Servel, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1944

57 N.L.R.B. 1383 (N.L.R.B. 1944)

Ill the Matter Of SERVEL, INC. and UNITED ELECTRICAL, RADIO &
MACHINE WORKERS OF AMERICA, CIO
Case No., 14-C-904.-Decided August 17 ,19414
DECISION
AND
ORDER
Upon complaint issued pursuant to charges duly filed by United
Electrical, Radio & Machine Workers of America, affiliated' with the
Congress of Industrial Organizations, herein called the Union, against
Servel, Inc., Evansville , Indiana, herein called the respondent, a
hearing was held before a Trial Examiner at Evansville, Indiana,
on April 27 and 28, 1944, in which the Board, the respondent, and the
Union participated by their representatives. The Board has reviewed
the rulings of the Trial Examiner made on motions and on objections
to the admission of evidence and finds that no prejudicial error was
committed . The rulings are hereby affirmed.
On June 1, 1944, the Trial Examiner issued his Intermediate Re-
port, a copy of which is attached hereto, finding that,, by acts acid
statements set forth therein, and by the discharge of Carl L. Peek,
the respondent had engaged in and was engaging in violations of
Section 8 (1) and (3) of the Act. Exceptions to the Intermediate
Report and a brief in support of the exceptions were thereafter filed
by the respondent. Oral argument was held before the Board at
Washington, D. C., on August 1, 1944. The respondent and the
Union were represented by counsel and participated in the oral argu-
ment. Upon consideration of the entire record, including the respond-
ent's exceptions and brief, we hereby adopt the findings, conclusions,
and recommendations of the Trial Examiner , with the additions noted
below.
An examination of the record convinces us that the respondent en-
gaged in the unfair labor practices set forth in the Intermediate Report.
Carl L. Peek was employed by the respondent on September 8, 1943,
as a drill press operator in Department 21 of the respondent's Elec-
tric Refrigeration and Air Conditioning Division , known as and called
57 N. L . It. B., No. 214.'
1383
1384 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein the E. R. and A. C. Division? About November 22, 1943, in
response to inquiries from Peek, according to Peek's iincontroverted
testimony, which we credit, as did the Trial Examiner, Peek was told
by Foreman Stutzman that employees having more experience than
Peek had often failed to attain 100 percent efficiency, and Foreman
Stutzman assured Peek,that his work was satisfactory and the tenure
of his employment was secure, notwithstanding Peek's inability to
attain 100 percent efficiency in his work. During the same conver-
sation, Peek asked for a wage increase. Shortly thereafter, upon
Stutzman's recommendation, the respondent granted Peek a wage in-
crease which became effective on or about December 4, 1943. Late in
November 1943, ,Peek and another employee in his department, Jack
Jarboe, consulted the Union's representative with regard to organizing
the E. R. and A. C. Division as a separate unit for the purposes of
collective bargaining: About December 10, 1943, Peek' and Jarboe
obtained application cards for membership in the Union and immedi-
ately launched an organizing campaign among employees in the E. R.
and A. C. Division. Peek enlisted the membership of 26 employees
in the Union before December 17, when he was discharged allegedly
for inefficiency and "loafing." Peek testified without contradiction
and we find, as did the Trial Examiner, that, when Peek was dis-
charged, he-told Stutzman, "I know why you fired me, it was over the
union," and that Stutzman thereupon replied, "I know I promised you
a steady job, then you tried to mess me up." 8 According to the un-
denied and credible testimony of employee Charles Leach, he was told
by Stutzman on the evening of Peek's discharge that, "This Union
work you are carrying on gives me a terrible headache" and that "Peek
had been on company time soliciting and he had been oft times caught
away from his work the same day that he was fired." A Stutzman
further told Leach that he had no right to solicit the membership of
employees in the Union on company property, that Leach was working
for the "wrong man" 'and should not be working for the Union, and
that if Stutzman had known that Jarboe was such an ardent union
Elmo Stutzman is general foreman of the two work shifts on which the department
operates Rod Altom , assistant foreman tinder Stuzman, is in charge of the night shift.
Peek 's immediate supervisor was Set-up Man Ray Hames If is clear that Stutzman,,
Altom, and Humes are supervisory employees whose activities and statements are attrib-
utable to the respondent. '
2 The Union had previously been certified by the Board as the statutory representative
of the employees in the 3 following units : foundry unit with 225 employees, powerhouse
unit with 24 employees , and maintenance electricians unit with 48 employees -
8 By such statement , we find that Stutzman referred to Peek's union activities and not to
an alleged failure on the part of Peek to meet the respondent 's work requirements as the
respondent argues.
+ Peek testified without contradiction and we find , that he confined his union activities
largely to his free time . He denied that he left his job at any time to solicit for the
Union but admitted that on occasion he handed cards to , and received cards from, employees
during working hours as the latter passed his machine.
SERVEL, INC. - 1385
adherent, Stutzman would not have hired Jarboe. Leach also testified
without contradiction and we find, as did the Trial Examiner, that
Assistant Foreman Altom, a few nights later, told Leach that "the
law" prohibited employees from signing union application cards on
company property. About a week before Peek's discharge, Stutzman
had interrogated Jarboe with regard to the Union's activities and, in
addition to making other anti-union statements more fully set forth in,
the Trial Examiner's Intermediate Report, had informed Jarboe that
the respondent had "stool pigeons" and was thus fully aware of the
organizational activities of its employees.
The chief reason urged by the respondent for Peek's discharge is
his alleged inefficiency, as reflected by biweekly efficiency ratings given
all piece-work employees. The respondent contends that Peek was not
the only employee to be discharged for inefficiency and that 10 other
employees, who had formerly worked in Peek's department, had been
discharged because of their inability to perform their work satisfac-
torily. In support of this contention, a list of 10 employees, who were
allegedly discharged for the reason that they were "too slow and un-
satisfactory for the job," was introduced in evidence. Little probative
value is afforded by this list, however, since efficiency ratings of the
10 employees are not given.
The respondent introduced in evidence efficiency and "fall-down"
records of 23 drill press operators employed in Peek's department for
the period covering Peek's employment. As the Trial Examiner
found, these records do not afford a basis for an accurate comparative
analysis of efficiency.5 Most of the employees whose records were sub-
mitted were hired prior to Peek, and the records show, only their effi-
ciency ratings for the period of Peek's employment. It is conceded
that new employees are not required or expected to equal the higher
efficiency ratings made by experienced employees. Of the employees
whose records were submitted, only one, Vernie Orr, was discharged.
His efficiency ratings were as follows : 59.5, 66.5, 93.5, 46.5, 54.0, 67.0,
54.0. The average of these ratings is 63.0. Peek's efficiency ratings,
on the other hand, were 57.4, 47.4, 85.5, 75.1, 85.2, 113.0, 56.0, 69.8.
Peek's average efficiency rating is thus 73.675, more than 10 points
higher than that of Orr. Another employee, Joe Howard, who had
been in the respondent's employ 5 months longer than Peek, had the
following efficiency ratings in November and December 1943: 60.5,
68.7, 63.8, 92.2, 77.0, 56.0. These ratings average 68.03, 5 points lower
than Peek's average, yet Howard was not discharged; he subsequently
achieved higher ratings. It is also to be noted that the efficiency rat-
ings do not afford a true index of an employee's all-over efficiency,
It is likewise clear, as the Trial Examiner found, that no significance can or should
be attached to the "fall-down" data submitted by the respondent.
1386' DECISIONS OF NATIONAL LABOR RELATIONS- BOARD'
inasmuch as the ratings are concerned, only with piece-rate work and
do not reflect day work, a substantial amount of which was performed
by the employees of the departmeht, including Peek.
With respect to Peek's credibility as a witness, which the respondent
attacks, the respondent points to the fact that Peek erroneously denied
knowledge of the use of "white slips,"' whereas in fact he had, sub-
mitted two "white slips" which the respondent introduced in evidence.
We find the error in Peek's testimony to be insignificant; Peek's testi-
mony in all particulars was undenied except with respect to the re-
spondent's claim that one of the reasons for Peek's discharge was his
lengthy and frequent absences from his machine. Foreman Stutz-
man and Set-up Man Hames testified, and Peek denied, that Peek
was frequently away from his machine for long periods of time. The
Trial Examiner found, and we agree, that Stutzman's testimony was
vague and unconvincing. `Moreover, Haines was working in a section
other than that in which Peek was employed on the day of Peek's
discharge, when the absences allegedly occurred. Admittedly, Peek
was never questioned, warned, or reprimanded for his alleged ab-
sences from his machine-or for his alleged deficiencies in his work
performance. We ac'co'rdingly credit Peek's 'testimony, as did the
Trial Examiner, with respect to this controverted issue.
In view of the undenied and credible testimony, referred to above,
concerning violations of Section 8 (1) of the Act, contrary to the re-
spondent's insistence, we do not give controlling weight, in determin-
ing the respondent's motivation in discharging Peek, to the fact that
the respondent has bargained 'collectively and is operating other
departments of its plant under contracts with national labor organi-
zations, including the charging union in this proceeding.'
Upon all the evidence, we find, as did the Trial Examiner, ' that
Peek was summarily discharged prior to the end of his work shift on
December 17, 1943, because of, his union affiliation and organizational
efforts among the employees of Department 21. We further find,
as 'did the Trial Examiner, that, by'the discriminatory discharge of,
Peek', by Stutzmaii's anti-union statements to Jarboe prior to Peek's
-discharge, by Stutzman's anti-union- statements to Leach and partic-
ularly his denial of Leach's right to engage in union activities on
company property without qualification as to working hours, and by
These are given employees working on it piece -rate basis when , through , no,fault of
their own , they lose working time because of machine repair or lack of materials The
slips are also used to equalize production standards on work which has been unjustly rated
by time studies. For such lost time the employee is paid on an hourly basis , thereby
insuung against an unmerited reduction of his efficiency rating .
° The Board has previously found in an earlier proceeding that the respondent engaged
in other unfair labor practices within the meaning of Section 8 ( 1), (2), and ,( 3) of the
Act. Matter of Servel, Inc, 11 N. L It , B. 1295 ; _ order vacating order and substituting
modified order , 21 N. L. It. B 1025.
SERVEL, INC. 1387
Assistant Foreman Altom's similar statements to Leach that he was
prohibited from engaging in union activities on company premises,
the respondent interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 , of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the, National Labor Relations,
Board hereby orders that the respondent Servel, Inc., Evansville,
Indiana, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in United Electrical, Radio & Ma-
chine Workers 'of America, affiliated with the Congress of Industrial
Organizations, or any other labor organization of its employees, by
discriminating in regard to their hire or tenure of employment, or
any term or condition of employment;,
(b), In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right of self-organization, to
form labor organizations, to join or assist United Electrical, Radio
& Machine Workers of America, affiliated with the Congress of In-
dustrial Organizations, or any other organization, to bargain collec-
tively through representatives of their own choosing, and to engage
in concerted activities, for the purposes of collective bargaining or
other mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Carl L. Peek immediate and full reinstatement to his
former or substantially equivalent employment without prejudice to
his seniority or other rights and privileges;
(b) Make whole Carl L. Peak for any loss of pay he may have
suffered by reason of the respondent's, discrimination against him, by
payment to him of a sum of money equal to that which,he normally
would have earned as wages from December 17, 1943, the date of
his discriminatory discharge, to the date of the respondent's offer of
reinstatement, less his net earnings during such period ;
(c) Post immediately in conspicuous places throughout the E. R.
and A. C.'Division of its Evansville, Indiana, plant, and maintain
for a period of at least sixty (60) consecutive days from the date, of
posting, notices to its employees stating : (1) that the respondent will
not engage in the conduct from which it is ordered to cease and desist
in paragraphs 1 (a) and' (b) of this Order; (2) that the respondent
will take the affirmative action set forth in paragraphs 2 (a)' and
(b) of this Order; and (3) that the respondent's employees are free
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to become or remain members of United Electrical, Radio & Machine
Workers of America, affiliated with the Congress, of Industrial Or-
ganizations, or any other labor organization of their choice, and that
the respondent will not discriminate against any employee because of
membership in or activities on behalf of United Electrical, Radio &
'Machine Workers of America, affiliated with the Congress of Indus-
trial Organizations, or any other labor organization;
(d) 'Notify the Regional Director for the Fourteenth Region in
writing, within ten (10) days from the date of this Order, what
steps the respondent has taken to comply herewith.
CHAIRMAN MUMS took no part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Ryburn L. Hackler, for the Board.
Mr. Isudor Kahn, of Evansville, Ind, for the respondent.
Mr. James Payne , of Evansville , Ind., for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed by United Electrical, Radio & Machine Workers
of America, affiliated with the Congress of Industrial Organizations, herein
called the Union, the National Labor Relations Board, herein call the Board,
by its Acting Regional Director for the Fourteenth Region, (St. Louis, Mis-
souri), issued its complaint dated April 6, 1944, against Servel, Inc, herein
called the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. Copies of the complaint and notice of hearing, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
'that the respondent (1) urged, warned, threatened, and questioned its employees
regarding their union activities and affiliations ; (2) on or about December 17,
1943, discharged Carl L . Peek, its employee , because of his union and concerted
activities ; and (3 ) by the foregoing conduct engaged in unfair labor practices
within the meaning of Section 8 ( 1) and ( 3) of the Act.
Respondent in its duly filed answer to the complaint denied that it had engaged
in the alleged unfair labor practices.
Pursuant to'notice , a hearing was held on April 27 and 28, 1944 , at Evansville,
Indiana, before the undersigned , the trial Examiner duly designated by the
Chief Trial Examiner. The Board and the respondent were represented by
counsel and the Union by a lay representative. Full opportunity to be heard, to
examine and cross-examine witnesses , and to introduce evidence hearing on
the issues was afforded all parties After the opening of the hearing , the under-
signed granted in part a motion by the respondent that the Board be required
to make the allegations in its complaint more definite , certain and specific. Near
the close of the hearing the undersigned granted over the -objection of the
respondent, a motion by the Board 's counsel to conform the pleadings to the
proof with respect to such minor particulars as names and dates. At the close
of the hearing the parties were advised that they might argue before, and file
SERVEL, INC. 1389
briefs with, the undersigned. Only the Board's attorney availed himself of
the privilege of oral argument and no briefs were filed.
Upon the record thus made and from his observation of the witnesses, the
undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Servel, Inc., is a Delaware corporation with its principal place
of business at Evansville, Indiana, where it is engaged in the sale, manufacture,
and distribution of military supplies, including airplane wings, airplane engines,
cylinder heads, cartridge cases, electric refrigeration -machines and air condi-
tioning equipment.
In the conduct and operation of its Evansville plant, respondent has caused
raw materials to be purchased and transported from and through States other
'than Indiana to, its Evansville plant of an annual value in excess of $1,000,000.
The respondent has shipped finished products from its Evansville plant' into and
through States other than the State of Indiana, of a value in excess of $1,000,000
annually.
The respondent is at present engaged entirely in war production. It employs
approximately 8,267 persons. It employs in Department 21 of its E. R. and A. C.
Division, its only operation directly involved in this proceeding, approximately
146 employees.
The respondent admits that it is engaged in commerce within the meaning of
the Act'
II. THE ORGANIZATION INVOLVED
United Electrical, Radio & Machine Workers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization admitting to
membership employees of the respondent.2
III. THE UNFAIR LABOR PRACTICES ,
A. The discriminatory discharge of Carl L. Peck; interference, restraint, and
coercion
Carl L. Peek was employed by the respondent on September 8, 1943, as a drill
press operator in Department 21 of respondent's Electric Refrigeration and Air
Conditioning division, known as and called herein the E. R. and A. C. Division.
This division embraces also Departments 22 and 23. Peek's immediate supervisor
or set-up man was hay Hames who instructed him in the operation of the drill
press on the different jobs to which he was assigned. The general foreman of
Department 21 was Elmo Stutzman. The department operates two work shifts.
Stutzman is general foreman of both shifts, but is normally present at the plant
only during the day shift on which Peek worked. Rod Altom, assistant foreman
under Stutzman, is in charge of the night shift. On December 17, 1943, Stutzman
discharged Peek, alleging that be was inefficient and "loafing" on the job. The
Board alleges that the discharge was discriminatory.
Work in Department 21 is performed either on a piece work or day work
basis. On day work the employee is paid a fixed wage. On piece work he is
also,paid a guaranteed basic wage but by exceeding his quota of production, he
may also earn a premium. Piece work relates principally to jobs on which a
time study has been made. It is respondent's position that the average em-
1 This finding is based on a stipulation of the parties.
2 This finding is based on a stipulation of the parties.
1390 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
ployee should be able to earn 150 percent of the basic time-study rate set on
,piece work. If be earns 130 percent of the rate, his efficiency is recorded as
100 percent. If he earns less than 130 percent of the rate, he is recorded "in
the red," with, a correspondingly less than 100 percent efficiency rating, but
nevertheless receives'the guaranteed wage. If an employee fails to make 130
percent of the time-study rate, the amount to which he falls below that figure
is called his "fall down." At the end of each two-weeks pay period, the effi-
ciency ratings are posted on a blackboard within the department. The following
is a recapitulation, of Peek's efficiency ratings and "fall down" for the entire
period of his employment.
Pay period ending- Efficiency rating Fall down
9/10--------------------------------------- 57.4 $5.71
9/24--------------------------------------- 47:4 $20.40
'10/8 --------------------------------------- 85 5 $2.16
10/22--------------------------------------- 75.1 $12.27
11/5 --------------------------------------- 85.2 $10.88
11/19--------------------------------------- 113:
12/3 ------ - ----------------- 56. $14.63
12/17--------------------------------------- 69 8 $18.73
On or about November 22, Peek told Foreman Stutzman that he had left some
clothes in Gary, Indiana, where he lived before he came to work for respondent,
and that if his work was satisfactory and he had prospects of continuing em-
ployment, he wanted to make` a trip to Gary for the purpose of bringing the
remainder of his personal effects to Evansville Stutzman replied that Peek's
work was satisfactory and it appeared that he would have a job with respondent
as long as he wanted it. Peek testified that he told Stutzman at this time, that
he could not make the "rate," and that Stutzman replied, that there had, been
men of from 5 to 20 years of employment who still did not make the rate. This
testimony, not denied by Stutzman, is credited. During this same conversation,
Peek asked for a wage increase. Stutzman admitted that following the conver-
sation, he recommended a wage increase for Peek. He testified as to his rea-
sons for recommending the increase: "His application to the job and trying to
learn the job is what entered into it, and quality of work he was doing." The
wage increase became effective on or about December 4.
Following assurance from Stutzman of continuing employment, Peek went to
Gary and brought his personal effects to Evansville. '
At or about the same period of his conversation with Stutzman regarding
continuing employment, Peek and another enrployee of Department 21, Jack
Jarboe, visited the office of James Payne, the Union's field organizer, and asked
Payne if it would be possible to organize the E. R and A. C. Division as a sepa-
rate appropriate unit. The Union had previously been certified as bargaining
representative of units consisting of employees of the respondent's foundry,
power house division, and maintenance electricians, 'respectively. Payne advised
Peek and Jarboe that the usual method of organizing was to get employees to
sign union application cards as evidence that they desire union representation
It ' was Payne's undisputed and credited -testimony, corroborated by Peek and
Jarboe, that on the occasion of this first visit he had no application or authori-
zation cards and he advised Peek and Jarboe to come back at some later date
for the cards.
On or about December 10, Peak and Jarboe again visited Payne's office and on
this occasion obtained the union cards - Jarboe testified that in the interim
between the two visits to Payne's office, he talked to about a dozen employees and
SERVEL, INC. 1391
that they were in favor of organization. Having obtained union cards, Peek and
Jarboe solicited employees to sign. Peek testified that he obtained signatures
mostly in the cafeteria of respondent's plant, before work and at the lunch hour.
He denied that he left his job at any time to solicit for the Union but admitted
that on occasion he handed cards to, and received cards from, employees during
working hours as the latter passed his machine. On one occasion, shortly before
his discharge, he spoke to a group of 3 or 4 colored employees who were eating
their lunch in the department and asked them if they wanted to sign cards. , One
of -them indicated that he would sign and Peek handed him a card. It was Peek's
undisputed and credited testimony that Stutzman who was N^alking toward the
group at the time, observed him handing the card to the colored employee. Peek
secured a total of some 26 employee signatures on union cards prior to his
discharge on December 17.
Before the end of Peek's workshift on December 17, at or about 3:30 p. in.
o'clock, Stutzman came to Peek's machine and told Peek that he wanted to see
him in Stutzman's office. In the office, Stutzman advised Peek that his employ-
ment was being terminated at 4: 00 p. in o'clock that day, and that he was being
discharged for "loafing" on the job too much Peek denied that he had been
"loafing" on the job and told Stutzman, "I know why you fired me, it was over
the union * * *." It was Peek's-undenied and credited testimony that Stutz-
man told him, "I know I promised you. a steady job, then you tried to mess me
up." Peek then received his discharge or release slip, which stated as the reason
for discharge, "Not efficient and not suitable for this type of work "
On, the same day that Peek was discharged, Stutzman approached Charles
Leach, an employee on the second or night shift, at the latter's machine, and
told him, "This Union work you are carrying on gives me a terrible headache "
During the same conversation he told Leach that "Peek had been on company
time soliciting and he had been oft times caught away from -his work the same
day that he was-fired.",, Stutzman further told Leach that he,had no right to
sign up employees on company property and that he thought Leach was working
for the "wrong man," that he should not be working for the union. It was Leach's
further undisputed and credited testimony, that Stutzman told him with refer-
ence to Jarboe, that had he known that Jarboe was such a strong union man he
would not have hired him.
It appears that just prior to Stutzman's conversation with Leach, Leach had
observed Stutzman talking to some employees ti horn Leach had solicited to join
the Union. Leach testified, "I didn't think he had treated me right after I had
them signed up, that he should do anything like that, it is an unfair labor practice,
and he said it is his privilege and right to talk to them."
Leach further testified without contradiction, that Rod Altom, assistant fore-
man in charge of Leach's shift, a few nights later approached him about obtaining
employee signatures to union cards on company property. "Ire said that the law
had passed down a new decision on that that a man wasn't ' allowed ,to sign on
Company property," Leach testified. Leach offered to show Altom a decision to
the contrary on the point Altom replied that there was a later decision on the
topic. Questioned, "Did he say what he thought the law was at that time'?" Leach _
answered, "Yes, he said you wasn't allowed to sign on company property."
Leach's entire testimony was uncontradicted and is credited. Jarboe testified.
that 'in the week prior to Peek's discharge, Stutzman asked him- during his
working hours, how he was getting along with the C. I. 0. and told him he "Just
as well come out in the open," because he [Stutzman] knew what was going
on. Jarboe further testified, "[Stutzman] Said that I should know that they know
what was going on in there, because they have their, stool pigeons like any place
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
else, they know at the start what was going on," and "he [Stutzman], asked
me if I thought I would benefit by it [the Union] and I said, yes, I believe I
would, or I wouldn't have been in it, and he was telling me of post-war plans where
he thought that we wouldn't benefit by it, that we would be just as well off if we
didn't have it." Regarding this conversation, Jarboe testified "there wasn't any
harsh words or anything, just a discussion.' Jarboe's testimony was uncon-
tridicted and is credited.
Stutzman admitted that he knew' that there was organizational activity in
Department 21 at the time he discharged Peek and made no denial of knowledge
of Peek's participation in this activity.
,Stutzman testified that he consulted his superior, Ralph Bricker, assistant
superintendent, relative to Peek's discharge and that Bricker advised him to use
his own judgment in the matter. Bricker testified that when Peek's efficiency
rating for the-pay period ending December 3 fell to 56 he told Stutzman that
the latter must do something about it. He also testified concerning Peek's
"fall-down" : "we couldn't keep on accepting that much `fall-down.' " ". _ . under
normal conditions," Bricker testified, "I doubt very much whether we would have
accepted the fall-down as long as we did with Mr. Peek. We try to salvage what
people we can." He admitted that when consulted by Stutzman at or about 2
p. in. o'clock on December 17,-relative to Peek's discharge, he merely approved
Stutzman's action in discharging Peek and that the decision was actually made
by Stutzman.
It is particularly noteworthy that as of the date of Peek's discharge, and for
the two-weeks pay period immediately preceding, l'eek's' efficiency rating rose
from 56 to 698 percent. Both Bricker and Stutzman admitted that they made
no' effort to determine his actual efficiency rating for this last period of his
employment, at the time he was discharged. Efficiency ratings are computed
several days after the end of the respective pay periods. It would appear, how-
ever, that normally, before discharging an employee for inefficiency, reference
would be made to his current efficiency rating and that it would be possible to
have such ratings computed from the employee's work cards on short notice.
Asked, "Do you have any judgment on whether he [Peek] was more efficient
the last two weeks or less efficient than he had been in the prior period when
he made 56%?" Stutzman testified, "I would say he was less efficient." Re-
spondent's records show, however, an increase of 13.8 percent in Peek's efficiency
during the last 2 weeks of his employment. Admittedly, some of'this time he was
engaged in day work on which no efficiency ratings were made, but since his
"fall-down" was greater in spite of his increased efficiency, it is clear that he
was given more piece-work during the last two-weeks period of his employment
than in the preceding pay period 3 Hames testified that he thought Peek's
efficiency was about the same for his last pay period as the one preceding it.
The following is an excerpt from Hames' cross-examination :
Q. If as a matter of fact, his efficiency had gone up in the last two weeks
he was employed, ' would that alter your opinion' of Mr. Peek in any way
as to his efficiency?
A. If it went up very much it would.
It appears from the testimony of both Stutzman and Hames, that until the
'hearing in this proceeding when Peek's efficiency record was produced, neither
3 The amount of the employee's "fall-down" is not an accurate index to his, efficiency,
and does not vary in direct proportion to the efficiency rating, since it may be higher or
lower according to- the amount of time an employee spends on piece work as distinguished
from day work.
SERVEL, INC. 1393
,knew that his efficiency rating was substantially higher during his last pay
period.
Respondent introduced in evidence the efficiency and fall -down record of some
23 drill press operators in Department 21 for the period of Peek's employment.
These records ,, indicate that for the overall period - of his employment , Peek's
efficiency rating was lower and his fall -down higher than that of other employees
during the same period. However, as previously indicated , the amount of the
fall-down is not 'a true index of efficiency since it may be greater or,less accord-
ing to the amount of time which is spent on piece work , as distinguished from
day work, during a given pay period, and respondent 's records furnish no basis
for a comparative analysis in this respect since they do not disclose the•per-
centage of time spent on piece work by either Peek or other employees whose
records were submitted . Nor do these records afford a basis for an accurate
comparative analysis of efficiency , since most of the employees whose records
were submitted were ' hired prior to Peek, but only their efficiency , ratings for
the period of Peek's employment is shown.' Admittedly new employees are not
required to make the high efficiency ' ratings of older and more , experienced
employees . It is apparent from these records, however , that even an expe-
rienced - employee may, on occasion fall from a high to a low efficiency rating
from one pay period to another, and may not attain 100 percent efficiency for
many months after his employment .4 Thus, employee Joe Howard , employed on
.April 19, 1943, had the following efficiency ratings for successive pay,,periods
beginning with the period ending September 24: 60.5, 68:7, 63.8, 92.2, 77,- 56. It
is seen therefore that after almost 8 months of employment , this employee regls-,
tered an efficiency rating of only 56 percent , and that at no time during the
period given did he attain . 100 percent efficiency . He was not , however, dis-
charged, and in the period following his rating of 56 percent , he climbed -to above
100 percent in efficiency and maintained a, high level thereafter , until his. em
ployment with respondent was voluntarily severed. . Employee Vernie.Orr was
employed on October 6, 1943, and at no time until he was released on January
8, 1944 did he attain 100 percent efficiency. At the end of his fourth pay period
he fell from the 93 .5 efficiency rating of the prior pay period to 46.5, but he
was not discharged though at the end of the next pay period on which he was
4 Jarboe testified that it was several months after his employment before he was able
to make 100 percent efficiency rating. His records indicate , however, that , during the -last
period of his employment, dating , from the summer of 1943, he fell below 100 percent
efficiency on only two pay periods . No records were submitted regarding an earlier .period
of employment . Jarboe also testified that an average of about 15 percent of employees
failed to make 100 percent efficiency ratings. Haines testified that an employee should be
"climbing" to 100 percent efficiency by the end of the first 4 or 5 months of employment,
and that the average was about 90 percent at the end of 4 months of employment.
Jarboe further testified that in November 1943, his set-up man or group'leader, Jack
Stockton , advised 'him that he should turn in enough "white slips" for lost time on piece
work, to make his efficiency rating at least 100 percent. Stockton told Jarboe that he
was receiving complaints "because too many of the old men were going in the red-and made
it look bad ." This testimony , undisputed , is credited . It is part of respondent ' s system
that employees while on piece work , are paid at the day rate foi' such time as is neees-,
sarily lost in the production of piece work , in such activities as the sharpening of tools,
going to the tool room for tools , etc. Since ' the efficiency rating is based strictly on piece
work production , , time lost on such - activities , if not credited , would lower the employee's
efficiency rating. -
Peek testified that he was never advised that he might turn in the so-called "white, slip"
for time lost on piece work, and that he never filed such a slip for time credit. Respondent,
however, , introduced two such slips bearing Peek 's signature. - It is clear therefrom, and
the undersigned finds, that Peek did on at least two occasions , on October 25 and Novem-
ber 4 , respectively, turn in white slips and receive credit thereon for time lost on piece
work.
601248-45-vol. 57-89
.1394 DECISIONS OF NATIONAL LABOR. 'RELATIONS BOARD
rated-4 weeks-later, he was only 54"percent efficient: ' He was released when for
.the pay period of January 8, 1944, his seventh,-his efficiency rating was again
only 54.' The' record affords no further particulars regarding the termination
of his employment.
Stutzman testified that because of Peek's low efficiency rating of the pay
period ending December 3, he had Peek under his close personal observation
for several days:prior to the latter's discharge. He testified that' Peek was,
frequently absent from his machine and was absent several times' , in the few
hours immediately preceding his discharge. - He further testified that Peek's
attitude toward his job was one of .indifference. The undersigned found this
testimony to be,vague and unconvincing. ' Hames testified that at. first Peek
seemed to improve but that after reaching a certain ' stage of production, he
became indifferent and his efficiency decreased. " He also testified 'that Peek
was frequently absent from his job'; on cross-, examination he admitted ,that
Peek left his machine no more frequently than the other employees, but then
testified that Peek was gone longer than other employees and that he had timed
Peek's absences on at least two occasions when Peek was absent from his machine
for as much as half an hour. '
Admittedly there were occasions when an, employee was' justified in leaving
his machine during working hours,;-such as for,procuring tools. or having tools
sharpened, or 'for visiting the rest room. - Subsequent to Peek's, discharge, re-
spondent has established two rest periods on the day shift, of 10 minute each.
Both Hames and Stutzman admitted that Peek was not questioned concerning
his alleged absences from his machme'dvring the working hours 6 and was neither
warned 'nor reprimanded therefor prior to his discharge, except that Hames
gave Peek the usual instructions issued to all employees, that excessive absences
from the job during working hours would not be tolerated. 'On the' day that
Peek was discharged, he was engaged in day work and Hames did not observe him
at all having been 'transferred on this day, and possibly the prior day also, to
assist another set-up man. '
Peek denied that he was absent from his machine on the day of his discharge
four, , or five times as testified to by Stutzman, or that' he was gone as much
as half an hour. It was his undisputed testimony'that at no time prior to his
discharge, was he criticized for his low efficiency, or reprimanded or warned
regarding his efficiency or his alleged absences from his machine, by either Hames
or Stutzman. The undersigned credits this entire testimony.
Concluding Findings.
In the pay period preceding Stutzman's recommendation for a wage increase
for Peek, Peek's efficiency rating rose to 113 percent. The wage increase did not
actually become effective, however, until December, 4, at the end ;of a pay period
during which Peek's efficiency rating dropped to 56 percent. Nevertheless the
wage increase was not revoked. Between this date'and December 17, when he
was discharged, Peek for the first time began the solicitation of union member-
ships in respondent's' plant. During this period also his efficiency increased to
69.8 percent. On'the basis of the undisputed and credited testimony of Leach
and Jarboe, Stutzman's admission, that he had knowledge of organizational
The following is an excerpt from Stutzman's examination : '
Q. Now, this day when Mr. Peek was discharged you say you noticed him away from,
his job several times; did you make any inquiries as to where he had ,gone?
A. No. ' '
Q Did you know why'he was away?
A. No.
I
SERVEL, INC. .1395
activity within the department and his failure to deny that he had ,specific knowl-
edge ' of Peek 's participation in,this activity , the undersigned finds that at ands
prior , to the time he discharged Peek , Stutzman -knew that Peek was actively en--
-gaged in organizing the department . It is clear that Stutzman was. opposed to.
the unionization of Department 21,,and ,that in his conversations with Leach and:
Jarboe he'attempted to discourage 'them in their union activity . Jarboe had a
very high efficiency rating and .his•entive tenure of employment with respondent
covered a period of years ; Leach also was an old employee. Peek, however, was a•
comparatively new employee , and, according to Stutzman , was not entitled to,
seniority privileges which became effective only after 6 months of employment.
Among these , was an exit interview with the Personnel Director regarding
alleged unfair treatment , and a review of all the facts in the case before the
discharge became effective , before a Discharge Review Committee, including the
employee 's immediate supervisor and the head of his department . Admittedly,
Peek was accorded none of these privileges . It would appear therefrom, that
Stutzman could discharge Peek without the strict accountability for his action
which would be required in the case of an employee of more than 6 months tenure
of employment.
The testimony of both Stutzman and Hames to'the effect that during, the last
period of his employment , Peek's production remained at the same low level as
for the period ending December 3, is inconsistent . with the respondent's own,
records which , - as previously stated, . show an increased efficiency of 13 8, percent
over the December 3, figure. There is no basis in the record for concluding that
the testimony of these witiiesses as to the level of efficiency during Peek's last
pay period was based entirely on his performance on day work . Furthermore,
it is not credible that had Peek been absent from his machine to the extent indi-
cated in the testimony of Stutzman and Hames , or as indifferent in the per-
formance of his job, that neither of them would have questioned him concerning
his alleged ' absences , or reprimanded or warned him regarding them or his con
tinned low efficiency . Stutzman admitted that where efficiency was involved,
"Ordinarily we would talk to the employee , either I personally or one of my job
set-up men ." Admittedly neither Stutzman nor Hames, the set-up mangy talked
to Peek about his alleged absences or inefficiency . Bricker admitted that it was
hard to find replacements for employees engaged in work similar - to, that per-
formed by Peek at the time of his discharge , and Stutzman testified that he told
Peek' in November with reference to the continuity of the latter's work, that it
was difficult . keeping the required quota of employees . It would appear , there-
fore, that before ' discharging an employee engaged in war production , who could
be replaced only with difficulty, and in view of respondent 's, system of efficiency
ratings, that some effort would normally have been made to determine Peek's
actual rate of production as of the pay period immediately - preceding his dis-,
charge, before the'discharge was actually effected. Admittedly , no such effort
was made and Peek was summarily dismissed . Such summary action was also.
,inconsistent with Stutzman 's assurance given Peek less than a month previously,
that his work was satisfactory and that 'he might expect continuous employment
On the basis of the foregoing - and upon the entire record , the undersigned is.
convinced and finds, that the moving cause for Stutzman 's action in discharging
Peek, ,,without notice or warning , and prior.' to the end, "of his work shift on
December 17, was the latter's union affiliation and organizational efforts' among
the employees of Department 21. The'.undersigned further finds that Stutz-
man's'anti -union statements to Jarboe prior to Peek's discharge and particularly
his statement to Jarboe that respondent had "stool pigeons" and ' was ' thus
informed on the organizational activities of employees ;,his further , anti-union
1396 DECISIONS,OF NATIONAL.LABOR RELATIONS BOARD
,statements to Leach and particularly his denial of Leach's right .to engage in
union activities on company property without qualification as to working hours ;
and Assistant Foreman Altom's similar statement to Leach that the latter
was prohibited from engaging in union activities on company premises, are
attributable to the respondent, and, considered in relation to the discharge
of Carl Peek, constitute interference,- restraint, and coercion within the meaning
of Section 8 (1) of the Act. - '
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities 'of the, respondent set forth in Section III above, occurring
in connection with the operations described 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 of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, it will be recommended that it cease and desist from such
practices, and to effectuate the policies tof'the Act'it will Abe recommended that
the respondent post notices throughout the E. 'R. and A. C. Division of its
Evansville, Indiana plant, stating that it will not engage in the conduct from
which it is recommended that it cease and'desist.
The undersigned has found that on December 17, 1943, the respondent dis-
charged Carl L. Peek because of his union itffilthtion sand activities The ,under-
signed will recommend that respondent offer Carl L. Peek immediate and full
reinstatement to his former or substantially equivalent position without ,prej-
udice to his seniority and other rights and privileges, and that respondent
make Carl L. Peek whole for any loss of pay he may have suffered.by reason
of the discrimination against him,,by payment to him of a sum of money equal
to that which he normally would have earned as wages from December 17, 1943,
the date of his discriminatory discharge,- to the date of the, offer of reinstatement,
less his net eariiings' during said period.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUsIONs OF LAW
1. United Electrical, Radio & Machine `Yorkers of America, affiliated with the
Congress of Industrial Organizations, is a labor organization, within the meaning
of'Section 2 (5) of the,Aet.
2. By discriminating in regard to the hire and tenure of employment of Carl
L. Peek and thereby discouraging membership in a labor organization, the
I
I The violation involved is the same as where an employer has posted a rule prohibiting
union activities on company premises without qualifications as to the employee's own time,
See N. L. R B. v William Davies Co., 135 F. (2d) 179 (C.'C. A. 7) ; cert. denied 320 U. S.
770; Matter of Peyton Packing Company, 49 N. L. R. B,828.
. 1 By "net earnings" is meant earnings, less expenses, such as for transportation, room,
and board, incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge-and the consequent necessity of-his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood,of Carpenters and Joiners of America,
Lumber and Sawmill Workers, Local 2590, 8'N. L. R. B. 440. Monies received for Rork
performed upon Federal, State, county, municipal, or other work-relief projects shall be
considered as earnings. 'See Republic Steel, Corporation v. N. L. it. B., 311 U. S. 7.
SERVEL,,ZINC. 1397
respondent has engaged, in and is engaging , in unfair labor practices , within the
meaning of Section 8 (3) of the Act.
3: By interfering with , restraining, and coercing its employees in the exercise
of the rights guaranteed in. Section 7 of the At, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section-8 (1)
of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting-
commerce , within the meaning of Section , 2, (6) and ( 7) of the Act. '
RECOMMENDATIONS
Upon the basis of the' ,foregoing- findings, of fact and conclusions of law,, the
undersigned' recommends that the respondent , Serve] , Inc.,. its officers ,. agents,
successors , and assigns shall:
1. Cease and , desist from :
(a) Discouraging membership in United Electrical, Radio & Machine Workers
of America , affiliated with the Congress of Industrial Organizations , or any other
labor organization of its employees ; by discharging or refusing to, reinstate any
of its employees , or in any other manner discriminating in regard to their hire
or tenure of employment , or any term or condition of employment;,
(b) In any other manner interfering with ,' restraining , or coercing its em•'
ployees in the exercise of the 'right to self-organization , to form, join, or assist
labor organizations , to bargain collectively through representatives of their own,
choosing;. aid to engage , in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , as guaranteed in Section 7 of the Act-
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act.
(a) Offer to Carl L. Peek immediate and full reinstatement to his former or
substantially equivalent employment without prejudice to his seniority or other
rights and privileges;
(b) Make whole Carl L. Peek for any loss of pay he may have suffered by
reason of the discrimination against him , by payment to him of a sum of money,
equal to that which he normally would have earned as wages from December 17,
1943, the date of his discriminatory discharge , to the date of the respondent's"
offer of reinstatement , less his net earnings 9 during such period.
(c) Post immediately in conspicuous places throughout the E. R. and A. G.
Division of,its Evansville, Indiana .plant, and maintain for a period of at least
sixty ( 60) consecutive days from the (late of posting, notices to its employees
stating: ( 1) that the respondent will not engage in the conduct from which it is
recommended that it cease and desist in paragraphs 1 (a) and (b) of these recom-
mendations ; -(2) that the respondent will take the affirmative action set forth,
in paragraph 2 (a) and ( b) of these recommendations ; and (3 ) that the respond-
ent's employees are free to become or remain members of United Electrical,
Radio & Machine Workers of America, affiliated with the Congress of Industrial
Organizations, or any other labor organization of their choice, and that the
respondent will not discriminate against any employee because of membership
in_or activities on behalf of United Electrical, Radio & Machine Workers of
America, or any other labor organization;
(d) File with the Regional Director for the Fourteenth Region on or before
ten (10) days from the date of the receipt of this Intermediate Report, a report
in writing setting forth in detail the manner and form in which the respondent
has complied with the foregoing recommendations.
8 See footnote 7, supra.
1398 ' DECISION'S OF NATIONAL. LABOR RELATIONS BOARD
It is further 'recommended that 'unless on ort before ten ;(10)' days from the,
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33, of Article,II,of the Rules and Regulations of the.
National Labor Relations Board,' Series'3, effective'November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the, date of the entry
of the order transferring the case to the Board, pursuant to Section 32-of Article
II of said Rules and Regulations; file, with the Board, Rochambeau Building,
Washington, D. C., an original and four copies of a statement in writing setting
forth such exceptions to the Intermediate Report or to'any other part of the
record or proceeding (including rulings upon all motions or objections)' as he
relies upon, together with the original and four copies of a brief in support thereof.
Immediately upon the filing of such statement of exceptions and/or brief, the
party or 'counsel tor-the Board filing the same shall serve a copy thereof upon
each of the other parties and shall file a copy with the Regional Director. As
further provided in said Section 33, should any party, desire permission to argue
orally , before the Board , request therefor must be made in writing to the,Board
within ten (10) days from the date of the order- transferring the case to the
Board.
WILLIAM B. SPENCER,
Trial Examiner.
Dated June 1, 1944.