Seneca Plastics, Inc.

National Labor Relations Board - Board Decisions

Oct 30, 1964

149 N.L.R.B. 320 (N.L.R.B. 1964)

320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was deprived of his employment by the whim of Local 60. Indeed, absent evidence
of existence of a legal hiring arrangement or practice, Local 60, it would seem,
has no more claim to control whom this employer would hire than would some
fraternal organization or the local chamber of commerce.
Upon all the foregoing, therefore, I conclude and find that by Foreman McAl-
lister's refusal to hire Schrader because he would not be cleared by Local 60,
Gouverneur thereby discriminated against him in what would be a violation of
Section 8 (a) (3) of the Act, had Gouverneur's action been properly before me.
Nor is it essential that Gouverneur be a party to this proceeding. Here no
charge was filed against the Employer, hence no complaint issued against it. As
Section 8(b)(2) requires only a showing that the union caused or attempted to
cause the employer to commit conduct which, if or when committed, would violate
8(a)(3); and as, in the absence of a charge against an employer the General
Counsel has no authority to issue a complaint against such an employer, the fact
that no such complaint has been issued does not preclude a finding that the union
against whom a complaint was filed had, in fact, violated Section 8(b)(2).5 Under
all the circumstances, therefore, I conclude and find that because Local 60's
refusal to clear Schrader for employment with Gouverneur was the direct cause of
Gouverneur's discrimination against him by its refusal to hire him, Local 60 there-
by violated Section 8(a)(2) of the Act, and by the same conduct thereby re-
strained and coerced Schrader and its other employees in violation of Section
8(b)(1)(A).6
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III above, occurring in connec-
tion with the operations of the Company set forth in section I above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found and concluded that Respondent, Local 60, has unlawfully caused
Gouverneur to discriminate against Edward O. Schrader, I shall recommend that it
cease and desist therefrom as to Schrader and any other applicant for employment
or employee, and take certain affirmative action designed to effectuate the policies
of the Act.
By its refusal to clear Edward 0 Schrader for employment, Local 60 thereby
deprived Schrader of gainful employment to which he would have been entitled as
a qualified ironworker in a vacancy shown to have existed when he applied for and
was refused employment. In view of the monetary loss thus occasioned by Local
60's unlawful conduct, I shall recommend that Local 60 be required to reimburse
Schrader for the wages lost by its action,7 computation being accomplished in the
customary manner 8 with interest assessed at the rate of six percent per annum from
March 26, 1964, the date upon which he was refused employment.9
[Recommended Order omitted from publication.]
5 The Radio Officers' Union etc v N L R B , supra, at 53-54
6 The Radio Officers' Union etc v. N.L R B , supra, at 26-27, 42.
7 The Radio Officers' Union etc v N L R B , supra, at 54.
8 F. W. Woolworth Company, 90 NLRB 289 ; Crossett Lumber Company, 8 NLRB 440.
6 Isis Plumbing 4 Heating Co., 138 NLRB 716
Seneca Plastics, Incorporated and Glass Bottle Blowers Asso-
ciation of the United States and Canada , AFL-CIO. Case No.
8-CA-3420. October 30, 1964
DECISION AND ORDER
On July 9, 1964, Trial Examiner Frederick U. Reel issued his De-
cision in the above-entitled proceeding, finding that the Respondent
149 NLRB No. 34.
SENECA PLASTICS, INCORPORATED 321
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. He further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint, and
recommended that such allegations be dismissed. Thereafter, the
Respondent, the General Counsel, and the Charging Union filed ex-
ceptions to the Trial Examiner's Decision and supporting briefs, and
the Respondent also filed a reply brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following additions,
modifications, and exceptions.
1. The Trial Examiner found, and we agree, that the Respondent
discharged employee McElroy because of his active campaigning for
the Union, in violation of Section 8(a) (3) and (1) of the Act.
2. The Trial Examiner also found, and we agree, that the Respond-
ent recognized and dealt with the Committee, an employer-dominated
labor organization, in violation of Section 8(a) (2) and (1) of the
Act. We find merit, however, in the General Counsel's exceptions to
the Trial Examiner's failure to recommend disestablishment of the
Committee.
The Committee was formed in March 1963, following the Union's
defeat in a Board election. An employee had suggested to the Re-
spondent's general manager that an employee committee be formed
to bargain collectively with the Respondent, and that such committee
be composed of three employees to be elected and three to be named
by the Respondent. The general manager agreed to the formation
of a bargaining committee. He first proposed that all the members
be elected by the employees, but later acquiesced in the suggestion
that the Respondent name three of six members. The general man-
ager thereafter addressed the employees, and urged their support of
the Committee. There is no evidence that the employees were given
any choice in the matter of the Committee becoming their bargaining
representative.
The Committee had no constitution, bylaws, or officers, and col-
lected no dues. It held no formal meetings, and, it appears, no meet-
ings of the employees except to elect a replacement for one of the
770-076-65-vol. 149-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
Committee members designated by the employees. All meetings of
the Committee with the Respondent were conducted in the office of
the general manager, with the general manager and plant superin-
tendent present. The employee members of the Committee were paid
for their time in attending these meetings, which were held during
working hours.
The formation of the Committee occurred more than 6 months
prior to the filing of the charge herein, and is set forth only as back-
ground for the events here in issue. During the 6 months prior to
the filing of the charge, however, the Committee continued to meet
with the Respondent, and the Respondent appointed a replacement
for one of the committee members it had designated. In fact, it was
not until after the filing of the charge, and after an informal opinion
from the Board's Regional Office, that the Respondent removed its
three appointees from the Committee.
Although the Trial Examiner found that the Respondent domi-
nated the Committee in violation of Section 8(a) (2) and (1) of the
Act, and that "to some extent the present Committee is a continua-
tion of the formerly dominated organization," he did not recommend
disestablishment of the Committee on the grounds: (a) that the Re-
spondent had been reluctant initially to appoint its three members,
(b) it had canceled their appointments when advised of the illegality
of a Committee so constituted, and (c) in the event the Committee
was disestablished, "the employees would be free to select a new simi-
lar Committee." We find these grounds without merit, however, as :
(a) the Respondent, while expressing initial reluctance to do so, did
appoint half the members of the Committee; (b) its withdrawal of
its appointees after issuance of the instant charge is in our opinion
insufficient to purge the Committee of the effects of the Respondent's
domination and assistance; and (c) while the employees may select
a similar committee, it is only by disestablishing the dominated or-
ganization that they can be given an opportunity freely to select a
representative. Accordingly, as we find no adequate basis for de-
parting in this case from the Board's long-established policy of re-
quiring complete disestablishment of a company-dominated labor or-
ganization,l we shall enter a disestablishment order.
3. In November 1963, the Committee requested that the Respond-
ent grant the employees a week's extra vacation, a wage increase, and
a 3-day paid leave in the event of a death in an employee's family.
The Respondent promptly granted the vacation request, took no ac-
tion on the request for a wage increase, and agreed to consider the
request for the 3-day paid leave. The Union, which began its or-
ganizational campaign during the last week in January or early Feb-
'The Carpenter Steel Co., 76 NLRB 670.
SENECA PLASTICS, INCORPORATED 323
ruary 1964, distributed campaign literature which listed such paid
leaves as one of the benefits enjoyed by its members in other plants.
The respondent's general manager admittedly was aware of the
Union's campaign and of its organizing propaganda when, during
the first week in February, the Respondent announced that it was
granting this 3-day leave benefit to its employees.
The Trial Examiner found that, as this benefit had been requested
by the Committee, and the Respondent had agreed to consider the
matter, the General Counsel had failed to prove that the grant of
this benefit was prompted by the threat of organization by the Union.
The Respondent had, however, taken no action on this request of the
Committee for 3 months, and then granted it directly after learning
that the Union was organizing and was listing this very benefit as
one it had obtained at other plants. The Respondent presented no
evidence to show that it had, during these 3 months, discussed the
matter further with the Committee or that it had decided to grant
this benefit at any time prior to the Union's campaign.2 According-
ly, we are convinced, and find, contrary to the Trial Examiner, that
the Respondent granted this benefit in order to discourage member-
ship in or activity on behalf of the Union, in violation of Section
8(a) (1) of the Act. -
4. The Trial Examiner, although he found that the Respondent
had violated Section 8(a) (3) and (2) of the Act, recommended a
narrow cease-and-desist order. In view of the nature and extent of
the Respondent's violations, we shall order the Respondent to cease
and desist from in any manner infringing upon the rights of em-
ployees as guaranteed by Section 7 of the Act.,
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that the
Respondent, Seneca Plastics, Incorporated, Cambridge, Ohio, its of-
ficers, agents, successors, and assigns, shall :
1. Cease and desist front :
(a) Discouraging membership in Glass Bottle Blowers Association
of the United States and Canada, AFL-CIO, or any other labor or-
ganization of its employees, by discharging employees or otherwise
discriminating against them because of their union membership or
activities.
(b) Dominating or interfering with the administration of the
Committee, or any other labor organization of its employees, or con-
2 Cf. Jackson Tile Manufacturing Company, 122 NLRB 764
2 N L R B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4) ; Fry Products, Inc., 110
NLRB 1000, 1005.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tributing financial or other support thereto, or recognizing the Com-
mittee or any successor thereto.
(c) Granting its -employees benefits in order to discourage union
membership or activity, provided, however, that nothing in this De-
cision and Order requires it to vary or abandon any economic benefit
which has heretofore been established.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self -organization, to
form labor organizations, to join, or assist Glass Bottle Blowers As-
sociation of the United States and Canada, AFL-CIO, or any other
labor organization , to bargain collectively through representatives of
their , own choosing , and to engage in other concerted activities for
the purposes of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act , 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 organiza-
tion 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 necessary to effectuate the
policies of the Act :
(a) Completely disestablish the Committee as representative of
any of its employees for the purpose , in whole or in part, of dealing
with or discussing grievances , labor disputes , wages, rates of pay,
hours of employment , or conditions of work.
(b) Offer Ralph E. McElroy immediate and full reinstatement to
to his former or substantially equivalent position , without prejudice
to his seniority or other rights and privileges , and make him whole
in the manner described in the portion of the Trial Examiner's De-
cision entitled "The Remedy" for any loss of earnings suffered by
reason of the discrimination against him.
(c) Notify Ralph E. McElroy, if he is serving in the Armed
Forces of the United States, of his right to full reinstatement upon
application in accordance with the Selective Service Act and the
Universal Military Training and Service Act of 1948, as amended,
after discharge from the Armed Forces.
(d) Preserve and, upon request , make available to the Board or
its agents , for examination and copying, all payroll records, social
security payment records, timecards , personnel records and reports,
and all other records necessary to analyze the amount of backpay due
under the terms hereof.
(e) Post at, its plant at Cambridge, Ohio, copies of the attached
notice marked "Appendix ." 4 Copies of said notice , to be furnished
' 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 "
SENECA PLASTICS, INCORPORATED 325
by the Regional Director for Region 8, shall, after being duly signed
by an authorized representative of the Respondent, be posted imme-
cliately upon receipt thereof, and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all places where
notices to its employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to 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 dominate or interfere with the administration of
the Committee , or any other labor organization of our employees,
or contribute financial or other support thereto, or recognize the
Committee or any successor thereto.
I'VE WILL completely disestablish the Committee as representa-
tive of any of our employees for the purpose, in whole or in part,
of dealing with or discussing grievances , labor disputes , Wages,
rates of pay , hours of employment , or conditions of work.
I'VE WILL NOT discourage membership in Glass Bottle Blowers
Association of the United States and Canada, AFL-CIO, or any
other labor organization of our employees , by discharging em-
ployees because of their union membership or activities.
NE WILL offer Ralph E. McElroy immediate and full rein-
statement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges,
and make him whole for any loss of earnings he may have suf-
fered as a result of the discrimination against him.
WE WILL NOT grant our employees benefits in order to dis-
courage union membership or activity.-
WE WILL NOT in any other manner interfere with, restrain, or
coerce any' of our employees in the exercise of their right to self-
organization , to form, join , or assist Glass Bottle Blowers As-
sociation of the United States and Canada, AFL-CIO, or any
other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in other-con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection , as guaranteed by Section 7 of the Act,
or to refrain from any or all such activities , except to the extent
that such rights may be affected by an agreement requiring mem-
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership 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.
All our employees are free to become or remain, and to refrain
from becoming or remaining, members of the above-named or any
other labor organization.
SENECA PLASTICS, INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
NoTE.-We will notify the above-named employee if presently serv-
ing in the Armed Forces of the United States of his right to full re-
instatement upon application in accordance with the Selective Serv-
ice Act and Universal Military Training and Service Act of 1948, 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.
Employees may communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio,
Telephone No. Main 1-4465, if they have any questions concerning
this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , heard before Trial Examiner Frederick U. Reel at Cambridge, Ohio, on
May 21, 1964, pursuant to a charge filed the preceding February 17 and a com-
plaint issued April 2, presents questions as to whether Respondent granted benefits
to employees to discourage union activity , dominated , interfered with, or supported
a labor organization , and discharged one Ralph McElroy for union or concerted
activities. Upon the entire record in the case, including my observation of the
witnesses , and after due consideration of the briefs filed by General Counsel and
Respondent , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATIONS INVOLVED
Respondent , hereinafter called the Company , an Ohio corporation engaged at
Cambridge in the manufacture of plastic injection moldings, annually ships over
$50,000 worth of finished products to points outside the State and is therefore
engaged in commerce within the meaning of Section 2 ( 6) and (7) of the Act.
Charging Party, herein called the Union , is a labor organization within the mean-
ing of Section 2(5) of the Act . A committee of employee representatives, herein
called the Committee and described more fully infra , is, for reasons developed
below, likewise a labor organization within the meaning of Section 2(5).
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Company 's creation of and dealings with the Committee
In March 1963, the month following the Union 's defeat in a Board-conducted
election at the Company 's plant, employee John Potts approached Company Gener-
SENECA PLASTICS, INCORPORATED 327
al Manager Dwight Wade 1 to suggest that the employees would like to have an
employee committee represent them in dealings with management. Wade agreed
to the general proposal but originally demurred to Potts' suggestion that the
Company name three men (one from each shift) and the employees elect three
(one from each shift) to the Committee. Wade's original view was that all the
committee members should be selected by the employees. He yielded, however,
when the employees indicated that unless the Company named three of the men, the
employees would abandon the project.
The six-man committee met with management on various occasions during the
year following its creation. The personnel of the Committee underwent some
revision during this period, as various representatives left it and were replaced,
either by election (in case an elected representative stepped down) or by company
appointment, if a company appointee was to be replaced. In December 1963
(within 6 months prior to the filing of the charge) the Company appointed Harold
Meighen to the Committee; Meighen had been an employee-elected member at an
earlier date. Also within 6 months prior to the charge, the Company after discus-
sion with the Committee granted the Committee's request that the Company grant
employees time off with pay in the event of a death in the employee's immediate
family. This was only one of many working conditions which the Committee
from time to time discussed with management.
The committee members were paid for time spent in negotiating . meetings with
management (at all such meetings two members of the Committee were present
during their working hours, and four members were present outside their working
hours). The committee members did not hold formal meetings of their own and
did not hold meetings with the employees. The Committee had no constitution or
bylaws, had no officers, and collected no dues.
After the filing of the charge in this case, and as the result of an informal
opinion from a representative of the -Board's Regional Office, the Company re-
moved its three appointees from the Committee, which continues, apparently, as a
three-man group.
Upon these facts I find that the Committee is a labor organization within the
meaning of the Act; it falls squarely within the definition of Section 2(5). N.L.R.B.
v. Cabot Carbon Company, et al., 360 U.S. 203. I also find that the Company vio-
lated Section 8(a) (2) and (1) of the Act by "dominating" this organization in that
the Company appointed three of the six employee members. In so finding I have
not overlooked the testimony of some of the employer-nominees that they did
not regard themselves as management representatives, but their testimony to that
effect does not alter the basic fact that management named half the membership
of the Committee. This "domination" was evidenced within the period cognizable
under Section 10(b) by the Company's appointment of a committeeman in
December 1963. The Company's action in dropping its three appointees from the
Committee after the filing of the charge in this case does not moot the case
(see, e.g., N.L.R.B. v. Associated Machines, Inc, 219 F. 2d 433, 437 (C.A. 6))
but is a matter discussed under "The Remedy," infra.'
B. The granting of benefits
General Counsel alleges that the Company has "granted economic benefits and
rewards to its employees in an effort to discourage union organization activi-
ty." The evidence in support of this allegation is that the Company in February
1964 instituted the plan of paying employees for 3 days' absence caused by a death
in the employee's family. This was 1 of 11 benefits which the Union had claimed
its members enjoyed in other plants. The Union's claims were contained in organ-
izing literature which it distributed to company employees shortly before the Com-
pany granted this benefit, and General Manager Wade admitted that he was aware
of the Union's propaganda at the time he granted the benefit. The record also
shows, however, that the benefit in question had been suggested by the Committee
some months before, and that the Company at that time had agreed to consider the
matter. Under all the circumstances I find that General Counsel failed to sustain
the burden of proof that the grant of this benefit was prompted by the threat of
r Wade's son, Ted Wade, is plant superintendent.
2 Under all the circumstances, and particularly as the Committee had its genesis with
the employees rather than in the mind of the Employer, I find no evidence of unlawful
support in the fact that the Committee has no officers, dues, bylaws, etc , or in the fact
that the employees are paid for attending bargaining meetings.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization . N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, appears to
turn, in part at least, on the fact that the benefit there was granted on the eve of
an election , a compelling circumstance absent here.
C. The discharge of McElroy
1. McElroy's employment record
Ralph McElroy worked for the Company for approximately 21/2 years prior to
his discharge on February 8, 1964. During all but the last week of his employ-
ment his job was that of a press operator on the second shift. Five days before his
discharge he was promoted to the job of floor-man, a promotion made on the basis
of his seniority. At the time of the promotion the factory superintendent advised
him that the promotion carried a 30-day probationary period; if in that period his
work as a floorman was unsatisfactory or if he did not like the job, he would be
returned to the press.
Notwithstanding the promotion, company officials testified that McElroy had
never been a particularly satisfactory employee. Among the faults of which they
complained was his "absenteeism"; he was supposed to work a 7-day week but was
allegedly often absent on weekends.3 McElroy's press had damaged a mold some
3 months before his discharge, and the Company was of the view that this might
possibly have been occasioned by some neglect on his part. The Company con-
ceded that the mold matter was merely an "incident" in McElroy's work record
"and not a major issue in his discharge." Foreman Scurlock, called as a company
witness, testified on direct examination that McElroy was neither the best nor the
worst of the press operators, and that he was "a fairly good operator" apart from
his absenteeism. McElroy testified that Scurlock on one occasion called McElroy
the best man Scurlock had.
2. Circumstances attending the discharge
During McElroy's employment on the press, he normally produced 540 units per
day. This was the same number normally produced each day during that period
by Lee Harding, who operated the same machine on the first shift, and by Jim
Harding, who operated the same machine on the third shift. Lee Harding's ten-
ure on that press antedated McElroy's; at the time McElroy was put on the press it
was normally producing 540 units per shift, and the figure remained unchanged
during the months McElroy operated the machine on the second shift. On one
weekend a few months preceding McElroy's discharge, an operator normally em-
ployed on another machine produced 590 parts in one shift on the Harding-McEl-
roy machine, apparently by using a more efficient method of removing the product
from the press. He reported his success to General Manager Wade, and at a later
date (but before McElroy's discharge) told Wade that "somebody was sitting on
that press."
At the time McElroy was transferred to floorman, the press he had been operat-
ing (which had been shut down for repairs over the weekend of February 1 and 2)
returned to part-time operation. Jim Harding operated it for a full shift on Feb-
ruary 3 and produced 550 units; its next full-shift operations were on February 6,
when it twice produced 560; and commencing February 7, it regularly produced 580
per shift. Certain adjustments were made in the time cycle of the machine at the
time McElroy was promoted to floorman. Although there is testimony that these
changes did not affect the overall automatic time cycle, they apparently did affect
the "slack" in the gate, and hence improved the efficiency of the operation.
When General Manager Wade returned from a business trip early in February
1964, he was displeased to learn that McElroy had been promoted to a floorman's
job. On Friday, February 7, the day McElroy's old press started to turn out 580
pieces per shift, Wade saw McElroy speak to Lee Harding at the press. Wade told
McElroy, referring to the increased production, "That is what you should have
been doing right along," to which McElroy returned, "It can't be done," and
walked away. Wade then asked Harding what McElroy had said with respect to
the machine's production, and Harding replied (according to Wade) that McElroy
3 There is some evidence that the plant operated 7 days a week only 8 months of the
year On the other hand there is also evidence that the Company operated on Saturday,
and Sunday in every month of 1963 except May, June, July, September, and December and
that it operated on those days in May, July, and September of 1962.
SENECA PLASTICS, INCORPORATED 329
had been complaining more about the production of another machine on the other
side of the building. McElroy's version of his conversation with Wade does not
differ materially from Wade's. According to McElroy, however, his conversation
with Harding began with the latter's saying, "Look at my production sheet." Mc-
Elroy testified that he looked at the sheet, saw the increased production, and said
with a laugh, "I see that they got you speeded up. That means that I have to
make more boxes," a reference to his duty as floorman to supply boxes for the
production.
Dwight Wade that evening decided to discharge McElroy, and so instructed
Ted Wade, the plant superintendent, either then or the next morning.4 In
Dwight Wade's words, he regarded McElroy as the "instigator" of the produc-
tion problem on the press, rather than either of the Hardings, a judgment
allegedly based on what Wade viewed as McElroy's penchant for weekend absen-
teeism. The next morning Wade spoke to two members of the Committee, ex-
plaining his determination to discharge McElroy for holding down production
and emphasizing that the plant had been failing to get orders because its bids
were too high based on current rates of production.
The plant superintendent concurred in the judgment of his father, the general
manager, that McElroy should be discharged. .Whereas General Manager Wade
merely felt that McElroy was the "instigator" of the low production, Superinten-
dent Wade had "heard through the grapevine that [McElroy] had been complain,
ing about the production " 5 According to Ted Wade, he feared that McElroy,
who had held down production on his old press and who was now complaining
about production on the other presses, would in his new job as floorman "have the
opportunity to roam all over the plant and maybe undermine production every
place else." Accordingly, on Saturday afternoon, February 8, Ted Wade sent for
McElroy and, following a short interview, discharged him.
During the interview, according to McElroy (Wade, called as a witness, did not
contradict McElroy's version, which I credit), Wade accused McElroy of "holding
down on production, telling men to hold down on production, causing ill feelings
between the men" and not "doing [his] work on the floor." McElroy in reply,
said that he had 30 days in which to prove himself on the floor job, and denied
telling anybody to hold down production. Wade then said that McElroy was
"complaining," to which McElroy rejoined: "Yes, I admit that I complained about
speed up in the presses.... Every man out there, every press operator out there
is complaining about the way the presses were speeded up." Wade replied that he
did not expect McElroy to admit all the charges against him but that "they had
a man tell him [Wade] that [McElroy] told him [Wade's informant] to hold down
on production." McElroy demanded the name of the informant, but Wade de-
clined to reveal it. Wade referred to the failure to obtain jobs because of overbid-
ding. He also stated that "they would have no so-and-so come in off the street
and tell them how to run their plant." McElroy said, "I take it I'm fired," and
when Wade confirmed this, McElroy left.
3. McElroy's union activity
During the weeks immediately preceding his discharge, McElroy had been
actively campaigning for the Union, and had spoken to approximately three-
fourths of the men on his shift in an effort to induce them to sign cards. McEl-
roy's union activity was not confined to general solicitation of employees in vacuo,
as it were. On the contrary, he vigorously espoused the Union as the means the
employees should take to alleviate certain working conditions of which they were
complaining. During the several weeks preceding McElroy's discharge, a num-
ber of employees complained among themselves over what they regarded as a
speeding up of the presses. Not only McElroy but other witnesses as well testified
that the employees (both pressmen and floormen) had been voicing such com-
plaints. Upon hearing their complaints, McElroy would make such comments as
the following:
If we had a union in here we could get this place organized if the guys
would sign the cards and we could put these jobs on bonuses or else get a
4 Ted Wade's testimony as to when he discussed the *McElroy discharge with Wade,
Senior, is inconsistent
But Ted Wade answered "No" to the question. "Did anyone report to you that
McElroy had importuned and asked hint to hold back production?"
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raise. We weren 't getting anything The Company was getting more pro-
duction but we were getting more work and that is all that we were getting.
They are liable to speed up the press again tomorrow and there is nothing.
you can do about it. It is not doing you any good to complain to me. If
we could get organized around here, get some cards signed , get a union, we
could help ourselves and have some protection.
* * * * * * *
You guys are all mad now, one thing that you can do about it is to organize.
I got cards in my car. I will be glad to give one to any man that wants it.
If we had a union, we could set it up on a basis where we would either get
a raise over the board , or you have the bonus , anything after so many.
* * * * * * *
If we get a union in here, we wouldn ' t have to contend with that . We could
settle speeding up the machines.
* * * * * * *
If we had an organization and get the cards in we wouldn 't have to put
up with this.
McElroy categorically denied , both at the time of his discharge and again as a
witness, that he had ever asked , urged, or counseled any employee to hold down
production . Other witnesses corroborated his testimony to the extent of testifying
that they had never heard him do so, and had not heard from other employees that
he had done so. The Company produced no witness , among the several em-
ployees it called , who testified that McElroy had urged him to curtail produc-
tion. General Manager Wade at first testified that employee Starr told him McEl-
roy had importuned Starr to hold down production , and that Starr was the only
employee who ever told him that . But Wade expressly retracted this testimony,
and testified affirmatively that Starr had not told him this. Starr, a witness for the
Company, did not testify that McElroy had ever so importuned him. Ted Wade
testified that Foreman Scurlock told him that employee Fabian told Scurlock that
McElroy asked Fabian to hold down production . Scurlock placed this conversa-
tion as after McElroy's discharge , and Fabian was not called as a witness. What
Fabian said , according to Scurlock , was that McElroy complained that Fabian was
running too much on his press , thereby making too much work for McElroy. In
the absence of Fabian's testimony , there is no probative evidence that McElroy
made the statement in question In any event , the alleged remark did not even
come to Scurlock 's attention , let alone the Wades', until after the discharge. In
this state of the record , I find that McElroy never asked any employee to curtail
production and that , as General Manager Wade admitted , "no employee whoever
told [him] that Mr. McElroy was importuning them to hold back production."
McElroy was , however, urging that the men turn to the Union to obtain relief
(possibly piece-rate pay or bonuses or negotiated production ceilings) from the
speedup of which many were complaining.
4. The Company 's discharge policies
Although McElroy was given a summary discharge , the Company ' had a policy,
when contemplating discharge , of suspending the employee for 3 days during
which the Company would deliberate over whether to permit the employee to
resume work or would convert the suspension into discharge . This policy was
followed in those cases where the Company had some initial doubt as to whether'
the offense merited the severity of discharge . For example , one David Sichina was
discharged outright ; his offense was that "he took off and just didn't come back to
work" although Ted Wade "went down to his house three times to get him to
come back .. . On the other hand, Fred Calixte was given a suspension, after
which he was discharged . According to Ted Wade , Calixte "was one of these
fellows that didn't want to abide by any of the company rules. He would take
excessive time on his breaks, he would work on his car during working hours, he
was holding back production ." Calixte had been warned about these matters
before his 3-day suspension which eventuated in his discharge . As Ted Wade
testified , "We usually try to give a man lots of chances. Calixte 's production,
incidentally , was less than 1 ,040 units per shift on a press on which the other men
were then running 1 ,040 and which subsequently produced 1,380 units per shift.
SENECA PLASTICS, INCORPORATED
5. Concluding findings as to McElroy
331
The issue in McElroy's case, of course, is whether he was discharged for union
activity or for some other reason-absenteeism, breaking a mold, inattention to
work, holding down production, or trying to get others to hold down produc-
tion The Company itself, although adverting to his other faults, emphasizes the
production factors as the real cause for his discharge. The curious aspect of the
case is that the union activity in which he was engaged took the form of discuss-
ing the alleged production speedup 6 with the other men, and hence the cause for
discharge claimed by General Counsel and the cause asserted by the Company are
nearly identical, albeit phrased in sharply differing terms.
As noted above, the evidence is overwhelming that McElroy did not urge any
employee to slow down production; there is little if any, probative evidence to the
contrary. It is altogether possible that McElroy's urging the men to join the
Union as a means of satisfying their complaints came to the Company's attention,
and it is also possible that the "grapevine," to which Ted Wade referred, had
slightly garbled what McElroy had urged. In any event, the Company's position
is that one of the causes, if not the prime cause, of McElroy's discharge was the
Company's belief that he had been urging the men to curtail production. Assum-
ing that the Company knew that McElroy had not so urged the men but had
merely urged them to organize so that they might negotiate through a union on
"speed-up" problems, it is clear that a discharge for so doing would be unlawful,
as his actions constituted protected union and concerted activity. Assuming the
contrary-that the Company in good faith, but mistakenly believed that McElroy
had urged a slowdown when all he had urged was organization-does not change
the result, for in that event McElroy's legal position is identical to that of the
employee in N.L.R.B. v. Industrial Cotton Mills, 208 F. 2d 87, 89, 93 (C.A. 4),
cert. denied, 347 U.S. 935, specifically approved by the Sixth Circuit in N.L.R.B. v
Cambria Clay Products Company, 215 F. 2d 48, 53. In short, McElroy enjoyed
statutory protection for the remarks to employees like those quoted earlier in this
Decision, and he could not be lawfully discharged therefor, even though his
Employer in good faith, but erroneously, believed that his statements had been of
a different and unprotected character.?
The Company contends that it discharged McElroy not only for trying to curtail
the production of others, but also for curtailing his own production, and in sub-
stantiation thereof points to the increased output on McElroy's former press as soon
as he left it. I am constrained to reject this defense for the following reasons:
In the first place, even the Company concedes that its belief that McElroy was
seeking to have others curtail production was a major contributory cause of his
discharge. Under these circumstances, and in view of the foregoing discussion
establishing the illegality of this reason in this case, it follows that the discharge
violated the Act even if other valid grounds also contributed to the ultimate deci-
sion . See N L.R.B. v. Jamestown Sterling Corp., 211 F. 2d 725, 726 (C.A. 2).
In the second place, the record is by no means clear that McElroy was respon-
sible for the allegedly unsatisfactory production on his machine. This machine
had been producing 540 units per shift before McElroy was put on it. General
Manager Wade knew the production had been "pegged" at that figure, but he
testified that "pegging" (i e., limiting production to a standard number) was a
common , and not an objectionable, practice. Manifestly McElroy had not done the
original "pegging." Militating in the Company's favor is the fact that produc-
tion went up coincidental with McElroy' s leaving the machine. But, according to
Jim Harding, who operated the machine on the third shift, his production increased
at this time because "the slack in the gate time disappeared," and this was an
automatic factor controlled by the mechanism, not by the operator. And Foreman
Egnot, who adjusted the cycle on the machine coincident with McElroy's leaving it
to assume the floor job, testified that he had "jacked [it] up about 3 seconds to
take the slack out of the gate time" (A change of 3 seconds in the 46-second
cycle might well account for an increase in production of about 6 percent from 540
to 580 in an 8-hour shift.)
6 The Company's denial of a speedup raises no issue of moment as the evidence is clear
that the employees thought there was a speedup, and were engaged in a lawful concerted
activity in discussing their complaints among themselves when McElroy urged them to
join the Union
7 The validity of this general proposition will presumably be settled by the Supreme
Court at its next term in N.L R B. v. Burnup and Sims, 322 F. 2d 57 (CA 5), cert
granted 375 U S. 983
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As McElroy was considered a thoroughly satisfactory press operator, the Wades
explained the celerity with which they fastened on him rather than either of the
Hardings, as the "instigator" of the low production by referring to his record of
weekend absenteeism. But even here the data put forward by the Company does
not show what the Company claims for it. McElroy, hired in 1961, missed only 2
full weekends in 1962, plus 1 Saturday and 1 Sunday. This hardly seems like
chronic weekend absenteeism in a man working 7 days a week. His record de-
clined in the first 4 months of 1963, when he missed 2 weekends and 2 Sundays.
But in the last 10 months before his discharge he missed only 2 weekends (and on
one of those he was ill with the flu) plus 1 Sunday and 1 Saturday (the day
following the assassination of President Kennedy). This seems an insufficient
basis for an assumption that he had been the "instigator" of a conspiracy to slow
down production on his and other machines.8
Finally, the summary discharge of McElroy may be contrasted with the treatment
of Calixte, who was given a 3-day suspension while the Company considered his
future tenure. Calixte was consistently below the production quota met by others
on his machine, and was also guilty of other faults, not charged to McElroy. The
inference is all but inescapable that the harsher treatment given McElroy was
prompted by the reports that he had been discussing production speedup with other
employees.
But we are not left to inference and conjecture. There is ample evidence in the
record that the decision to discharge McElroy was motivated in substantial part by
the reports or rumors that had reached management as to McElroy's discussions
with other operators and floormen, concerning their general complaints as to
production. See, for example, McElroy's undenied testimony that in the discharge
interview Ted Wade accused him of "telling men to hold down on production,
causing ill feelings between the men," and "complaining ." See also General
Manager Wade's testimony that he decided to "get rid of [McElroy] because even
on the floor job he was in a worse position as far as work is concerned, because now
he is in a position where he could talk to everybody in the plant." And see Plant
Superintendent Wade's testimony that he had "heard through the grapevine that
[McElroy] had been complaining about the production" and "now he is going to
have the opportunity to roam all over the plant and maybe undermine production
every place else." Finally, we have Ted Wade's statement to McElroy that "they
would have no so-and-so come in off the street and tell them how to run their
plant." 9 Whether the Company knew it or not, what it regarded as attempts to
undermine production were neither more nor less than union or concerted activity
protected by the Act. The record establishes that McElroy had not urged em-
ployees to curtail production, but had urged them to join the Union so they could
have a spokesman for their complaints as to speedup. His activity was protected
by the Act, and his discharge therefor violated Section 8(a)(3) and (1).
CONCLUSIONS OF LAW
1. By dealing with an employee -committee composed in part of company-
appointed members, the Company engaged in an unfair labor practice affecting
commerce within the meaning of Section 8(a)(2) and (1) and Section 2(6) and
(7) of the Act.
2. By discharging Ralph McElroy under the circumstances and for the reasons
described above, the Company engaged in an unfair labor practice affecting com-
merce within the meaning of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act.
THE REMEDY
The appropriate remedy for the discharge of McElroy is to reinstate him with
backpay and interest computed under the formulae approved in F. W. Woolworth
Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The
8 The Company in its brief also refers to alleged midweek absenteeism. Apart from ill-
ness on January 24, and an excused absence because of his son's death, McElroy had missed
part of Veterans Day, and no other weekday time in the 4 months preceding his discharge.
9 General Counsel urges that the "so-and so" referred to the union organizer, and that
the statement shows company knowledge of McElroy's union activity. The Company's
theory, less persuasive, is that the epithet referred to McElroy himself. But either read-
ing shows company irritation at McElroy's efforts to join with other employees in some
action related to production.
MARRIELLO FABRICS, INC. AND MICHAEL MARRIELLO 333
Company should also be ordered to cease and desist from discriminating against
employees for union or concerted activity and from like or related violations of
employee rights under the Act.
Although the Company violated Section 8(a)(2) and (1) by recognizing and
dealing with an employer-dominated labor organization, several circumstances
tend to mitigate the normal disestablishment remedy. In the first place, the
Employer was reluctant to appoint any members to the Committee. Second, the
Company promptly canceled their appointments as soon as advised of the illegality
inherent in the Committee as then constituted. To be sure, to some extent the
present Committee is a continuation of the formerly dominated organization. I
can see no good purpose to be served, however, by "disestablishing" this Commit-
tee, as the employees would be free to select a new similar Committee. In my
judgment, the statutory purposes would be adequately served by making it clear
that the Employer may not recognize and deal with a bargaining agent which
includes employer appointed members.
Finally, I shall recommend the posting of an appropriate notice. For reasons
explicated in Melrose Processing Company, 146 NLRB 979, I shall include the
reference to the Armed Forces in the order, not in the notice.
[Recommended Order omitted from publication.]
Marriello Fabrics , Inc. and Michael Marriello and District 65,
Retail, Wholesale and Department Store Union , AFL-CIO.
Case No. 2-CA-9607. October 30, 1964
DECISION AND ORDER
On July 8, 1964, Trial Examiner Louis Libbin issued his Decision
in the above-entitled proceeding, finding that the Respondents had
engaged in and were engaging in certain unfair labor practices, and
recommending that they cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, the Respondents filed exceptions and the General
Counsel filed cross exceptions to the Trial Examiner's Decision, and
supporting briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, and orders that the Respondent,
149 NLRB No. 36.