , Holland, Michigan , herein called the
Ottawa plant , and other plants on Sixth Street , Holland, Michigan , and at Doug-
las, Michigan , herein called the Sixth Street and Douglas plants, respectively The
Respondent is engaged in the manufacture , sale, and distribution of die castings and
in the buffing and polishing of automatic parts, appliance parts, and related
products
'In Cisc 7-CA-4743 charges were filed on Tune 3, August 24 , and October 12, 1964
The charge in Case 7-CA-4743(2) was filed on November 19, 1964 By , order dated
April 12, 1965 , the Trial Examinei granted the General Counsel 's notion to consolid ite
Case 7-C 1-4743 with Case 7-CA-4743 (2)
iThe complaint In Case 7-C4-4743(2) also alleged a Violation of Section 8(a) (5) of
the Act The General Counsel ' s motion dated June 10, 1965, to Withdraw the paiagraplis
of the complaint alleging such violation was grinted by order dated June 18, 1965
SCOTT'S, 1--,\-c 1513
During the fiscal year ending June 30, 1964, the Respondent manufactured, sold,
buffed, polished, and distributed at its Michigan plants products valued in excess
of $50,000 which were shipped from said plants directly to points located outside
the State of Michigan During the same period , the Respondent purchased and
caused to be transported and delivered to its said plants steel and other goods and
materials valued in excess of $50 ,000, which were transported and delivered to
its Michigan plants directly from points located outside the State of Michigan
At all times material herein the Respondent has been a wholly owned subsidi-
ary of Crampton Manufacturing Company, a Michigan corporation
The complaint alleges, the Respondent 's answer admits , and I find that the
Respondent is engaged in commerce within the meaning of the Act
II THE LABOR ORGANIZATIONS INVOLVED
The Union and the Employees ' Committee are labor organizations within the
meaning of the Act
III THE UNFAIR LABOR PRACTICES
A Background, interference , restraint , and coercion
The Union commenced to organize the Respondent 's employees during about the
early part of March 1964 3 On March 30 , 1964, the Union filed a petition with
the Board 4 Hearings in the representation matter were held in Holland, Michi-
gan, on April 16, 29, 30, and May 13 An election was tentatively scheduled to
be held on September 10 On or about September 10, at the request of the Union,
the Regional Director postponed the election indefinitely
A number of the employees wore buttons or badges of the Union while at
wort. One such button bore the legend , "1UE organizing committee AFL-CIO "
Will J Scott is president of the Respondent About the middle of April, he
spoke to employee James Swain as he was entering the plant At the time Swam
was wearing a badge of the Union 's organizing committee on his cap Scott asked
him why he was wearing the badge Swain answered , "Oh, to shake up manage-
ment a little bit " When Scott said that management was not "shook up," Swain
stated "Well , they act like it They act like they are in trouble " Scott replied,
"Management isn't in trouble , you are " Swain then asked , "Why do you think
that9 Just because of the union9 " Scott answered , "Yes Did you know
if you get a union in here and we give you a job that you can 't run we can say
out, and out you are, out the door "
I find that Scott 's threat of reprisal was violative of Section 8(a)(1) of the Act
Sometime during April , Scott spoke to a group of employees, including Earl
Dean Smith and Richard Hiscock, who were waiting to punch out at the end of the
shift Smith wore a badge of the Union 's organizing committee and Hiscock wore
a button with the legend , "vote yes for IUE " Looking at Smith , Scott said, "you
guys are going to eat them badges before this is through"
It is found that Scott's statement was violative of Section 8(a)(1) of the Act
Employee Robert Hoggard wore a committee badge while at work During
about the early part of April while he and other employees were punching in
for the second shift, Scott said to him , "Give me four dollars, I would like to be
your union steward " Hoggard replied that it was "pretty hard" to earn $4 in the
plant Scott said that if the employees voted "that union in," the "first thing" that
he was going to do would be to "cancel all holiday pay , vacation pay, insurance
and seniority", that "everything would start from scratch ", and that if the Union
negotiated , it would not "get very much " About 2 weeks later Scott accosted
Hoggard several times by yelling "Hey , Chief " When Hoggard did not answer,
Scott said , "I am talking to you let me shine that badge a little bit "
I find that Scott 's threat of reprisal and conduct was violative of Section 8(a)( I)
of the Act
Employee Melvin Tillery wore a union committee badge During about June he
had a conversation with Scott and Myron Becksvoort ,5 plant superintendent of both
the Ottawa and 6th Street plants Becksvoort said to Tillery, "I thought you were
about ready to give that button up " Tillery replied that he would continue to
wear the button even if the Union did not get in the plant Scott said, "We are
s Lnless otherwise stated , all dates mentioned herein pie for the ieai 1964
* Case 7-RC-6205
Becksioort is referred to as "'Mike" in the record
243-0S4-67-vol 159-116
1814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
going to get rid of all you badge toters, soon or later, it is only a matter of time
I could have got rid of you but we didn't figure you give a damn"
Scott then walked over to employee Jesse Smith, who was nearby Scott asked
Smith if he was "going to vote with those boys " When Smith answered that he
did not know, Scott said that it was "about time" that he (Smith) made up his
mind and that "those boys wearing the badges" would all be discharged "at one
time or another-just a matter of time " In this connection Scott mentioned
employees Tillery, Cecil Herrell, Charles Bounds, and Bobby Joe Collins
It is found that the above interrogation and threats of reprisal by Scott are vio-
lative of Section 8(a)(1) of the Act
Employees Bobby Joe Collins, Arthur Childress, Cecil Herrell, Earl Dean Smith,
Melvin Tillery, and Jessie Smith were polishers and all wore union buttons or
badges while at work At sometime during about April they were called to Scott's
office Scott referred to another company in Holland, saying, "their stock was bad
in there, and wages were high and the company wasn't making no money and
[its employees] were wearing badges " He compared this company to the Respond-
ent's plant He told them that the Respondent did not have "any good polishers,"
and said that "if the union got in" the employees "with the badges" would be
looking for other jobs "a year from now"
I find that Scott's threat of reprisal was violative of Section 8(a)(1) of the Act
At about the end of April employee Cecil Herrell had a conversation with Scott
Scott said, "you boys have really fixed yourself at Scotts " When Herrell
asked him "how come," Scott replied that the Respondent had built a plant in
Mississippi, that the plant was "doing real good", and that the Respondent was
"fixing to build another one"
1 find that Scott's statement, an implied threat of reprisal because of the employ-
ees' union activity, was violative of Section 8(a)(1) of the Act
Sometime shortly after May 7 and several days after Earl Dean Smith had been
laid off, Bobby Collins had a conversation with Scott He asked Scott why Smith
had been laid off out of seniority Scott replied that seniority did not mean any-
thing "any more" and that he was going to show the employees `a thing of two
before this was all over "
I find that by the above statement Scott referred to the union campaign and that
his statement constitutes interference, restraint, and coercion
The day after Earl Dean Smith was laid off Cnailes Bounds went to Scott
Bounds referred to Snuth's layoff and asked Scott if `six or seven years seniority"
meant anything Scott i eplied, ` it doesn't look that wav, does it if you boys
are going to carry on like this, we are at war and we have to fight fire with
fire "
I find that Scott's statement referred to the union activities of the employees
and that it was violative of Section 8(a)(1) of the Act
During June, Arthur Childress had a conversation with Scott At the time Chil-
dress was wearing a large union button on his back While Childress was work-
ing, Scott came up to hun and tapped him on his shoulder, asking him if he
wanted "a month or two off "
It is found that Scott's statement was an implied threat of reprisal because of
Childress' union button, and that it was violative of Section 8(a) (1) of the Act
During about April employee Clifford Harmsen had a conversation with Becks-
voort Becksvoort asked him what he thought of the Union Harnisen replied
that he had not made up his mind Becksvoort said that if the employees did not
bring the Union in the plant, he thought the Company would be "financially able"
to give them "a retirement plan and better working conditions "
It is found that Becksvoort's interrogation and promise of benefit if the employ-
ees abandoned the Union are violative of Section 8(a)(1) of the Act
Willis Vandenberg is a vice president of Crampton Manufacturing Company He
has charge of labor relations for the Respondent Sometime during April or May
Vandenberg made speeches to assembled employees at all three of the Respond-
ent's plant He at times made reference to "Grand Rapids Brass " The record
reveals that this company is connected with the Respondent
Concerning Vandenberg's speech at the Douglas plant, employee William Bolles
testified as follows
Well, he started out, he said he didn't think the employees at Scott's needed a
union because the company was good to their people, and they didn't need a
SCOTT'S, INC. 1815
union . He said in Grand Rapids, for example, they had twelve hundred people
working there when he first started and they had a union and now that they
have the union there were about four hundred working there now, . the
reason they, got the Douglas plant since they got the Union in Grand Rapids
they found they could do their jobs cheaper here than in Grand Rapids, and so
that's how the Douglas plant and Holland plant got started . . . . and he also
said he would like us to give them a year to straighten things out, the com-
plaints they had now, they didn't realize it was so bad out here and the people
didn't like it, and they would-try to straighten things out. He said they had a
campaign at Crampton's and eighty percent of the people signed cards to get a
union in, and they asked them for a year to work things out and prove things,
and so when they voted the union down they made so many improvements the
people were glad they had voted the union down at the time, and he also said if
the Union gets , in, the company makes them hire colored people, and now the
union didn't make them hire people like that . . . he said if the union gets in
there will be lots of changes, they will have to follow the rules right down,
right down to things, and he said now they can bend the rules, a little bit one
way, or the other, but when the union gets in black is black and white is white,
and they would have to stick right to the rules.
Concerning another speech by Vandenberg at the Douglas plant, employee Kath-
ryn Thomas testified to the following:
And he said that the company didn't realize we were having problems. He
says, "If they are not brought to our attention," he says, "we can't do anything
about them." And he went on to say that he liked people and he hated to see
them lose their individuality. . he started talking about Grand Rapids Brass-
and he said, "They have a union at Grand Rapids Brass, you know." He
said, "They just got a contract a few months ago" . . . and he, said that they
really got a contract. He said the first year they get a three-cent raise, the sec-
ond year they get two cents, and the last year they get one cent. He said that
was their contract. He said, "They have got a real good rate on buffers up there,
but they don't have the buffing. We have it down here, here at Douglas. They
have got good sprayers' rates and good polishers' rate," he said, "and that's
where we got our work from. They don't have piece work any more. Union
shops don't have piece work." . . . And he says that the union wages were a lot
higher, he said, "So if we're going to have to pay higher wages down here why
can't we just keep it all in Grand Rapids?" He said, "That would be the best
thing to do, because, after all, we're going to have to stop and take a second
look at this place." And then he started talking about the discipline. He said,
"Up there they have got set discipline." He said, "The first warning"-first
warning slip or second warning slip-"you get three days layoff, and the next
warning slip you get dismissal if it's within thirty days." And he says, "If a
woman has a certain kind of problem here we can bend the rules to suit the
person." He said, "You have to admit that we go along with people pretty
much on being absent," he said. "Up there it's a shame the way they pass out
those warning slips for being absent," . and then he started talking about
Cramptons . He said he had gone through the same thing over there. I
believe he said it was three elections; and they had voted the union down all
three times. He said they was glad because they found out that they could get
the same thing, without paying union dues, with a commitee. He said, "We
have got a committee over there, and this is against the law." . He said
that the Labor Board had made them post notices apologizing for the commit-
tee and other things they had done. He said, "They slapped our hands, just
like we were naughty little children." . •.. They just don't label it a committee
any more. He said, "A few of us just meet, and we talk about the trouble out
there, but we can't call it a committee." . . . In the speech he said something
about-"After all," he says, "we can't just hire who we want to hire." He says,
"We will have to hire a certain type of person ." . . . At the end of this speech
he said that we could have questions and answers, . . . And some were asking
questions . I said, "Well, Mr. Vandenberg, this certain type of person that
you're talking about," I said , "I would just as soon work beside one of them as
I would a white person," . . . he said, "That might very well be."
1816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to Vandenberg's speech at the Douglas plant, employee Arlee Horn
was questioned and testified,as follows
Q Will you tell the Trial Examiner, as best you can recall, what Mr Van-
derberg said?
A Well, he talked about the company in general, about how the union might
hurt the company He compared us with a company some place, and he says
that they had a union and now they are going broke, and he compared us with
the Grand Rapids Brass up at Grand Rapids Said that once they had a lot of
men working there, and now they are-the company is much smaller than it
was, with the union, because the wages are too high and they can't afford to do
the work
Q How about Crampton? Did be talk about Crampton?
A Yes He said that Crampton's had a union election a few years back,
and said eighty percent of the company signed cards for an election and got
voted out And he said now they were proud that this was voted out, that the
union was voted out
Q Did he say why they were?
A He said they made a lot of improvements and stuff like that
Q The company had made a lot of improvements?
A Yes
Q Did he say anything about discipme at Grand Rapids Brass?
A Yes He says on Monday mornings when the people came to work the
people that were tardy and stuff like that, or late, missed a day's work, they
were given warnings, and stuff like that And he said it was a shame to see
them passing out the warning slips and absentee slips
Q Over at Grand Rapids Brass?
A Yes He said the union was simply-black or white, was all You just
didn't have no in between It was either in or out It was all hard-either
way, you had to go one way or the other There was no in between
Q No in between what?
A I guess black or white There was no-you had to be one way or the
other You had to be there or else you got fired, I guess
Employee Thomas Betz testified that Vandenberg made a speech at the Ottawa
plant, that he said that if the employees of Grand Rapids Brass had a chance, they
would vote against the Union, that he said he remembered one instance of an
employee filing a grievance at that plant which "took them thirteen months to get
any results out of it", and that Vandenberg said that if the Union did get in Scott's
plants, he did not see why they should haul their work down to Holland from Grand
Rapids when it would pay "to keep it under one roof at Grand Rapids "
Concerning Vandenberg's speech at the Ottawa plant, employee Cecil Herrell was
questioned and testified as follows
Q What did he say at the speech?
A He went on to tell how we would be better off without a union, that he
couldn't see why we were bringing a thud party in He thought we could deal,
or we could settle our disputes between the employees and the employer with-
out bringing the union in, and more or less went around the circle about that
He said he had went to Douglas and be had talked down there, the same day
* * * * *
Q (By Mr MCCORMICK) Do you recall anything else he said in this
speech?
A He said Grand Rapids Brass got a union eighteen years ago and when
they got the union, I think be said there were about six hundred fifty employ-
ees and they only had I think he said three hundred now, since they had got
the union in there, and he said the majority of the people in Grand Rapids
Brass did not want a union, they would like to get rid of it He said that about
Grand Rapids Brass He said they had moved their polishing and buffing from
Grand Rapids Brass on account the rates were too high He said they had a
nice buffing rate up there I think he said it was three dollars and something-
three dollars and three cents, or four cents, but he said they didn't do no buff-
ing up there on account the rates were too high
SCOTT'S, INC. 1817
Q. Did he make any reference to Crampton?
A. Yes, he had talked about the committee and he said they had tried to get
a union in there and they had talked the employees out of it, and instead they
had talked them into ,a committee.
Concerning Vandenberg 's speech at the Sixth Street plant, employee Richard His-
cock was questioned and testified as follows:
Q. Would you repeat for the Trial Examiner everything you recall from Mr.
Vandenberg's speech?
A. I remember Mr. Vandenberg saying something about why should the
employees have to pay an organization up to five dollars a month to come in
and do their talking for them . He also made the comment, he wanted to know
what was wrong that we should have to have anybody talk for us, that we
couldn't do it ourselves, and we talked about some complaints at the time that
we would like to have straightened out.
Q. Did you bring up any particular thing you wanted straightened out?
A. I did mention the fact it was awful dirty there and they should do some-
thing with some of that dirt and dust flying around in the air and I also made
the comment we would like to have a pension plan ... .
Q. What did Mr. Vandenberg say, if anything , about this business of the
place being so dirty?
A. He said it would be cleaned up.
Q. How about the pension plan?
A. He said they were working on such a thing but they couldn't do anything
now because the union had stepped in.
Except on the possible question of race discrimination , Vandenberg did not deny
categorically the statements attributed to him during his speeches . He admitted that
he talked about the drop in employment at Grand Rapids Brass from about 1,400 to
400 employees. He testified that at "each session" he made a "few remarks" and
then asked the employees if they had any questions. In this connection he testified
as follows:
. and one of the questions was if the union was successful in organizing the
Scotts plants would we move them away. And my stock answer to them-if I
said it once I must have said it ten times-that I wanted to be very, very care-
ful with the people, that I would talk only about the past, because this was
something I was familiar with. As far as the future , I couldn 't really discuss
it too intelligently with them. In fact, I several times used kind of a homely
example, and I referred to the fact that if somebody asked me what the weather
was yesterday I could tell them whether it had rained or shined: and if they
were to ask me what the weather was tomorrow I couldn't help them too much.
In fact, I went further than that in some specific conversations in our Douglas
plant, when that in some specific conversations in our Douglas plant, when that
same question was asked me there-would we move away-and I said, "I can't
answer this," I said, "but let me tell you this," I said, "We certainly did not
invest the kind of money that we did in the Douglas plant just five or six short
years ago with the idea of moving out." I said , "Our intentions are to stay
in business here because we have a tremendous investment." . that people
continually asked me if the union was successful in organizing the Scotts plants
what would be the result . Would we get more , would we get less, or would
we get just the same. And once again I kept referring to the fact that "I can=
not discuss this with you intelligently because this is something off in the
future ." . . and I tried to point out to them very carefully that if we had an
election and the union was successful that it only says one thing , and that is the
union has the right to represent the people, Whether we end up with more or
less or something in between I said would be decided at the bargaining table.
I said, "You people 's guess on that is as good as mine." .
I had the question asked me several times, . And that was that if the
union gets in what about such things as rules and regulations and so on, like
that . . . . I commented there naturally if the union gets in we have a con-
tract, and I said , "At that point you can certainly understand black becomes
black, and white is white." I said, "That is for you folks as well as for our-
selves, and I am very familiar with this because we do work with a contract up
at Grand Rapids , at the Grand Rapids Brass plant ." . . . That would be
SCOTT'S, INC 1817
Q Did he make any reference to Crampton?
A Yes, he had talked about the committee and he said they had tried to get
a union in there and they had talked the employees out of it, and instead they
had talked them into a committee
Concerning Vandenberg's speech at the Sixth Street plant, employee Richard His-
cock was questioned and testified as follows
Q Would you repeat for the Trial Examiner everything you recall from Mr
Vandenberg's speech
A I remember Mr Vandenberg saying something about why should the
employees have to pay an organization up to five dollars a month to come in
and do their talking for them He also made the comment, he wanted to know
what was wrong that we should have to have anybody talk for us, that we
couldn't do it ourselves, and we talked about some complaints at the time that
we would like to have straightened out
Q Did you bring up any particular thing you wanted straightened out?
A I did mention the fact it was awful dirty there and they should do some-
thing with some of that dirt and dust flying around in the air and I also made
the comment we would like to have a pension plan
Q What did Mr Vandenberg say, if anything, about this business of the
place being so dirty?
A He said it would be cleaned up
Q How about the pension plan?
A He said they were working on such a thing but they couldn't do anything
now because the union had stepped in
Except on the possible question of race discrimination, Vandenberg did not deny
categorically the statements attributed to him during his speeches He admitted that
he talked about the drop in employment at Grand Rapids Brass from about 1,400 to
400 employees He testified that at "each session" he made a "few remarks" and
then asked the employees if they had any questions In this connection he testified
as follows
and one of the questions was if the union was successful in organizing the
Scotts plants would we move them away And my stock answer to them-if I
said it once I must have said it ten times-that I wanted to be very, very care-
ful with the people, that I would talk only about the past, because this was
something I was familiar with As far as the future, I couldn't really discuss
it too intelligently with them In fact, I several times used kind of a homely
example, and I referred to the fact that if somebody asked me what the weather
was yesterday I could tell them whether it had rained or shined and if they
were to ask me what the weather was tomorrow I couldn't help them too much
In fact, I went further than that in some specific conversations in our Douglas
plant, when that in some specific conversations in our Douglas plant, when that
same question was asked me there-would we move away-and I said, "I can't
answer this," I said, "but let me tell you this," I said, "We certainly did not
invest the kind of money that we did in the Douglas plant just five or six short
years ago with the idea of moving out" I said, "Our intentions are to stay
in business here because we have a tremendous investment " that people
continually asked me if the union was successful in organizing the Scotts plants
what would be the result Would we get more, would we get less, or would
we get just the same And once again I kept referring to the fact that "I can-
not discuss this with you intelligently because this is something off in the
future" and I tried to point out to them very carefully that if we had an
election and the union was successful that it only says one thing, and that is the
union has the right to represent the people, Whether we end up with more or
less or something in between I said would be decided at the bargaining table
I said, "You people's guess on that is as good as mine "
I had the question asked me several times, And that was that if the
union gets in what about such things as rules and regulations and so on, like
that I commented there naturally if the union gets in we have a con-
tract, and I said, "At that point you can certainly understand black becomes
black, and white is white " I said, "That is for you folks as well as for our-
selves, and I am very familiar with this because we do work with a contract up
at Grand Rapids, at the Grand Rapids Brass plant " That would be
SCOTT'S, INC. 1819
He said the company didn't have much money. And we kept talking, and
after a while he said if we would . . . give them a chance that he would
see what he could do about benefits and about retirement and vacation pay
and a better average.
It is clear from the whole conversation that Becksvoort was promising benefits
if the employees would abandon the Union. Accordingly, I find his statement in
this connection to be violative of the Act.
During about April Cecil Herrell had a conversation with Becksvoort. In this
connection Herrell testified without contradiction, "He come back and started
talking about Grand Rapids Brass, and he said they had took polishing and buff-
ing out of Grand Rapids Brass on account of the rates that had been too high;
people wanted so much money to run the production there, they had to take it
out, and he said if . down here, we got a union in, and started asking for
a lot of money that they could move it back."
I find that Becksvoort's statement was violative of the Act since it contains a
threat of reprisal.
During May Becksvoort asked Herrell what benefits he thought the employees
would get with the Union. Herrell replied that they would get better insurance
and that the Respondent "would have to clean the shop up."
Herrell was a known adherent of the Union. Under the circumstances, I do not
believe or find that the above interrogation was violative of -the Act.
Richard Hiscock wore a union button on his hat while at work. At sometime
after the start of the union campaign he had a conversation with Becksvoort.
Becksvoort asked him why he wanted the Union. After Hiscock gave his reasons,
Becksvoort asked him if he would "like working for the day rate if the union did
get in " 7
I find that Becksvoort's statement concerning the day rate was a threat of
reprisal because of Hiscock's union activity, and that it was violative of Section
8(a)(1) of the Act.
During about April employee Clifford Harmsen had a conversation with Becks-
voort. Becksvoort asked him what he thought of the Union. Harmsen answered
that he had not made up his mind "either way." Becksvoort then said that if
the employees did not bring the Union in the plant, he thought the Respondent
would be "financially able to give , , . a retirement plan and better working
conditions."
Becksvoort's interrogation and promise of benefit are found to be violative of
the Act.
During the last of August or the early part of September, William Reed, Roy
Conway, Jim Taylor, and Buddie Britton, all supervisors of the Respondent, indi-
vidually solicited employees to accept and display pencils with an attached button
bearing the legend "vote no." On one occasion Conway asked employee Major
Camp if he wanted a pencil. Camp replied that he would like to have "a pencil."
Conway said that Camp would have to wear one of the buttons in order to get
a pencil.
I find that, under the circumstances of this case, by placing an employee in a
position where he must declare himself as either for or against the Union, the
Respondent coerced employees in violation of Section 8(a)(1) of the Act.
A foreman known as "Ben" who was over assembly at the Douglas plant, wore
one of the "vote no" buttons. Employee Kathryn Thomas told Ben, "you might
as well take that badge off because you can't vote." He replied, "Let me tell
you one thing, young lady . . . I'm quite a bit older than you . I was orga-
nizing a long time before your time . These unions use small cannons and
machine guns . Go ahead and vote it in . They can't make us keep this
place open, and if you don't watch it you'll all be back in Arkansas picking cotton."
I find that the above threat of reprisal is violative of Section 8(a)(1) of the Act.
B. The wage increase
The Respondent granted an increase of 5 cents in its day rates on Septem-
ber 28, 1964. _
The amended complaint alleges this increase to be violative of the Act.
7Hiscock testified without contradiction that his "day rate" (hourly rate) as either
$1 90 or $1 .95; and that his piece rate was approximately $2.80.
1820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence shows that the Respondent in addition to the above granted the
following general wage increases
7/1/57------------------------------------------ $ 05
10/5/59----------------------------------------- 10
3/20/61----------------------------------------- 05 (decrease)
10/2/61 ----------------------------------------- 05
12/30/63---------------------------------------- 05
As pointed out in the Respondent 's brief, the increase was not granted "until
after the union withdrew its request to proceed with the election " At the hear-
ing the parties stipulated in this connection " at the time that the charge
in this matter was filed in June of 1964 the IUE also filed a request to proceed
with the election The decision and direction of election issued August 3, 1964,
and the election was tentatively scheduled to be held on or about September 10,
1964 but the Umon withdrew its request to proceed in early September, and on
or about September 10, 1964, the Regional Director by Teletype notified the par-
ties that the Union was being permitted to withdraw the request to proceed, and
that the election was being postponed indefinitely and, lastly, that the elec-
tion is still in the state of postponement , and is not presently being scheduled "
Concerning the reasons for the granting of the wage increase , Vandenberg
testified as follows
at least annually we review our programs with all of our people , whether
they be hourly rated people , clerical help or salary , we review our wage rate
program, and our fringe benefit program , and so on, and , consistent with our
precedence of the past , we made this nickel adjustment at the Scotts , Incor-
porated plant , which we had done several years prior to this we made
a nickel increase at Crampton Manufacturing , the plant in Holland, Michigan
And we also made adjustments ranging from a nickel an hour to ten
cents an hour at Cramco , Incorporated , in Amory, Mississippi I was
going to add that the timing of this thing came at a certain time each year
in the various plants, time that we set aside for reviewing these various pro-
grams, and we had reviewed this some time prior to this at the Scotts , Incor-
porated plant , but at that time it looked as if the election might be pending,
so because of the various charges that had already been filed against us we
did not do it, and then when it began to look like this thing might drag out
for a while we felt that we had to go ahead and do this I mean we still
have to run our business As we felt that as long as the election seemed to
be quite a ways down the road that the fact we made this adjustment now-
which we felt we had to do-was certainly a long ways prior to when the
election might be held
While technically the representation matter was still pending , under the circum-
stances of this case I do not find the granting of this wage increase to be violative
of the Act
C The Employees' Committee
Melvin Tillery was a polisher at the Ottawa plant On several occasions dur-
ing about April Becksvoort came to Tillery 's place of work and asked his opinion
of a "shop committee " and if such a committee could do as much for the employ-
ees as the Union At about the same time Becksvoort asked employee Robert
Hoggard what he thought the Union could do for the employees that the Com-
pany could not do for them and for his opinion about "a committee in the shop "
Hoggard ieplied that he did not think a committee "would work out because the
committee would only be as good as Will J Scott 's word was , and in the past it
hasn ' t been too good"
During about the middle of April Donald Dekker, a foreman in the Ottawa
plant, notified employees of a meeting in the office Dekker, Vandenberg and
about 20 polishers were present at the meeting Vandenberg told them that he
thought that it would be best to wait until the election was over and that then
they "could go ahead with voting for the committee " At this meeting one of
the employees brought up the question of an overtime rate for Saturday when a
holiday occurred during the week
About 2 weeks after Vandenberg made his speech at the Douglas plant , employees
Larry Nobbin and William Bolles , both buffers at the plant, went to the office and
had a conversation with Vandenberg They asked him if it could be arranged for
the employees on the night shift to be off so that they could attend a "mass meeting"
SCOTT'S, INC. 1821
of the Union. - Vandenberg said that he would see if he could arrange for it. He
then told them that the Respondent was "starting a committee" of employees; and
that the purpose of the committee would be to settle grievances "between the
employees and the employer." He said that if the employees would give the
Respondent "a year," it would "straighten the place up"; and that then if the employ-
ees were not satisfied with the committee, they could go back to the Union. Vanden-
berg asked them if they would like to be members of such a committee. Both said
they were not interested. Bolles also said that Vandenberg was "breaking the law"
by starting a committee.
During the early part of September the Respondent conducted an election among
its employees at the Ottawa plant to determine whether or not the employees wanted
an employee committee. A notice explaining the election was posted on the bulletin
board and a ballot box placed by the timeclock. The results of the election were not
announced. Becksvoort told employee Dale Campagner that "there were too many
votes [in the ballot box] for the amount of employees that were in the shop."
Campagner was a polisher at the Ottawa plant. About the middle of September
Becksvoort told Campagner to report to the office. When he got to the office, Becks-
voort told him that they were going to have a "committee meeting" and that he
(Campagner) was a member of the committee. Vandenberg and Will Scott were
present. Also present were other employees who represented different departments of
the Ottawa and Sixth Street plants.
Vandenberg said, "the union had thrown a block in and that was part of the cause
of this committee." He said that the election had been blocked by the Union; that
he "might as well go ahead" with the committee; that he knew it would get him
"into more trouble" but wanted to get it started; that the purpose of the committee
was to "try to improve the conditions [in the plant] without the union, sort of a bet-
ter pay rate, clean up a little better"; that the role of the committee members was
"to take the complaints from the employees"; that he did not want the committee to
come to meetings "with stuff that just one or two guys wanted"; that the meetings
should be confined to "what the majority of the people in the plant" wanted; that
important matters such as "the rates being too low on some of those jobs" should be
brought up at meetings; that the Respondent would do its best "to get some kind of
a pension plan started"; and that the employees could appoint their own committee
members.
Thomas Betz was a buffer at the Ottawa plant. During about the early part of
October Plant Superintendent William Reed asked Betz if he wanted to be the repre-
sentative for his department on the "shop committee." Betz replied that he did not
wish to become a member. At about the same time Reed asked employee Clifford
Harmsen what he thought about the "shop committee." Harmsen answered, "it
would probably be all right if we had a good one, to get a good one."
Employee Daniel Barrett worked at the Ottawa plant in the automatic department.
Some few weeks after the vote for the employee committee was conducted, Roy
Conway, Barrett's foreman, asked him if he would become a member of the
employee committee. Barrett replied that he didn't want "to have anything to do
with it." Conway later asked him again to become a member of the committee, tell-
ing him that the employees in his department wanted him to represent them. Barrett
then agreed to become a member.
At the first meeting of the employee committee with the Respondent, Vandenberg
discussed with the members a retirement plan, average wages instead of day rates
for vacation and holiday pay, and overtime on Saturday when a holiday occurred
during the week.8 Vandenberg said that he would see what he could do on these
matters. At the second meeting the Respondent announced the wage increase of 5
cents in the day rate.
Vandenberg did not deny any of the above statements attributed to him. He tes-
tified that he had three or four meetings with the employee committee. Concerning
the start of the committee he testified as follows:
.. . Well, when these people at the Scotts Ottawa Street plant asked me the
question could they have some type of committee or group of people that could
talk to me periodically I said absolutely they could. In fact, I said, "I will talk
to one of you at a time or I will talk to the whole plant, if this is what you
want." I said, "The only thing I can tell you is this. I wish you fellows would
8 The testimony of Barrett and Campagner indicates that such overtime pay was granted
at the above meeting or shortly thereafter.
1822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discuss this amongst yourselves and decide how you best think this might work,"
I said, "and whenever you decide that at some type of a session you might have
just let me know " I said, "whether it ends up being two or three people or five
or six or two hundred fifty people," I said, "let me know " So I got a call from
Mike Becksvoort the first time roughly two months ago I went down there and
there were four or five fellows at that time who wanted to talk to me
Just exactly how they arrived at this group that was there with me at that time
I don't know
He did not identify "these people" referred to in the testimony
The evidence shows that the Employees' Committee was the creature of the
Respondent The Respondent first suggested such a committee, and its supervisors
selected employees to serve as its members Accordingly, I find that the Respondent
in violation of Section 8(a) (1) and (2) of the Act dominated and interfered with
the formation and administration of the Employees' Committee
D The discharges
1 James Swain
Swain began working for the Respondent in January 1962 He was a buffer on
the second shift at the Ottawa plant under Foreman Buddie Button
Swain was a member of the Union's organizing committee He attended the
union meetings, wore an organizing committee button, distributed union leaflets at
the Ottawa and Sixth Street plants, and attended the hearings in the representation
proceeding
The conversations between Swain, Becksvoort, and Will Scott have been related
and found above During the early part of April Swain had a conversation with
Britton Britton asked him what he thought the Union could do for the employ-
ees Swam replied, "the union could straighten out a lot of the problems out
there in the shop, not only for me but for all of the other employees " 9
Swain attended the representation hearing held on April 16 From a conversa-
tion that he overheard at the hearing between Will Scott and Marvin Duckert, a
representative of the Union, Swain was under the mistaken impression that he
was not required to report for work that night After the hearing Swain went to
the Union's office and did not report for work The following day he received
a warning notice for his absence on April 16 with the notation, "Excused until
6 30 break then absence without good reason " The notice was signed by Britton
and Plant Superintendent Reed to
During about the middle of April Swam was called to Becksvoort's office
Becksvoort told Swain that he had had three people "checking the lines out there",
and that Swain's count had come up "approximately forty or fifty pieces short " ii
He asked Swain if he had "falsified" his count Swain denied this Becksvoort
warned him that he would be discharged if it happened again
Swain was entitled to 44 hours of vacation beginning the week of May 4 Be-
fore he left on vacation he asked Britton if he could also be off from work the
balance of the week starting on May 11 Britton denied his request telling him
that he was "needed too bad there at the plant" Swain was scheduled to
0 The above interrogation by Britton is not found to be coercive since Swain was a known
adherent of the Union Employee Mildred Lipp bad a similar conversation with Britton
10Lipe also received a warning notice from Britton for the same reason and at the same
time, Swain received warning notices for unexcubed absences on January 20 and Mireli 20
and 23
The complaint alleges that the issuance of the notices on April 16 was v lolativ e of Set,
tion 8 (a) (1), (3), and (4) I do not so find The evidence shows that the Respondent
had been issuing warning notices some 2 months or more before the start of the union
campaign Further, the evidence indicates that Will Scott e' cured the employees who
attended the representation hearing from reporting for work until the hearing was over
but not for the whole shift Instead of reporting for work after the conclusion of the
hearing these employees without notifying the Respondent went to the union otiui and
did not report at all that night
u Swain worked on a piece rate Concerning the shoitage Britton testified that after
checking with three or four other buffers who were working on the same lob and with
the "hi-lo driver" he discovered that Swain turned in 43 pieces on his job tier ets which
be had not buffed
SCOTT'S, INC. 1823
report back to work during the middle of the shift on Monday , May 11. Without
notifying the Respondent , he did not report for work on either May 11 or 12.
When he reported on May 13, Britton asked him why he had been absent. Swain
said that his wife was sick. Later that night Britton gave him a warning notice
with the notation, "absence without calling in." Britton told him that he had not
expected him to work "for half a shift" on the night of May 11. As Swain was
punching out at the end of the shift, Britton told him that he had received "more
than three warning slips" and that he was being given a "disciplinary layoff" of
three days. On May 14 the Respondent sent Swain a telegram which stated,
"Effective immediately you are discharged from your job because you did not
return to work at once when your vacation was over."
Swain testified that while he was on vacation "a lot of shop rules" were posted
on the plant bulletin board; that there were plant rules in effect during January,
one of which called for a disciplinary layoff after three warning notices "within
thirty days"; and that he had a "bad" record of absenteeism during 1963.12
Britton testified that when he gave Swain a warning notice on January 21, he
told him that he would "have to report to work more often"; that he (Britton)
said, "you are spending more time at home or some place than you are at work";
that when he questioned Swain about his absence on March 20, Swain said that
he had "no reason"; that he did not make the decision to discharge Swain; that
he (Britton) thought that Becksvoort was the person who sent the telegram to
Swain; that he learned of Swain 's discharge "the next day when I came in to
work"; and that the foreman, not Becksvoort , "generally" makes the decisions to
discharge an employee.
Becksvoort testified that about 3 weeks before Swain's discharge he had a con-
versation with him about his absenteeism . Concerning this conversation , Becks-
voort testified without contradiction to the following:
I just told him how many absentee slips he had in the past six or eight
months, and I said we just can't tolerate this . I said if all employees did
this we would be out of business , and all of these flimsy excuses-some of
them sick, car broke, didn't feel like working, had to go to Arkansaw and
just flimsy excuses. He said well I know, he says, I am a bad employee as
far as absenteeism goes but I believe I am improving from the year before
and I said well I didn't check that but if it is, it is very little.
With respect to Swain 's discharge , Becksvoort testified that when Swain did not
report for work after his vacation, he discussed the matter with Britton; that they
decided to give Swain a layoff of 3 days; that later while Swain was on a layoff
status he made the decision to discharge him; and that his decision was based on
a plant rule to the effect that "anyone that doesn't return when vacation time is
up without notifying the company would be a discharge."
The record as a whole indicates that the Respondent was lax in enforcing its
rules before the advent of the Union and that it became stricter after the union
campaign started. The record is replete with evidence of the union animus of the
Respondent . The Respondent knew that Swain was one of the leading adherents of the
Union. Although the foreman "generally" makes the decision to discharge an em-
ployee, in this case Becksvoort without consulting Britton decided to change Swain's
layoff to a discharge. In substance , this constitutes the prima facie case of the Gen-
eral Counsel.
The Respondent' s defense shows that Swain had a very poor attendance record
during 1963; that he was absent from work on seven occasions (not including
May 11) during 1964, that he was warned during April for an incorrect count of
the pieces that he had produced; that during January Britton gave him a warning
about his absenteeism ; that Becksvoort also warned him about absenteeism during
April; and that although Britton denied his request for an extended vacation, with-
out notification to the Respondent he failed to report for work on May 12.
There can be no question but that the Respondent had cause to discharge
Swain. The question presented is whether the Respondent would have discharged
him, absent his activity on behalf of the Union. The General Counsel urges that
be was discharged because he failed to report for work during the middle of the
shift on May 11 and that Becksvoort used this as a pretext for the discharge.
22 The record shows that Swain was absent from work for 53 days during 1963.
1824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In my opinion, the question of the Respondent's motivation is close, especially
in view of Becksvoort's changing the layoff to a discharge without consulting But-
ton However, I do not believe that an inference of illegal motivation is justified
on the facts The evidence shows that the Respondent had a rule requiring
employees to notify their supervisors when they expected to be absent 13 Although
be had received four warning notices for absenteeism and had been told by Brit-
ton that he could not have the balance of the week off, he failed to notify the
Respondent of his absence on May 12 Since the warning notice is dated May 12,
the General Counsel's contention that he was discharged for his absence on
May 11 is rejected Accordingly, I find that Swain was discharged for cause
2 Robert Hoggard
Hoggard was hired by the Respondent in October 1960 At the time of his
discharge he was a hand buffer on the second shift under Foreman Britton at the
Ottawa plant During November 1963, he was warned by Becksvoort that he
would be discharged if his attitude toward the Company did not change
Hoggard was active in the union campaign from its inception He was on the
organizing committee, distributed union leaflets at the Douglas and Ottawa plants,
and wore a committee badge every day that he worked
On May 19 at about the end of the shift Hoggard and Thomas Betz noticed
two large signs on either side of a hi-lo machine being driven by employee Jerry
Brown The signs had the legend, "vote no " 14 When Brown was away from
the machine, Hoggard and Betz ripped off the signs and threw them on the floor
Brown then asked Betz why he had removed the signs Betz replied, "For the
same reason you tore ours down " 15 When asked by Betz why he had changed
his mind about the Union, Brown did not answer Hoggard then spoke to Brown,
telling him, "That won't cover your ass on the outside " 16 Plant Superintendent
Reed observed the removal of the signs After speaking to Brown, Reed went
to Betz and reprimanded him for tearing down the signs, telling him that Brown
"had a right to his opinion as well as anyone " Betz did not admit that he was
involved 17'
Reed then spoke to Hoggard Hoggard testified that Reed asked him if he
had pulled the sign off the hi-lo, that when he admitted that he had, Reed said
that his action was a threat to a fellow employee who had the same rights as
those in favor of the Union, that he agreed that Brown had the same rights but
pointed out that Brown should not be permitted to advertise his position on com-
pany property when those advocating the Union were unable to do so, that Reed
asked him what he would do if Brown pulled his union badge off his cap, that he
answered, "I would probably knock him over if I was big enough to", that he
(Hoggard) said that Brown could wear anything he wanted on his clothing, that
using company property to advertise was not right, and that "the signs would not
cover his ass outside the shop", that Reed said that he would not stand for any
violence in the shop, and that he answered, "I had no intention of being violent
Violence wouldn't do any good for the ones working for the union or the com-
pany either " Reed testified in this connection, "I went directly to Hoggard and
told him what he had just done looked to me like an act of violence I
12 A warning notice to employee Hearald Massingsil, dated November 18, 1963, contained
remarks as follows "Absence, must be at work at 5 30 unless ill If ill must call Roe
so he can find replacement " Another warning notice issued to employee Curtis Merriam,
dated December 11, 1963, states , "Absence, ( Must not miss more work within next 30 days
without calling in or will be discharged )"
"At the time of the above incident Brown also had a "Vote No" sign on his back Be-
fore this time he had worn a committee badge of the Union
160oth Betz and Hoggard testified that they had posted some union leaflets in the plant
and that they had been torn down
11 Betz testified that Hoggard spoke to Brown, that he did not hear all of the conversa-
tion, and that he did hear Hoggard make the above statement Hoggard testified that he
did not talk to Brown
17 Betz testified that he asked Reed, "Did you see me and that Reed replied, "No
but I don't want to see you or anybody else tearing clown any `Vote No' signs in the shop"
Reed testified that Betz said "Talk to someone else " He also testified, "I think Betz
jerked a sign off the hi lo, Hoggard jerked the sign off the hi In That I did see"
SCOTT'S, INC. 1825
told him that I intended to protect this boy's rights as well as anyone else's, and
that I wasn 't going to have any violence in the plant . or the parking lot, then
he said, `Well , that fellow will have to leave sometime ' . Then I told him
. .. that I would like to have a good , clean campaign out of it , and violence
would help neither him nor I .. .
When Hoggard reported for work on May 20, he received his job assignment
from Britton . Some few minutes later Reed talked to Britton . ia Britton then
told Hoggard that he was discharged "on account of that deal last night." When
Hoggard asked him for a discharge slip, Britton replied that he was not required,
to give him one. Hoggard said he wanted a slip because the Company would
claim that he quit if he walked out of the plant without one. Britton then gave
him a discharge notice which did not give the reason for the discharge. When
Hoggard requested him either to write the reason for discharge on the notice or
to "make an oral statement why," Britton told him that he was discharged "for
threatening violence" to Brown. Hoggard said , "Well, it could have been taken
that way, . . . but I didn 't really mean it that way." When Hoggard returned
the following day for his check , he received a warning notice signed by Britton
and Reed which stated , "Misconduct an [sic] threat of violence."
Hoggard was one of the leading adherents of the Union. This was known to
the Respondent . His conversations with Will Scott and Becksvoort have been
related and found above.
As to his decision to discharge Hoggard , Reed testified , "Nothing moved me
one way or the other, except he threatened Jerry Brown , to me." From this it
appears that the tearing of the signs off the hi -lo, apparently the "misconduct"
referred to in the warning notice , did not enter into his decision at the time. So
if Reed is to be believed , it must be assumed - that he decided to discharge Hog-
gard because of his admitted remark about Brown "outside the shop ." Nothing
else said by Hoggard during the conversation with Reed could be considered as
a threat of violence . However, Hoggard told Reed that he had "no intention of
being violent" and that violence would not be good for either side. Further, Reed
testified that although he considered Hoggard "a hot head ," to his knowledge he
had never had any trouble with other employees while at work. Reed admitted
that Hoggard was "a good hand buffer ." As noted above, Hoggard received a
warning during November of 1963 . This was the only warning received by him
during the course of his employment , and involved leaving work about 1 hour
before the end of the shift.
Accordingly , from all of the evidence I am convinced and find that the reason
given by the Respondent for Hoggard 's discharge was a pretext ; and that he was
discharged on May 20 , 1964, because of his membership in and activities on
behalf of the Union, in violation of Section 8(a)(3) of the Act.
3. William Acklin
Acklin was hired by the Respondent in September of 1962 . He operated an
automatic buffing machine on the first shift at the Ottawa plant . Roy Conway
was his foreman . Acklin signed a union card , attended two union meetings, and
wore a button of the Union's organizing committee while at work.
About the end of April, Acklin had a conversation about the Union with Con-
way. During this conversation Conway told him that he should take off his
union button and "throw it in the trash" as it would not do him "any good."
About 2 weeks later Becksvoort also made the same remark to Acklin.
Acklin received a warning notice, dated May 20, 1964 , which stated , "too much
absenteeism 5-20-64 did not need to take 8 hrs to take wife to the doctor."
Acklin was scheduled to work on Saturday , May 23 . He called Conway that
morning and told him that he could not get to work as he had lost a wheel on
his truck . He said that he would be to work later when he got his truck fixed.
Acklin did not report to work that day. Saturday night Conway met Acklin at
a restaurant at,South Haven . Acklin told him that he would report for work on
Monday.
Is Reed testified to the effect that he did not discharge Hoggard on the night of May 19
because he wanted to talk to Britton.
1826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Acklin was absent from work from Monday, May 25,- through Wednesday,
May 27. At this time Acklin was being driven to work by employee Melvin Tillery.
When Tillery stopped at Acklin's home on Monday to pick him up, Acklin was
mowing his lawn. Tillery asked him if he was going to work. Acklin said that he
had to mind his children as his wife was sick, and that he would try to get to work
the following day. He asked Tillery to notify Conway to this effect.19
"Sometime" during Monday, Conway asked Tillery why Acklin had not come
to work. Tillery told Conway that he had found Acklin mowing the lawn when
he had called for him; that he had said to Acklin, "You're going to lose your job
if you don't go in"; and that Acklin had replied, "They will just have to wait.
I'll be in when I can." 20
After Acklin had been absent for 3 days, it was noted on the Respondent's
records that he had "quit" his employment.21 Either on Thursday or Friday,
Acklin reported for work.22 Conway told him that he did not have a job as he
had been considered "a quit." Acklin said that he had been absent "due to sick-
ness" and asked Conway if he could return to work on Monday. Conway replied,
"No . . . I can't get enough guys in here to run the shop that miss as much as
you have . . . . You have missed considerable times like this before . . . and
you have been a quit before and I let you come back . . . and I've put up with
you about as long as I can . . . I can 't run a plant with a guy missing a week
at a time and not calling in and letting me know anything . We've got a
stack of absentee slips in there more than we have on anybody, where you didn't
show up or call in." 23
After his conversation with Conway, Acklin spoke to Becksvoort. He told
Becksvoort that he had "goofed up" by being absent "without calling"; and that
he had been absent because of "car trouble" and because his wife had been sick.
He then asked Becksvoort if he could return to work. Becksvoort answered,
"No, not now. We wrote you off as a quit. We would have to hire you as a
new man and we have automatics laid off right now." However, Becksvoort told
Acklin that the Respondent "possibly" would rehire him at a later date.
I find that the General Counsel failed to sustain the burden of proving that
Acklln was discharged in violation of the Act. The Respondent introduced in
evidence records showing that 48 employees quit their jobs during 1963 and 1964;
that the Respondent refused to rehire any of said employees; and that 9 of this
number were employees whose employment was terminated "as quits" after absences
of 3 days. Accordingly, it will be recommended that the complaint be dismissed
insofar as it relates to the discharge of Acklin.
4. Earl Dean Smith
Smith was hired by the Respondent in September of 1956. He worked as a
polisher at the Sixth Street plant. During March of 1964 he was transferred to
the Ottawa plant.
Smith was active on behalf of the Union from the start of its campaign. He
was a member of its organizing committee and wore a committee button while
19 Acklin testified to the above. Tillery testified, "[Acklin] said he had sonietlnng to
do but I can' t remember what it was." He also testified that he could not remember it
Acklin asked him to notify Conway
20 Conway testified credibly to the above. Tillery admitted that lie had told Conway that
Acklin was mowing his lawn Otherwise, Tillery testified to the effect that he did not
remember what lie told Conway
zt Becksvoort testified, "It is the company policy if an employee is off for three days
without calling in it is an automatic quit." Dorothy Atwood, Respondent's timekeeper,
testified to the same effect. Conway testified that this policy had been in effect some 3 or 4
years The evidence shows that during 1963 and 1964 nine employees were "written off
as quits ;" after 3 days , and who were denied the right to return to the Company after they
applied for reemployment
2Acklin'testified that he reported on Thursday, but his testimony is contradictory in
this respect . Both Conway and Becksvoort testified that Acklin reported on Friday.
23 The Respondent 's records show that during the period of 17 months Acklin was absent
was absent from work on 54 occasions and that 36 of these absences were for 1 day only.
SCOTT'S, INC. 1827
at work. For the last 3 days before his discharge he wore a shirt which had "Vote
IUE" in large red letters on its front and back. He distributed union leaflets at
the Sixth Street and Ottawa plants.
During about March, Smith complained to Becksvoort about an employee who
had been laid off out of seniority. Becksvoort answered that the Respondent "usu-
ally tried to follow seniority."
After his transfer to the Ottawa plant, Smith received the following letter, dated
April 6, 1964, and signed by Will Scott and Donald Dekker, Smith's foreman: 24
On March 31, 1964 you turned in a job ticket covering 11/2 hours. On
this ticket you showed that you had polished 288 pieces of part 84016. This
information which you put on the job ticket was absolutely false as you
did not run any of this part on that day.
You actually worked for 21/4 hours on operation 10-1, part 63134 pro-
ducing 1035 pieces and for 53/4 hours on operation 10-IX, part 63039 and
it is on this basis that we intend to pay you.
We intend to just give you warning on this occasion but are going on
record to the effect that if you ever again deliberately turn in false informa-
tion on your job tickets, you will be subject to immediate dismissal.
After receiving the above letter Smith spoke to Will Scott. He asked Scott
what the letter meant and what he should do about it. He also told Scott that
Foreman Staat "knew this was going on." Scott answered in substance that he
had told Staat "to put a stop to it" and that he would not tolerate the banking of
parts any longer.
During the early part of May, Smith had a conversation with Will Scott. Scott
told him that he had read in the paper where some employees of another com-
pany in Holland had been discharged and that the same thing would happen to
him (Smith).
Smith's length of service with the Respondent placed him about fifth in terms
of seniority among approximately 20 polishers. He was laid off from work from
May 7 to 14, inclusive. He was told of his layoff by Staat. When Smith asked
him for a reason, Staat replied, "I don't know . they told me at the front
office to lay you off." During Smith's layoff, employee Clifford Harmsen had a
conversation with Becksvoort. Harmsen stated that Smith "was laid off kind of
out of line." Becksvoort replied that "seniority didn't make a thing here, any
more . . . anybody trying to run the shop can get laid off . . . these guys just
get in your hair, you have got to get them out of here."
About the same time employee Charles Bounds asked Will Scott "what the deal
was with Smith" and "if six or seven years seniority didn't mean -anything." Scott
replied, "it doesn't look that way, does it, . . . if you boys are going to carry
on like this, . . . we are at war and we have to fight fire with fire."
Smith again was laid off from work from May 22 through 25. He was replaced
by employee Ernie Wilson. Wilson made boxes and performed odd jobs. At the
time he had been employed by the Respondent for about 2 or 3 years.
About the end of May the polishers were called to the office of Will Scott.
Scott told them that a local company was on strike and that the Respondent could
get its work. He asked the'employees individually to vote for or against taking
the work. Except for Smith, all of the polishers voted to take the work. Smith
said that he would not perform such work.
On June 9 while Smith was waiting to start work, Dekker gave him two warn-
ing slips, both dated June 9, and told him that he was getting a "disciplinary lay
off" of 5 days. One warning slip had under remarks "misconduct" and was
checked for "Attitude," "Disobedience," and "Carelessness." When Smith asked
Dekker the reason for this slip,25 Dekker replied, "I don't know . . . they told
24 Smith testified to the effect that it was the custom of employees to either "hank part"
or slow down on days when they had made production in order not to have the piece rate
cut; that banking parts meant turning in the job ticket at a later time that he had at
times been asked by Foremen Dekker and John Staat to-bank parts; and that he had not
been asked by them to bank parts on the date in question Dekker denied that lie ever
told Smith to bank parts . Both Dekker and Becksvoort testified that it was against com-
pany policy to allow employees to bank parts.
25 Smith testified that he did not know what "Misconduct" the slip referred to
1828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
me in the front office to give them to you." The other slip had under remarks,
"quit before alotted [sic] time." 26 Smith was laid off from June 9 through 15.
On June 16 Smith had a conversation with Will Scott. As related above Smith
wore a shirt with the legend "Vote IUE" on it. Scott pointed to Smith's shirt and
said, "You are going to keep on until that will get you in trouble yet."
Smith was discharged at the end of the day on June 19. Foreman Truman Lee
gave him a discharge notice which contained the following under remarks, "Dis-
charge for misconduct violation on Group A, Rule 3 Deliberately restricting produc-
tion on 6-18 & 6-19 & attempting to influence others to do so. (Job run 64034)." 27
Smith denied that he asked any employee to restrict production either on June 18
or 19. He testified, in substance, that he did not deliberately try to slow down on
the job on those days; that the reason why he only made his day rate or a little
better on those 2 days was because of a "bad burr" on the part; that after poor
production on June 18 he was not warned by his foreman; and that employee Payne
also worked on the same job at the time.
Concerning Smith's discharge, Dekker was questioned and testified as follows:
Q. (By Mr. MCCORMICK.) Had you and Truman Lee or Will Scott had any
conversation about Dean Smith trying to talk other people into slowing down?
A. I did.
Q. You were his department foreman? Yes or no?
A. Yes.
Q. The first you saw of any reference to him being accused of this was when
you saw it on the discharge slip? Is that true?
A. I had thought according to his job cards that he wasn't producing like he
had been over on Sixth Street.
Q. My question is was the first reference you saw to him being accused, was
that the time of his discharge? Being accused of trying to influence anybody
else to slow down? That was when you saw it written out on the discharge slip
prepared by Truman Lee?
A. I.had thought it myself, but this is the first that I had seen it written up.
Q. You had no prior discussions other than you saw it-or what you
thought?
A. I had talked about it with Truman, that I didn't think he was doing all he
could.
Q. I see. And who was he supposed to be trying to slow down? Do you
have any facts on this?
A. No.
Q. Is that why you didn't make an issue of it at that time?
A. That's right.
'Both slips were signed by Dekker and Becksvoort. Dekker testified that Becksvoort
filled in the slips and asked him to sign them ; that he had never heard of an employee re-
ceiving two warning notices at the same time ; and that he had never before issued a
warning slip to an employee for quitting early and going to the washroom. Concerning
the slips, Beeksvoort testified without contradiction as follows:
I noticed in the morning before coffee break or a little before nine o'clock it didn't
seem as though he was working, and shortly after coffee break, about nine-forty-five
or ten o'clock I went back and talked to him and asked him what the problem was.
Well, he said he got a late start that day and just wasn't you know, going to bust
his neck trying to make piece work today, because he had a late start, and I told
him this job has got a pretty fast rate on it and I said you can catch it back if you
want to, if you will work at it. Not today, he says, I am just not going to do it. . . .
and so I told his foreman, Don Dekker, he had better go back and talk to him
and try to get him to produce that part. . Well, in about thirty minutes Don went
back and talked to him, and after Don talked to him I noticed he still wasn't produc-
ing. He was talking to other people in the plant and just not working. So after
dinner I went and talked to him again and asked him what the problem was, and he
said I told you this morning I am just not going to work today, I got a late start and
I am not going to break my neck trying to make piece work, and so I just kept the
eye on him for the rest of the day, and I noticed he was gone from his machine quite
a bit, and I talked to him again later in the afternoon and he, didn't talk too friendly
Just in plain words he wasn't going to work, so then when he went to the rest room
to clean up before the end of the shift, before the allotted time, not having his rate
made I went in to see what he was doing and he was just standing there doing noth-
ing, so at that time I decided to give him a warning notice.
27 The notice was signed by both Dekker and Lee.
SCOTT'S, INC . 1829
Becksvoort testified that on this job Smith was not talking or away from his
machine; that Smith 's "Motions were very slow"; that Payne "was working his usual
speed"; and that when he wanted to be , Smith was a "very good employee" and "one
of the fastest" polishers . The Respondent's records show that on June 18 and 19
Smith and Payne worked on the same jobs; that Smith 's average hourly earnings
were $1 . 93 on June 18 and $ 1.95 on June 19; and that Payne 's average hourly
earnings were $2.76 on both days.
Employee Alexander Vecchio testified to the effect that in June 1963 while Smith
was working at the Sixth Street plant, Smith asked him to slow down on a job so as
to get an increase in the piece rate ; 28 and that the day before Smith 's discharge
Foreman Staat asked him about the 1963 occasion.
Upon the whole record I find that the Respondent seized upon Smith 's poor pro-
duction on June 18 and 19 as a pretext for his discharge ; and that the Respondent
in violation of Section 8(a)(3) discharged him on June 19 and laid him off on
May 7-14 and May 22-25 because of his membership in and activities on behalf of
the Union . In view of Becksvoort 's uncontradicted testimony concerning the layoff
starting on June 9, I do not find a violation of the Act in this connection.
5. O. B. Jimmerson
Jimmerson was hired by the Respondent in June 1962 . He worked as a polisher
on the second shift at the Ottawa plant. Early in the union campaign he signed an
authorization card . He wore a committee button "off and on" while at work.
About three or four times he distributed union leaflets at the Ottawa and Douglas
plants.
Jimmerson was laid off from June 22 until 30 . Employee Harold Short was laid
off at the same time . In Jimmerson's department there were about 12 other polish-
ers. Of this number six employees , including Short and Jimmerson 's brother
Hubert , had less length of service than Jimmerson . Hubert Jimmerson also wore a
union button while at work . At the time of Jimmerson's layoff Reed told him the
reason was "lack of work."
Jimmerson quit his job at about 7 p.m. on July 8. In this connection Jimmerson
testified that at the time he was working on a job that "probably had been there for
about a month"; that "nobody in the shop ... could make out on it"; that he com-
plained to Reed, asking him for an "extra rate on the job" ; that Reed said , "You're
going to make out on it like this . . . we're going to starve the union out"; that he
(Jimmerson ) said that he was going to "quit"; that Reed replied , "That's up to you.
It would probably be the best"; and that he immediately punched out on the
timeclock.
Reed denied the statement attributed to him about the Union . Concerning Jim-
merson 's termination of employment , Reed was questioned and testified as follows:
Q. And where would this have been?
A. It was the early part of the shift , and I went by his polishing jack, and he
asked me when was he going to get on a job that he could make out on. And
I told him that in the frame of mind that he was in I didn 't think he would
make out on any job I gave him.
Q. Why did you say that?
A. He said , "Well, I think I will just quit , then," and I told him that was his
privilege , and he did . He quit.
Q. What job was he on then?
A. He was on a GE panel.
Q. Do you remember the number?
A. 85004-14s and 15s.
Q. 85004, 85014 and 85015?
A., Yes.
Q. Now, why did you say to him, "I don 't think you would make out on any
job I gave you"? What was his attitude?
A. Well, he had kind of a non -productive attitude on jobs that I gave him
before that.
Q. On what jobs , if you remember?
A. Well, I can 't remember the part numbers , but on several occasions I put
him on jobs that did have a rate that he could make or that a polisher could
make if he tried.
28 Smith testified that he did not recall asking Vecchio to slow down
243-084-67-col. 159-117
1830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. By "make" you mean make two ninety-five? -
A. Yes. Make polisher's money.
Q. Was he making money on those?
A. No, he wasn't.
I find that the Respondent in violation of Section 8(a)(3) laid off Jinunerson
from June 22 through 30 because of his union activity. The General Counsel con-
tends that Jimmerson's termination of employment was a "constructive discharge"
and that such discharge was violative of Section 8(a)(3) of the Act. I disagree.
There is no evidence that Jimmerson was discriminated against because of his union
activity in his assignment to the job in question on July 8. Under the circumstances,
while I credit Jimmerson's version of the above conversation with Reed on July 8,
I find that Jimmerson's termination of employment was not violative of the Act. I
find that Reed's statement about the Union violated Section 8(a)(1) of the Act
since it contains a threat of reprisal.
6. Larry Donald Noblin 29
Noblin was hired by the Respondent in May 1963. He worked as,a hand buffer
on the second shift at the Douglas plant under Foreman James Bryant.
Noblin signed a union authorization card and wore union buttons, including a
committee button, "all over" his clothing while at work. He attended the repre-
sentation hearing of the Board held on April 16. As related and found above, dur-
ing March Noblin and employee Bolles went to the office and asked Vandenberg to
permit the employees on the second shift to get off from work so that they could
attend a mass meeting of the Union.
At about 8 p.m. on April 18, Noblin punched out and left the plant. The follow-
ing Monday morning Foreman Clois Gilpin brought a letter to his home. The
letter stated, in substance, that he was "considered a quit" as he had refused to per-
form his work and had punched out, and that his employment was terminated 30
Concerning the reason for his leaving the plant during the middle of the shift and
his conversations with Bryant, Noblin testified to the following:
Well, I went in to work and along about break time I told the foreman I was
sick and had to go home and he told me you can't go home, we need the parts
out and we were running a part that night that was easy to run. There wasn't
a whole lot of work to it, and so I told him I would go ahead and stay a while,
try to stay to supper time any way. So along about seven-thirty I went and
told him again I was sick and had to go home and he kept telling me I couldn't
and I went ahead and stayed to eight o'clock and went back there and told him
I was sick and had to go home, and he told me I couldn't and I went ahead and
punched out and went home. I didn't go home but I punched out.
Noblin further testified that he did not refuse to buff any particular part; that
employee Robert Snyder also left the plant early that night; that he (Noblin) after
leaving the plant went to the "What Not Inn" where he met Snyder and they drank
some beer; that Foreman Gilpin was present 'at the time ; that he and Snyder then
went to the "Willow Side Inn" where they drank more beer; that he got home "by
midnight"; that Snyder had been "sick all week"; and that on April 18 Snyder told
Bryant that he was sick.
Bryant denied that on April 18 Noblin told him that he was sick. He testified
that Snyder had been sick during the week of April 18; that on April 18 Snyder told
him that he was sick; that at 7 p.m. he told Snyder he could leave; that on or about
April 21 Noblin asked him if he could return to work; and that at that time Noblin
told him that he was sick on the night of April 18.-.As to what transpired on
April 18, Bryant testified to the following:
Well, there was a coffee break and we were sitting around- talking like we
always do, you know, and the fellows knew we were running out of the job we
were on and they were asking me what was going to run next and I said we
20 Noblin is named in the complaint as Lawrence Noblin.
° The Respondent's records contained two "Pay Roll Change" notices, both dated April 18.
One was signed by Plant Superintendent Warren Roe, and the other was signed by Orville
Adcock, an assistant to Roe. Under "remarks" both state, "Told his foreman he would
not buff T.V. Part #83083-1946.11 The one signed by Roe also contains the word "Quit"
under remarks.
SCOTT'S, INC. 1831
were going on 83083. That the number of a TV hazel and we got to talking
and Larry Noblin was setting on the inspection table the best I can remember
and he said he wouldn't run the job.... and I said why, and we all thought
he was joking and he said well I never did like them, and I said that's a good
buff, a good job on the buff, Larry, and he said he just never did like them,
and he said I would rather go home first, so I blowed the buzzer and said we
had better go back to work and we went back to work and directly when we
got ready to go on the job I looked around and he was gone and I got to
checking up and he punched out and left in the middle of the shift.
Employee Betty Batey worked as an inspector in the buff shop. She testified
that she overheard the conversation between Bryant and Noblin on April 18. In
this connection she was questioned and testified to the-following:
Q. Would you relate that conversation, as best you can remember it?
A. Well, the best that I can remember, James the foreman, told the boys
that we were going to change over on a different television, and Larry said
that he would not run it, that he would go home first; and he punched out. I
don't know just exactly what time it was that he punched out, but he punched
out and James didn't even know it, and went home.
Q. Where were you when you heard this conversation?
A. I believe we were on our lunch period or our six o'clock break.
- Q. That would be your coffee break?
A. Yes.
Q. Where were you all located? Were you sitting down, standing up?
A. Yes, most of us were sitting out in front on some boxes-you know-
wherever we could find to sit.
Q. About how far away were James Bryant and Larry Noblin when you
heard this conversation, or were they all in the same group?
A. We all just sat around there and talked.
Q. The foreman, James Bryant, also sits with the employees? -
A. Yes, he sits with us all of the time.
Q. They were very clearly within hearing distance?
A. Oh, yes.
Q. Do you remember anything else of that conversation?
A. No, I don't remember hearing anything that they said. I heard what they
said, but I don't remember-you know-but I do remember that.
Q. You do remember which part?
A. I do remember that, and I asked him and the other fellow that punched
out, both of them, to stay.
Q. You asked Larry Noblin to stay?
A. Yes. I was inspecting.
Q. What did,you say to him?
A. I just asked him if he would stay so we could make our rate. It is all
piece work, and when a buffer leaves we can't make it.
Q. What did he say?
A. He said he wouldn't stay, and he left.
Employee Raymond Slater was present during the conversation between Noblin
and Bryant on April 18. He testified that he heard Noblin tell Bryant that he would
go home before he would buff the TV part in question.
Roe testified that on April 18 Bryant called him and told him of his trouble with
Noblin; that he went to the plant and, after discussing the problem with Bryant,
gave him permission to discharge Noblin; 31 that Noblin had walked off the job once
before; 32 and that on that ocassion he did not permit the foreman to discharge
Noblin because the foreman's son had been annoying Noblin.
From the record it appears that Noblin was a satisfactory employee with a "good"
production record. He was a known adherent of the Union. However, the pre-
ponderance of the credible evidence supports the Respondent 's position. I credit
Bryant's testimony as set forth above. Accordingly, while I feel that the Respond-
ent's motive in the matter is questionable, I conclude and find that Noblin's employ-
ment was terminated for cause.
31 The record discloses that Bryant had been a foreman for only a short time.
' Batey testified , " this Larry Noblin, he had done this same thing before, and [Bryant]
hired him back."
1832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. William Bolles
Bolles was employed by the Respondent from October 1954 until his discharge on
May 14, 1964. He worked on the day shift in the buffing department under Fore-
man Gilpin at the Douglas plant.
From the start of its campaign Bolles was one of the most active employees on
behalf of the Union . He was a member of the Union 's organizing committee. He
wore a committee button and several other union buttons or emblems on his cloth-
ing while at work. He distributed union literature at the Douglas plant about seven
times. He did not attend the first two union meetings which were held for the Hol-
land plants , but did attend all meetings thereafter . One of the meetings was held
at his home.
Bolles had a conversation with Fred Scott, vice president of the Respondent, on
the first day that he wore a union button . Scott walked up to Bolles and shined the
union button . He then asked Bolles why he wanted a union . Bolles replied that
he had "no seniority" and that employees with less service than he had were making
more money. He stated that if the Union got in the plant the employees with
seniority would "make rate more often ." Scott said , "And if the union gets in we
won't have a rate no more . It will be all day work . . . We won 't have a chance
to do something else. We either do that or we have nothing else to do . . Now
[we] can lean a little bit with the employees . . . . If a person can't [ make produc-
tion we] can go along with them , and give them something else to do, but if the
union got in [we] wouldn 't have to do that any more. They would either do it or
else out they would go." 33
I find that Scott's conduct and statements constitute interference , restraint, and
coercion.
At sometime during the early part of April , Bolles had a discussion with Scott
about unions . At Scott's suggestion they went to the office in order to talk to Van-
denberg. Vandenberg, John Cummiskey , the Respondent 's attorney , and Martin
Felix, a vice president of Crampton Manufacturing Company, were present. Van-
denberg introduced Cummiskey and Felix to Bolles. Vandenberg then explained to
Bolles what would happen when more than one union tried to organize a plant.
Felix stated that if the Union organized the plant, he "would pull the phosphorizing
tanks out the next day." Bolles said , "Well, you can pull them out today if you
want to." Felix answered , "No, [we] put them in to make money and if we can't
make money, we are going to pull them out."
I find that the above statement of Felix constitutes a threat of reprisal and is vio-
lative of the Act.
Bolles was absent from work on April 23 , 24, and 25 in order to attend sessions
at the "training school" of the Union. When he returned to work, Roe asked him
if he had "learned anything at the union school."
By letter to the Respondent dated April 27, 1964, the Union requested that Bolles
and employee Kathryn Thomas be excused from work in order to attend the
resumed hearing in the representation matter. The letter reads in part as follows:
A request is hereby made that the following employees of your Company be
granted an excused absence from work on Wednesday and Thursday , April 29
and 30, 1964 , and for any additional days that the current National Labor Rela-
tions Board hearing regarding our petition for representation at your plants
will be held.
At the hearing held on April 29, Representative Duckert of the Union discussed
the contents of his April 27 letter with Becksvoort . Becksvoort said , "we will have
no problems ." Bolles attended the three sessions of the hearing held prior to
May 13, including those held on April 29 and 30 34
13 Bolles testified credibly to the above. Scott admitted shining Bolles ' union button "a
couple or three times ," but testified that he could not recall what was said . Bolles testi-
fied without contradiction that during the above conversation Scott told him that there
would be "a foreman's job open soon " and that he ( Scott ) had "good reports" on Bolles
"in the last four or five years."
34 At some date after April 30 a warning notice was placed in Bolles' personnel file.
The notice was dated "4/29 & 30/64" and was signed by Gilpin. Under remarks it stated,
"Warning for absence Failed or refused to request leave from his foreman or notify
foreman of his intent to be absent " The record discloses that it was the Respondent's
practice to give copies of warning notices to employees . Bolles testified that he had never
received a copy of the above notice and that he was not reprimanded by Gilpin or any
other supervisor for his absences.
SCOTT'S, INC. ' 1833
The hearing in the representation matter was scheduled to resume on May 13.
On May 12 Bolles told Gilpin that he would not be at work the following day. In
this connection Bolles testified as follows:
Before seven in the morning , I told Gilpin I was not going to be there the next
day, I was going to attend a hearing for the NLRB and he told me I had missed
an awful lot of time lately to go to these hearings , and I should be at work the
next day. He didn't think I needed to attend , so later on in the afternoon
about two -thirty he came back to me and said Fred Scott said he didn 't think
it was necessary that I should go to the meeting , the hearing, because he was
informed by his lawyer he didn 't have to attend , it was all to do with the Hol-
land plant, and nothing to do with Douglas and I didn 't need to attend, and he
didn 't think it was necessary for me to be off the next day.... I went back to
work at that time and then before three-thirty when I was leaving from work he
told me he expected to see me the next day and it wasn't necessary for me to
go and I said ... I wouldn't be at work. . . .
Gilpin testified that at about 10 a.m. on May 12 Bolles informed him that he was
"taking the next day off"; that he told Bolles that he could not have the day off as
he was "too short on buffers "; that Bolles replied that he was "going to take off
anyhow"; and that Bolles did not give him a reason "why he was taking off." Lyle
Earl 35 testified, "the day before the hearing, there were three or four of us fellows
at the back of the building and Clois Gilpin was on the hi -lo and [Bolles] told him
at that time he was going to the meeting up here at Holland , and . . . Gilpin said
no and he just laughed and drove off on the hi-lo ." Employee Arlee Horn testified,
"Bolles told [Gilpin ] that he was going to the hearing, and [Gilpin] told him that
it wasn't necessary ; that Fred Scott didn 't have a subpoena , so it wasn't necessary
for him to go ; and Bolles said that he was going anyway . So [Gilpin ] made a point
that he might be sorry, or something."
I credit Bolles' version of his conversations with Gilpin on May 12.
Bolles attended the hearing on May 13. He returned to work on May 14. Dur-
ing the morning Gilpin asked him where he had been the day before and stated that
he had "no excuse to be off." Bolles replied that he had given Gilpin "twenty-four
hours notice" and that the Respondent had received a letter from the Union. Later
Fred Scott stopped at Bolles' place of work and asked him if he had "learned any-
thing . . . gained anything . . . at the hearing." Bolles answered, "No but I didn't
lose anything either ." Scott said , "you lost a day's wages."
About noon on July 14 Gilpin told Bolles that he was wanted in the office. He
went to Scott's office where he found Roe. Roe told him that he was discharged,
and gave him a discharge slip. The slip , signed by Gilpin and Roe contained the
following remarks: "Gross insubordination. Abusive conduct to supervisor. Total
disregard of plant rules." The following day Bolles met Gilpin . When he asked
Gilpin "what [the discharge slip] was all about," Gilpin said that he was discharged
"for missing a day's work " when he "went to the hearing."
An unsigned warning notice , dated May 14, 1964, was placed in Bolles' per-
sonnel folder . Under remarks it stated , "He told his foreman he would be off
Wed. May 13-64. Foreman said he couldn't give him permission to be off. Upon
returning to work Thurs . morning. He was ask [sic] by his foreman who, gave
you permission to take off-Bolles stated he gave himself permission."
Both Gilpin and Roe testified at length as to the reasons why they decided to
discharge Bolles. When pressed by the General Counsel for his reasons , Gilpin
testified , `Because he kept pushing his luck on me . Just like when we were
setting that rate on that job . 36 Just like that . And then those days that he gave
35 During May 1964 Earl was a hand buffer He was a supervisor at the time of the
hearing herein.
ii A warning notice dated April 8, 1964 , was placed in Bolles ' personnel file. Bolles
testified that he had not received a copy of the notice The notice which was signed by
Roe states under remarks , "disrupted 5 hrs work , complaining about buffing a new job
(85000-190 ) which the Co. time studied favorable priced to those concerned ." Gilpin
testified that Bolles "interrupted about three good hours work that morning " by slowing
down. Bolles , whom I credit in this connection , testified that he was given a new job
without a price rate ; that his day rate was $ 2 and his average hourly earnings on piece
rate were about $ 2.85 ; and that his earnings that day were "a little better than twenty-
three dollars " Roe admitted that Bolles got "up awful close close" to production on the
job that day . Gilpin also testified that Bolles "wound up with over three dollars an hour
all day."
1834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his self permission to be off, the day I fired him." Gilpin and Roe testified that
Bolles had been guilty of "skinning" 37 and that he had reported late for work
several mornings.
After a careful review of the record, I am convinced that the Respondent was
looking for an excuse to discharge Bolles and that he was persona non grata because
of his union activity. The fact that warning notices were placed in his personnel
file for his absences on April 29 and 30 and for his alleged disruption of work on
April 8 indicates this to be the case. Since copies of these notices were not given
to Bolles, it appears that the Respondent was attempting to build up a record.
In my opinion, the complaints of skinning and tardiness on 2 days were
afterthoughts.
As to his absence on May 13, Bolles gave his foreman ample notice. The rec-
ord shows that in other cases the Respondent was only concerned when an employee
was absent without notice and without a good excuse, and that it was lenient in
the application of its rule. Taking into consideration that Bolles was a satisfac-
tory employee for almost 10 years, or up until the time he became a leader in the
union campaign, I find that Bolles' absence on May 13 was seized upon by the
Respondent as a pretext, and that he was discharged on May 14 because of his
union activity, in violation of Section 8(a)(3) of the Act.
E. The layoffs
The record discloses that the following employees were laid off for the periods
of time shown opposite their names:
Charles Bounds--------------------------------------- May 14-21
Bobby Joe Collins------------------------------------- May 13-21
Cecil Herrell------------------------------------------ May 20-26
Clifford Harmsen-------------------------------------- May 21-25
Richard Hiscock------------------.-------------------- May 7-14
With the exception of Hiscock, all of the above worked at the Ottawa plant. His-
cock worked at the Sixth Street plant.
Charles Bounds was a member of the Union's organizing committee. He wore
a committee button while at work, distributed union literature at the Ottawa plant,
and attended all but one of the sessions of the representation hearing.
Shortly after the Union started to organize the employees, Bounds had a con-
versation with Becksvoort. Becksvoort asked him what he thought the employees
had to gain with the Union. Bounds enumerated a number of improvements in
working conditions that he thought the Union could bring. When Becksvoort
stated that the Respondent would "listen" to the complaints of the employees if
they would give it "a chance," Bounds replied, "[you] should have thought about
that years ago because it was a little too late for that now." Bounds' conversation
with Will Scott about Smith's layoff has been related and found above.
Bounds, a hand buffer, was an employee since May 1957. He testified that lay-
offs during "the spring of the year [were] an every year occurrence"; that
"usually" the Respondent laid off employees with the least length of service; and
that "one man makes a better buffer or polisher, and there are a few weeks differ-
ence,,they will lay off the older man and keep the younger man because he has
a better chance of making the grade at his job." He also testified that once before
he had been laid off for about 3 months during 1957; and that about six employ-
ees with less seniority continued to work when he was laid off during May 1964.
Bobby Joe Collins, a polisher, was employed for about 21/a years. He wore a
committee and other union buttons while at work. His conversations with Becks-
voort and Will Scott have been related and found above. Collins testified without
contradiction that four polishers who had less seniority than he continued on the
job when he was laid off.
Cecil Herrell, a polisher, was employed by the Respondent since August 1961.
He was a member of the Union's organizing committee, attended the union meet-
ings, distributed union literature on several occasions at the Ottawa plant, and
wore a committee button while at work.
87 The record reveals that skinning means not buffing the part thoroughly Bolles admit-
ted that Gilpin had called him a skinner He testified, "He has called all of us that.
He has said, `All of you are skinners. The parts don't come through right.' " In
this connection Roe testified, "Skinning is a problem with everybody . . . some more than
others."
SCOTT'S, INC. 1835
On May 13, Herrell was transferred from polishing to inspection at a day rate.
On Monday morning, May 18, he spoke to Donald Dekker, his foreman. He
asked Dekker what his job would be that day. When Dekker told him it would
be inspection, Herrell asked him if he did not like his polishing work. Dekker
answered , "your polishing is okay but you just haven't learned your lesson yet."
Heriell then spoke to Becksvoort, asking him if he thought he was going to teach
him "a lesson." Becksvoort replied, "that is the general idea." Herrell then said,
"you are not going to teach me a lesson; I am still going to vote for the union."
Herrell was transferred back to polishing on May 19, He was laid off the
following day.
Clifford Harmsen was employed by the Respondent for over 8 years. He
signed a union card. At sometime between May 7 and 14 he had a conversation
with Becksvoort. Harmsen remarked that Smith had been laid off "kind of out of
line." Becksvoort replied that seniority did not mean anything "any more" and
that "anybody trying to run the shop" could be laid off. Harmsen had a conver-
sation with Superintendent Reed about the Union. He told Reed that he was not
for the Union, saying, "Some guys think that I am, but I am not."
Richard Hiscock, a polisher, was employed by the Respondent since Septem-
ber 1962. He was a member of the Union's organizing committee, wore a union
button while at work, attended union meetings , and on one occasion distributed
union literature at the Sixth Street plant.
Hiscock testified that at the Sixth Street plant on the day shift there were about
six polishers; that of this number two had less length of service than he; that
none of these employees were laid off before or at the time of his layoff; that
Foreman Staat informed him of his layoff without giving him a reason; that he
then asked Becksvoort for the reason ; that Becksvoort told him that it was "for
lack of work" and that he was "the lowest man on the seniority list"; that he told
Becksvoort that there was "a mistake" since there were employees who had less
seniority who were still working; that Becksvoort said that "someone . higher
up" had told him to lay off Hiscock; and that when he asked Becksvoort who that
person was, he did not get an answer . Hiscock also testified, "Seniority has some-
times been followed in layoffs and sometimes it hasn't."
In its brief the Respondent contends that its records show approximately 20
cases of employees who were laid off "without regard to seniority." However, it
is to be noted that the Respondent's exhibit in this connection covers layoffs going
back to 1956, and that a number of these "cases" involved recalls from layoff
out of seniority. The record is silent as to the circumstances under which these
recalls were made.
Bounds, Collins, Herrell, and Hiscock were known adherents of the Union. In
view of the statements of Will Scott and Becksvoort, found above, I find that the
Respondent selected them for layoff because of their union activity and that such
conduct was in violation of Section 8(a)(3) of the Act. I find that the General
Counsel failed to sustain the burden of proof in the case of Harmsen. There is no
evidence that the Respondent knew of his union activity. In fact, the record shows
that he indicated to Reed that he was not in favor of the Union.
F. The transfers
The facts relating to Cecil Herrell's transfer from polisher to inspector have been
found above. The complaint alleges this transfer and those of Charles Herrell,
Arthur Childress, and Kathryn Thomas to be violative of the Act.
Charles Herrell was a buffer on the second shift at the Ottawa plant. He was
a member of the Union's organizing committee, wore committee and other union
buttons while at work, attended union meetings, and distributed union leaflets at
the Ottawa and Sixth Street plants. His conversation with Britton, his foreman,
has been related and found above.
Herrell was employed by the Respondent in February 1963. In June of that
year he broke his finger while at work, and was off from work until October. At
that time he was put on automatic buffing. He resumed hand buffing in Decem-
ber 1963 and continued on that job until his transfer to inspection on May 13,
1964. As an inspector he was paid a day rate 38 On various dates from May 13
until about June 4 Herrell performed both inspection work and hand buffing.
Herrell testified, in substance, that before his transfer to inspection, his finger
did not bother him, that on May 22 his finger hurt him and he went home, that
81 Herrell testified that his day rate was $1.90 and that he averaged "anywhere from-
$2.40 to $2.90" on piece rate.
1836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the time he gave Britton his reason for leaving, and that he returned to the
hospital on about June 4 for another operation on his finger. Concerning his rea-
son for transferring Herrell to inspection, Britton testified, ". . . he was having
trouble with his finger in holding parts . he just couldn't seem to hang onto
them. He was constantly losing parts in the buff, and on one particular job he
'asked me to take him off of that job because he was afraid he was going to get
hurt 39 . . . I taken him off that particular job and give him another job, and he
was still losing parts and things, and so I put him back to inspecting for his own
safety." Britton was questioned and testified as follows:
Q. After Charles Herrell had been put on inspection in May of this year
did you for a while have him alternate with another employee, each working
four hours on inspection and four hours on buffing?
A. Yes, I did.
Q. What was the purpose of that?
A. I was more so checking his hand out, seeing how he was progressing
with it, to see if he could hold onto the parts.
Q. Did he?
A. No.
Q. Why did you keep putting him back on four hours of buffing then?
A. Well, checking. Just checking it out thoroughly.
Q. But each time he couldn't do it? He was not doing it properly? He
was not doing a good job ? Is this your testimony?
A. Maybe today he would go fairly well, and then tomorrow he would
be in trouble again.
I find that the transfer of Charles Herrell to inspection work on and after May 13
was not violative of the Act.
Arthur Childress was hired by the Respondent in October of 1958. He worked
as a polisher in the Ottawa plant under Foreman Dekker.
Childress was a member of the Union's organizing committee, attended union
meetings and wore a committee and other union buttons while at work. His con-
versations concerning the Union with Becksvoort and Will Scott have been related
and found above.
On May 20, the day that Cecil Herrell was laid off, Childress was transferred
to inspecting work to replace Herrell. He remained on inspection for 3 days with
a day rate of $1.90.40 Childress had never performed inspecting work before.
He testified without contradiction that another employee "with about two years
seniority" replaced him on his polishing job.
Both Dekker and Becksvoort testified to the effect that for a number of years it
had been the custom to transfer temporarily polishers to inspection when a regular
inspector is absent or when polishing work is slack.
In view of the statements of Becksvoort and Will Scott, found above, I find that
Cecil Herrell and Arthur Childress were transferred to inspecting work on May 13
and 20, respectively, in reprisal for their union activity, and that such conduct was
violative of Section 8(a)(3) of the Act.
Kathryn Thomas was hired in September 1962. She worked on a piece rate
basis as a "highlighter" at the Douglas plant . Thomas was a member of the
Union's organizing committee , distributed union literature at the Douglas plant,
attended all of the union meetings , wore a committee button while at work, and
attended the Union's "training school" on April 23, 24, and 25. She attended all
of the sessions of the representation hearing. When she attended the session held
on April 29, she received a warning notice for "absenteeism." The notice was
signed by Adcock and Roe.
The Respondent had four "regular" highlighters, all of whom were women.
They took turns "maybe once a month ... out front" on day rate jobs. Beginning
on April 28 and until June 22 Thomas was assigned day rate jobs , such as "silk
screening," for 2 or 3 days a week.41
Some few days after she received the warning notice, Superintendent Roe walked
by her place of work. She asked him why the Respondent was giving out "so
30 Herrell admitted that he asked Britton to be relieved of this fob.
40 Childress testified that his piece rate was about $2 90
a Thomas testified that her day rate during April and May was $1.50 and that on piece
work "you make at least a dollar sixty -five but you can go up to two or two and a half."
The Respondent 's records do not support her testimony as to piece rate earnings.
SCOTT'S, INC. 1837
many warning slips." He answered, "Well, everybody wants the Union in here
so bad , so I'm going to give them a taste of what it 's like before they get one
in here."
It is found that Roe 's statement was violative of Section 8(a)(1) of the Act.
Starting on April 28, Thomas was assigned to hourly rated jobs for 4 days, or
through May 4. On May 8 Thomas spoke to Elton Jones, her foreman, asking him
why she was not on highlighting. Jones told her, "I don't want you in there any
more. . . . When we can get the turmoil settled around here-if we have a local
or if we don't-I might put you back in there, but if you don't like it then file
a grievance."
On May 9 Thomas spoke to Roe. At the time she was wearing her committee
button. She asked him when she would be put back on highlighting. He said,
"Well, that's hard to say, . . . we are on opposite sides of the fence . . . I don't
care whose toes I step on, and that includes you, too." Referring to her union
button, he said, "That's good advertising." He then told her that she was a "hard
worker" but that she was "being stubborn." He said that she would "probably be
a representative for the union" when the Board election was held. When she
admitted this, he said "If you vote for the union that is just like voting for a
strike. . . . If you vote 'No' that's the way you are voting for your job."
On or about May 11 Thomas again spoke to Roe. On this occasion she was
wearing a jacket so that her union button was concealed. She was performing
`sanding" work at the time. Thomas said to Roe "Well, I wasn't wearing my
badge today . . . and look what I am doing today." Roe replied, "Well, chicken,
l expected a change in heart. Not only in appearance . . . . you need not expect
miracles over night."
Thomas admitted that during January 1964 she asked Roe to be transferred to
another job other than highlighting because she was having trouble with another
employee. In this connection she testified that Roe pointed out that the other jobs
available did not have a piece rate, and that she told him that she was willing to
work on day rate jobs. Thomas also admitted that she had a similar conversation
with Jones in January or February. From Thomas' testimony and from the
Respondent's records it appears that she made about as much money on the day
rate jobs as she did on highlighting.
Roe and Adcock both testified, in substance, that Thomas was given day rate
jobs because she asked them to be transferred off of highlighting . Adcock testified
that Thomas complained to him about the day rate jobs "because she was getting
switched so much from one job to another"; that when he suggested that she return
to highlighting, she agreed; and that thereafter he put her back on highlighting on
part time, with 1 or 2 days a week on day rate jobs.42
I find that Thomas' transfer on April 28 was not violative of the Act. From
the evidence it appears that her admitted requests for day rate jobs were outstand-
ing as of that date. While the statements of Jones and Roe indicate discrimina-
tion, the uncontradicted testimony of Adcock and the Respondent's records show
this not to be the case.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with Respondent 's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondent has dominated and interfered with the
formation and administration of the Employees' Committee. It will be recom-
mended that the Respondent cease and desist from such activity. It will also be
recommended that the Respondent cease and desist from recognizing or in any
other manner dealing with the Employees' Committee, and that the Respondent
completely disestablish it. .
42 The Respondent 's records support the above testimony.
1838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has also been found that the Respondent discharged Robert Hoggard on
May 20, 1964, Earl Dean Smith on June 19, 1964, and William Bolles on
May 14, 1964; that it laid off Smith from May 7 through 14 and from May 22
through 25, 1964, Charles Bounds from May 14 through 21, 1964, Bobby Joe
'Collins from May 13 through 21, 1964, Cecil Herrell from May 20 through
26, 1964, O. B. Jimmerson from June 22 through 30, 1964, and Richard Hiscock
from May 7 through 14, 1964; and that it transferred to lower rated jobs Cecil
Herrell from May 13 through 19, 1964, and Arthur Childress from May 20
through 22, 1964. Accordingly, it will be recommended that the Respondent
offer Haggard, Smith, and Bolles immediate and full reinstatement to their former
or substantially equivalent positions without prejudice to their seniority or other
rights or privileges, and make them and Bounds, Collins, Cecil Herrell, Jimmerson,
Hiscock, and Childress whole for any loss of pay suffered by reason of the dis-
crimination by payment to each of them of a sum of money equal to that which
he would have earned as wages from the date of the discrimination to the date of
reinstatement, or in the case of the transfers to the date when Cecil Herrell and
Childress were returned to their old jobs, less his net earnings during such period
in accordance with the formula prescribed in F. W. Woolworth Company, 90
NLRB 289, together with interest on such sum, such interest to be computed in
accordance with the formula prescribed by the Board in Isis Plumbing & Heating
Co., 138 NLRB 716.
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. The Union and Employees' Committee of Scotts, Inc., are labor organiza-
tions within the meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1) of the Act.
3. By dominating and interfering with the formation and administration of the
Employees' Committee, the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (20) of the Act.
4. By discharging Robert Hoggard, Earl Dean Smith, and William Bolles, by
laying off Smith, Charles Bounds, Bobby Joe Collins, Cecil Herrell, O. B. Jimmer-
son, and Richard Hiscock, and by transferring Cecil Herrell and Arthur Childress
to lower-rated jobs, the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
New Deal Cab Company, Inc. and Jason Whittaker et al ., Peti-
tioners and Truck Drivers, Warehousemen & Helpers, Local
Union No . 512, International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America . Case 12-RD-
110. June 30, 1966
DECISION AND ORDER
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, as amended, a hearing was held at Jacksonville,
Florida, on September 23 and October 14 and 15, 1965, before Hear-
ing Officer Robert G. Romano. The Hearing Officer's' rulings made at
the hearing are free from prejudicial error and are hereby affirmed.
159 NLRB No. 111.